[Plaintiff, Appellant]
[Defendant, Appellee] Agricultural and Fishery Marketing Corporation, Attorneys Lee Jae-hu and 1 other, Litigation Representatives
[Judgment Below] Seoul High Court Decision 92Na253 rendered September 17, 1992
[Order]
The judgment below is reversed, and the case is remanded to the Seoul High Court.
[Reasoning]
We examine the Plaintiff's grounds of appeal.
As to Ground 1
According to the reasoning of the judgment below, the court below determined as follows: Although the Defendant Corporation's amendment to the Retirement Allowance Regulations effective January 1, 1981, which lowered the retirement allowance payment rate, constituted a disadvantageous change to employees of the Retirement Allowance Regulations forming part of the Rules of Employment (취업규칙), at the time of the amendment there was no labor union established at the Defendant Corporation, nor was there any other organization through which employees' opinions could be gathered; since the number of employees was as many as 377, it was practically impossible, within a short period, for the employees themselves to lead a collective decision-making process to ascertain whether all employees consented; and since the Labor Standards Act (근로기준법) then in effect did not impose on employers an affirmative obligation to obtain employees' consent as does the proviso to Article 95 of the amended Labor Standards Act, it would have been unrealistic to expect the employer to take such measures. Accordingly, if the Defendant Corporation obtained a resolution of its board of directors and approval from the competent authority in amending the Retirement Allowance Regulations, the Defendant Corporation would be deemed to have taken reasonable measures. Furthermore, since there was no express expression of opposition from employees, including the Plaintiffs, for approximately seven years from January 1, 1981, when the amended Retirement Allowance Regulations took effect, until the Plaintiffs retired following the separation of the Korea Food Research Institute, the court below determined that it was reasonable to view that there had been implicit consent or ratification by the employees, including the Plaintiffs, with respect to the Defendant Corporation's amendment of the Retirement Allowance Regulations.
However, even if it was practically impossible at the time of the amendment of the Retirement Allowance Regulations in this case to ascertain the collective will of all employees through a collective decision-making process, and even if it was unreasonable to demand that the employer take such measures, the mere fact that the Defendant Corporation amended the Retirement Allowance Regulations through a resolution of the board of directors and approval of the competent authority cannot substitute for the implicit consent or ratification of the employee group with respect to the amendment of the Retirement Allowance Regulations, which constitutes a disadvantageous change to the Rules of Employment; nor can such circumstances serve as grounds for finding that there was implicit consent or ratification by the employee group. Moreover, the mere fact that the employees of the Defendant Corporation, including the Plaintiffs, did not raise objections to the amendment of the Retirement Allowance Regulations for approximately seven years after the amendment cannot be deemed to constitute implicit consent or ratification of the amendment. Therefore, the court below's finding that there was implicit consent or ratification by the employees with respect to the amendment of the Retirement Allowance Regulations in this case violated the rules of evidence, resulting in an erroneous finding of fact, or erred in its understanding of the legal principles concerning implicit consent or ratification of disadvantageous changes to Rules of Employment.
Therefore, the argument pointing out this error is well-founded.
As to Ground 2
Furthermore, according to the reasoning of the judgment below, the court below determined as follows: In the case of the Defendant Corporation, there was a need to reasonably adjust the retirement allowance payment rate, which was far higher than that of general civil servants, and to achieve management rationalization, necessitating a downward adjustment of the retirement allowance payment rate; even after the amendment of the Retirement Allowance Regulations, the retirement allowance payment rate remained at a level higher than that of civil servants; in amending the Retirement Allowance Regulations, the scope of wages forming the basis for calculating retirement allowances was expanded, which was actually more favorable to some employees; the payment rate for the period prior to the amendment was to be governed by the previous regulations, thereby protecting vested rights; and the labor union, which was formed after the Plaintiffs' retirement, accepted the amended Retirement Allowance Regulations as valid in concluding a collective bargaining agreement with the Defendant Corporation. In light of these circumstances, the court below determined that the amendment of the Retirement Allowance Regulations in this case had social rationality (사회통념상의 합리성), and therefore the Defendant Corporation's amendment of the Retirement Allowance Regulations was effective.
However, according to the facts established by the court below, the Plaintiffs retired from the Defendant Corporation in April 1988, and the Defendant Corporation's labor union concluded a collective bargaining agreement on July 4, 1989, agreeing to apply mutatis mutandis the then-current Retirement Allowance Regulations of the Defendant Corporation, thereby recognizing the validity of the Retirement Allowance Regulations of January 1, 1981. In determining whether there exists social rationality sufficient to substitute for the consent of the employee group, the determination must be based on the circumstances existing at the time of the amendment. Therefore, the fact that approximately eight years had passed since the amendment, and that recognition by the labor union occurred only in July 1989, after the Plaintiffs had already retired, cannot be considered relevant circumstances in determining the effect of the amendment of the Retirement Allowance Regulations as against the Plaintiffs.
Meanwhile, it is the view of this Court that even if the amendment of the Retirement Allowance Regulations was made in accordance with the government's adjustment policy on the grounds of financial pressure on the management and profit-making activities of government-invested institutions due to excessively high salary levels among executives and employees of institutions under the government at the time, and on grounds of equity with general civil servants, this alone cannot be deemed to establish social rationality sufficient to obviate the need for the employee group's consent (see this Court's Decisions 92Da32357, rendered November 27, 1992; 92Da49324, rendered January 26, 1993). Furthermore, according to the record, although the amendment of the Retirement Allowance Regulations in this case was accompanied by changes such as including bonuses, overtime, holiday, and night-shift allowances, and annual/monthly leave allowances in the base wage for calculating retirement allowances, in light of the degree of disadvantage suffered by employees due to the reduction in the payment rate, it is difficult to find that the amendment of the Defendant Corporation's Retirement Allowance Regulations in this case possessed rationality sufficient to substitute for the consent of the employee group, even taking into account the motive for the amendment and the compensation resulting from the expansion of the scope of the base wage. Therefore, the court below's determination that the amendment of the Retirement Allowance Regulations in this case possessed social rationality sufficient to substitute for the consent of the employee group cannot but be deemed to have erred in its understanding of the legal principles concerning changes to Rules of Employment.
This argument is also well-founded.
Therefore, the judgment below is reversed, and the case is remanded to the court below. This judgment is rendered as stated in the Order by the unanimous opinion of the participating Justices.
Justice Choi Jong-yeong (Presiding Justice), Choi Jae-ho, Bae Man-woon (Justice in charge), Kim Seok-su