[Plaintiffs, Appellants] Plaintiff 1 and 37 others (Attorney: Samhan Law Firm, in charge of Attorney Kim Kwang-nyeon)
[Defendants, Appellees] ○○ Agricultural Cooperative and 9 others (Attorneys: Kim Ui-jae and 2 others)
[Judgment Below] Daegu High Court Decision 2001Na3536, decided December 5, 2001
[Order]
All appeals are dismissed. The costs of appeal are to be borne by the Plaintiffs.
[Reasoning]
1. Even where an employer, in amending the rules of employment (취업규칙) to the disadvantage of employees, has not obtained the consent of the employees through a collective decision-making method, since the authority to prepare and amend the rules of employment lies with the employer, the rules of employment currently having the effect of a legal norm are the amended rules of employment; provided that, with respect to existing employees whose vested interests are infringed, the former rules of employment shall apply only to them (see Supreme Court en banc Decision 91Da45165, decided December 22, 1992; Supreme Court Decision 95Da32631, decided December 23, 1996). Moreover, where the retirement allowance provisions within the rules of employment are amended to the disadvantage of existing employees, and a transitional provision in the addenda provides that, for periods of service prior to the amendment of the retirement allowance provisions, the former retirement allowance provisions shall apply, this does not violate the principle prohibiting differential retirement allowance systems as prescribed by the Labor Standards Act (근로기준법) (see the aforementioned decision and Supreme Court Decision 97Da14934, decided July 11, 1997, among others).
Accordingly, even for existing employees, so long as the amount of retirement allowance calculated pursuant to the amended retirement allowance provisions (both the main text and the transitional provision in the addenda), which currently have the effect of a legal norm, exceeds the amount of retirement allowance calculated under the former retirement allowance provisions, there is no infringement of vested interests, and such employees may only claim payment of the retirement allowance amount calculated under the amended retirement allowance provisions. It cannot be said that, merely because the application of the transitional provision in the addenda of the amended retirement allowance provisions has become disadvantageous to existing employees due to a change in the salary system, the application of said transitional provision may be excluded and payment of the retirement allowance amount calculated under the main text may be claimed instead.
To the extent it conflicts with the legal principle set forth above, Supreme Court Decision 99Da33823, decided December 28, 1999—which held that where a retirement allowance system is amended to the disadvantage of employees and the new retirement allowance system is uniformly applied to all employees, and a transitional provision is established to protect the vested interests of existing employees by providing that the former retirement allowance provisions shall apply to periods of service prior to the amendment, this likewise violates the principle prohibiting differential retirement allowance systems under the Labor Standards Act, such that where applying the main text of the amended retirement allowance provisions to the entire period of service, including the period prior to the amendment, would be more favorable to existing employees due to a change in the salary system, the transitional provision in the addenda does not apply—shall be modified.
2. The court below, based on the evidence it adopted, found as follows: the Defendants are all regional agricultural cooperatives established under the former Agricultural Cooperatives Act (농업협동조합법); from July 1, 1981, they amended and implemented Article 8, Paragraph 1 of the Employee Retirement Allowance Provisions, changing it from a flat-rate system, under which the retirement allowance amount is calculated by multiplying average wage by years of service, to a progressive system, under which the retirement allowance amount is calculated by multiplying the standard salary (standard wage) by the payment rate corresponding to years of service as set forth in the Employee Retirement Benefit Payment Rate Table attached to the judgment below (hereinafter abbreviated as the "progressive retirement rate"); in doing so, Article 2 of the Addenda established a transitional provision providing that, for existing employees, the former provisions shall apply to periods of service up to June 30, 1981, and the amended provisions shall apply to periods of service from July 1, 1981 until retirement. As of the time of the amendment, the standard salary was lower than the average wage, and moreover, the progressive retirement rate was equal to or only slightly higher than the years of service up to three years of service; therefore, although this amendment to the retirement allowance provisions was disadvantageous to existing employees who retired within three years after the amendment, the Defendants did not undergo a procedure to obtain employees' consent in amending the rules of employment containing the aforementioned retirement allowance provisions. It was further found that, at the time of retirement, the Plaintiffs all received retirement allowance amounts calculated pursuant to the aforementioned amended retirement allowance provisions (the main text and the transitional provision in the addenda) {(A: years of service before the amendment × average wage) + (B: progressive retirement rate corresponding to years of service after the amendment × standard salary)}. Based on these findings, the court below determined as follows: since all the Plaintiffs joined the Defendant cooperatives before the amendment of the retirement allowance provisions at issue in this case, and retired between June 30, 1997 and November 13, 2000—well over three years after the date of the amendment of the provisions—and since, in the meantime, due to changes in the salary system, calculating the retirement allowance amount pursuant to the main text of the amended retirement allowance provisions became more favorable to the Plaintiffs, the transitional provision in the addenda of the amended provisions should be excluded from application to the Plaintiffs, and instead, pursuant to the main text, Article 8, Paragraph 1, the retirement allowance amount (C) should be calculated by multiplying the standard salary by the progressive retirement rate corresponding to the entire period of service, including the period of service prior to the amendment, and the amount already received (A+B) should be deducted therefrom, with the resulting difference to be additionally paid. The court below rejected all of the Plaintiffs' claims in this case seeking such additional payment.
