[Plaintiffs, Appellees]
[Defendant, Appellant] Small and Medium Business Corporation (중소기업진흥공단), Attorney Ko Jae-hyeok, Counsel for the Defendant
[Judgment Below] Seoul High Court Decision 91Na20830 rendered on August 30, 1991
[Order]
The part of the judgment below concerning the Defendant's losing portion as to Plaintiff 9, Plaintiff 10, Plaintiff 11, Plaintiff 12, Plaintiff 13, and Plaintiff 14 is reversed, and this part of the case is remanded to the Seoul High Court.
The Defendant's remaining appeal against the other Plaintiffs is entirely dismissed, and the costs of this part of the appeal shall be borne by the Defendant.
[Reasoning]
We examine the grounds of appeal.
1. As to the grounds of appeal by Defendant's counsel concerning Plaintiff 1, Plaintiff 2, Plaintiff 3, Plaintiff 4, Plaintiff 5, Plaintiff 6, Plaintiff 7, and Plaintiff 8,
A collective agreement is an agreement concluded between a labor union and an employer or employers' association concerning wages, working hours, and other matters arising from the labor-management relationship. Where a labor union concludes a collective agreement with the employer side that retroactively consents to or approves the existing standards for determining working conditions such as wages, working hours, and retirement allowances, the effect of such consent or approval arises only with respect to union members or employees who are employed at the business and subject to the application of the agreement after the collective agreement takes effect; there is no room for such effect to extend to employees who had already retired before the conclusion of the collective agreement.
According to the reasoning of the first instance judgment as cited by the court below, the court below duly found that although the supplementary provisions on transitional measures of the collective agreement concluded between the Defendant Corporation and its labor union on April 15, 1989 approved the existing working conditions, the above Plaintiffs had already retired from the Defendant Corporation before the collective agreement took effect, and accordingly determined that the collective agreement had no room for application to the above Plaintiffs. This determination is justified. The ground of appeal to the effect that, because the Defendant Corporation's labor union retroactively consented through the collective agreement to the April 29, 1982 amendment of the retirement allowance payment regulations, the amended retirement allowance payment regulations should also be effective with respect to the above Plaintiffs who had retired before that amendment, is an independent view that cannot be accepted. This ground of appeal is without merit.
2. As to the grounds of appeal by Defendant's counsel concerning Plaintiff 9, Plaintiff 10, Plaintiff 11, Plaintiff 12, Plaintiff 13, and Plaintiff 14,
According to the reasoning of the first instance judgment as cited by the court below, the court below found the following facts: that on April 29, 1982, the Defendant amended the retirement allowance payment regulations to lower the retirement allowance payment rate, which is a factor in calculating the retirement allowance of the Defendant Corporation's employees, only through a resolution of the board of directors without any process of hearing the opinions of or obtaining the consent of the Defendant Corporation's employees, and implemented the amendment after obtaining approval from the Ministry of Commerce and Industry; and that thereafter, the employees of the Defendant Corporation established a labor union around December 21, 1988, and on April 15, 1989, concluded a collective agreement with the Defendant Corporation, Article 4 of which provided that "the Defendant Corporation may not lower the working conditions already in force under any pretext whatsoever," while Article 4 of the Supplementary Provisions, as a transitional provision, provided that "all matters arising before the effective date of the above collective agreement shall be deemed governed by the above agreement," and that this took effect on the same date.
The court below then determined as follows: although the authority to prepare and amend the rules of employment belongs, in principle, to the employer, in order to disadvantageously change the existing working conditions prescribed in the rules of employment, the consent of the group of workers subject to the application of the former rules of employment, obtained through a collective decision-making method, is required; such method of consent must be, where there exists a labor union organized by a majority of the workers, the consent of that labor union, and where there is no such labor union, the consent obtained through a meeting method of the workers; and rules of employment lacking such consent have no effect. Since it is clear that the above amended retirement allowance payment regulations were changed disadvantageously to the employees compared to those before the amendment in terms of the calculation of the retirement allowance payment rate, the above amended retirement allowance payment regulations are invalid. However, inasmuch as Article 4 of the Supplementary Provisions of the collective agreement concluded between the Defendant Corporation and its labor union on April 15, 1989 approved all existing working conditions, it is reasonable to view that the effect of the above amended retirement allowance payment regulations was thereby also approved; but it is reasonable to interpret the purport of the above agreement provision not as retroactively depriving employees of vested rights acquired before the effective date of the above collective agreement, but merely as approving the effect of the amended retirement allowance payment regulations prospectively. Accordingly, the court below determined that, for the period of service up to April 14, 1989, the day before the above agreement took effect, the pre-amendment retirement allowance payment regulations should apply.
However, according to the record, the Defendant Corporation's labor union was established on December 21, 1988, and thereafter concluded its first collective agreement with the Defendant Corporation on April 15, 1989. The provision of Article 4 of the Supplementary Provisions of the above collective agreement appears to have been intended to have the labor union retroactively approve the effect of all matters, including working conditions, that arose in the labor-management relationship from the establishment of the Defendant Corporation on January 4, 1979 until the conclusion of the above collective agreement. Since the above collective agreement did not contain any provision specifically excluding the matter of the April 29, 1982 amendment of the rules of employment concerning the change in the retirement allowance payment rate, it should be interpreted that the labor union also retroactively consented, by means of the above collective agreement, to the change in the retirement allowance payment rate. It is not appropriate to interpret the meaning of the Supplementary Provisions of the above collective agreement, as the court below did, as approving its effect only prospectively.
{Even if the change in the retirement allowance payment rate did not satisfy the requirements for validity applicable to a disadvantageous change of the rules of employment, where the employees subsequently retroactively consent thereto, a difference will arise in the retirement allowance payment rate applicable as between employees who retired between the time of the change and the time of the consent, and employees who retired after the consent; however, since the right to claim a retirement allowance is a right in the nature of deferred wages that arises only upon retirement (see Supreme Court Decision 90Da14560 rendered on June 28, 1991), such a result is unavoidable.}
Therefore, since the Defendant Corporation's labor union, by means of the collective agreement dated April 15, 1989, retroactively consented to the April 29, 1982 amendment of the retirement allowance payment regulations, the amended retirement allowance payment rate should apply, from the time the amended retirement allowance payment regulations took effect, to employees who retired after the collective agreement took effect; accordingly, the amended retirement allowance payment rate under the amended retirement allowance payment regulations should also apply to the calculation of the retirement allowances of the above Plaintiffs. Nevertheless, the court below misconstrued the provisions of the Supplementary Provisions of the above collective agreement and applied to the above Plaintiffs the pre-amendment retirement allowance payment rate for the period from the amendment of the retirement allowance payment regulations until before the collective agreement took effect, thereby committing an error that affected the outcome of the judgment. This ground of appeal is therefore well-founded.
3. Accordingly, since the Defendant's appeal as to Plaintiff 9, Plaintiff 10, Plaintiff 11, Plaintiff 12, Plaintiff 13, and Plaintiff 14 is well-founded, the part of the judgment below concerning the Defendant's losing portion as to the above Plaintiffs is reversed, and this part of the case is remanded to the court below. Since the Defendant's remaining appeal as to the other Plaintiffs is without merit, it is entirely dismissed, and the costs of this part of the appeal shall be borne by the Defendant, the losing party. The Justices concerned are unanimous in their opinion, and it is so ordered as stated in the Order.
Justice Kim Sang-won (Presiding Justice), Park Woo-dong, Yoon Young-cheol, Park Man-ho