The method of consent of the required workers when the contents of the working conditions prescribed in the rules of employment are modified disadvantageous to the workers, and whether the revised rules of employment apply to the workers who have consented individually without such consent (negative)

Where an employer amends the terms and conditions of employment under the rules of employment to workers at a disadvantage, the employer shall obtain the consent of the workers subject to the rules of employment in accordance with the collective decision-making method, unless it is recognized that such amendment is reasonable by social norms, and the consent refers to the consent of a majority of the labor union if there is a labor union organized by a majority of the workers, or the consent of a majority of the workers if there is no labor union, and it does not take effect unless there is such consent in the above manner.

Article 95 of the Labor Standards Act

Supreme Court Decision 91Da17542 delivered on September 24, 1991 (Gong1991, 2602) 91Da2505 delivered on February 25, 1992 (Gong192, 1125) 91Da31753 delivered on November 24, 1992 (Gong193,213)

Plaintiff-Appellant et al., Counsel for the plaintiff-appellant

Attorney Kim Sung-sung, Counsel for the defendant-appellant

Seoul High Court Decision 91Na15432 delivered on September 18, 1991

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

(1) According to the reasoning of the lower judgment, the lower court rejected the Plaintiff’s claim for the payment of retirement benefits based on the increase in the remuneration rate by December 1, 1985 and the revised retirement allowance rate by November 30 of the same year, with respect to employees employed by the Defendant Company on or before December 1, 1985, through a resolution of the board of directors on November 11, 1985, as well as the revised retirement allowance rate by November 30 of the same year, and applied the revised retirement allowance rate only for the continuous service period thereafter, but there is a concern for employees to receive unfavorable retirement benefits. In so doing, the lower court did not accept the Plaintiff’s claim for the payment of retirement benefits by the revised retirement allowance rate by not later than 5% higher than the ordinary average wage rate by informing the employees of the purport of the above revised retirement allowance rate and presented their opinions. In so doing, the lower court rejected the Plaintiff’s claim for the payment of retirement benefits based on the revised retirement allowance rate by not later than the other employees’ dissenting opinion.

(2) However, if an employer amends the terms and conditions of employment under the rules of employment to workers disadvantageously, the employer shall obtain the consent of the workers who were subject to the rules of employment in a collective decision-making manner, unless it is recognized that such amendment is reasonable by social norms, and the consent refers to the labor union if there is a labor union consisting of a majority of workers, and the consent of a majority by voluntary gathering of opinions of the workers if there is no such labor union, and the rules of employment are null and void unless there is such consent by the above method (see Supreme Court Decision 91Da2505 delivered on February 25, 1992). The same applies to workers who have individually consented to the amendment to such rules of employment (see Supreme Court Decisions 77Da355 delivered on July 26, 197; 91Da17542 delivered on September 24, 191).

However, since there is no dispute between the parties as to the fact that the labor union was not organized at the time of the amendment of the remuneration provision in this case, the defendant company's amendment of the retirement allowance rate stipulated in the remuneration provision to disadvantage workers can only be recognized as effective only with the consent of the majority of workers if the defendant company wants to revise the retirement allowance rate disadvantageously to workers. However, even according to the fact that the court below found that the plaintiff consented explicitly to the retirement allowance rate under the revised remuneration provision, it is clear that the defendant company did not obtain the consent of the independent gathering of opinions of the workers as seen above with regard to the amendment of the above remuneration provision, and the reason that the plaintiff and workers did not object to the amendment at the time of the amendment of the above remuneration provision, it cannot be deemed that there was a legitimate consent with regard to the amendment of the above remuneration provision. If the amendment of the above remuneration provision is null and void, the above revised remuneration provision can only be applied to the plaintiff, even if the plaintiff consented individually.

Ultimately, the court below erred by misapprehending the legal principles of the Labor Standards Act as to the amendment of the rules of employment by interpreting the meaning of the consent to the amendment of the above rules of employment, which has the nature of the rules of employment, and there is reason to point this out.

(3) Therefore, the lower judgment is reversed and the case is remanded to the lower court. It is so decided as per Disposition by the assent of all participating Justices on the bench.