[Plaintiff, Appellant] ○○ Transportation Co., Ltd. (Attorney Bae Man-un for the plaintiff)
[Defendant, Appellee] Defendant (Yoon Jong-hyun and four others, attorneys of Simin General Law Firm, for the defendant)
[Judgment Below] Seoul High Court Judgment 95Na15164 rendered on December 15, 1995
[Order]
The judgment below is reversed. The case is remanded to the Seoul High Court.
[Reasoning]
The grounds of appeal are examined.
1. According to the reasoning of the judgment below, the facts found and the determination made by the court below are as follows.
A. The Defendant (born on January 7, 1938) joined the Plaintiff company, a city bus company, as a bus driver on March 9, 1984, and worked there until he was dismissed on June 29, 1991 on the ground that he had distributed leaflets criticizing the Plaintiff company on June 15, 1991. The Defendant filed a lawsuit against the Plaintiff company seeking confirmation of the invalidity of the dismissal and payment of wages equivalent to those he would have earned from June 29, 1991 until his reinstatement, and obtained a final and conclusive judgment in his favor. The Plaintiff company had previously not had any provision concerning employees' retirement age in its work rules (취업규칙), but on June 14, 1991, it convened a labor-management council (노사협의회) and newly established a provision in Article 50, Paragraph 16 of the work rules, titled "Age Limit for Employees' Mandatory Retirement," which provided: "The mandatory retirement age of employees shall be the day following the date on which they reach 55 years of age; provided, however, that in cases where an employee has demonstrated excellent work performance during employment, has generally set an example for other employees, has made efforts to prevent accidents, and has enhanced the reputation of the company, the company may, upon annual review, permit the employee to continue working beyond that age." At the said labor-management council meeting, the consent of all three worker members constituting the council was obtained, and moreover, a written opinion was obtained in the name of non-party 1, who was then the chairperson of the ○○ chapter of the Seoul Bus Branch of the National Federation of Automobile Workers' Unions, stating: "As the representative of the labor union chapter, I have reviewed the partial amendment to the Plaintiff company's work rules and have no objection thereto." Meanwhile, the Rules for Operation of Labor-Management Councils (노사협의회 운영준칙), an administrative rule (예규) of the Ministry of Labor, provides that matters concerning working conditions not falling within the scope of matters to be handled by labor-management councils under the Act on the Promotion of Workers' Participation and Cooperation (노사협의회법) may nevertheless be discussed and decided upon. As of June 14, 1991, the total number of employees of the Plaintiff company was 206 (of whom 145 were union members), and among them, approximately 20 employees had reached the age of 55; however, such employees had continued to work without any restriction even after reaching 55. As for the mandatory retirement age for employees at other bus companies in the Seoul area, Donghae Transportation Co., Ltd. set it at 57, Yeongdong Transportation Co., Ltd. at 58, Hanseong Bus Co., Ltd. at 60, Hanseong Transportation Co., Ltd. at 61, and Samyang Transportation Co., Ltd., Hanseong Passenger Transport Co., Ltd., and Taereung Transportation Co., Ltd. each at 55.
B. Based on the above facts, the court below made the following determination.
Even though the Plaintiff company's work rules previously contained no express provision on retirement age, the newly established provision setting the retirement age at 55 constitutes a de facto reduction of the retirement age and thus an unfavorable change to the working conditions that had previously existed de facto at the Plaintiff company. Accordingly, the consent of the labor union or of a majority of the collective body of employees should have been obtained. As noted above, although the Plaintiff company obtained the consent of all worker members constituting the labor-management council when establishing the said retirement-age provision in the work rules, the labor-management council is a system whose purpose is to promote industrial peace by enhancing the common interests of labor and management through mutual understanding and cooperation between employees and the employer, and its purpose differs from that of a labor union. Therefore, even though the Ministry of Labor's administrative rule provides that matters concerning working conditions may be included among the matters to be discussed by the council, there is no material to show that, in electing the worker members who constitute the labor-management council, the employees comprehensively delegated to them the authority to give consent on their behalf to unfavorable changes in working conditions, nor is there material to show that the worker members, in giving their consent to the establishment of the said retirement-age provision, had gathered and consolidated the employees' opinions in advance and exercised their expression of intent by way of agency. Moreover, even though an opinion indicating no objection to the establishment of the said retirement-age provision was obtained from non-party 1, who was then the chapter chairperson of the ○○ chapter of the Seoul Bus Branch of the National Federation of Automobile Workers' Unions, there is likewise no material to show that the said non-party 1, as the union chapter chairperson, had been comprehensively delegated the authority to give consent on behalf of the employees to unfavorable changes in working conditions, or that he had gathered and consolidated the employees' opinions in advance and exercised their expression of intent by way of agency. Accordingly, the consent obtained from the worker members of the labor-management council or from the union chapter chairperson cannot be equated with the consent of the labor union or of a majority of the employees. Furthermore, in light of the fact that, although some companies have a retirement age of 55, many other companies have retirement ages exceeding that age, and that it accords with common experience to consider that ordinary manual laborers remain capable of working even beyond the age of 55, it is difficult to recognize that the establishment of the 55-year retirement-age provision possesses such reasonableness under generally accepted social norms as would obviate the need for the consent of the labor union or the collective body of employees. Consequently, the establishment of the said 55-year retirement-age provision must be held invalid.