The determination of the court below, being in accordance with the legal principles set forth above, is proper, and there is no error of law, such as a misapprehension of the legal principles concerning the principle prohibiting differential retirement allowance systems or the interpretation of the transitional provision in the addenda of the retirement allowance provisions at issue in this case, as alleged in the grounds of appeal. The arguments in the grounds of appeal cannot be accepted.
3. Therefore, all appeals are dismissed, and the costs of appeal shall be borne by the losing parties, and it is so decided as set forth in the Order. The opinions of the participating Justices are unanimous, except for the dissenting opinion of Justice Yoon Jae-sik set forth in Paragraph 4 below with respect to this judgment, and the majority opinion includes a supplementary opinion by Justice Bae Ki-won as set forth in Paragraph 5 below.
4. The dissenting opinion of Justice Yoon Jae-sik is as follows.
A. Article 28, Paragraph 2 of the former Labor Standards Act (amended by Act No. 3349 on December 31, 1980, before its full revision by Act No. 5309 on March 13, 1997; hereinafter the "Act") provides that, in establishing a retirement allowance system, a differential system shall not be established within a single business. The legislative purpose of this provision is to prohibit discrimination through the establishment of differing retirement allowance systems by job type, position, or industry within a single business, and to require the application of a single retirement allowance system; accordingly, establishing a retirement allowance system that differentiates payment rates according to an employee's date of hire is likewise prohibited (see Supreme Court Decision 2002Da2287, decided June 25, 2002; Supreme Court Decision 2001Da77970, decided June 28, 2002; Supreme Court Decision 2001Da24167, decided June 13, 2003).
However, if, as the majority opinion holds, both the main text of the amended retirement allowance provisions at issue in this case and the transitional provision in the addenda have the current effect of a legal norm, and the transitional provision in the addenda always applies to existing employees regardless of whether it is favorable or unfavorable to them, then the amended retirement allowance provisions establish both a retirement allowance system under the main text applicable to all employees, including existing employees, and a retirement allowance system under the transitional provision in the addenda applicable only to existing employees, with the result that employees ultimately become subject to different retirement allowance systems depending on their date of hire. Therefore, the amended retirement allowance provisions cannot but be held to violate the principle prohibiting differential retirement allowance systems prescribed in Article 28, Paragraph 2 of the Act.
Furthermore, the majority opinion conflicts with the above-cited Supreme Court precedents, which held that where, upon amending retirement allowance provisions, a provision is established stating that the retirement allowance of employees hired before a certain date shall be paid pursuant to the pre-amendment retirement allowance provisions, but that the provisions in effect at the time of retirement shall apply if more favorable, such retirement allowance provisions, since they prescribe different methods of calculating retirement allowances for those hired before and after a certain date, constitute the establishment of a retirement allowance system that differentiates according to the employee's date of hire, and are therefore invalid as violative of Article 28, Paragraph 2 of the Act.
