[Plaintiff, Appellant]
[Defendant, Appellee] Daewoo Heavy Industries Co., Ltd. (Attorney Kim Dae-seob, counsel for the defendant)
[Judgment Below] Seoul High Court Decision 95Na2458 rendered on April 18, 1995
[Order]
The judgment below is reversed, and the case is remanded to the Seoul High Court.
[Reasoning]
The grounds of appeal by the litigation representative are examined.
1. According to the reasoning of the judgment below, the lower court found as follows: Article 31, Paragraph 1, main text of the Defendant's collective bargaining agreement (단체협약) provides that the retirement age of union members shall be 55 years, that the date of mandatory retirement shall be calculated based on the date of birth and set as the last day of the relevant month, and that the retirement age may be extended by one year upon the employee's request; and the proviso to the same paragraph provides that, upon the employee's request, the employee may work for one year as a contracted employee (촉탁) after mandatory retirement, in which case wages shall be paid at 90% of the average wage for the one year prior to retirement. The lower court further found that the Plaintiff (born April 20, 1937) was hired as an employee of the Defendant on December 9, 1980, and worked until reaching the retirement age on April 30, 1992; that, pursuant to the main text of Article 31, Paragraph 1 of the above collective bargaining agreement, the Plaintiff's retirement age was extended by one more year, making the retirement date April 30, 1993; that on March 12, 1993, shortly before the extended retirement date, the Plaintiff applied to the Defendant to work as a contracted employee for one year; and that on April 20 of the same year, the Defendant refused to accept this application.
The lower court then addressed the Plaintiff's argument that the provision in the proviso to Article 31, Paragraph 1 of the collective bargaining agreement stating that "the employee may work for one year as a contracted employee upon the employee's request after mandatory retirement" is a mandatory provision imposing an obligation on the Defendant, such that once the Plaintiff applied for contracted employment, a contracted employment relationship was established between the Plaintiff and the Defendant pursuant to that provision.
In response, based on the evidence presented, the lower court found the following: that Article 34 of the collective bargaining agreement concluded on November 4, 1988, concerning the extension of retirement age or post-retirement contracted employment for the Defendant's union members, provided that "the retirement age of union members shall be 55 years, provided that it may be extended by one year only upon the employee's request"; that this provision was subsequently partially amended to the content set forth above in the collective bargaining agreement concluded on February 20, 1991, and the same content was maintained in the collective bargaining agreement concluded on August 8, 1992; and that in the collective bargaining agreement concluded in 1994, the retirement age was set at 57, and the provisions concerning extension of retirement age or contracted employment were deleted.
The lower court further found that although the collective bargaining agreements of February 20, 1991 and August 8, 1992 did not define "contracted employment," the Defendant's personnel regulations define a "contracted employee" as "a person possessing the prescribed skills or techniques required by the company, who is deemed suitable to be assigned to such duties only for a certain period required by the company, and who has consented to conclude a contract"; that between January 1, 1992 and January 31, 1994, out of 32 employees who reached mandatory retirement, the Defendant permitted only 4 employees to work as contracted employees, while the remaining employees were either denied such employment or did not apply for it at all; and that, apart from the Plaintiff, no formal objection had ever been raised by the labor union or the employees concerned regarding the Defendant's practice of handling applications for contracted employment as described above.
Based on these findings, the lower court held that the proviso to Article 31, Paragraph 1 of the collective bargaining agreement, stating that "the employee may work for one year as a contracted employee upon the employee's request," should be interpreted—in light of its literal text, the Defendant's related personnel regulations, and the manner in which it had been operated—as a discretionary provision allowing the Defendant, as the employer, to decide whether to hire the employee as a contracted employee within the scope permitted by the company's circumstances, taking into account the employee's ability and work attitude, among other factors, when the employee requests contracted employment; and that it could not be regarded as a mandatory provision imposing on the Defendant an obligation to necessarily accept such a request. On this basis, the lower court rejected all of the Plaintiff's claims in this case, which were premised on the provision being a mandatory one.
2. However, this Court cannot readily accept the above determination by the lower court.
As for a disposition document (처분문서) such as a collective bargaining agreement, once its authenticity is established, the court must recognize the existence and content of the declaration of intent indicated in the document based on its written content, unless there is clear and convincing evidence to the contrary. Furthermore, since a collective bargaining agreement is concluded through collective bargaining between a labor union, as an autonomous organization of workers, and the employer regarding working conditions, for the purpose of maintaining and improving workers' working conditions, promoting their welfare, and enhancing their economic and social status, its express provisions may not be interpreted unfavorably to the workers (see Supreme Court Decision 86Daka306 rendered on April 14, 1987).
