[Plaintiffs, Appellants]
[Defendant, Appellee] Korea Broadcasting System (Attorney Han Gyeong-guk, Counsel for the Defendant)
[Judgment Below] Seoul High Court Decision 95Na46632 delivered on November 12, 1996
[Order]
All appeals are dismissed. The costs of appeal shall be borne by the Plaintiffs.
[Reasoning]
The grounds of appeal are examined.
1. Regarding Grounds of Appeal Nos. 1 and 2, and the portion of the supplementary brief on grounds of appeal (submitted after expiration of the period for submission of the grounds of appeal brief, hereinafter referred to as the "supplementary grounds of appeal") that supplements Ground of Appeal No. 1
A. According to the reasoning of the judgment below and the reasoning of the first instance judgment cited by the court below, the facts found by the court below are as follows.
(1) Under the Defendant Corporation's Remuneration Regulations dated March 13, 1973, when an employee retired after having worked for one year or more, retirement pay was to be paid in an amount calculated by multiplying the base pay and position allowance at the time of retirement by the retirement pay rate set forth in Item 1 of the Attachment to the first instance judgment (hereinafter referred to as the "Attachment"), and in calculating years of continuous service, fractions of less than one year were to be rounded up to one year if six months or more, and disregarded if less than six months. The above Remuneration Regulations were amended on February 26, 1976, whereby the calculation of years of continuous service remained the same as before, but the retirement pay upon an employee's retirement was to be an amount calculated by multiplying the monthly average remuneration at the time of retirement by the retirement pay rate set forth in Item 2 of the Attachment, thus revising the standard wage for calculating retirement pay in a manner more favorable to employees than before. Thereafter, the above Remuneration Regulations were amended several times, and were amended again by resolution of the board of directors on January 27, 1981, whereby an employee's retirement pay was to be calculated by adding together the basic pay and various allowances and bonuses paid monthly in fixed amounts to all employees among the remuneration at the time of retirement to determine the standard wage, and multiplying the standard wage by the number of months for payment of retirement pay set forth in Item 4 of the Attachment, provided that for those who joined before December 31, 1980, retirement pay was to be calculated by multiplying the standard wage at the time of retirement by the number of months for payment as stated in the relevant part of the judgment, such that both the standard wage for calculating retirement pay and the payment rate were amended to be less favorable to employees than under the Remuneration Regulations dated February 26, 1976. However, when the Defendant Corporation amended the Remuneration Regulations concerning payment of retirement pay from the Remuneration Regulations dated February 26, 1976 to the Remuneration Regulations dated January 27, 1981, it did not obtain the consent of the employees through a method of collective decision-making, and as a result, in Supreme Court Decision 91Da46922 delivered on September 14, 1992 and Supreme Court Decision 93Da39761 delivered on January 15, 1993, it was held to the effect that the Remuneration Regulations dated January 27, 1981 were invalid because the provisions, which had been amended to the disadvantage of the employees who had been subject to the existing regulations, had not obtained the consent of said employees through a method of collective decision-making.
(2) Accordingly, the labor and management sides of the Defendant Corporation began earnest labor-management consultations concerning the retirement pay system from around June 8, 1993, and after negotiating through 11 general meetings and 14 subcommittee meetings held until June 30, 1994, the Defendant Corporation and the labor union of the Defendant Corporation reached an agreement on June 30, 1994 regarding a partial amendment to the collective bargaining agreement. According to this agreement, for union members who had joined before January 26, 1981 and remained in service, retirement pay for the period up to December 31, 1991 was to be paid by multiplying the sum of the basic pay, position allowance, bonus, annual leave allowance, and monthly leave allowance received at the time of retirement by the retirement pay rate set forth in Item 3 of the Attachment, and for the period thereafter until retirement, by the retirement pay rate set forth in Item 4 of the Attachment; provided, however, that for union members who joined before January 26, 1981 and retired before December 31, 1994, retirement pay was to be paid by multiplying the sum of the basic pay, position allowance, bonus, welfare expenses, monthly leave allowance, long-term service allowance, and meal expenses received at the time of retirement by the retirement pay rate set forth in Item 3 of the Attachment, thus specifically differentiating the scope of items included in the standard wage for calculating retirement pay depending on the time of retirement. On July 16, 1994, the labor and management sides of the Defendant Corporation reached full agreement on the detailed matters of the above collective bargaining agreement, and pursuant to the above agreement, the Defendant Corporation partially amended the above Remuneration Regulations on July 27, 1994 to amend the retirement pay payment regulations to have the same content as the above collective bargaining agreement.
(3) The labor union of the Defendant Corporation is the sole labor union of the Defendant Corporation and is organized by more than a majority of the employees. As of June 30, 1994, the total number of employees of the Defendant Corporation was 6,121, of which 2,983, or 40.74%, were employees who had joined before January 26, 1981; the total number of union members of the labor union of the Defendant Corporation was 4,278, of which 1,728, or 40.39%, were employees who had joined before January 26, 1981.