B. (1) The majority opinion appears to base its holding that the retirement allowance provisions at issue in this case do not violate the principle prohibiting differential retirement allowance systems on Supreme Court en banc Decision 91Da45165, decided December 22, 1992, and Supreme Court Decision 97Da14934, decided July 11, 1997, which held that even where an employer, in amending the rules of employment to the disadvantage of employees, has not obtained the consent of the employees through a collective decision-making method, since the authority to prepare and amend the rules of employment lies with the employer, the rules of employment currently having the effect of a legal norm are the amended rules of employment, and the former rules of employment apply only to existing employees whose vested interests are infringed.
However, the above en banc decision held that, where the former rules of employment apply to existing employees because the employer failed to obtain the consent of the employees through a collective decision-making method in amending the rules of employment to their disadvantage, although it may appear that the amended rules of employment and the former rules of employment coexist, in fact, the rules of employment currently having the effect of a legal norm are the amended rules of employment, and the former rules of employment apply only within the scope in which their effect does not extend due to the infringement of vested interests in relation to existing employees; therefore, this cannot be viewed as equivalent to having two or more sets of rules of employment within a single business. First, on its face, the retirement allowance provisions under the amended rules of employment at issue in the above en banc decision, unlike the amended retirement allowance provisions at issue in this case, did not include a transitional provision limiting their application to existing employees in terms of their form; moreover, in terms of interpretation, the above decision held that the retirement allowance provisions currently having the effect of a legal norm consist solely of the single retirement allowance provision under the amended rules of employment, whereas in this case, the majority opinion holds that both the main text of the amended retirement allowance provisions and the transitional provision in the addenda currently have the effect of a legal norm, revealing a difference from the case at hand. Furthermore, the above Decision 97Da14934, in a case involving a transitional provision with the same content as the transitional provision in the addenda of the retirement allowance provisions at issue in this case established upon amending retirement allowance provisions, held—contrary to the majority opinion's view—that the retirement allowance provisions currently having the effect of a legal norm consist solely of the provisions in the main text, and the provisions in the addenda are merely transitional provisions that cannot be regarded as a separate retirement allowance system distinct from the main text, such that no issue of violation of the principle prohibiting differential retirement allowance systems arises; therefore, this decision likewise cannot serve as a logical basis or precedent regarding whether the amended retirement allowance provisions violate the principle prohibiting differential retirement allowance systems.
(2) Even if the above en banc case is regarded as identical in content to this case, notwithstanding differences in expression in the interpretation and application of the law, the above en banc decision should, for the following reasons, rather be modified, and should not be relied upon as it stands in this case.
(A) First, I cannot agree with the holding of the majority opinion in the above en banc decision that "the rules of employment currently having the effect of a legal norm are the amended rules of employment, and the former rules of employment apply only within the scope in which their effect does not extend due to the infringement of vested interests in relation to existing employees, such that this cannot be viewed as equivalent to having two or more sets of rules of employment within a single business."
As the majority opinion in the above decision itself states, if, "where an employer amends the working conditions set forth in the rules of employment to the disadvantage of employees without obtaining their consent, the effect of the amendment does not extend to existing employees whose vested interests are infringed by the amendment, such that the effect of the former rules of employment is maintained as is," it is not understandable why this cannot have the effect of a legal norm currently in force, nor is it understandable what the difference is between having the current effect of a legal norm and being applied without having the current effect of a legal norm. In the end, I believe this amounts to nothing more than expressing the same purport in different terms and then asserting that they are different.
(B) The reason the majority opinion in the above en banc decision developed such an unclear line of reasoning appears to be that, pursuant to Article 95 of the Act, an employer, in preparing or amending the rules of employment, is subject to the constraint of having to hear the opinion of the labor union or a majority of the employees, and in particular, of having to obtain consent when amending them to the disadvantage of employees; and it is the consistent view of this Court that the consent required of employees when amending existing working conditions to their disadvantage must be consent obtained through the employees' collective decision-making method, and that an amendment to the rules of employment without obtaining such consent is invalid (see Supreme Court Decision 77Da355, decided July 26, 1977; Supreme Court Decision 87Daka2578, decided May 10, 1988; Supreme Court Decision 90Da15952, 15969, 15976, decided February 12, 1991, among others). It appears that policy considerations came into play with respect to cases where, although the amendment of the rules of employment is deemed genuinely necessary due to various circumstances, the consent of employees through a collective decision-making method cannot in practice be obtained.