2. As to Grounds of Appeal Nos. 1 and 2
A. The authority to draft and amend work rules (취업규칙) in principle belongs to the employer, and the employer may draft and amend the work rules according to its own intention. However, where the drafting or amendment of the work rules deprives employees of vested rights or interests already held by them and imposes unfavorable working conditions, the consent obtained through the collective decision-making method of the employees who were subject to the previous working conditions or work rules—that is, the consent of the labor union, where there exists a labor union organized by a majority of the employees at the workplace concerned, or the consent of a majority of the employees, where no such labor union exists—is required. Where such consent has not been obtained, the amended work rules shall not apply to existing employees whose vested interests are infringed, unless it is recognized that the amendment possesses reasonableness under generally accepted social norms (see Supreme Court Decision 88Da4277 rendered on May 9, 1989; Supreme Court en banc Decision 91Da45165 rendered on December 22, 1992; and Supreme Court Decision 92Da39778 rendered on January 15, 1993). Whether an amendment to the work rules possesses reasonableness under generally accepted social norms and whether it is unfavorable to employees must be determined by comprehensively considering all relevant circumstances, including the purpose and background of the amendment, the nature of the business operated by the enterprise concerned, and the overall structure of the various provisions of the work rules (see Supreme Court Decision 87Da2853 rendered on May 10, 1988).
B. If the facts are as found by the court below, then before the establishment of the retirement-age provision, the employees of the Plaintiff company could continue working without any restriction even beyond the age of 55; however, due to the establishment of the said retirement-age provision, they now reach retirement age at 55, and are permitted to work beyond the age of 55 only in certain cases, subject to the Plaintiff company's review. Accordingly, even taking into account the circumstances noted above, the establishment of such a retirement-age provision constitutes the imposition of unfavorable working conditions that deprive employees of vested rights or interests they held. Therefore, it cannot be said that the judgment below, having determined the matter in the same vein, committed an error of law by misapprehending the legal principles concerning unfavorable amendments to work rules. The ground of appeal pointing to this issue cannot be accepted.
C. Accordingly, the establishment of the said retirement-age provision constitutes a case of amending the work rules unfavorably to employees, and since, as found by the court below, the Plaintiff company has a labor union organized by a majority of its employees, the consent of the labor union must be obtained in such a case. However, even in such a case, the consent of the labor union may be given by the union president on behalf of the union, unless there exist special circumstances such that the union president's representative authority has been restricted by statute, a collective bargaining agreement, the labor union's bylaws, or the like; it is not necessary to obtain the consent of a majority of the union members belonging to the labor union.
Accordingly, if, as found by the court below, non-party 1, the union chapter chairperson, expressed an opinion indicating no objection to the establishment of the said retirement-age provision, then, absent special circumstances such as a restriction on the chapter chairperson's authority to consent to the establishment of work rules unfavorable to employees, this should be regarded as valid consent of the labor union. Nevertheless, the court below concluded that there was no material to show that non-party 1 had been comprehensively delegated the authority to give consent on behalf of the employees, or that he had gathered and consolidated the employees' opinions in advance and exercised their expression of intent by way of agency, and on that basis simply concluded that there was no consent of the labor union. The judgment below cannot but be regarded as having committed an error of law by misapprehending the legal principles concerning the labor union's consent to the amendment of work rules, and by failing to sufficiently examine the matter. The portion of the grounds of appeal pointing to this issue has merit.
3. Accordingly, without examining the remaining grounds of appeal, the judgment below is reversed, and the case is remanded to the court below for further hearing and determination. This judgment is rendered as set forth in the Order, with the unanimous concurrence of the participating Justices.
Justice Park Jun-seo (Presiding Justice), Justice Park Man-ho, Justice Kim Hyeong-seon, Justice Lee Yong-hun (Justice in Charge)