[Plaintiffs, Appellee and Appellant] Plaintiff 1 and 1 other (Attorney Jang Bong-seon for the Plaintiffs)
[Defendant, Appellant and Appellee] ○○○○○○ Research Institute, a foundation (Attorneys Kim Ki-seop and 1 other for the Defendant)
[Judgment Below] Seoul High Court Decision 2000Na32026 rendered on February 6, 2001
[Order]
The part of the judgment below against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court. The Plaintiffs' appeal is dismissed.
[Reasoning]
1. Summary of the Judgment Below
A. The judgment of the first instance, as cited by the court below, found the following facts based on the evidence it adopted.
(1) Plaintiff 1 joined the Defendant Institute on April 6, 1968, worked continuously for 28 years and 25 days, and resigned on April 30, 1996, and Plaintiff 2 joined on May 10, 1967, worked continuously for 29 years, 6 months and 21 days, and resigned on November 30, 1996.
(2) Around July 9, 1980, the Defendant Institute received from the Commissioner of the Office of Industrial Advancement (the supervisory authority) a directive on the adjustment plan for the retirement allowance payment rate according to years of continuous service for its officers and employees, and accordingly amended the salary regulations to lower the retirement allowance payment rate, retroactively effective as of July 1, 1980 (hereinafter referred to as the "First Amendment"). Around January 23, 1981, the Defendant Institute again received from the Commissioner of the Office of Industrial Advancement a directive on the plan to lower the retirement allowance payment rate for its officers and employees, and amended the salary regulations to lower it retroactively effective as of January 1, 1981 (hereinafter referred to as the "Second Amendment").
(3) Article 19, Paragraph 2 of the salary regulations as amended by the Second Amendment provides: "In calculating an employee's retirement allowance, the standard salary shall be the sum of the base salary, various allowances (allowances paid to all employees on a monthly fixed-amount basis: special allowance, overtime allowance, holiday allowance, monthly allowance, and annual allowance), and bonuses."
(4) At the time of the Plaintiffs' retirement, the Defendant Institute calculated the standard salary as the sum of the base salary, the average of overtime allowance, monthly allowance, and lunch allowance for the three months preceding retirement, one month's worth of annual allowance, and the monthly average bonus over one year, and, with respect to the payment rate according to years of continuous service, calculated the retirement allowance by applying the payment rate under the regulations prior to amendment for the period from the date of joining to June 30, 1980, the payment rate under the First Amendment for the period from July 1, 1980 to December 31, 1980, and the payment rate under the Second Amendment for the period from January 1, 1981 to the date of retirement, pursuant to the supplementary provisions of the salary regulations as amended by the Second Amendment.
B. The court below held that the various allowances enumerated as being included in the standard salary under Article 19, Paragraph 2 of the above salary regulations were merely illustrative, and, on the premise that allowances paid by the Defendant Institute to all employees on a monthly fixed-amount basis should be included in the standard salary, determined that the special bonus, long-service allowance, physical fitness allowance, filial piety leave allowance, household subsidy, and commuting subsidy were all paid to all employees on a monthly fixed-amount basis and should therefore be included in the standard salary, while the special performance-based bonus and the children's tuition subsidy allowance could not be included in the standard salary.
2. Determination on the Defendant's Grounds of Appeal
A. As to the First Ground
Where the salary regulations of a business establishment specify the wages that constitute the basis for calculating retirement allowances, whether a particular payment is included therein is to be determined by objective interpretation of such regulations, and in interpreting them, the payment practice of the business establishment based on such regulations, the background and content of amendments to such regulations, and other various circumstances must be comprehensively examined to ascertain their meaning (see Supreme Court Decision 99Da45376 rendered on September 29, 2000; Supreme Court Decision 99Da71276 rendered on March 27, 2001, etc.).
