[2] Whether the modification of the rules of employment takes effect upon the consent of the trade union alone if the rules of employment are modified disadvantageously to only workers who are not represented by the trade union (negative)

[2] When revising the rules of employment disadvantageous to this worker under Article 95 (1) of the Labor Standards Act, the consent of the labor union is required to obtain the consent of the labor union when there is a labor union composed of a majority of the workers. It is intended to ensure that the intent of the workers disadvantaged due to the revision of the rules of employment is reflected in the amendment of the rules of employment through the labor union. Thus, if the rules of employment are modified disadvantageous to the workers who are not represented by the

The defendant shall pay to the plaintiffs 5% interest per annum from May 10, 2001 to October 2, 2002 and 25% interest per annum from the next day to the full payment date.

2. The defendant's remaining appeal is dismissed.

3. The costs of appeal are assessed against the defendant.

The defendant shall pay to the plaintiffs 25% interest per annum from the day following the service of a copy of the complaint of this case to the day of full payment with respect to each corresponding amount and each of the above amounts stated in the separate sheet.

2. Purport of appeal

The judgment of the court below is revoked and the plaintiffs' claims are dismissed.

The following facts may be admitted if there is no dispute between the parties, or if the entry of Gap evidence 1 to Gap evidence 5-6, and Eul evidence 6 is added to the whole purport of the pleading.

A. The plaintiff was appointed as a public official of the Ministry of Information and Communication on January 1, 1982 as of the date of appointment on the corresponding list "date of appointment of the attached list" and worked as an official (class V). On January 1, 1982, the Ministry of Information and Communication establishes the Korea Telecommunication Corporation, a telegraphic body of the defendant, to separate only telecommunication services among its duties. Since the Minister of Information and Communication transferred the plaintiffs to the Korea Telecommunication Corporation as he appointed the plaintiffs as an employee of the Korea Telecommunication Corporation, the retirement age of the employees under Article 35 (1) of the Regulations on the Personnel Management of the Korea Telecommunication Corporation (amended by September 24, 1998) was 58 years of age, and was retired on each actual retirement date on the corresponding list "on the actual retirement date of the Korea Telecommunication Corporation" stated in the "Rules of Information and Communications Corporation" column (the plaintiff Gangnam-gu advisory members of the Korea Telecommunication Center, the plaintiff Lee Jae-gu advisory members of the Seoul Headquarters, the Seoul Telecommunication Headquarters, and the plaintiff Association advisory members of the Seoul.

(b)The Korea Telecommunication Corporation paid KRW 204,456,50 to the Gangseo-gu of the plaintiff on January 15, 2001, KRW 89,569,320 to the plaintiff Lee Jae-gu on January 15, 2001, KRW 200,314,00 to the plaintiff Lee Jae-gu on October 25, 199, KRW 123,032,970 to the plaintiff Cho Jong-young on July 20, 200, KRW 182,639,610 to the plaintiff Cho Young-gu on October 12, 200, and KRW 10,361,850 to the plaintiff Lee Jae-gu on April 10, 201.

(c)On the other hand, at the time of the retirement of the plaintiffs, the retirement age and other status and retirement benefits of the plaintiffs, which were in force by the Korea Telecommunication Corporation, are as follows:

(1) Provisions relating to retirement age and other status

(A) Paragraph (3) of the Addenda of the former Korea Telecommunication Corporation Act (amended by Act No. 5387 of Oct. 1, 1997): "The retirement age of a person designated by the Minister of Communications among public officials belonging to the Ministry of Communications, who became an employee of the Corporation, shall be the retirement age under the State Public Officials Act, which applied to the class at the time of his/her retirement: Provided, That this shall not apply where the retirement age of an employee of the Corporation is longer than that of a public official under the State Public Officials

(B) Article 6 of the Addenda to the Abolition of the Korea Telecommunication Corporation Act (Act No. 5387): (1) Any employee of the Corporation under the Korea Telecommunication Corporation Act at the time this Act enters into force shall be deemed a employee of the Corporation under this Act.

(C) Article 35(1)1 of the former Personnel Management Regulations of the Defendant Corporation ( effective January 1, 1998): “The retirement age for the general public employees shall be 58 years of age.”

