[Plaintiff, Appellant] Plaintiff 1, Attorney Park Tae-yeong, Counsel for the Plaintiff
[Plaintiff, Appellee] Plaintiff 2
[Defendant, Appellee and Appellant] Icheon Electric Industrial Co., Ltd., Attorney Yoon Seung-yeong, Counsel for the Defendant
[Lower Court Judgment] Seoul High Court Judgment 90Na42420 dated July 19, 1991
[Order]
The part of the lower court judgment concerning the Defendant's loss with respect to Plaintiff 2 is reversed, and this part of the case is remanded to the Seoul High Court.
Plaintiff 1's appeal is dismissed, and the costs of this part of the appeal shall be borne by said Plaintiff.
[Reasoning]
The grounds of appeal are examined.
1. As to Plaintiff 1's grounds of appeal
Upon examination of the record, this Court finds acceptable the lower court's determination that, rather than finding that Plaintiff 1 continuously worked from March 23, 1966, when he joined the Defendant company, until his retirement on July 31, 1988, said Plaintiff had actually resigned on January 16, 1979, after joining and working since March 23, 1966, rested at home for about two weeks, and then went through the re-employment procedure to rejoin on February 1 of the same year; that said Plaintiff received retirement pay on March 16 of the same year for his years of service from his initial date of employment until January 16, 1979; and thus concluding that said Plaintiff's date of joining the Defendant company should be deemed to be February 1, 1979. No error violating the rules of evidence, as argued by the Plaintiff, can be found therein.
The argument is that said Plaintiff submitted a letter of resignation on January 16, 1979 merely as a formality, for the purpose of receiving part of his retirement pay in advance because he needed a lump sum of money, without any actual intention to retire, and that the Defendant likewise had no intention of terminating his employment. However, if said Plaintiff submitted his letter of resignation solely according to his own circumstances, based on his free will and choice, and the Defendant accepted it, and said Plaintiff received the prescribed retirement pay without objection, then it is reasonable to view that, at least insofar as concerns the employment relationship underlying the calculation of retirement pay, the employment relationship between said Plaintiff and the Defendant was once terminated. Accordingly, even if said Plaintiff rejoined shortly thereafter, it is correct that the subsequent retirement pay should be calculated by counting from the date of re-employment (see this Court's Decisions 90Da20398 dated May 28, 1991; 92Da17754 dated September 14, 1992, respectively). This is a separate matter from the calculation of career service or salary grade or the calculation of annual paid leave days. Therefore, this argument is without merit.
2. Determination on the Defendant's grounds of appeal
As to Point 1
Upon examining the reasoning of the lower court judgment in light of the record, this Court finds acceptable the lower court's determination that it could not be found that the labor union of the Defendant company had consented to the application of the non-progressive system regarding retirement pay for the period from and after April 25, 1984, when the Defendant company filed a report on the amendment of its rules of employment on October 28, 1981. No error violating the rules of evidence or of insufficient deliberation can be found therein, nor can it be said that the lower court erred in its determination of the effect of the disposal document.
The argument is that, since the Defendant company, in filing the report on amending its rules of employment—which provided for a progressive retirement pay system—to a non-progressive system, attached an opinion letter from the head of the labor union stating that the progressive system should be applied at least until April 25, 1984, the expiration date of the collective agreement, it should be deemed that the labor union consented to the change to the non-progressive system effective from April 26, 1984. However, such an opinion letter alone cannot be interpreted as meaning that the Defendant company's labor union consented to the amendment of the rules of employment for the period after April 26, 1984. Therefore, this argument is without merit.
As to Point 2
A. According to the reasoning of the lower court judgment, the lower court found that, on February 17, 1989, the Defendant company and the labor union agreed, with respect to the application of the progressive retirement pay system, that for members eligible for the progressive system among union members who had joined before July 31, 1977, the retirement pay would be calculated using ordinary wages for the period of service up to March 31, 1981, and using average wages for the period of service from then until the end of June 1985, with only the progressive portion to be paid in advance, and that the calculation standard would be based on the salary as of December 31, 1988; and that Plaintiff 2 retired about one month after the date of this agreement. Nevertheless, the lower court determined that, since the above agreement contained content that retroactively infringed upon the vested rights of workers who had been subject to the "progressive system," the agreement between the Defendant company and the labor union alone could not infringe upon the specific vested rights of workers, absent the consent of the worker concerned or other special circumstances, and thus the agreement was ineffective as to said Plaintiff. According to the written agreement (Defendant's Exhibit No. 6), it can be seen that the Defendant company and its labor union reached the above-described agreement on February 17, 1989, and agreed that matters not covered by the agreement would be governed by the collective agreement and the company's rules of employment.
B. Upon examination: working conditions must, in principle, be determined by the free will of the worker and the employer on an equal footing (Article 3 of the Labor Standards Act (근로기준법)); while an employer may not unilaterally change existing working conditions to the disadvantage of workers, such a change is permissible if the worker's consent is obtained, and this holds true even where the change is applied retroactively.
Furthermore, where an employer seeks to disadvantageously alter existing working conditions for workers by amending the rules of employment, the employer must obtain the consent of the group of workers subject to the previous rules of employment, through a collective decision-making method. The method of consent requires, where there is a labor union organized by a majority of the workers, the consent of that union, and where there is no such union, the consent of a majority of the workers through a meeting-style method; absent consent obtained through such methods, the amendment of the rules of employment cannot have effect. However, so long as consent or agreement has been obtained through such methods, the amendment of the rules of employment is valid without the need to obtain the individual consent of each worker, and this should likewise apply even where the amendment of the rules of employment retroactively and disadvantageously alters existing working conditions or workers' rights.
However, the effect of such consent or agreement as described above can only apply to workers who were employed at the business at the time of the consent or agreement and who will be subject to its application, and does not extend to workers who had already retired prior thereto (see this Court's Decision 91Da34073 dated July 24, 1992). Nevertheless, according to the facts found by the lower court, Plaintiff 2 retired after the above agreement was reached, and thus, absent other special circumstances, its effect should extend to said Plaintiff as well.
C. Therefore, the matters agreed upon by the Defendant company and the labor union of the Defendant company, of which Plaintiff 2 was a member, through the above written agreement (Defendant's Exhibit No. 6), should be held effective as to said Plaintiff, who had not retired at the time of the agreement. Nevertheless, the lower court's determination that the agreement was ineffective constitutes an error of misapprehending the legal principles concerning the scope of a workers' group's consent to the amendment of rules of employment, and the argument pointing out this error is well-founded.
Therefore, without the need to determine the remaining grounds of appeal, the part of the lower court judgment concerning the Defendant's loss with respect to Plaintiff 2 is reversed and remanded, and Plaintiff 1's appeal is dismissed, with the costs of the dismissed portion of the appeal to be borne by said Plaintiff. It is so ordered by the unanimous opinion of the participating Justices, as set forth in the Order.