[2] The case affirming the judgment below which held that special bonuses, welfare expenses, or annual leave allowances are naturally included in the average wage which forms the basis for the calculation of retirement allowances, unless there is a special exclusion from the wage rules of the workplace in question since they have the nature of wage, which is the remuneration for labor

[3] The case affirming the judgment below holding that since the new provision on remuneration excludes the welfare expenses included in the average wage, which is the basis of the calculation of a retirement allowance, the previous provision on remuneration cannot be deemed as changing the working conditions more favorably solely on the ground that the new provision on remuneration included in the wages, which is the basis of the calculation of a retirement allowance, such as the food and transportation expenses paid periodically and uniformly, and the wage for notice and continuous service expenses newly established

[4] Whether a collective agreement can be deemed to be a collective agreement where a trade union and a representative of both employers place their signatures and seals on a written agreement formed through consultation between the labor-management council, which is not a regular collective bargaining procedure (affirmative)

[5] The validity of a collective agreement signed by both parties to the collective agreement (effective)

[6] Whether the representative of a trade union violates Article 29 (1) of the Trade Union and Labor Relations Adjustment Act by requiring a resolution of the general meeting of union members on whether the draft agreement should be passed again after having agreed on the content of collective bargaining with the employer (affirmative)

[7] In a case where an employer concludes a new collective agreement with a trade union to make an employee disadvantageously change the retirement allowance provision without the employee’s consent in a collective decision-making manner, whether the revised retirement allowance provision applies to the existing employee (affirmative)

[2] The case affirming the judgment below which held that special bonuses, welfare expenses, or annual leave allowances are included as a matter of course in the average wage, which is the basis of the calculation of retirement allowances, unless otherwise stipulated by the wage rules of the workplace in question, since they have the nature of wage, which is the remuneration for labor.

[3] The case affirming the judgment of the court below which held that since the new provision on remuneration excludes the welfare expenses included in the average wage which is the basis of the calculation of retirement allowances from the above average wage, it cannot be deemed that the previous provision on wages does not change the working conditions more favorably solely on the ground that the new provision on remuneration included the food and transportation expenses paid periodically and uniformly, and the newly established notice allowances and continuous service allowances in the wages which form the basis of the calculation of retirement

[4] A collective agreement is established by preparing in writing an agreement on working conditions and other matters arising from the labor union’s labor-management relations with an employer or employers’ association (agreement) and signing and sealing both parties thereto. Since such agreement (agreement) does not necessarily require that agreement should be made through regular collective bargaining procedures, even if an agreement on working conditions and other labor-management relations between a trade union and an employer was formed through consultation between the labor union and the labor-management council, if both parties to the agreement were to be written in writing, and the representatives of both parties to the agreement meet the actual and formal requirements of the collective agreement by signing and sealing on behalf of each trade

[5] Demanding writtenization of the contents of the agreement in a collective agreement is to prevent future disputes by clarifying the contents of the collective agreement, and to ensure the authenticity of the collective agreement by clarifying the parties to the agreement as well as confirming their final intent, and thus, it does not constitute null and void even if it was signed next to its name.

[6] The fact that the representative of a trade union, after having agreed on the contents of a collective agreement with an employer as a result of collective bargaining, shall undergo a resolution at the general meeting of union members on whether the draft agreement should be passed again, is in violation of Article 29 (1) of the Trade Union and Labor Relations Adjustment Act, by completely and comprehensively limiting the representative's authority to conclude the collective agreement, making the power

[7] A collective agreement is an agreement entered into with an employer or employers' organization on matters arising from the working conditions and other labor-management relations. Where a trade union has agreed or approved on the criteria for determining working conditions, such as pre-existing wages, working hours, retirement allowances, etc. with an employer, the consent or approval shall take effect after the collective agreement entered into force for the company, and shall be applied to the union members or workers who will be subject to the agreement. Thus, although the rules on retirement allowances under the rules of employment are disadvantageous to workers, the previous provisions on retirement allowances shall apply to pre-existing workers whose profits are infringed by the employer's modification without the consent of the worker's collective decision-making method, even if the previous provisions on retirement allowances should apply to pre-existing workers whose profits are infringed by the employer's modification without the consent of the worker's collective decision-making method, if the trade union entered into a collective agreement with the employer's employer to comply with the revised provisions on retirement allowances, the previous provisions on retirement allowances shall apply to the pre