Paragraph (2) of the same Article: "The retirement age of persons designated by the Minister of Information and Communication from among public officials belonging to the Ministry of Information and Communication and become employees of the company shall be determined by the retirement age under the State Public Officials Act who applied to the class at

(d)Article 35, paragraph 1, of the Korean Regulations on the Personnel of Telecommunications Corporation (amended on September 24, 1998): The retirement age for the Staff shall be fifty-eight: Provided, That the retirement age and service period for the reserve commander, the reserve forces commander and the officials in special service in charge of emergency preparation affairs shall be governed by the relevant laws and regulations."

Paragraph (2) of the same Article: In cases where the date on which an employee reaches the retirement age falls between January and June, he/she shall be retired ipso facto from office on the 30th day of June, and in cases between July and December, on the 31st day of December, respectively: Provided, That the employee in special service as referred to in the proviso to paragraph (1) shall retire ipso facto as prescribed by the relevant Acts and subordinate statutes.

Paragraph 3 of the Addenda to the Personnel Regulations of the same Act: "The previous retirement age shall apply to a person who voluntarily retires before the retirement age on or before January 1, 1999, notwithstanding the provisions of Paragraph 1 of Article 35."

(2) Provisions pertaining to retirement pay

(a)Paragraph 1 of Article 32 of the Remuneration Regulations (amended on December 31, 199, hereinafter the same shall apply): "An employee has served for more than one year and falls under any of the following cases, a retirement allowance shall be paid."

(b)Paragraph 1 of Article 33 of the Remuneration Regulations: "The average wage shall be the sum of the following amounts: 1. The amount calculated by dividing the standard annual salary, basic salary, working environment allowances, overtime work allowances, monthly leave allowances, meal service allowances, meal service allowances, and general service allowances paid to the employee during the three-month period preceding the date on which the cause for the payment of retirement allowances occurs; 2. The amount calculated by dividing the bonus for one year from the date on which the cause for the payment of retirement allowances occurred, annual leave allowances, and effective leave allowances by 12."

(c)Paragraph 1 of Article 34 of the Remuneration Regulations: "The continuous service period for calculation of retirement allowances shall be from the date of employment until the date when the cause for payment of retirement allowances under the provisions of Article 32 occurs."

(d)Article 35 of the Remuneration Regulations: Retirement allowances shall be the amount calculated by the following formula, provided that the fraction of less than 10 won of the total amount of calculation shall not be calculated:

Retirement allowance = Average wage ¡¿ Number of years of service £« Number of continuous service days less than one year/365).

D.Korea Telecommunication Corporation had a trade union comprised of more than one majority of workers, but all the plaintiffs were not entitled to join the trade union (class 1 or 2 employees), and the retirement age of 58 pursuant to Article 35(1) of the former Personnel Regulations of the Korea Telecommunication Corporation was not applied, and the employees belonging to the Korea Telecommunication Corporation to which the exception provisions of paragraph 2 of the same Article applies were 210 at the time of the amendment of the above personnel regulations. As such, the Korea Telecommunication Corporation amended the above personnel regulations to unify all employees into 58 years of age, and did not obtain the consent of the trade union on September 11, 1998, and did not obtain any separate consent from the above 210 employees including the plaintiffs who are non-members.

2. Determination:

A. The provisions of Paragraph 3 of the Addenda of the former Korea Telecommunication Corporation Act (amended by Act No. 5387 of Oct. 1, 1997) intends to prevent disadvantages due to the loss of status of public officials by guaranteeing the retirement age under the State Public Officials Act which was already guaranteed at the time of their retirement of public officials from the time of their retirement. Thus, the age 61, which is the retirement age under the State Public Officials Act at the time of their transfer, is guaranteed by the above law itself. Thus, unless there is any amendment of the law, the retirement age under the above law can not be arbitrarily changed (In this respect, the retirement age under the above law is applied only at the time of their transfer, and the defendant's assertion that it is not applied thereafter cannot be accepted as assertion against the language of the above law itself). Meanwhile, as seen above, Article 6 of the Addenda of the Korea Telecommunication Corporation Act does not separately provide for former workers, such as the plaintiffs, who are newly established, to whom the plaintiffs can be seen as employees of Korea Telecommunication Corporation without their consent to change their retirement age.

