Plaintiff 1 and 3 others (Law Firm Sami General Law Office, Attorneys Kim Young-ok, Counsel for the plaintiff-appellant)

Hotel Pream Co., Ltd. (Law Firm, Kim & Lee, Attorneys Lee Jong-soo et al., Counsel for the defendant-appellant)

March 23, 2012

Seoul Central District Court Decision 2009Kahap62559 Decided August 26, 2010

1. All claims of Plaintiffs 1 and 2 expanded in the appeal and trial of the plaintiffs are dismissed.

2. The costs of the lawsuit after the appeal are assessed against the plaintiffs.

The judgment of the first instance court is revoked. The defendant confirmed that the order of change of each assignment issued by the defendant against the plaintiff 1 on June 16, 2007 and November 26, 2007 against the plaintiff 1 is null and void (the plaintiffs' lawsuit for confirmation was withdrawn). The defendant paid to the plaintiffs 20% of the amount corresponding to each of the "total" of the "statement of unpaid wages, etc." and each of the above amounts to the plaintiffs as to each of the above amounts by 20% per annum from the day following the delivery of a copy of the application for change of the purport of the claim as of September 9, 201 to the day of full payment (the plaintiff 1 and the plaintiff 2 expanded the claim for payment of money in the first instance, and the plaintiff 3 and the plaintiff 4 reduced).

1. Basic facts

A. The Defendant is a company running indoor play parks. Plaintiffs 1 and 3 were the vice head (general class 1); Plaintiff 2 was the head of the team (general class 1); and Plaintiff 4 was the head of the team (general class 2); and Plaintiff 2 retired from office around May 201; Plaintiff 3 retired from office around August 2009; and Plaintiff 4 retired from office on May 201, respectively.

B. Around May 2007, the Defendant: (a) made it possible for class 1 and class 2 members in general service to be appointed; (b) made class 1 to class 3 members in general service and class 3 members in special service available to be appointed in the position of appointment for which class 2 members in general service were appointed; and (c) made it possible for class 3 through 5 in general service and special service to be appointed in the position of class 5 in general service and in which class 1 to class 5 in special service are appointed.

C. In addition, around May 2007, the Defendant prepared a proposal for the modification of the benefit system of the closed-end employee by providing 800% of the basic salary to the members of the second-class or higher (hereinafter “inter-class employee”) as bonus regardless of the personnel status, regardless of the fact that the Defendant paid 800% of the basic salary as bonus to the members of the second-class or higher (hereinafter “inter-class employee”) as bonus since 2008, to convert part of the bonus

D. Around May 25, 2007, the Defendant held an explanatory meeting on the “basic plan for the assignment of a position” and “basic plan for the modification of the system for the payment of a position-based employee,” among the 74 total number of executive members, 64 persons including the Plaintiffs, including the Plaintiffs, were fully aware of the details of the institutional improvement and the amendment of the relevant regulations regarding the enforcement of the “basic plan for the assignment of a position-based employee” and the “basic plan for the modification of the system for the payment of a position-based employee” through an explanatory meeting on May 25, 2007, and submitted to the Defendant a written consent stating that “I will express my consent as follows:

E. Around June 2007, the Defendant revised the salary rules to pay part of the bonus to the executive members differently according to the personnel situation since 2008.

F. As of June 15, 2007, the Defendant issued a personnel order on June 16, 2007 to transfer Plaintiffs 1 and 3 to the marketing team organization marketing team members, Plaintiff 2 to the management team members, Plaintiff 4 to the management team members, and Plaintiff 4 to the team members in charge of sports 1 of the unit operation team (hereinafter “instant order for transfer to the first unit”).

G. As of November 26, 2007, the defendant transferred Plaintiff 1 to the team members in charge of customer management of the Pakistan, Plaintiff 2, and Plaintiff 3 to the team members in charge of operating the Pakistan, respectively, and issued a personnel order to transfer Plaintiff 4 to the food beverage team members as of November 21, 2008 (hereinafter “the second transfer order”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 3, 5, Eul evidence Nos. 2, 4, 5, and 6 (including each number), the testimony of the non-party witness of the first instance trial, and the purport of the whole pleadings

2. Determination as to the validity of the amendment to the rules of employment

A. The parties' assertion

1) The plaintiffs

A) According to the previous rules of employment before May 2007, the members of the first and second class executives could not be transferred to the team members. However, the “base plan for granting job assignment” that allows the executive members to be transferred to the team members is to change the previous rules of employment to the workers disadvantageously. Nevertheless, since it was modified without the consent of the workers by the collective decision-making method, it is null and void.