Upon examination of the record, the following facts are found: Under the salary regulations prior to the First Amendment, the standard salary amount for calculating retirement allowances was defined as the monthly amount obtained by dividing the total amount of salary paid during the three months preceding the date on which the cause for calculation arose (including bonuses) by the total number of days in that period; however, the First Amendment defined the standard salary for calculating retirement allowances as the base salary at the time of retirement (basic pay, position allowance, and long-service allowance) plus the monthly average bonus, and the Second Amendment redefined it, as in the current regulations, as the sum of the base salary, various allowances (allowances paid to all employees on a monthly fixed-amount basis: special allowance, overtime allowance, holiday allowance, monthly allowance, and annual allowance), and bonuses; the amendment of the above regulations was made as part of an effort to overcome the financial difficulties of the Defendant Institute, which was aggravated at the time because the retirement allowance reserve fund fell short of even half of the standard amount, while inspection fees—which constituted the Defendant Institute's entire revenue—declined due to government measures such as the expansion of exemptions from export inspections and the reduction of inspection fee rates; meanwhile, despite the fact that the current Article 19, Paragraph 2 of the salary regulations does not expressly enumerate it, the Defendant Institute included a lunch allowance of 87,500 won per month in calculating the Plaintiffs' retirement allowances; and, according to the Defendant Institute's salary regulations, the overtime allowance, holiday allowance, monthly allowance, and annual allowance cannot be regarded as allowances paid to all employees on a monthly fixed-amount basis, and, apart from these allowances, the regulations provide for technical allowance, national technical qualification allowance, skill allowance, cashier allowance, resident allowance, night duty allowance, other allowances (computer allowance, civil petition allowance), family allowance, children's tuition subsidy allowance, and long-service allowance, but contain no provision regarding a "special allowance." In light of these circumstances, it is reasonable to interpret the scope of the various allowances included in the standard salary for calculating retirement allowances under Article 19, Paragraph 2 of the above salary regulations as encompassing allowances paid to all employees on a monthly fixed-amount basis, as well as overtime allowance, holiday allowance, monthly allowance, and annual allowance. Accordingly, the long-service allowance, household subsidy, and commuting subsidy, which were paid to all employees on a monthly fixed-amount basis pursuant to the salary regulations and the wage agreement between labor and management, should be included in the standard salary for calculating retirement allowances.
Therefore, the judgment below's determination including the long-service allowance, household subsidy, and commuting subsidy in the standard salary for calculating retirement allowances under the Defendant Institute's salary regulations is justified, and there is no error such as incomplete deliberation as alleged in the grounds of appeal.
However, upon examination of the record, the physical fitness allowance was paid at 200% of the base salary, divided into two or three payments per year, and the filial piety leave allowance was paid twice a year, in the months of the Lunar New Year and Chuseok holidays; these cannot be regarded as allowances paid on a monthly fixed-amount basis and therefore cannot be included in the standard salary for calculating retirement allowances as defined in the above salary regulations.
Nevertheless, the court below included the physical fitness allowance and the filial piety leave allowance in the standard salary for calculating retirement allowances; this constitutes an error of misapprehending the facts due to incomplete deliberation, or of misinterpreting Article 19, Paragraph 2 of the above salary regulations, and it is clear that this error affected the judgment. Therefore, the portion of the Defendant's grounds of appeal pointing this out is well-founded.
B. As to the Second Ground
The judgment of the first instance, as cited by the court below, addressed the Defendant's argument that, since Article 19, Paragraph 6 of the salary regulations provides that "salary other than the regular bonus shall not be included in the basis for calculating retirement allowances," the special bonus, not being a regular bonus, should be excluded from the standard salary. The court below found, based on the evidence it adopted, that the above provision did not exist as of the time of the labor-management consultation on the amendment of the salary regulations on December 13, 1990, and thus is presumed to have been newly established after the December 13, 1990 labor-management consultation; since this constitutes a change disadvantageous to employees, and since, in this case, there is no allegation or proof by the Defendant that there was consent through the employees' collective decision-making process regarding the establishment of the above provision, the court below rejected the Defendant's above argument on the ground that the above provision does not apply to the Plaintiffs.
In principle, it is not permissible for an employer to unilaterally deprive employees of vested rights or interests and impose disadvantageous working conditions through the unilateral drafting or amendment of new employment rules; however, where the drafting or amendment of the employment rules in question is recognized as having reasonableness under generally accepted social norms, to the extent that the legal normative character of the provision in question can still be affirmed even considering the degree of disadvantage the employees would suffer as a result thereof, in light of both the necessity for and the content of such amendment, the application of the provision to employees who were subject to the previous working conditions or employment rules cannot be denied solely on the ground that there was no consent through their collective decision-making process. Meanwhile, whether there is reasonableness under generally accepted social norms in this context must be determined by comprehensively considering the degree of disadvantage employees would suffer due to the amendment of the employment rules, the content and degree of the necessity for amendment on the employer's side, the appropriateness of the content of the employment rules after amendment, the status of improvement in other related working conditions such as compensatory measures, the process of negotiation with the labor union, etc., and the response of the labor union or other employees, and the general domestic situation regarding similar matters.