However, even in such difficult circumstances, it is, in principle, not permissible for an employer to unilaterally deprive employees of vested rights or interests and impose disadvantageous working conditions through the unilateral preparation or amendment of new rules of employment; provided that, where it is recognized that, considering both the necessity for and the content of the preparation or amendment of the rules of employment at issue, as well as the degree of disadvantage to be suffered by employees thereby, there is nonetheless reasonableness in light of generally accepted social norms sufficient to acknowledge the normative character of the provision at issue as law, the application of the amended provision cannot be denied solely on the ground that the employees who had been subject to the former working conditions or rules of employment did not give consent through a collective decision-making method (see Supreme Court Decision 2001Da16722, decided June 11, 2002; meanwhile, the existence of reasonableness in light of generally accepted social norms as referred to herein must be determined by comprehensively considering the degree of disadvantage to be suffered by employees due to the amendment of the rules of employment, the content and degree of necessity for amendment on the employer's side, the appropriateness of the content of the amended rules of employment, the状況 of improvement in other related working conditions such as compensatory measures, the course of negotiations with the labor union and the response of the labor union or other employees, and the general domestic circumstances regarding matters of the same kind). Where such reasonableness exists, the effect of the provision should be affirmed accordingly; it would be improper to develop a line of reasoning that treats even differing retirement allowance provisions, which the Labor Standards Act prohibits, as valid, merely on the ground that both of the two sets of rules of employment concerning retirement allowances are valid.
(C) Next, insofar as retirement allowance provisions are concerned, the holding of the majority opinion in the above en banc decision that, because the employer has the authority to prepare and amend the rules of employment, "where an employer amends the working conditions set forth in the rules of employment to the disadvantage of employees without obtaining their consent, the effect of the amendment does not extend to existing employees whose vested interests are infringed by the amendment, such that the effect of the former rules of employment is maintained as is, but as to employees who accepted the working conditions under the amended rules of employment and entered into an employment relationship thereafter, the amended rules of employment should naturally apply" amounts to establishing two retirement allowance systems within a single workplace, and the amended rules of employment, to this extent, should be deemed invalid as violative of the principle prohibiting differential retirement allowance systems; the conclusion cannot be otherwise merely because the employer has the authority to prepare and amend the rules of employment.
C. (1) As set forth above, if, as the majority opinion holds, the amended retirement allowance provisions—both the main text and the provisions in the addenda—have the effect of a legal norm as retirement allowance provisions, and always apply to existing employees regardless of whether favorable or unfavorable, then employees would ultimately be subject to different retirement allowance systems depending on their date of hire, such that the amended retirement allowance provisions would violate the principle prohibiting differential retirement allowance systems; in this case, since the amended retirement allowance provisions were amended after the entry into force of the provision prohibiting differential retirement allowance systems, they would be without effect, and the retirement allowance system within the Defendants' workplaces could only be regarded as governed by the pre-amendment retirement allowance provisions. Such an interpretation, however, contravenes the principle that a provision should, wherever possible, be interpreted so as to be lawful, and would bring about an unjust result contrary not only to the intent of the parties but also to the labor-management practice under which the amended retirement allowance provisions have been implemented for over twenty years.
Therefore, it is reasonable and desirable to interpret the retirement allowance system prescribed by the amended retirement allowance provisions as consisting solely of what is provided in the main text, with Article 2 of the Addenda being merely a transitional provision that cannot be regarded as constituting a separate retirement allowance system distinct from the main text; and to hold, with respect to existing employees including the Plaintiffs as well, that the retirement allowance provisions having the effect of a legal norm consist solely of the main text of the amended retirement allowance provisions, while Article 2 of the Addenda, as a transitional provision intended to protect the vested interests of existing employees, applies only within that limit—that is, only in cases where, upon comparing the pre- and post-amendment retirement allowance provisions, its application proves favorable—thereby interpreting the said provision as valid. (Even accepting that Article 2 of the Addenda is a transitional provision intended to protect the vested interests of existing employees, there may be a view that this still violates the principle prohibiting differential retirement allowance systems; however, in this case, where the three-year period during which the infringement of vested interests might raise an issue regarding the application of Article 2 of the Addenda has long since elapsed such that only the provisions of the main text now apply, and it appears that, in practice, only the provisions of the main text apply to the vast majority of employees, there is no room for the issue of violation of the principle prohibiting differential retirement allowance systems to arise.)