B) According to the Defendant’s wage rules and collective agreement prior to May 2007, the executives and employees paid 800% of the basic salary as bonus to the executives and employees as bonus. Of them, the “an amendment to the wage system of executives and employees” in which part of them are converted into performance bonus and paid differently as bonus is an amendment to the previous rules of employment to disadvantage workers. Nevertheless, it is null and void since it was amended without the consent of employees by collective decision-making method.

2) Defendant

A) Since the rules of employment that the executive members shall not be transferred to the team members did not exist from the beginning, the draft criteria for assignment does not change the previous rules of employment to workers at a disadvantage. Around May 2007, there was a case where the executive members were issued as the team members even before it was issued.

B) Even if a draft amendment to the criteria for granting assignment to a position and the wage system for executives and employees constitute disadvantageous changes to the rules of employment, it is valid due to the consent of a majority of executive members.

C) Also, the proposal to change the criteria for assigning assignment and the remuneration system for executive members is aimed at actively coping with the aggravated management conditions and the environment through the grant of duties according to their abilities and the expansion of compensation for individual performance, and therefore, it is reasonable in terms of social norms.

B. Determination as to the validity of a draft change in the criteria for assigning assignment and the remuneration system for executive members

1) Whether it constitutes a disadvantageous change in the rules of employment

Comprehensively taking account of the overall purport of arguments in Gap evidence Nos. 12, 13, 19, 20, 21, 22 and Eul evidence Nos. 7 (including various numbers), the following facts may be acknowledged: ① Article 2 of the Rules of Employment of the defendant, which was enforced around May 2007, provides that "the working conditions and daily service conditions of employees shall be governed by these Rules and those enacted thereunder, except as otherwise provided for in Acts and subordinate statutes." ② As such, Article 6 of the Rules of Employment of the defendant, which was enacted, provides that "the working conditions and daily service of employees shall be governed by those regulations," and "the head of office, the head of the division, and the employee corresponding thereto," and "the head of the division, and the director of the division, division, and the equivalent employee," and "the head of the division, division, and the equivalent employee," and "the head of the defendant, regardless of the status of the employees at Grade 1 to Grade 5, has formulated the Rules of Employment 20 and bonus."

According to the above facts, up to May 2007, the executive members granted only the position of the chief of office, the chief of division, and the director’s position, and there seems to exist rules of employment that do not grant the position of “members” (limited to “group members” under the current organization of the defendant) (In addition, according to the evidence above, it is deemed that there exists at least the labor practice with such contents). In addition, according to the changes in the wage system of the executive members, some of the executive members, who were low in the department of personnel management, have reduced the bonus of 100 to 200%. Accordingly, the proposal for the assignment of position prescribed by the rules of employment that enable the executive members to be granted the position of the team members and the proposal for the changes in the wage system of the executive members whose part of the bonus is reduced, shall be deemed to constitute a case where the working conditions

2) Whether workers agree collectively

The amendment of the previous rules of employment requires consent from a group of workers under the application of the previous rules of employment in order to unilaterally disadvantage workers. The consent method requires the labor union if there is a labor union consisting of a majority of workers, and the majority of workers if there is no such labor union (see Supreme Court Decision 91Da37522, Apr. 10, 1992, etc.). The majority of workers here refers to the majority of workers who are subject to the existing rules of employment or the rules of employment (see Supreme Court Decision 2005Da21494, Nov. 10, 2005). A number of workers groups within a single working condition system are within a single working condition system, where it is anticipated that the revised rules of employment will also be applied to other workers groups, including some workers groups, but also those who are expected to be subject to the revised rules of employment (see Supreme Court Decision 2005Da21494, Nov. 10, 2005).