Upon examination of the record, the following circumstances are noted: the progressive rate for the payment of retirement allowances at the Defendant Institute was excessively high, such that even excluding the special bonus, etc. from the standard salary constituting the basis for calculating retirement allowances, the amount still far exceeds the retirement allowance amount calculated under the Labor Standards Act (근로기준법); the Defendant, as an institution under the Office of Industrial Advancement, is required under its articles of incorporation to report to the Commissioner of the Office of Industrial Advancement, the supervisory authority, regarding the enactment and amendment of salary regulations, etc.; the Defendant Institute's labor union had agreed, on December 13, 1990, to the amendment of the salary regulations concerning the calculation of retirement allowances; and the Defendant Institute has, every year since then, raised the base salary, etc. through wage agreements with the labor union. In light of these circumstances, it appears likely that the Defendant Institute's labor union was also involved in the amendment of the salary regulations after the December 13, 1990 labor-management consultation. Accordingly, the court below should have examined the timing and background of the establishment of Article 19, Paragraph 6 of the salary regulations, and should have examined the necessity for establishing the above provision, the degree of disadvantage suffered by employees as a result thereof, the compensatory measures taken accordingly and the status of improvement in other working conditions, the process of negotiation with the labor union, and other matters, in order to determine whether there was reasonableness under generally accepted social norms in establishing the above provision. Nevertheless, the court below denied the application of the above provision to the Plaintiffs solely on the ground that there was no allegation or proof that the labor union had consented; this constitutes an error of misapprehending the facts due to incomplete deliberation, or of misinterpreting Article 19, Paragraph 6 of the above salary regulations, and it is clear that this error affected the judgment. Therefore, the portion of the Defendant's grounds of appeal pointing this out is well-founded.
3. Determination on the Plaintiffs' Grounds of Appeal
A. As to the Special Performance-Based Bonus
Where a bonus is paid continuously and periodically and the amount to be paid is fixed, it has the character of wages paid as consideration for labor; however, where the occurrence of the cause for payment is uncertain and the payment is made on a one-time basis, it cannot be regarded as wages. Furthermore, whether such a bonus may be included in the average wage constituting the basis for calculating retirement allowances must, absent special circumstances, be determined as of the time of retirement (see Supreme Court Decision 97Da18936 rendered on January 20, 1998).
Upon examination of the record, the following is found: the Plaintiffs received a special performance-based bonus equivalent to 100% of the base salary at the end of 1995; and, with respect to the special performance-based bonus to be paid in 1996, the 1996 wage agreement concluded between labor and management on November 21, 1995 provided that, if the 1996 business plan targets were exceeded, a special bonus corresponding to the amount of such excess would be separately paid without exception; however, this provision not only imposed a condition that payment be made only when the business plan targets were exceeded, but also failed to specify any concrete payment criteria, amount, or timing of payment, and thus cannot be regarded as having fixed the payment. Accordingly, as of the time of the Plaintiffs' retirement, the special performance-based bonus for 1995 had been paid only once, and it was uncertain whether such bonus would continue to be paid in the future; therefore, it cannot be regarded as having been paid continuously and periodically so as to have the character of wages, and thus cannot be considered a bonus included in the standard salary for calculating retirement allowances as defined in the salary regulations.
Therefore, the judgment below's determination excluding the special performance-based bonus from the standard salary is justified, and there is no error of misapprehending the applicable law regarding the special performance-based bonus.
B. As to the Children's Tuition Subsidy Allowance
According to the reasoning of the judgment below, the court below determined that the children's tuition subsidy allowance, which is paid quarterly within budgetary limits to employees having children enrolled in middle or high school under the salary regulations, does not constitute an allowance paid to all employees on a monthly fixed-amount basis, and therefore is not included in the standard salary for calculating retirement allowances as defined in the salary regulations. The above determination by the court below is justified, and there is no error of misapprehending the applicable law regarding the children's tuition subsidy allowance.
4. Accordingly, the portion of the Defendant's grounds of appeal is partially accepted, the portion of the judgment below against the Defendant is reversed, and that part of the case is remanded to the court below for further deliberation and judgment; the Plaintiffs' appeal is dismissed. This judgment is rendered as set forth in the Order by the unanimous opinion of the participating Justices.
Justice Park Jae-yun (Presiding Justice), Seo Seong, Lee Yong-woo (Justice in Charge), Bae Ki-won