[Plaintiffs, Appellees] Plaintiff 1 and 11 others (Attorneys Kang Hang-sun and 2 others, Counsel for the plaintiffs)
[Defendant, Appellant] Hanjin Shipping Co., Ltd. (Attorney Yoo Kyung-hee and 6 others of Hanmi Joint Law Office, Counsel for the defendant)
[Judgment Below] Seoul High Court Decision 90Na53796 delivered on June 21, 1991
[Order]
The judgment below is reversed, and the case is remanded to the Seoul High Court.
[Reasoning]
We examine the grounds of appeal submitted by the defendant's litigation counsel.
1. According to the reasoning of the judgment below, the court below premised its decision on the following: although the authority to draft and amend the rules of employment (취업규칙) belongs, in principle, to the employer, where the amendment of the rules of employment unilaterally changes existing working conditions to the disadvantage of the employees, the consent of the employees who were subject to the previous rules of employment, obtained through a collective decision-making method, is required. As for the method of obtaining such consent, where there is a labor union organized by a majority of the employees, the consent of that union is required, and where there is no such union, the consent of a majority of the employees obtained through a meeting method is required; and unless consent is obtained through such a method, the amendment of the rules of employment has no effect. Based on this premise, the court below rejected the defendant's argument that, since the defendant had amended the previous rules of employment on two occasions, April 1, 1982 and April 1, 1987, into new rules of employment including a non-cumulative (단수제) retirement allowance payment provision with the consent of a majority of the ship's crew employees (육원근로자), and had reported this to the Minister of Labor, the retirement allowance should be calculated in accordance with the non-cumulative payment provision at least from the time of the amendment onward. The court below found, based on the evidence cited, that the defendant company had amended the ship's crew rules of employment on April 1, 1982 and April 1, 1987 respectively, and that the amended rules of employment included a non-cumulative retirement allowance provision stating, "The retirement allowance for ship's crew shall be calculated by multiplying one month's average wage at the time of retirement by the number of years of service. Where there is a fraction of less than one year in calculating the period of service, it shall be calculated on a monthly pro rata basis," and that in the course of each of these amendments to the rules of employment, five worker representatives on the Labor-Management Council, who had received a delegation of authority from the ship's crew employees, had each affixed their names and seals to a written opinion expressing their approval of each amendment proposal. However, in light of the fact that the defendant company had, since the amendment of the retirement allowance payment provision effective January 1, 1972, in fact been paying retirement allowances in accordance with the non-cumulative payment provision, the court below determined that it was difficult to view the employees' consent or ratification at the time of the April 1, 1982 and April 1, 1987 amendments as meaning that they consented to changing, going forward, to their disadvantage, from a cumulative (누진제) payment provision that was premised on being effective until December 31, 1971, to the non-cumulative system, and thus rejected the defendant's argument.
2. However, even where, in amending working conditions provided for in the rules of employment to the disadvantage of employees, and where there is no labor union composed of a majority of the employees, the consent of a majority of the employees is required through a meeting method, such meeting method need not necessarily be limited to a method whereby all employees of a single enterprise or workplace gather together at one time to hold a meeting (in large enterprises or workplaces, such a meeting method would often be practically impossible); rather, it should also be permissible to use a method whereby, by department or unit within a single enterprise or workplace, employees exchange opinions among themselves, free from any intervention or interference by the employer, and consolidate their opinions of approval or disapproval, which are then aggregated as a whole.