In full view of the overall purport of pleadings, Gap evidence Nos. 19, 20, 27, Eul evidence Nos. 4, 5, 6, 15, and 16 (including various numbers), the following facts may be acknowledged: (i) The defendant's workers are classified as Class 1 or 5 members; (ii) the third or 5 members are in a way to be promoted to the executives of Class 1 or 2 according to their abilities; and (iii) the defendant's workers are within a working conditions system for personnel affairs, such as the application of the above personnel management regulations; and (iv) the number of class 1 or 5 members in general service as of the end of May 2007 reaches 564 members; and (iii) the defendant did not obtain consent from a majority of the members present in the position standards for assigning all executives and class 3 employees who were engaged in the general service at each department on May 25, 2007; and (iv) did not obtain consent from a majority of the members present in the position or a proposal for amendment to the position.

According to the above facts, even if only the executives and employees suffer direct disadvantage in the future, it is anticipated that the change of the above assignment criteria and the change of the payment system of executives and employees should be made to the employees of the third through fifth in the future. Therefore, the defendant did not obtain such consent despite the need for the consent of the labor union organized by the majority of workers or the majority of the total workers in general service.

3) Whether it is reasonable under social norms

In principle, it is not permissible for an employer to unilaterally impose working conditions by depriving workers of their rights or interests through the preparation and revision of new rules of employment. However, even if the preparation or revision of the rules of employment in question is considered in both aspects of the necessity and content, if it is deemed reasonable under the generally accepted social norms to the extent that the legal norm of the pertinent provision remains acceptable, its application cannot be denied solely on the ground that there is no consent from the workers under the application of the previous rules of employment or the collective decision-making method of the rules of employment. On the other hand, the existence of rationality under the generally accepted social norms should be determined based on a comprehensive consideration of the degree of disadvantage suffered by the workers due to the revision of the rules of employment, the content and degree of the necessity of the employer's modification, the reasonableness of the contents of the rules of employment after the amendment, the developments leading to negotiations with trade unions or other workers, response to the same kind of situation, etc. (see Supreme Court Decision 9Da70846, Jan. 5, 2001; Supreme Court Decision 2015Da1409405.

(4) Comprehensively taking account of the overall purport of pleadings, the following facts may be acknowledged: ① the employee belonging to the defendant was unable to carry out his/her duties on March 6, 2006, and so on several accidents occurred at the lot, and the press have continued to raise issues regarding the safety management of the lot, and the defendant was assigned a new position to the position of the employee for the purpose of increasing the number of employees, including the number of employees who were assigned the above 20th executive officers and the number of employees to the 3rd executive officers and the number of employees who were assigned the above 5th executive officers and the number of employees to the 3rd executive officers and the number of employees who were assigned the above 5th executive officers and the number of employees who were assigned the above 2nd executive officers and the number of employees to the 3rd executive officers and the number of employees who were assigned the above 5th executive officers and the number of employees who were assigned the 2nd executive officers and the number of employees who were assigned the 3th executive officers and the 4th executive employees’ salary system. The defendant was assigned the 2063th executive employees and the 4th executive employees.

In addition to the above-mentioned facts, the majority of the executives and employees who were directly disadvantaged due to the change in the criteria for assigning assignment to a position and the payment system for executives and employees, and the defendant's consent to the change, and it does not appear that the plaintiffs unfairly interfere or interfere with the above change (the plaintiffs forced the plaintiffs to sign the above written consent, and the plaintiffs notified the defendant that the above consent was revoked, so the above consent of the plaintiffs is not effective. However, although the evidence No. 1, No. 11-1, and the testimony of the non-party witness of the first instance court is insufficient to recognize that the plaintiffs signed the above written consent by coercion of the defendant, the above change in the criteria for assigning assignment to a position and the proposal for changing the payment system for executives and employees is reasonable by social norms. Ultimately, it is reasonable to view that the above criteria for assigning assignment to a position and the proposal for changing the payment system for executives and employees is valid regardless of the absence of the above collective consent.

3. Determination of claims such as confirmation of invalidity of transfer

A. The parties' assertion

1) The plaintiffs

The Defendant’s purpose of each of the instant transfer orders against the Plaintiffs is to demoted the Plaintiffs who were in the position of managing members to the team members and insult them to the Plaintiffs to voluntarily resign from the Defendant. As such, each of the instant transfer orders is null and void since it abused the employer’s personnel rights (Provided, That Plaintiff 2, Plaintiff 3, and Plaintiff 4 retired, and thus, withdrawn the lawsuit seeking confirmation on this part at the trial). In addition, the Defendant is obligated to pay allowances and consolation money for the details of the unpaid wages, etc. which the Plaintiffs could have received if they had not received each of the instant transfer orders.

