[Plaintiff, Appellee]
[Defendant, Appellant] Korea Broadcasting System, Attorneys Kim Pyeong-woo and 3 others, Counsel for the Defendant
[Judgment Below] Seoul High Court Decision 91Na43529 delivered on July 21, 1992
[Order]
The part of the judgment below concerning the retirement allowance following the Plaintiff's retirement after re-employment, in which the Defendant lost, is reversed, and this part of the case is remanded to the Seoul High Court.
The remainder of the Defendant's appeal is dismissed.
The costs of the appeal concerning the dismissed portion shall be borne by the Defendant.
[Reasoning]
We examine the grounds of appeal.
1. The authority to prepare and amend the rules of employment (취업규칙) belongs, in principle, to the employer, and the employer may prepare and amend the rules of employment according to its own will. However, where such amendment changes working conditions to the disadvantage of employees, it requires the consent of the employees who were subject to the previous working conditions or rules of employment, obtained through a collective decision-making method, and an amendment to the rules of employment made without such consent is invalid unless it can be recognized as reasonable in light of social norms (see this Court's Decisions 78Da1046 delivered on September 12, 1978; 88Daka4277 delivered on May 9, 1989; and 89Daka24780 delivered on March 13, 1990, respectively).
Upon examination of the record, it is as the court below found that the Compensation Regulations (보수규정) of the Defendant Corporation, as amended on January 27, 1981, changed the retirement allowance payment rate to the disadvantage of employees, and that in making this amendment, the consent of the employees who had been subject to the pre-amendment Compensation Regulations was not obtained through a collective decision-making method by the employees. Meanwhile, even if the amendment of the above Compensation Regulations was made in accordance with a legitimate purpose and government policy as argued in the grounds of appeal, this cannot be regarded as constituting reasonableness under social norms sufficient to dispense with the need for the consent of the collective body of employees. Accordingly, the judgment of the court below, which found this amendment invalid, is justified, and there is no error of law as alleged in the grounds of appeal.
The grounds of appeal argue that, given the characteristics of the Defendant Corporation as a public broadcasting institution and the enormity of its scale, it was practically impossible at the time to obtain the consent of employees through a collective decision-making method. However, the collective decision-making method required when amending the rules of employment to the disadvantage of employees is not limited to the method whereby all employees of a single business or workplace gather together at one time to hold a meeting; rather, a method whereby employees exchange opinions by organizational unit or department within a business or workplace, free from the intervention or interference of the employer, and thereby consolidate their opinions for or against the amendment, followed by an overall aggregation thereof, is also permitted (see this Court's Decision 91Da25055 delivered on February 25, 1992). In the case of the Defendant Corporation, it cannot be said that even obtaining the employees' consent through such a method was impossible. Therefore, this ground of appeal is without merit.
2. The court below held that the mere fact that the Plaintiff and other retirees have, until now, received retirement allowances calculated under the amended Compensation Regulations without objection cannot be deemed to constitute ratification of the invalid amendment of the Compensation Regulations, nor can the Plaintiffs' assertion disputing the validity of the amendment of the Compensation Regulations be regarded as contrary to the principle of good faith. The court below further held that it cannot be said that the labor union, which was organized after the amendment of the Compensation Regulations, ratified the amendment of the Compensation Regulations by concluding a collective agreement with the Defendant. Thus, the court below rejected the Defendant's arguments in this regard. Upon examination of the record, the above measures taken by the court below are justified, and there is no error of law as alleged in the grounds of appeal. This ground of appeal is also without merit.
3. As set forth above, where an employer changes working conditions prescribed in the rules of employment to the disadvantage of employees without obtaining the employees' consent, such amendment of the rules of employment is invalid, and the previous rules of employment continue to be effective as they were. However, this holds true only in relation to existing employees whose vested interests are infringed by the amendment; in relation to employees who, after the amendment, accepted the working conditions under the amended rules of employment and entered into an employment relationship, the amended rules of employment must naturally apply. It should not be held that, even in relation to employees hired after the amendment—who have no ground for excluding the effect of the amendment, such as infringement of vested interests—the effect of the amendment should be denied and the previous rules of employment should apply (see this Court's En Banc Decision 91Da45165 delivered on December 22, 1992).
In this case, according to the facts as found by the court below, the Plaintiff joined and worked for the Defendant Corporation on March 1, 1973, retired upon reaching the mandatory retirement age on March 31, 1986, was re-employed on April 7 of the same year, and worked until December 31, 1989, when he retired. Therefore, even if the Compensation Regulations of the Defendant Corporation concerning the payment of retirement allowances, as amended on January 27, 1981, are invalid because they were changed to the disadvantage of employees without the consent of employees obtained through a collective decision-making method, as discussed above, this legal principle can apply only to the case where the Plaintiff retired while holding the status of an existing employee prior to the amendment of the above Regulations—that is, in calculating the retirement allowance following his retirement upon reaching the mandatory retirement age on March 31, 1986—but cannot apply in calculating the retirement allowance following his retirement after he was re-employed and held the status of an employee thereafter, following the amendment.
Nevertheless, the court below calculated the retirement allowance following the Plaintiff's retirement after his re-employment with the Defendant Corporation on April 7, 1986, by applying the pre-amendment Compensation Regulations rather than the Compensation Regulations of the Defendant Corporation as amended on January 27, 1981. This constitutes an error that misapprehends the legal principles concerning the effect of amendments to rules of employment and thereby affected the judgment. Therefore, the ground of appeal pointing this out is meritorious.
4. Accordingly, the part of the judgment below concerning the retirement allowance following the Plaintiff's retirement after re-employment, in which the Defendant lost, is reversed, and this part of the case is remanded to the court below; the remainder of the Defendant's appeal is dismissed, and the costs of the appeal concerning that dismissed portion shall be borne by the losing party. The Justices concerned have unanimously agreed on this judgment, and it is rendered as set forth in the Order.