A. As to the fourth ground for appeal

(1) 원심은, 그 채용 증거를 종합하여, 원고들이 피고 회사에 근무중이던 1992. 당시 시행되던 피고 회사의 급여규정(이하 '종전급여규정'이라고 한다)에 의하면, 만 1년 이상 근속한 사원이 퇴직한 경우에 지급하여야 할 퇴직금은, 퇴직할 당시의 '평균월급여'에 퇴직금지급월수(근속기간에 따라 누진제로 되어 있다.)를 곱한 금액으로 하고(제15조 제1항), 급여의 종류로는 기본급과 각종 수당(직책수당, 대우수당, 물가수당, 직무수당, 면허수당, 위험수당, 시간외 근무수당)을 두면서(제4조), 상여금의 지급에 관하여는 별도의 상여금지급규정이 정하는 바에 의하도록 되어 있는 사실(제14조), 당시 시행되던 피고 회사의 상여금지급규정(이하 '종전상여금지급규정'이라고 한다)에 의하면, 상여금의 지급은 회사의 평상 경영실태를 감안하여 이사회에서 결정하되(제2조), 지급기준은 기본급과 직책수당을 합친 금액(제4조)에 이사회에서 결정하는 상여금지급률(제5조)을 곱하여 산정하도록 되어 있었는데, 피고 회사에서는 1990. 7. 31. 임금협약에서 연간 700%의 상여금과 경영실적에 따른 특별상여금을 지급하기로 약정한 이래 매년 700%의 정기상여금과 200%의 특별상여금{창사기념일(100%), 추석(50%) 및 여름휴가(50%, 체력단련비 명목으로 지급되기도 하였다.)}을 정기적으로 지급하여 온 사실, 피고 회사는 1993. 1. 1.자로 새로운 보수규정(이는 종전급여규정과 종전상여금지급규정을 폐지·통합하면서 그 내용의 일부를 변경한 것이다.)을 제정하여 시행하였는데, 위 보수규정에 의하면, 급여는 기본급과 수당으로 구성하고(제5조 제1항), 수당의 종류로 직책수당(대우수당 포함), 직무수당, 물가수당, 면허수당, 위험수당, 고지수당, 시간외 및 휴일근무수당을 두고 있으며(제5조 제2항, 고지수당이 신설됨), 퇴직금에 관하여는, 만 1년 이상 근속한 사원이 퇴직한 경우에 지급하여야 할 퇴직금은, '퇴직금산정기준임금'에 근속연수에 따른 퇴직금지급월수(그 누진율은 종전과 동일하다.)를 곱한 금액으로 하도록 되어 있고(제24조 제1항), 퇴직금산정기준임금은, 기본급, 정기상여금(퇴직 전 최종지급액을 기준으로 정기상여금 700%를 12로 나눈 금액), 제 수당 중 직책수당, 직무수당, 물가수당, 면허수당, 위험수당, 고지수당과 식대 및 교통비를 합한 금액으로 하며(제25조), 상여금으로는 정기상여금과 후생적 복지비의 두 종류를 두면서(제16조 제1항), 정기상여금은 기본급과 직책수당을 합한 금액을 기준으로(제17조) 연 700%를 해당 월의 15일에 지급하되(제16조 제2항), 정기상여의 지급률 및 지급시기는 회사의 평상 경영상태를 감안하여 이사회에서 결정하며(제16조 제3항), 후생적 복지비에 대하여는 그 지급률 및 지급대상을 따로 정하도록 되어 있는바(제16조 제4항), 피고 회사는 후생적 복지비로 종전의 특별상여금과 동일한 시기에 동일한 비율의 금액을 정기적으로 계속 지급(창사기념상여금, 추석상여금 및 세찬금 등의 명목으로 지급)하여 온 사실, 피고 회사는 1995. 11. 1.자로 위 보수규정을 개정하여 시행하였는데, 개정된 보수규정에 의하면, 급여는 기본급과 수당으로 구성하고(제5조 제1항), 수당의 종류로는 직책수당, 직무수당, 물가수당, 근속수당, 면허수당, 휴가보상수당, 시간외 및 휴일근무수당을 두고 있으며(제5조 제2항, 위험수당 및 고지수당이 직무수당에 흡수·폐지되고, 근속수당 및 휴가보상수당이 신설됨), 퇴직금에 관하여는, 만 1년 이상 근속한 사원이 퇴직한 경우에 지급하여야 할 퇴직금은 '퇴직금산정기준임금'에 근속연수에 따른 퇴직금지급월수(그 누진율은 종전과 동일하다.)