B.On the other hand, each of the above statutory provisions does not directly guarantee the plaintiffs' retirement age, but merely guarantee the plaintiffs' retirement age for a certain period at the time of the change of employment, and even if the defendant could change the retirement age through the revision of the rules of employment, as seen above, the defendant did not obtain the collective consent of the employees who are in the same position as the plaintiffs in revising the personnel regulations of the defendant as of September 24, 1998, and only obtain the consent of the defendant's labor union. If the rules of employment are revised disadvantageous to the workers under Article 95 (1) of the Labor Standards Act, it is necessary to ensure that the opinion of the workers who were disadvantaged due to the revision of the rules of employment is reflected in the revision of the rules of employment through the labor union. The former personnel regulations guaranteeing the plaintiffs' retirement age apply only to the former workers, such as the plaintiffs, and are irrelevant to those of other employees, and there is no reason to believe that the labor union without interest in this part can represent the plaintiffs, and in particular, the plaintiffs did not consent to the above revision of the rules of employment union.

C. On September 24, 1998, the defendant revised Article 35 of the above personnel regulations on the unification of the retirement age for employees on September 24, 1998, and published the fact of shortening the retirement age in the Korea Communications News on September 25, 1998, the following day, and individually notified 281 persons subject to the reduction of retirement age, including the plaintiffs, of the fact that the person subject to the reduction of retirement age was given an inevitable opportunity for the reduction of retirement age and the opportunity for voluntary retirement. From November 4, 1999 to November 19, 199, the defendant, including the above personnel regulations, did not receive any objection from the above 281 persons, including the plaintiffs, even though the defendant had given their employees an opportunity to express their intent on the reduction of retirement age. Since the plaintiffs received any retirement allowance calculated at the age of 58 from the defendant's side, the plaintiffs were subject to the revision of the above personnel regulations without the consent of the plaintiffs, the plaintiffs did not receive any objection against the principle of good faith.

However, solely on these circumstances, it cannot be deemed that the plaintiffs consented to the reduction of their retirement age or the plaintiffs' claim of this case based on the premise that the above revised personnel regulations are null and void is contrary to the principle of good faith. Therefore, the defendant's defense

D.In addition, as the defendant needs to amend the above personnel regulations for the improvement of the management structure of public enterprises such as personnel matters, it shall be the defense that it is valid for the plaintiffs as an amendment of the rules of employment which is reasonable by social norms even without the consent of the plaintiffs.

However, it is difficult to view that the reduction of retirement age to the plaintiffs merely because of the purpose of improving the management structure is reasonable under the social norms. As seen above, the number of workers in the same position as the plaintiffs is merely 210 and thus falls under the part of the defendant's total number of workers. Therefore, the reduction of retirement age is deemed to have an effect on the improvement of the defendant's management structure (which bears the burden of proof against the defendant, but which does not bear any burden of proof) and the defendant's defense is also without merit.

3. Conclusion

Therefore, since the above revised personnel regulations and retirement measures that reduce the retirement age of 58 are null and void against the plaintiffs, the defendant is obligated to pay damages for delay at the rate of 5% per annum under the Civil Act from May 10, 2001 to October 2, 2002, which is the date of delivery of a copy of the complaint of this case, and 25% per annum under the Act on Special Cases Concerning Promotion, etc. of Legal Proceedings, since the above revised personnel regulations and retirement measures that reduce the retirement age of the plaintiffs are invalid for the plaintiffs, the defendant shall accept the above claim of this case within the above recognized scope of the plaintiffs, and the remaining claims shall be dismissed due to the lack of merit. Since the court below's conclusion is improper, the defendant's appeal shall be partially accepted, and the part of the appeal against the defendant shall be revoked and the remainder of the appeal shall be dismissed, as the defendant's appeal shall be dismissed. The remaining part of the appeal shall be dismissed.

Judges knife (Presiding Judge)