2) Defendant

Each transfer order of this case is valid as an exercise of legitimate personnel rights, which was made for business needs to overcome a business crisis of the defendant.

(b) Fact of recognition;

1) In accordance with the criteria for granting the above assignment, the Defendant decided to revoke 17 members including the Plaintiffs from the position, such as team leader and appointment, and transfer them to the team members, considering the personnel status, age, and the period of service at the present position.

2) Meanwhile, in the personnel department of 2006, Plaintiff 2, Plaintiff 3 received Grade C, Plaintiff 1, and Plaintiff 4 received Grade C.

3) The Plaintiffs were paid for the employees in positions, such as team leader and appointment, due to the instant order of transfer No. 1 (Plaintiffs 1, 2, and 3 respectively, KRW 90,000, KRW 70,000, and KRW 40,000) and the manager’s allowance (Plaintiffs 1, 2, and 3 respectively, KRW 150,000, KRW 80,000) and the manager’s allowance (Plaintiffs 1, 2, and 3, KRW 4, and KRW 80,00).

4) The Plaintiff 4 was subject to the order of transfer to the first place of this case, and Plaintiff 2 had Plaintiff 2 work several nights (from 12:00 to 14:00 to 21:00 to 23:00) on one month due to the order of transfer to the second place of this case.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 6, 7, 8, 12, 13, 16, Eul evidence Nos. 3 through 6, 7, 12, 13, and 14 (including each number), the testimony by the non-party witness of the first instance trial, and the purport of the whole pleadings

C. Determination

1) As to the first transfer order of this case

A) As a matter of principle, the transfer or the transfer of a worker belongs to the authority of the employer who is the person having the personnel authority, the employer has a considerable discretion within the scope of business, barring special circumstances such as violation of the Labor Standards Act or abuse of rights, etc., and whether the transfer or the transfer or the transfer constitutes an abuse of rights shall be determined by comparing and comparing the worker's living disadvantages arising from the business necessity such as the transfer or the transfer or the transfer, etc., and if the worker's living disadvantages arising from the transfer, etc. due to the necessity of business do not considerably deviate from the degree that the worker should normally bear the burden, it is within the scope of legitimate personnel authority, and it is not within the scope of legitimate personnel authority, and the issue of whether the worker has faithfully consulted with the worker himself/herself in the transfer or the transfer or the transfer or the transfer or the transfer or the exercise of rights is one element of determining whether the transfer or the exercise of legitimate personnel authority constitutes abuse of rights (see Supreme Court Decision 94Da52928, Oct. 13,

B) The following circumstances revealed in light of the purport of the entire oral argument, namely, ① the Defendant appears to have a need to improve the management situation following a series of accidents and large financial losses as seen earlier; ② the change of the criteria for assigning positions so that the lower-class employees may be given positions such as the team leader or appointment, etc. to enhance the efficient placement of human resources and workers’ desire to work can be considered as one of the measures for improving the management situation. ② Even if the installation of a large amount of new passenger car becomes one of the hostile causes, it is necessary to continuously replace and improve the passenger car in the case of the play park such as the lotd World, and it is necessary to maintain the incentive for the visitors by continuously replacing and improving the number of passengers and to expect the increase in sales caused by the replacement of passengers. ③ The Defendant appears to have received the order for new passenger car transfer from the lower-class employees or to have received the order for the replacement of the passenger car as the main cause for the replacement of the passenger car. ③ The Defendant appears to have received the order for replacement or replacement of the Plaintiffs’ position to the lower-class employees.