를 곱한 금액으로 하도록 되어 있고(제27조 제1항), 퇴직금산정기준임금은, 기본급, 정기상여금(퇴직 전 최종지급액을 기준으로 정기상여금 700%를 12로 나눈 금액), 제 수당 중 직책수당, 물가수당, 직무수당, 근속수당, 면허수당과 식대 및 교통비를 합한 금액으로 하며(제28조, 제29조, 휴가보상수당과 시간외 및 휴일근무수당은 제외됨), 근속기간의 계산에 있어 1년 미만의 근속기간은 월할 계산하되, 월 미만의 15일 이상은 1월로 계산하고 15일 미만은 계산하지 아니하도록 되어 있으며(제30조 제2항), 상여금으로는 정기상여금과 후생적 복지비의 두 종류를 두면서(제18조 제1항), 정기상여금은 기본급과 직책수당을 합한 금액을 기준으로(제19조) 연 700%를 해당 월의 15일에 지급하며(제18조 제2항), 후생적 복지비의 지급률, 지급시기 및 지급대상은 회사의 평상 경영상태를 감안하여 이사회에서 결정하도록 되어 있는바(제18조 제3항), 피고 회사는 위 보수규정의 개정 후에도 종전과 동일한 시기에 동일한 비율의 후생적 복지비를 정기적으로 계속 지급해 온 사실, 한편 피고 회사는 1997. 12. 23. 이사회의 결의로 보수규정을 개정하여 명예퇴직금에 관한 조항{제31조(제1항 : 취업규칙 제47조에 의하여 명예퇴직하는 자에게 보수규정 제29조의 퇴직금 외에 다음 기준에 따라 산정하는 명예퇴직금을 지급한다. 제2항 : 명예퇴직금의 산정기준과 계산방법, 제3항 : 명예퇴직금지급에 관한 세부사항은 피고 회사 대표이사가 별도로 정한다.)}을 신설하여(그 외에는 종전의 보수규정과 동일함) 같은 날부터 이를 시행한 사실 등을 인정한 다음, 후생적 복지비에 관하여는, 피고 회사의 종전급여규정에서 퇴직금 산정의 기초가 되는 임금을 '평균월급여'라고 규정하고, 급여의 종류로 기본급과 각종 수당을 지칭하면서 (특별)상여금을 급여의 하나로 명시하고 있지는 않으나, 피고 회사에서는 매년 일정한 시기에 일정한 액수의 정기상여금과 특별상여금을 계속적으로 지급하였으므로, 이는 원칙적으로 근로기준법 소정의 퇴직금 산정의 기초가 되는 '평균임금'에 포함되는 것이라 할 것인데, 종전급여규정에서 "상여금에 대하여는 별도 상여금지급규정이 정하는 바에 의한다."고 규정함으로써 급여규정 자체에 상여금에 관한 근거규정을 두고 있고, 또한 피고 회사에서는 종전부터 정기상여금에 대하여는 퇴직금 산정의 기초가 되는 임금에 포함하여 온 점에 비추어 보면, 피고 회사의 종전급여규정에서 말하는 퇴직금 산정의 기초가 되는 '평균월급여'에는 특별상여금도 포함되어 있다고 봄이 상당하다고 하고, 피고 회사가 1993. 1. 1.자 보수규정 제정·시행 후 지급한 후생적 복지비는 종전의 특별상여금과 동일한 시기에 동일한 비율로 지급된 것이어서 그 명칭만 달라졌을 뿐 실질에 있어서는 동일한 것인바, 후생적 복지비 역시 특별상여금과 마찬가지로 근로의 대가인 임금의 성질을 지니고 있다 할 것이어서 퇴직금 산정의 기초가 되는 임금에 포함된다고 봄이 상당하고, 또한 연월차휴가보상수당(이하 '연월차휴가수당'이라 한다)에 관하여는, 연월차휴가수당이 종전급여규정에서 정한 평균월급여에 포함되는지에 관하여 명확하게 정하여지지 아니하였으나, 연월차휴가수당은 근로자가 1년간 사용할 수 있는 연월차휴가의 전부 또는 일부를 이용하지 아니하고 근로하였을 때에 지급되는 것으로서 근로의 대가로서의 성격을 가지는 임금이라고 할 것이고, 특별히 종전급여규정에서 연월차휴가수당을 평균월급여에서 제외하기로 한 바 없는 이상 연월차휴가수당은 종전급여규정상의 평균월급여에 당연히 포함된다고 판단하였다.

