2013Da16374 Wages

1. A;

2. B

3. C.

4. D;

Human Resources Development Service

Seoul High Court Decision 2012Na24165 Decided January 25, 2013

February 26, 2015

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

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. The court below, based on its adopted evidence, concluded a collective agreement with the labor union on November 28, 2008 to extend the retirement age of employees of Grade III or lower to 58 years of age, and held a board of directors to amend the existing personnel regulations that conflict with this, and acknowledged the fact that it was rejected by the board of directors. In accordance with the former Act on the Management of Public Institutions (amended by Act No. 9277, Dec. 31, 2008; hereinafter the same shall apply) and the former Korea Manpower Agency (amended by Act No. 9320, Dec. 31, 2008; hereinafter the same shall apply), the court below rejected the defendant's assertion that the collective agreement is effective with the approval of the Minister of Labor, the competent Minister of Justice, as a result of the resolution of the board of directors, if the contents of the collective agreement are related to remuneration and personnel affairs of the employees, and determined that the retirement age of the plaintiff was extended to 58 years of age under the collective agreement.

2. However, it is difficult to accept the foregoing determination by the lower court. In this case, the Defendant is a corporation established pursuant to the Korea Manpower Agency Act for the purpose of promoting the efficient training of industrial human resources, promoting the sound development of the national economy, and promoting national welfare by using the State’s contributions or entrusted projects’ revenues as its main source of revenue, and performing projects, such as support for lifelong learning, vocational ability development training, qualification examination, etc. for workers.

In addition, the former Act on the Operation of Public Institutions provides that the board of directors shall be established to rationalize the management of quasi-governmental institutions and enhance transparency in their operation by prescribing basic matters concerning the operation of quasi-governmental institutions, and matters necessary for the establishment of a self-management and a responsible management system, and to establish and resolve the budget, amendment of the articles of association, enactment and amendment of bylaws, etc., and detailed matters concerning the composition of the board of directors, appointment and dismissal of officers, etc. shall be established, and the board of directors shall obtain approval from the competent Minister as a result of the resolution of the board of directors on the determination and amendment of the budget, and shall be subject to supervision of the overall management and operation of quasi-governmental institutions (Articles 17, 40, 51, etc.). In addition, the former Act provides that the Korea Manpower Agency shall have a board of directors for deliberation and determination on important matters, obtain approval from the Minister of Labor when preparing or amending the business plan and budget for each business year (Articles 12, 18, and 22, etc.).

On the other hand, the extension of retirement age inevitably entails changes in personnel regulations, budget expenditure, new scale of employment, etc., and thus, it can be evaluated as an important matter necessary for the resolution of the board of directors to determine or implement the contents thereof.

Considering such Defendant’s nature and purpose of establishment, the process of raising and executing operating funds, various regulations on the management and supervision of the State, and the influence of extending retirement age on budget expenditure, etc., where the personnel regulations that the Defendant intended to extend retirement age pursuant to the collective agreement did not go through a resolution of the board of directors, even if the content of the collective agreement is reflected, the said personnel regulations do not have any effect (see Supreme Court en banc Decision 2010Da86235, Apr. 28, 201). Furthermore, the content of the collective agreement on extension of retirement age inconsistent with the existing personnel regulations shall not have any effect on the Defendant or the Defendant’s employees. Furthermore, even if the collective agreement is effective on the above grounds, it is reasonable to deem that the collective agreement is a legitimate restriction on the right to collective bargaining, etc. permitted under Article 37(2) of the Constitution (see Constitutional Court en banc Decision 2003Hun-Ba28, Aug. 26,

Nevertheless, the lower court determined that the Plaintiffs’ retirement age was extended to 58 years of age under a collective agreement and accepted the Plaintiffs’ wage claim based on the extended retirement age. In so doing, the lower court erred by misapprehending the legal doctrine on the limitation on the validity of a collective agreement concluded by quasi-governmental institutions, thereby

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Sang-hoon

Justices Kim Jae-tae

Chief Justice Cho Jae-hee