[Plaintiffs, Appellants] Plaintiff 1 and 6 others; Plaintiffs' Attorneys Kim Jin-hee and 1 other
[Defendant, Appellee] Korea Cadastral Survey Corporation (재단법인 대한지적공사); Defendant's Attorney Law Firm Korea Comprehensive Law Office, in charge Attorney Kang Hyun
[Judgment Below] Seoul High Court Decision 93Na29725 rendered on February 22, 1994
[Order]
All appeals are dismissed.
The costs of the appeal shall be borne by the Plaintiffs.
[Reasoning]
We examine the grounds of appeal (including the supplementary brief on grounds of appeal submitted after the expiration of the period for submitting the grounds of appeal, to the extent that it supplements the above grounds of appeal).
The court below, in calculating the retirement allowance claimed by the Plaintiffs in this case, did not determine whether the provisions concerning the retirement allowance payment rate and the monthly salary serving as the basis for its calculation were amended simultaneously or at different times (it appears that the court below assumed they were amended together and proceeded on that premise). In determining whether the amendment of the salary regulations concerning retirement allowances constituted a "disadvantageous change" requiring the employees' consent, the court below held that the payment rate and the scope of monthly salary should not be separately compared and judged individually, but rather that the disadvantageousness should be determined by comprehensively comparing the payment rate and the scope of monthly salary together; and that where such comprehensive comparison reveals a disadvantageous change and the employees' consent was not obtained, both the provision on the payment rate and the provision on the scope of monthly salary become invalid in their entirety, and it cannot be said that only the disadvantageous portion of the provisions on the payment rate and the scope of monthly salary becomes invalid while the advantageous portion remains valid. Based on this premise, the court below determined that the amendment of the salary regulations of Defendant Korea Cadastral Survey Corporation (hereinafter "Defendant Corporation") dated April 1, 1981 was, when comprehensively viewed, disadvantageous, and that since lawful consent of the employees had not been obtained, it was invalid; therefore, the retirement allowance should be calculated in accordance with the salary regulations as they stood on March 31, 1981, prior to the amendment.
We examine this as follows. In determining the validity or invalidity of the amendment to the salary regulations of April 1, 1981, which forms part of the rules of employment (취업규칙) of the Defendant Corporation as described above, even if the retirement allowance payment rate was generally reduced and is therefore disadvantageous in itself, where other factors were changed favorably along with the reduction of the payment rate, it is necessary to comprehensively consider all circumstances related to the quid pro quo relationship or connectedness (including the favorably changed portions) in order to determine whether the amended provisions concerning the retirement allowance are, on the whole, favorable or unfavorable amendments, and the favorableness or unfavorableness must be judged together (see this Court's Decision 84Daka414 rendered on November 13, 1984). Where such comprehensive judgment reveals that the amendment is unfavorable (the same applies where the amendment is favorable to some employees but unfavorable to others, resulting in conflicting interests among employees depending on favorableness or unfavorableness: see this Court's Decision 93Da1893 rendered on May 14, 1993), the consent of the employee group previously subject to the former salary regulations, obtained through the collective decision-making of that group, is required, and in the absence of such consent, the amendment cannot have effect. In such a case, where the amendment becomes invalid pursuant to this determination, it is not that each favorable or unfavorable item becomes valid or invalid individually, but rather that all items bearing the aforementioned quid pro quo relationship or connectedness become invalid in their entirety. Furthermore, once the amendment to the rules of employment concerning the payment of retirement allowances has become invalid in this manner, the subsequently amended provisions concerning the payment of retirement allowances—both the portions concerning the payment rate and the basic wage—must also be deemed invalid in their entirety, except in special circumstances where it can be seen either that such subsequent amendment ratified the previously invalidated retirement allowance provisions, or that it was made at an entirely separate level, unconnected to those provisions, thereby establishing new retirement allowance provisions.
However, according to the evidence lawfully examined by the court below and the court of first instance, the following facts are each recognized: In the Defendant Corporation, the provisions concerning the method of calculating retirement allowances—namely, that the retirement allowance is paid as an amount calculated by multiplying the monthly salary at the time of retirement by the payment rate—remained unchanged in terms of the payment method itself. Under the amendment of April 1, 1981, while the payment rate was generally lowered, several items were added to the basic wage, which originally consisted of "base pay (including bonus) + position allowance + long-service allowance," to become "adjustment allowance + overtime allowance + annual/monthly leave allowance" (Defendant's Exhibit No. 1-1). Under the amendment of January 1, 1983, the position allowance and long-service allowance were abolished and incorporated into the base pay (Defendant's Exhibit No. 1-2, Article 3, Items 2 and 3, and the salary table). Under the amendment of April 1, 1989, a duty allowance equivalent to 40% of the salary was newly established, and the concept of ordinary wages (salary + duty allowance + technical allowance + professorial allowance + accounting allowance + hazard allowance + expense allowance) was introduced, such that the basic wage became "ordinary wages + annual/monthly leave allowance + bonus" (Defendant's Exhibit No. 1-2, Article 3, Item 8 and Article 18, Paragraph 7). Under the amendment of April 1, 1991, a treatment allowance was newly established and designated as one of the ordinary wages (Defendant's Exhibit No. 1-2, Article 3, Item 8 and Article 16-4), such that there was an expansion of the scope of basic wage in connection with the payment of retirement allowances. Thus, there were several sequential amendments. Among these amendments, the first amendment, dated April 1, 1981, was favorable to some employees but unfavorable to others, and it is recognized that consent through the collective decision-making method of the employee group was not obtained at the time of that amendment.
Therefore, among the provisions concerning retirement allowances of the Defendant Corporation, the amendment of the salary regulations dated April 1, 1981—which lowered the retirement allowance payment rate and expanded the scope of wages included in the basic wage—without going through the consent procedure described above, must be deemed invalid. In such a case, not only the unfavorable item, namely the reduction of the payment rate, but also the favorable item, namely the expansion of the scope of the basic wage, must likewise be deemed invalid. Furthermore, the expansion of the scope of allowances included in the basic wage that occurred through the changes in the form of wage payment on January 1, 1983 and April 1, 1989 was premised on the amended provisions of April 1, 1981 concerning the method of calculating retirement allowances, and therefore, absent special circumstances, these too must be deemed invalid. Accordingly, the retirement allowances payable to the Plaintiffs in this case must be calculated in accordance with the salary regulations that existed prior to the amended salary regulations of April 1, 1981.
If this is so, it was erroneous for the court below to have proceeded on the premise that all the provisions concerning retirement allowances were amended at once, without examining the fact that the Defendant Corporation's salary regulations concerning retirement allowances were amended sequentially as described above, and to have developed its reasoning accordingly. However, since the court below calculated the retirement allowances of the Plaintiffs in this case in accordance with the salary regulations that existed prior to the Defendant Corporation's amended salary regulations of April 1, 1981, the aforementioned errors in the court below's fact-finding and reasoning process did not affect the outcome of the judgment in this case. Consequently, it cannot be said that the judgment below erred in misunderstanding the legal principles concerning the amendment of rules of employment, and, as a result, erred in misapprehending the facts concerning the concept of the monthly salary amount constituting the basic wage. Therefore, the grounds of appeal are without merit.
Accordingly, all appeals are dismissed, and the costs of the appeal are to be borne by the losing parties. This judgment is rendered as stated in the Order, by the unanimous opinion of the participating Justices.
Presiding Justice Kim Hyung-seon; Justice Park Jun-seo (Justice in charge); Justice Lee Yong-hoon