Upon examination, first, in interpreting the proviso to Article 31, Paragraph 1 of the above collective bargaining agreement, it does not appear entirely clear from the text alone whether the phrase "the employee may work for one year as a contracted employee upon the employee's request" means that, when the employee requests contracted employment, the Defendant may accept or refuse such request after considering the company's circumstances (i.e., a discretionary provision granting discretion to the company), or whether it means that the Defendant cannot refuse such a request and bears only the obligation to approve it (i.e., a mandatory provision).
However, Article 3 of the above collective bargaining agreement provides that "the standards set forth in this Agreement shall take precedence over the standards under labor relations statutes, the rules and regulations established by the company, and individual employment contracts concluded with union members, and where they differ from the standards of this Agreement, the higher working conditions shall apply." Article 126 provides that "the interpretation of this Agreement may not be made arbitrarily by either party, and in the event the labor and management sides differ in their views, the interpretation of the labor-management working committee (노사실무위) at the time of the negotiation shall govern." Accordingly, in a case such as the present one, where the meaning of the proviso is not clear from its text alone and a dispute has arisen between the Plaintiff and the Defendant, the interpretation of the labor-management working committee at the time of the negotiation should, in principle, govern first pursuant to Article 126 of the collective bargaining agreement. However, according to the record, opinions among the members of the labor-management working committee who participated in the negotiation at the time are currently divided regarding the interpretation of the proviso, such that a unified interpretation from the labor-management working committee at the time of the negotiation cannot be expected. In such circumstances, the court has no choice but to reasonably interpret the proviso by taking into account the circumstances under which it came to be included in the collective bargaining agreement and the process of agreement among the labor-management working committee at the time.
According to the record, the proviso in question was not included in the collective bargaining agreement concluded on November 4, 1988, but was first included in the collective bargaining agreement concluded on February 20, 1991, and the same content was maintained in the collective bargaining agreement concluded on August 8, 1992. According to the contents of Exhibits A No. 8-7 through 8-10 (each titled "Collective Bargaining for Renewal of the 1990 Collective Bargaining Agreement"), at the collective bargaining session held on December 3, 1990 for the renewal of the 1990 collective bargaining agreement, the labor union side first demanded that, in the form of contracted employment after mandatory retirement, the working period be extended by two years so that employees could work until age 58; on January 9, 1991, the company side made a counter-proposal to accept contracted employment but to set the period at one year; and ultimately, on January 30 of the same year, the parties reached agreement on content identical to the proviso to Article 31, Paragraph 1 of the collective bargaining agreement at issue in this case. It is also found that, during the collective bargaining on January 30, 1991, in the process of persuading the labor union side—which had argued that the retirement age itself should be readjusted to 56, without a separate extension, with one additional year of contracted employment—the Defendant's representative director, the non-party, persuaded the labor union side to the effect that "it is sufficient to accept that, while the form remains 55 years of age, in substance the employee will work until age 57."
In light of these facts, together with the fact, as found by the lower court, that disputes continued between the Defendant and the labor union over the interpretation of the proviso to Article 31, Paragraph 1 of the collective bargaining agreement, until, upon the conclusion of the 1994 collective bargaining agreement, the retirement age itself was changed outright to 57; and considering the circumstances and process of change leading up to the enactment of the proviso, and in particular the content of the exchanges between labor and management at the labor-management working committee at the time of the negotiation and the process by which agreement was reached, it is reasonable to view that there is room to interpret the proviso to Article 31, Paragraph 1 of the collective bargaining agreement at issue in this case—which states that "after mandatory retirement, upon the employee's request, the employee may work for one year as a contracted employee, and wages shall be paid at 90% of the average wage for the one year prior to retirement"—as a mandatory provision imposing on the Defendant an obligation, without room for discretion, to allow an employee who has reached mandatory retirement age and requests contracted employment to work for one additional year in the form of contracted employment.
Accordingly, in this dispute arising from the interpretation of the proviso to Article 31, Paragraph 1, the view of the labor-management working committee at the time of the negotiation should, pursuant to Article 126 of the collective bargaining agreement, serve as the foremost standard. Nevertheless, the lower court, disregarding the negotiation process and content of the labor-management working committee at the time of the negotiation, interpreted the proviso unfavorably to the Plaintiff based solely on the definition of "contracted employee" under the Defendant's personnel regulations and the manner in which the proviso had been operated based on the Defendant's unilateral interpretation, and thereby determined it to be a discretionary provision of the Defendant. In doing so, the lower court committed an error of law in failing to exhaust its examination or in violating the rules of evidence, thereby misapprehending the facts, or, in the end, erred in interpreting the proviso to Article 31, Paragraph 1 of the collective bargaining agreement at issue in this case, which error affected the judgment. Accordingly, the argument in the grounds of appeal pointing this out is well-founded.
3. Therefore, the opinions of the participating Justices being unanimous, it is decided as set forth in the Order to reverse the judgment below and remand the case to the court below.
Justice Park Man-ho (Presiding Justice), Justice Park Jun-seo, Justice Kim Hyeong-seon (Justice in charge)