[Plaintiff, Appellant] Plaintiff, Attorney Han Byung-sik, Counsel for the Plaintiff
[Defendant, Appellee] Sinsung Trading Co., Ltd., Attorney Ko Seok-yun, Counsel for the Defendant
[Judgment Below] Seoul High Court Decision 92Na17848 dated January 8, 1993
[Order]
The appeal is dismissed.
The costs of the appeal shall be borne by the Plaintiff.
[Reasoning]
We examine the grounds of appeal.
1. The authority to prepare and amend employment rules (취업규칙), such as retirement allowance regulations, in principle rests with the employer, and the employer may prepare and amend the employment rules according to its own intention. However, where such amendment changes working conditions to the disadvantage of employees, the consent of the employees who were subject to the former employment rules, obtained through a method of collective decision-making, is required, and an amendment to the employment rules made without obtaining such consent is invalid (see Supreme Court Decision 77Da355 delivered on July 26, 1977; Supreme Court en banc Decision 91Da45165 delivered on December 22, 1992). As for the method of obtaining such consent (including ratification), where there is no labor union organized by a majority of the employees, consent may be obtained by a majority vote at a meeting of the employees; however, where such a labor union exists, the consent of that labor union must be obtained. This holds true even in a case of subsequent ratification of an amendment to the employment rules that is disadvantageous only to some employees, where the labor union did not exist at the time the employer disadvantageously amended the employment rules but was established thereafter, or where some of the employees who suffered disadvantage from the amendment had lost their eligibility for union membership at the time of ratification due to promotion or other reasons, and in fact none of the employees who suffered disadvantage from the amendment were union members.
2. According to the reasoning of the judgment below, the court below found, by adopting the findings of the first instance judgment, the following facts: the Defendant company originally established retirement allowance regulations on March 1, 1970, and thereafter operated a differentiated retirement allowance system under which, in dividing employees into office staff and production workers for purposes of retirement allowance payment, a progressive rate was applied to office staff while a flat rate of 30 days' average wage per year of service was applied to production workers; when Article 28, Paragraph 2 of the Labor Standards Act (근로기준법), which prohibits differentiated retirement allowance systems, was newly enacted, the Defendant company, in order to comply therewith, amended the retirement allowance regulations on March 31, 1981, immediately before the provision took effect, so as to apply, without distinguishing between office staff and production workers, to all employees a progressive rate lower than the rate previously applied to office staff (according to the record, this was the rate that had been applied, pursuant to yet another earlier amendment, only to office staff hired on or after October 1, 1979), provided that for those hired on or before September 30, 1979, the previous rate would apply to their period of service up to March 31, 1981; as a result, under the retirement allowance regulations, the payment rate was lowered for office staff and raised for production workers compared to before; that on August 21, 1987, the Sinsung Trading Labor Union affiliated with the Federation of Korean Textile Workers' Unions was established at the Defendant company, covering all employees except for certain staff such as personnel officers, section chiefs and above, advisors, and consultants; that thereafter, when it became possible to establish labor unions on a workplace-by-workplace basis, on September 20, 1988, the Sinsung Trading Head Office Labor Union affiliated with the Federation of Korean Clerical and Financial Workers' Unions, comprising employees working at the head office as its members, was separated and established from the aforementioned Sinsung Trading Labor Union, and the former Sinsung Trading Labor Union was renamed the Sinsung Trading Juan Factory Labor Union affiliated with the Federation of Korean Textile Workers' Unions, resulting in the existence of two labor unions at the Defendant company; that the members of the said Head Office Labor Union numbered 87 out of 120 head office employees, and were composed mostly of office staff in the same job category as the Plaintiff; that as a result of collective bargaining separately conducted by the Defendant company with each of the two labor unions, the Defendant company, with respect to retirement allowances, concluded a collective agreement with the Juan Factory Labor Union on December 3, 1988, containing the same content as the retirement allowance regulations amended on March 31, 1981, in the same manner as the collective agreement concluded with the aforementioned Sinsung Trading Labor Union; however, with the Head Office Labor Union, there was a dispute in which the union demanded an increase in the payment rate under the employment rules, while the Defendant company asserted that a differentiated system could not be adopted and that it was difficult to treat the head office differently from the Juan factory; subsequently, on December 31 of the same month, later than the agreement with the Juan Factory Labor Union, a collective agreement was concluded providing that the retirement allowance provisions would conform to the employment rules' retirement allowance payment regulations. Based on these facts, the court below determined that the Head Office Labor Union of the Defendant company, established on September 20, 1988, constituted a labor union organized by a majority of the employees working at the head office, which is the workplace to which the Plaintiff belonged; that since the provisions concerning retirement allowances in the collective agreement dated December 31, 1988, concluded between the said Head Office Labor Union and the Defendant company, provided that the payment rate under the retirement allowance regulations as amended on March 31, 1981, would be followed, this constituted an effective subsequent ratification of the amendment to the retirement allowance regulations made on March 31, 1981, and the corresponding amendment to the employment rules; and that accordingly, each of the said amendments became retroactively effective as a result. The above determination by the court below accords with the legal principles set forth above and is justified, and it cannot be said that there was an error of law in misunderstanding the legal principles as argued in the grounds of appeal. The precedent cited in the grounds of appeal concerns a case with different facts and is not appropriate to be invoked in this case. The argument is without merit in its entirety.
3. As for the further argument that the judgment below erred in misunderstanding the legal principles concerning Article 37 of the Trade Union Act (노동조합법), this merely criticizes as unlawful a determination made supplementarily to the court below's finding and determination that the amendment to the Defendant company's retirement allowance regulations was effectively ratified subsequently; since the said finding and determination of the court below is deemed justified in this case, such argument has no effect on the outcome of the judgment.
4. Therefore, the appeal is dismissed, and the costs of the appeal are to be borne by the losing party. This judgment is rendered as set forth in the Order by the unanimous opinion of the participating Justices.
Justice Ahn Yong-deuk (Presiding Justice), Cheon Gyeong-song, Ji Chang-gwon, Shin Seong-taek (Justice in charge)