Plaintiff (Attorney Kim Young-deok, Counsel for the plaintiff-appellant)

Yeongdeungpo Leisure Co., Ltd. (Attorney Lee Young-chul, Counsel for the defendant-appellant)

June 2, 2017

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant shall pay to the plaintiff 114,086,260 won with 20% interest per annum from July 15, 2016 to the day of complete payment.

1. Basic facts

A. The Defendant is a company with the objective of sports facility business, such as golf courses, skiing grounds, etc. established by investing in the Mine Reclamation Corporation, and recreational condominium business, and the Plaintiff served in the Defendant Company from March 11, 2003 to June 30, 2016.

B. On May 19, 2014, the Plaintiff was dismissed from the Defendant Company, and returned to the Defendant Company on August 28, 2014, upon receiving the decision of unfair dismissal from the Gyeongbuk Regional Labor Relations Commission, and on September 23, 2014, the Plaintiff issued a disciplinary measure against the Plaintiff on May 24, 2014 (from September 24, 2014 to February 23, 2015) and standby order.

C. Around June 2014, Defendant Company established a rules of operation of the wage peak system and sought consent to the amendment of the rules of employment to the labor union of Defendant Company. Accordingly, on June 17, 2014, the labor union consented to the amendment of the rules of employment to the part of the rules of employment proposed by Defendant Company, and the Defendant Company announced the enactment of the rules of operation of the wage peak system (hereinafter “instant wage peak system”). The content is the same as written in the “Rules of Operation of the wage peak system” attached hereto.

D. Around March 2014, the Defendant Company paid wages to the Plaintiff with a class 1 rank in accordance with the annual salary contract concluded with the Plaintiff. After the Plaintiff’s reinstatement following the determination of unfair dismissal, the Plaintiff notified the Plaintiff of the enforcement and application of the wage peak system of this case. On September 23, 2014, the Defendant Company notified the Plaintiff of the details of the wage according to the application of the wage peak system of this case. Accordingly, the Plaintiff expressed to the Defendant Company that the Plaintiff would not consent to the application of the wage peak system of

[Ground of Recognition] Facts without dispute, Gap evidence 1 to 10, Eul evidence 1 to 5 (including each number), the purport of the whole pleadings

2. The plaintiff's assertion and judgment

A. Summary of the assertion

The wage peak system of this case applied to the Plaintiff is against the annual salary contract between the Plaintiff and the Defendant and the Defendant’s rules of employment under the Labor Standards Act, as well as the Defendant’s rules of employment under the Labor Standards Act, and as the Plaintiff is a class 1 employee as determined by a person not eligible as a labor union member under a collective agreement, it is unlawful to apply the wage peak system of this case, which is the result of the agreement with the labor union, to the Plaintiff. Therefore, the Defendant Company is obligated to pay

B. Determination

1) Relevant legal principles

A) Since the employer has the authority to prepare and revise the rules of employment as a matter of principle, the employer may prepare and revise the rules of employment according to its intent. However, in order to unilaterally amend the existing rules of employment to disadvantage the workers, the consent is required in accordance with the collective decision-making method of a group of workers under the previous rules of employment. The consent method refers to a majority of the workers group subject to the previous rules of employment, if there is a labor union consisting of a majority of the workers, and if there is no such labor union, a majority of the workers is required in accordance with the meeting method of the workers.

B) In addition, a trade union that is organized by the majority of workers refers to a trade union that is organized by the majority of workers who are not qualified as the majority of workers among those who are subject to the previous rules of employment, and does not refer to a trade union that is organized by the majority of workers who are qualified as the majority of workers among those who are subject to the previous rules of employment (see Supreme Court Decision 2007Da85997, Feb. 29, 2008, etc.). In the same working condition system, even if only a certain group of workers is directly disadvantaged at the time of the unfavorable change of the rules of employment, if it is anticipated that the revised rules of employment will be applied to the remaining group of workers, including a group of workers who are expected to be subject to the revised rules of employment, as well as a group of workers who are expected to be subject to the revised rules of employment, and if there is no anticipated group of workers other than those who are subject to the revised rules of employment, only the modified rules of employment shall be subject to consent (see Supreme Court Decision 2009Du37979, May 29, 2009, 209.

C) Meanwhile, as long as there exists the consent or agreement of the labor union organized by a majority of workers, the amendment of the rules of employment is valid without obtaining the consent of each employee, and this also applies to the case where the amendment to the rules of employment is unfavorable retroactively to the existing working conditions or the rights of workers (see Supreme Court Decisions 91Da31753, Nov. 24, 1992; 93Da46841, May 24, 1994, etc.).

2) Whether the wage peak system of this case is applied to the plaintiff

A) Nature of the wage peak system of this case

According to the above facts of recognition, the wage peak system of this case newly implemented by the defendant company after introducing the wage peak system includes the contents such as the application of the wage peak system, and the method of wage calculation, and it constitutes the rules of employment as stipulated in Article 93 of the Labor Standards Act. The introduction of the wage peak system of this case is a disadvantageous change of the rules of employment, such as partial reduction of wage, so the consent

B) Whether consent to trade union is valid

Since the labor union of the defendant company consented to the wage peak system of this case, it will examine whether the above labor union's consent is valid.

According to the evidence No. 7 of the collective agreement, it is recognized that "a worker of Grade II or below shall be a member at the same time with his/her employment, and contractual workers shall be allowed to join the association according to his/her own will" under Article 4 (1) of the collective agreement on September 2014, and as seen earlier, the plaintiff was a worker of Grade I at the time of the enforcement of the wage peak system of this case. However, in light of the fact that the plaintiff could be promoted to Grades II through I under the system of the defendant company's position, it shall be deemed that a trade union can legally exercise the right of consent as a trade union organized by the majority workers including all workers who are expected to be subject to the revised rules of employment. Therefore, it is reasonable to deem that the consent of the trade union on the wage peak system of this case is legitimate and effective. In addition, if the existing annual salary system of the same different contents is applied, the wage peak system of this case cannot achieve its purpose, and thus, it is consistent with the party's intent that the wage peak system of this case should be applied preferentially.

C) Sub-decision

Therefore, the enforcement of the wage peak system of this case is valid, and this is also applicable to the plaintiff. Thus, the plaintiff's above assertion, which is premised on the application of the existing annual salary contract to the plaintiff's wage, is without merit without further examination.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment]

Judges Kim Jong-tae