In addition, since the first transfer order of this case partially reduces the plaintiffs' allowances, the degree of reduction is not significant, and the above reduction in allowances depends on the difference in the contents of business due to personnel movement according to legitimate business needs, and due to the first transfer order of this case, plaintiff 4 was engaged in night work several times a month, but there is no particular change in the total working hours and there is no unfair number of night work. In general, the play park needs to be operated at night for attracting visitors, and the first transfer order of this case does not change the work site of the plaintiffs, the loss of plaintiffs due to the transfer of the team members is difficult to be deemed to have exceeded the degree that the workers should normally suffer from the loss of their living conditions due to the first transfer order of this case. In light of the above, it cannot be concluded that the disadvantages of the plaintiffs' living due to the first transfer order of this case are beyond the scope of ordinary acceptance.

Ultimately, in full view of the following facts: (a) the business necessity of the instant transfer order and the degree of disadvantage in the living environment to be suffered by the Plaintiffs; and (b) the Plaintiffs, in particular, signed a written consent that they agreed on the criteria for granting the assignment of a position; and (c) it appears that some of the executive members could have sufficiently anticipated to be transferred to the team members according to the enforcement of the said guidelines for granting the assignment of a position; (b) even if the Defendant did not undergo specific consultation procedures with the Plaintiffs regarding the instant transfer order, the instant transfer order does not constitute an abuse of rights beyond the scope of personnel rights.

2) As to the second transfer order of this case

In light of the following circumstances that can be seen in light of the overall purport of the oral argument, the plaintiffs worked as team members in accordance with the order of transfer of this case while they were working in positions such as team leader. The team leader belonging to the plaintiffs seems to have difficulties in managing and supervising the plaintiffs who worked in positions such as team leader before the previous team leader. The defendant who changed the criteria for granting assignment for the efficient placement of human resources can achieve the goal, and the defendant who changed the criteria for granting assignment for the efficient placement of human resources can also change the criteria to the plaintiffs to the management team or the management team in charge of inspection marks, fee carriage rental, play equipment boarding, etc. in order to facilitate the performance of the duties of the team leader belonging to the plaintiffs without the direct direction of the team leader, it is necessary to transfer the plaintiffs to the management team or the management team in charge of the duties of the team leader.

In addition, the second transfer order of this case does not change the plaintiffs' positions, wages and work places, and due to the second transfer order of this case, plaintiff 2 was engaged in night work several times a month, but there is no particular change in the plaintiffs' entire working hours and there is no unfair increase in night work. In general, the play park needs to be operated at night for attracting visitors. Thus, it is deemed that the above night work is a disadvantage within the scope of ordinary reception. In light of the above, it cannot be concluded that the disadvantage of the plaintiffs' life due to the second transfer order of this case goes beyond the scope of ordinary reception.

On the other hand, in light of the business necessity of the second transfer order of this case and the degree of disadvantage to the plaintiffs, even though the defendant did not undergo specific consultation procedures with the plaintiffs regarding the second transfer order of this case, it cannot be deemed that the second transfer order of this case constitutes abuse of rights beyond the scope of personnel rights.

D. Sub-committee

Therefore, since each transfer order of this case is a legitimate exercise of personnel rights, the above assertion by the plaintiffs that each transfer order of this case is invalid is without merit, and further, the plaintiffs' assertion that the defendant is liable to pay allowances, retirement allowances and consolation money to the plaintiffs on the premise that each transfer order of this case is invalid is also without merit.

4. Determination on the claim for bonus

A. The plaintiffs' assertion

The Defendant’s proposal to change the payment system of executives and employees does not have effect against the Plaintiffs, and thus, the existing payment regulations shall apply to the Plaintiffs. Therefore, the Defendant is obligated to pay each corresponding amount of money as stated in the “Difference of bonuses” in the attached Form “the details of unpaid wages, etc., which already deducted the bonuses paid by the Plaintiffs from the Defendant.

B. Determination

As seen earlier, the Defendant’s change in the payment system for executives and employees is valid. Therefore, the Plaintiffs’ above assertion that the above change in the payment system is not effective against the Plaintiffs is without merit, without further review as to the remaining points.

5. Conclusion

Therefore, the plaintiffs' claims in this case are dismissed in its entirety due to the lack of grounds, and the judgment of the court of first instance is just in its conclusion, so the claims of plaintiffs 1 and 2 expanded from the plaintiffs' appeal and trial are dismissed in entirety as it is without merit. It is so decided as per Disposition.

[Attachment]

Judges Yellow-Hahn (Presiding Judge) Kim Dong-dong