[2] Whether an individual employment contract that contains the contents of service rules and working conditions constitutes the rules of employment (affirmative)

[3] Whether the prohibition of retirement allowance, etc. is violated in a case where a fractional system is applied by individual employment contract to overseas skilled workers, unlike the rules of employment for domestic employees that provide for the progressive application of the progressive system for the payment of retirement allowance (affirmative)

[4] Where the retirement allowance provision for a worker who is not the largest number of workers is revised disadvantageously to the worker without the consent of the worker group, the retirement allowance provision applicable to the worker who is not the largest number of workers (=the revised retirement allowance provision)

[2] The rules of employment under Article 94 of the former Labor Standards Act (amended by Act No. 5309 of Mar. 13, 1997) refers to the name of the rules of employment, if the rules of employment on the working conditions such as service regulations and wages contain the contents of working conditions such as service regulations and wages. Thus, if an individual labor contract contains the contents of working rules and working conditions, it also constitutes the rules of employment.

[3] Unlike the rules of employment that stipulate that a company shall apply a progressive system to the payment of retirement allowances for domestic employees, where the company's domestic business and overseas business are one of the businesses stipulated in Article 28 (2) of the former Labor Standards Act (amended by Act No. 5309 of March 13, 1997) and the above employment contract has the nature of the employment rules as to the overseas business. Thus, the company's discrimination against the payment of retirement allowances for domestic employees and the overseas service constitutes a case where a different retirement allowance system is established under the employment rules of one business.

[4] In a case where a company with different retirement allowances systems for domestic and overseas technical personnel fails to change the retirement allowances system to comply with Article 28(2) of the former Labor Standards Act (amended by Act No. 5309 of March 13, 197), which prohibits retirement allowances from being operated until March 31, 1981, the company's retirement allowances system shall be deemed to apply the retirement allowances system for overseas technical personnel, which is the retirement allowances system for the largest number of workers as of March 31, 1981, in accordance with Article 28(2) of the Addenda of the same Act (amended by Act No. 5309 of March 13, 1997). Since it is more favorable for the existing domestic employees to apply the former retirement allowances system to their continuous service period from March 31, 1981, the company should apply the revised provisions of Article 28(2) of the Act to the same collective employees without obtaining consent from the revised provisions of Article 28(2) of the Act.

The purpose of Article 28(2) of the former Labor Standards Act (repealed by Act No. 5305, Mar. 13, 1997; hereinafter the same) and Article 28(2) of the Addenda is to prohibit discrimination by setting a different retirement allowance system from one another within a single business, and to apply a single retirement allowance system. Thus, the "business" refers to an enterprise which is a whole business management (see Supreme Court Decision 93Da18365, Oct. 12, 1993; 93Da18365, Oct. 12, 1993). The rules of employment under Article 94 of the former Labor Standards Act include the contents of working rules such as service regulations and wages, and therefore, it also constitutes the rules of employment (see Supreme Court Decision 91Da30828, Feb. 28, 1992).

According to the reasoning of the judgment below and the records, the plaintiffs were employed and worked for each of the defendant's employees who carry out construction works at home and abroad, civil engineering, construction works, plant, etc. between June 1, 197 and March 21, 1981, and each of them retired from office from office from March 31, 1992 to November 30, 194. The defendant, under the rules on the payment of retirement allowances, has revised the mandatory retirement allowances for employees by the rate of advance payment of retirement allowances to average wages (hereinafter referred to as "the rules on retirement allowances before the revision"), under the name of the defendant's headquarters's order for temporary retirement allowances for employees at the time of the above revision to the 19th anniversary of the employment contract, the above provisions on temporary retirement allowances for employees at the time of the above revision to the 19th anniversary of the employment contract, and the above provisions on temporary retirement allowances for employees at the time of the above revision to the 19th anniversary of the employment contract. The defendant shall not apply the above provisions on temporary retirement allowances for employees at the same time.

In this case, the defendant's domestic business and Libya's business are one of the businesses stipulated in Article 28 (2) of the former Labor Standards Act. The above employment contract has the nature of employment rules for the overseas skilled workers. The defendant's discrimination against the payment of retirement allowances to the domestic and overseas skilled workers constitutes a case where different retirement allowances are established according to the employment rules within one business stipulated in Article 28 (2) of the former Labor Standards Act. The defendant's retirement allowance system is revised to be consistent with Article 28 (2) of the former Labor Standards Act until March 31, 1981 and did not report to the head of the labor office. Thus, the defendant's retirement allowance system should be applied to the overseas skilled workers, which are the retirement allowance system for the largest skilled workers as of March 31, 1981 under Article 2 of the Addenda of the former Labor Standards Act (However, it is more favorable for the defendant to apply the revised provisions of Article 28 (2) of the former Labor Standards Act to the pre-amended retirement allowance system regardless of the previous employees' employment decision.

In the same purport, the decision of the court below that rejected the plaintiffs' claims for additional retirement allowances calculated by a single system with respect to the continuous service period from the defendant employed to March 31, 1981 shall be justified, and there is no error in the misapprehension of legal principles as otherwise alleged in the ground of appeal.

In addition, Supreme Court Decision 93Da17461 Decided December 22, 1994 cited in the ground of appeal is related to the retirement allowance provision applicable to the employees at the time of the merger of the company, so it shall not be invoked in this case.

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Jeong Jong-ho (Presiding Justice)