In light of the above legal principles, the fact-finding and decision of the court below are justified, and there is no error of law such as misconception of facts against the rules of evidence or misapprehension of legal principles as to the meaning of average wages, which are the basis of calculation of retirement allowances, in the interpretation of the above provisions, such as the payment practices of the relevant workplace and the amendment details of the above provisions, and the contents thereof. (See Supreme Court Decision 97Da25095 delivered on March 13, 1998, etc.) In light of the records and the above legal principles, the above fact-finding and decision of the court below shall be justified, and there is no error of law such as misconception of facts against the rules of evidence or misapprehension of legal principles as to the meaning of average wages which are the basis of calculation of retirement allowances, as otherwise alleged in the ground of appeal.

(2) In full view of the evidence of its employment, the court below acknowledged that the defendant company continued to pay 50,00 won per month to all union members of the collective agreement on September 2, 198, to pay transportation expenses of 30,000 won per month to all its employees, and that the defendant company calculated and paid retirement allowances by including the above food and transportation expenses in the "average Monthly Wage" before the enforcement of the payment regulations on January 1, 1993, and that the above food and transportation expenses paid periodically and uniformly were included in the "average Monthly Wage" as the basis for the calculation of retirement allowances, and it did not err in the misapprehension of the legal principles as to the above payment of retirement allowances, since it stated that the above payment regulations are included in the "average Wage as the basis for the calculation of retirement allowances" as well as the above revised provision on the grounds that it did not constitute a new basis for the calculation of wages in favor of the previous employees, as otherwise stated in the ground of appeal No. 1488, Jan. 1, 1993.

B. Ground of appeal No. 1

(1) The judgment of the court below

(A) Comprehensively taking into account the evidence of employment, the lower court determined the difference between the Defendant Company and the Defendant Company’s labor union’s 20th anniversary of the initial agreement on the establishment of the 19th anniversary of its subscription to the said agreement, and determined the same terms and conditions as that of the 19th anniversary of the initial agreement on the retirement allowance of the Defendant Company’s 20th anniversary of its subscription to the 19th anniversary of its subscription to the said agreement. The 2nd agreement on the retirement allowance of the 1st anniversary of its subscription to the 196th anniversary of its initial agreement on the retirement allowance and the 2nd agreement on the retirement allowance of the 1st anniversary of its subscription to the said agreement on the 1st anniversary of its subscription to the 2nd agreement on the retirement allowance of the Defendant Company’s 4th anniversary of its subscription to the said agreement on the 1st anniversary of its subscription to the 2nd agreement on the retirement allowance and the 2nd agreement on the 1st anniversary of its subscription to the 2nd agreement on the retirement allowance.

(B) Furthermore, the proviso of Article 25 of the above Supplementary Convention delegates only the matters concerning voluntary retirement as agreed matters to the labor-management council, and does not delegate it as agreed matters with respect to the wages which are the basis for the calculation of retirement allowances as already determined in Article 46 of the above Supplementary Convention. The purpose of the labor-management council system lies in promoting industrial peace by promoting joint interests between the workers and the employers through understanding and cooperation between the workers. Thus, even if matters concerning working conditions are prescribed as agreed matters, it is different from the purport of the labor union. Thus, even if the matters concerning working conditions are prescribed as agreed matters, it cannot be deemed that the workers are comprehensively delegated with authority to give consent to the workers in commissioning (including as a matter of course) of the labor-management council (including the representative of the labor union) as well as to obtain consent from the majority of the workers' members or the labor-management council, and it is difficult to view that the representative of the labor-management union and the employees' members of the labor-management council were included in the workers' members and agreed to do so.

(2) Judgment of the Supreme Court

(A) However, we cannot agree with the judgment of the court below for the following reasons.

A collective agreement is established by preparing in writing an agreement (agreement) on matters arising from the employer or employers' association, working conditions, and other labor-management relations with both parties, and the agreement (agreement) is not necessarily required to be made through regular collective bargaining procedures.

Therefore, even if an agreement on working conditions and other labor-management relations between a trade union and an employer was reached through consultation between the labor-management council, if both parties to the agreement are prepared in writing with intent to make it a collective agreement and representatives of both parties meet the substantive and formal requirements of a collective agreement on behalf of each trade union and the employer, it shall be deemed a collective agreement.