(2) The view, as held by the majority opinion, that both the main text and the transitional provision in the addenda of the amended retirement allowance provisions at issue in this case currently have the effect of a legal norm as retirement allowance provisions, and that the transitional provision in the addenda always applies to existing employees regardless of whether favorable or unfavorable, also appears to be contrary to the form of the provision itself. This is because, if a provision were intended to always apply with binding effect regardless of whether favorable or unfavorable, there would be no need to set it forth separately in the addenda, as it could simply be included together in the main text.
(3) The majority opinion holds that, so long as the amount of retirement allowance calculated pursuant to the main text of the amended retirement allowance provisions and the transitional provision in the addenda exceeds the amount of retirement allowance calculated under the former retirement allowance provisions, the transitional provision in the addenda must be applied even where it proves unfavorable to existing employees. However, this view of the majority opinion cannot but be said to contravene the purport of, and the intent of the parties in establishing, the transitional provision in the addenda of the amended retirement allowance provisions—which was designed to remedy the disadvantage that existing employees would suffer due to the amendment of the retirement allowance provisions by protecting their vested interests—by instead bringing about a result whereby existing employees suffer disadvantage. This result is also unjust when compared with a hypothetical case in which the retirement allowance provisions were amended to the disadvantage of existing employees without their consent and without a transitional provision to protect vested interests, but the amended retirement allowance provisions later became favorable and were accordingly applied.
D. Nevertheless, the court below rejected the Plaintiffs' argument that the transitional provision in the addenda of the amended retirement allowance provisions should be excluded from application to the Plaintiffs and that retirement allowances calculated pursuant to the main text should be paid to them; this constitutes an error of misapprehending the legal principles concerning the principle prohibiting differential retirement allowance systems and the interpretation of the transitional provision in the addenda of the amended retirement allowance provisions. Accordingly, the argument in the grounds of appeal pointing out this error has merit, and the judgment below should be reversed, while the decision that the majority opinion seeks to modify should properly be maintained as is.
5. The supplementary opinion of Justice Bae Ki-won, supporting the majority opinion, is as follows.
The majority opinion holds that, while establishing a retirement allowance system that differentiates payment rates according to an employee's date of hire violates the principle prohibiting differential retirement allowance systems, amending the retirement allowance system to the disadvantage of employees and applying the new retirement allowance system uniformly to all employees, while establishing a transitional provision to protect the vested interests of existing employees by providing that the former retirement allowance provisions shall apply to periods of service prior to the amendment, is reasonable and does not violate the principle prohibiting differential retirement allowance systems. The three Supreme Court decisions that the dissenting opinion claims conflict with the majority opinion (Supreme Court Decision 2002Da2287, decided June 25, 2002; Supreme Court Decision 2001Da77970, decided June 28, 2002; Supreme Court Decision 2001Da24167, decided June 13, 2003) all concerned a case in which a specific company, after amending its retirement allowance provisions in 1980, again amended the retirement allowance provisions on November 29, 1995, this time applying the pre-1980-amendment retirement allowance provisions to those hired before 1980 and the post-1980-amendment retirement allowance provisions to those hired after 1980, thereby subsequently creating multiple retirement allowance systems with entirely different payment rates depending on the timing of hire; these decisions held such an arrangement to be invalid. Even under the majority opinion, this should likewise be held invalid as violative of the principle prohibiting differential retirement allowance systems; therefore, the above decisions do not conflict with the majority opinion.
Chief Justice Choi Jong-young (Presiding Justice), Justice Cho Mu-je, Justice Byun Jae-seung, Justice Yu Ji-dam, Justice Yoon Jae-sik, Justice Lee Yong-woo, Justice Bae Ki-won (Justice in charge), Justice Kang Shin-wook, Justice Lee Kyu-hong, Justice Lee Kang-kook, Justice Park Jae-yoon, Justice Ko Hyun-cheol, Justice Kim Yong-dam