B. Having found the above facts, the first instance court cited by the court below determined that since the amendment of the Remuneration Regulations dated January 27, 1981 was invalid, the Defendant Corporation, in order to remedy this, concluded the collective bargaining agreement on June 30, 1994 with the labor union, which was composed of a majority of the employees who knew that the above Remuneration Regulations were invalid, and based thereon amended the above Remuneration Regulations on July 27, 1994 and agreed to apply them retroactively; therefore, even though the above collective bargaining agreement or the Remuneration Regulations dated July 27, 1994 were disadvantageous to employees who were subject to the Remuneration Regulations dated February 26, 1976, the above Remuneration Regulations dated July 27, 1994 are valid, and the agreement to apply the said regulations retroactively is also valid, and thus determined that the Plaintiffs' retirement pay should properly be calculated in accordance with the amended Remuneration Regulations.
C. Working conditions are originally to be determined by the free will of the employee and the employer on an equal footing (Article 3 of the Labor Standards Act (근로기준법)); accordingly, while it is not permissible for the employer unilaterally to change existing working conditions to the disadvantage of employees, such a change should be permitted if the consent of the employees is obtained, and this holds true even where the change is applied retroactively. Moreover, in order for the employer to change the content of existing working conditions to the disadvantage of employees by amending the rules of employment, the consent of the group of employees who were subject to the previous rules of employment must be obtained through the method of collective decision-making of that group; the method of such consent, where there is a labor union organized by a majority of the employees, requires the consent of that union, and where there is no such union, requires the consent of a majority of the employees obtained through a meeting of the employees, and unless consent is obtained by such method, the amendment of the rules of employment cannot take effect. However, as long as such consent or agreement exists, the amendment of the rules of employment is valid without the need to obtain the consent of each individual employee, and this should be held to apply likewise where the amendment of the rules of employment retroactively changes existing working conditions or employees' rights to their disadvantage (see Supreme Court Decision 91Da31753 delivered on November 24, 1992).
Moreover, since a retirement pay claim does not give rise to any obligation of payment on the part of the employer so long as the employment contract continues, and the obligation to pay arises only when the employment contract terminates (see Supreme Court Decisions 90Da14560 delivered on June 28, 1991, and 91Da34073 delivered on July 24, 1992), the standard wage and payment rate that form the basis for calculating retirement pay must, in the absence of special circumstances, all be based on the time of retirement (see Supreme Court en banc Decision 93Da26168 delivered on July 11, 1995, and Supreme Court Decision 95Da19256 delivered on May 14, 1996).
Therefore, the determination by the first instance court, as cited by the court below, that the Plaintiffs' retirement pay should be calculated in accordance with the amended Remuneration Regulations, is in accordance with the above legal principles and is justified, and there is no error in misunderstanding the legal principles concerning the nature of retirement pay or the labor union's right to consent to amendment of the rules of employment. Furthermore, the precedents cited in the grounds of appeal involve facts different from those of this case and are not appropriate to invoke in this case. The grounds of appeal pointing this out cannot be accepted.
2. Regarding Ground of Appeal No. 3
According to the reasoning of the first instance judgment cited by the court below, the first instance court found that Plaintiff 1 took honorary retirement on July 31, 1994, and the remaining Plaintiffs took honorary retirement on August 31, 1994, respectively, and then determined that the Plaintiffs' retirement pay should be calculated in accordance with the Remuneration Regulations dated July 27, 1994, as amended pursuant to the collective bargaining agreement dated June 30, 1994, which preceded the Plaintiffs' retirement. The effect of retirement does not arise at the time an employee is determined to be a subject of honorary retirement, but only arises on the date of honorary retirement; and where a collective bargaining agreement or the Remuneration Regulations amended thereunder is amended after an employee is determined to be a subject of honorary retirement but before the employee actually takes honorary retirement, such amendment must be held to be effective as to such employee as well. Therefore, the above determination by the first instance court, as cited by the court below, is justified and acceptable, and there is no error in misunderstanding the legal principles concerning the nature of the retirement pay of the Plaintiffs whose honorary retirement had been determined. The ground of appeal pointing this out also cannot be accepted.
Meanwhile, even if the court below erred in misapprehending the facts in violation of the rules of evidence or failed to exhaust its examination with respect to the date on which the Plaintiffs' honorary retirement was determined, this would have no effect whatsoever on the outcome of the judgment in light of the legal principles set forth above; therefore, the ground of appeal asserting that the judgment below erred in misapprehending the facts in violation of the rules of evidence or failed to exhaust its examination with respect to the date on which the Plaintiffs' honorary retirement was determined also cannot be accepted.
3. Regarding Ground of Appeal No. 4 and the portion of the supplementary grounds of appeal that supplements Ground of Appeal No. 4
Even if the collective bargaining agreement dated June 30, 1994 in this case and the Remuneration Regulations dated July 27, 1994 amended thereunder were amended to the disadvantage of the Plaintiffs, who were some of the employees for whom the effect of retirement had not yet formally arisen, this fact alone cannot be deemed to render the above agreement between labor and management an abuse of rights, so long as the agreement was reached through lawful procedures with the labor union that had the authority to consent thereto. Therefore, it cannot be said that the judgment below erred in failing to exhaust its examination as to whether there was an abuse of rights. The ground of appeal pointing this out also cannot be accepted.
4. Therefore, all appeals are dismissed, and the costs of appeal are to be borne by the Plaintiffs, the appellants, the opinions of the participating Justices being unanimous, and it is so decided as set forth in the Order.
Justice Park Jun-seo (Presiding Justice), Kim Hyeong-seon, Lee Yong-hun (Justice in charge)