According to the records, the number of members of the labor-management council is not more than 10. The number of members of the labor-management council is the person commissioned by the branch of the labor-management union including the head of Busan District Office, the representative director is the person commissioned by the labor-management council. The labor-management council is held with attendance of a majority of workers members and employers' members, and it is possible to pass a resolution with the consent of not less than 2/3 of members present. According to Article 89 of the common agreement of the labor-management council, each company's labor-management council is organized and operated to consult on all other matters related to the collective agreement. Article 12 subparagraph 2 of the Regulations of the labor-management council of the defendant company is also a matter of consultation, and the agreement is also a matter of actual consultation about the matters related to the collective agreement. The agreement of the attached to the labor-management council of this case is not a separate labor-management consultation about the matters related to voluntary retirement allowance of the defendant company, and it is also a matter that the retirement workers-management council of this case should not be included in the agreement.

In addition, according to the records, Article 18 (5) of the Operational Rules of the Defendant Company's Branch of the Trade Union provides that "the matters concerning the conclusion and amendment of collective agreements delegated under this Article" and Article 23 provides that "the matters concerning collective bargaining and labor-management consultation delegated under this Article," respectively, and Article 23 provides that "the board of representatives shall deliberate and make decisions in lieu of the matters decided at the general meeting under Article 18." However, the representative of a trade union shall make the matters that should be resolved at the general meeting of union members after agreement with the employer as a result of collective bargaining with the contents of the collective agreement again after agreement with the employer is reached shall be limited entirely and comprehensively to the power to conclude the collective agreement of the representative, thereby making it merely nominal (see, e.g., Supreme Court en banc Decision 91Nu1257, Apr. 27, 1993; Supreme Court Decision 2001Da3654, Nov. 26, 2002).

If so, it should be viewed that the above attached agreement is effective as a collective agreement.

(B) Meanwhile, a collective agreement is an agreement entered into with an employer or employers' association on matters arising from working conditions and other labor-management relations. If a trade union has concluded a collective agreement with an employer or employers' association on the criteria for determining working conditions, such as preexisting wages, working hours, retirement allowances, etc., the consent or approval shall take effect after the collective agreement enters into force for the company, and shall be applied to the union members or workers who will be subject to the agreement. Thus, even though the rules on retirement pay under the rules of employment disadvantage workers when the employer changes the rules without the employer's consent in collective decision-making method, even if the previous provisions should apply to preexisting workers whose profits are infringed by the employer's change without the employer's consent, if the collective agreement entered into with the employer's employer's consent to comply with the revised provisions on retirement allowances, the revised provisions on retirement allowances shall apply to the preexisting workers whose profits are infringed (see, e.g., Supreme Court Decision 201Da7970, Jun. 28, 2002).

With respect to this case, since the defendant company's labor union "the average wage under the collective agreement is the standard wage for the calculation of retirement allowances under Article 28 of the Rules on Remuneration of the defendant company" should be seen as a collective agreement attached to the supplementary agreement, which includes the contents of "a collective agreement attached to the supplementary agreement" as stated above, it shall be retrospectively effective with the consent of the defendant company's trade union. Therefore, with respect to the plaintiffs who worked in the defendant company at the time of the above supplementary agreement, the payment provision which was null and void due to unfavorable changes without the consent of the defendant company's trade union shall be retroactively effective with the consent of the defendant company's trade union. Therefore, with respect to the plaintiffs who worked in the defendant company at the time of the above supplementary agreement, the payment of retirement allowances shall be calculated on the basis of the above salary calculation standard (i.e., the payment of welfare expenses and annual leave allowances from the bonus) under the premise that the above supplementary agreement is not a collective agreement, it shall not be any other collective agreement. It shall be affected by the misapprehension of legal principles as to the disadvantage of the collective agreement and employment rules.

The defendant's ground of appeal pointing this out is with merit.

2. Judgment on the plaintiffs' grounds of appeal

The ground of appeal by the plaintiffs is that the court below erred in calculating retirement allowance by 200% even though the welfare expenses received by the plaintiffs are 250%, and it is unfair that only part of the plaintiffs should be included in the average wage although the monthly leave allowances paid by the plaintiffs should be included in the average wage. In addition, in the case of the plaintiffs except the plaintiff 46, the court below's dismissal of the defendant's appeal among the winning amount of the plaintiffs in the court of first instance and the payment of the amount maintained as is in the court of first instance, it is not reasonable that the court below set the interest rate for delay damages by applying Article 3 (2) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, etc., although it is not reasonable that the court below's determination of the interest rate for delay damages should be made by applying the above provision of Article 3 (2) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings. However, in calculating the retirement allowance of the plaintiffs

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal by the defendant, the part of the judgment below against the defendant against the remaining plaintiffs except the plaintiff 46 is reversed, and this part of the case is remanded to the court below for further proceedings consistent with this Opinion. The plaintiffs' appeal is dismissed as it is without merit. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Han-gu (Presiding Justice)