Now, according to the descriptions in Evidence Eul No. 5-1 through 5-39, adopted by the court below, it is recognized that, with respect to the amendment of the rules of employment effective April 1, 1987, the employees, by each department or unit within the defendant company, prepared written consents to the amendment of the ship's crew rules of employment, in which each employee affixed his name and seal, consenting to the amendment of the rules of employment and delegating entirely to Non-party 1, Non-party 2, Non-party 3, Non-party 4, and Non-party 5, who were worker representatives on the defendant company's ship's crew Labor-Management Council, the expression of the employees' opinions on the amendment proposal; and that, pursuant thereto, the said worker representatives, Non-party 1 and four others, who had received this delegation from the employees, deliberated on March 30, 1987, and agreed to consent to the amendment proposal. Given that the number of employees who affixed their seals to the written consents in this manner exceeds a majority (the defendant asserts that 399 out of a total of 411 employees did so), if the consolidation and aggregation of opinions by each department or unit, and the deliberation by the worker representatives who received the employees' delegation, were conducted in a state free from intervention or interference by the employer and in accordance with the employees' free will, then it cannot be said that this fails to constitute the consent of a majority of the employees through the meeting method described above.
Meanwhile, looking at the amendment proposal to the rules of employment (Evidence Eul No. 5-38) for which the employees' consent was obtained, it contains various amended provisions, and with respect to the retirement allowance rate for ship's crew, it maintains, without change, the then-current non-cumulative retirement allowance system (which resulted from the amendment to the rules of employment effective January 1, 1972) whereby one month's average wage at the time of retirement is multiplied by the number of years of service, and does not contain provisions premised on the then-current retirement allowance system being a cumulative system that is being changed to a non-cumulative system. Therefore, as the court below pointed out, if the employees consented to the amendment proposal only because they believed the then-current non-cumulative retirement allowance system to be valid and thought that it was simply being maintained as is, then it would be difficult to view this as a manifestation of consent to a disadvantageous change of existing working conditions.
However, according to the record, there had previously been several cases in which some employees who had retired from the defendant company filed lawsuits claiming retirement allowances under the earlier cumulative system, on the ground that the then-current non-cumulative retirement allowance system (amended effective January 1, 1972) was invalid because proper employee consent had not been obtained at the time of its amendment, and these employees won judgments in their favor that became final at the Supreme Court. It appears from the circumstances that the defendant included the retirement allowance provision in the April 1, 1987 amendment proposal in order to render the then-current retirement allowance system valid by obtaining the employees' consent. If the employees consented while being aware of these circumstances—namely, that there was a problem with the validity of the then-current retirement allowance system and that consent was being sought in order to remedy this—then the validity of such consent should not be denied. Accordingly, the court below should have examined whether the employees consented with knowledge of these circumstances.
Now, in light of the fact that the retirement allowance rate system is directly connected to the employees' interests and is a matter of great concern to them, and in light of the fact, as mentioned above, that there had already been many cases in which some retired employees challenged the validity of the then-current retirement allowance system and filed suit against the defendant company and won, there is room to find that the employees were aware of the circumstances that there was a problem with the validity of the then-current retirement allowance system and that the defendant company was seeking the employees' consent in order to remedy this.
Furthermore, as noted above, since each employee had delegated entirely to the five worker representatives on the defendant company's ship's crew Labor-Management Council the expression of the employees' opinions on the amendment proposal to the rules of employment, even if matters such as consenting to an amendment proposal to the rules of employment were not included among the duties of worker representatives under the regulations governing the Labor-Management Council, it should be held that, with respect to the specific matter thus delegated, the worker representatives had authority to represent the employees' manifestation of intent. If the content of this delegation of authority was such that the worker representatives themselves were to review the content of the amendment proposal to the rules of employment and decide through consultation whether to consent, then, so long as the worker representatives understood the purport of the amendment to the rules of employment and consented thereto, it would be difficult to fault the validity of such consent.
The court below should have conducted further examination of the above points before determining whether the employees' consent was valid; however, without doing so, it hastily made the determination described above. This constitutes an unlawful act affecting the judgment due to a failure to exhaust necessary examination, and the argument on this point is well-founded.
3. Therefore, the judgment below is reversed and the case is remanded, and it is so decided as stated in the Order by the unanimous opinion of the participating Justices.
Presiding Justice Bae Man-woon
Justice Lee Hoi-chang
Justice Lee Jae-sung
Justice Kim Seok-su