[1] In a case where a number of workers are within a single working conditions system and working conditions are separated, the scope of workers subject to consent when revising the rules of employment at a disadvantage

[2] In a case where the rules of employment were amended to change the retirement age from 55 to 58, and the retirement age of the management worker (class 3 to 58) from 60 to 58, and the labor union’s consent was obtained, the case holding that the amendment of the rules of employment to the retirement age is recognized to be disadvantageous to all employees including not only the management worker but also the management worker and the management worker, so the consent by the method of collective decision-making is obtained

[1] A number of workers group within a single working condition system, where the revised rules of employment are anticipated to be applied to other workers group even if only one worker group is directly disadvantaged at the time of the unfavorable revision of the rules of employment, the workers group including not only some workers group but also those groups expected to be subject to the revised rules of employment. In addition, if there is no expected worker group to be subject to the revised rules of employment in addition to those groups to which the revised rules of employment would be applied because the revised rules of employment became dualized and are not directly disadvantaged, only the workers group at which the revised rules of employment would be applied and be subject to consent.

[2] In a case where the rules of employment were amended to change the retirement age from 55 to 58, and the retirement age of the management worker (class 3 to 58) from 60 to 58, and the labor union’s consent was obtained, the case holding that the amendment of the rules of employment to the retirement age is recognized to be disadvantageous to all employees including not only the management worker but also the management worker and the employees in general service, so the consent by the method of collective decision-making is obtained.

[1] Article 94 of the Labor Standards Act / [2] Article 94 of the Labor Standards Act

Plaintiff Credit Union (Law Firm Honam General Law Office, Attorney Kim Sung-ro, Counsel for the plaintiff-appellant)

The Chairman of the National Labor Relations Commission

Current Correction (Attorney Kang Jae-chul, Counsel for the defendant-appellant)

Seoul High Court Decision 2008Nu17877 decided January 9, 2009

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

We examine the grounds of appeal.

According to the reasoning of the judgment below, the court below acknowledged the facts as stated in its reasoning after compiling the evidence of its judgment. The amendment of the provision of this case extends the retirement age of the former 55 to the former 58 in the case of general service, and reduces the retirement age of the former 60 to the former 58 years, so in the case of management office, it would be a case of disadvantageous change to the employees in general service. In this case, even if the labor union is composed of the majority of the total workers, it is not possible to represent the employees group subject to disadvantageous change of the rules of employment, and it is necessary to obtain the consent of the collective decision-making method of the employees group subject to disadvantageous change of the rules of employment. Thus, even if the plaintiff's assertion was made, the labor union of the plaintiff union cannot be deemed to have obtained the consent of the majority of the employees group subject to disadvantageous change.

However, the judgment below is not acceptable for the following reasons.

In principle, an employer may prepare and revise the rules of employment according to his/her intent. However, if the preparation and revision of the rules of employment deprives workers of rights or interests derived from the enactment and revision of the rules of employment and imposes unfavorable working conditions, consent by the collective decision-making method of the workers who were subject to the previous rules of employment or the rules of employment, i.e., labor unions organized by the majority of workers in the workplace concerned, and if there is no labor union organized by the majority of workers in the workplace concerned, consent by the majority of workers should be required (see Supreme Court Decision 96Da2507, May 16, 1997, etc.). In addition, if the rules of employment which form a part of the rules of employment are favorable and unfavorable to workers, determination of whether the rules of employment requires consent of the workers in part is uniformly decided on the whole workers. In addition, if unfavorable interests conflict with each other, it is reasonable to apply the rules of employment to a group of workers, other than a group of workers who are expected to suffer disadvantages from the amendment of the rules of employment, as a group of employment.

In light of the above legal principles and the reasoning of the judgment below, the retirement age for the employees of Grade IV or lower, who are the employees in general service, was extended from 5 to 58. The retirement age for the employees of Grade III or higher, who are the employees in general service, was reduced from 60 to 58. At the time of the amendment of the retirement age provision in this case, the total employees of Grade III or higher, who are the employees in general service, were 12 and the labor union was composed of 27 members, including 3 or IV and 23 members in general service, and the majority of the total employees of Grade IV or lower, but the number of employees of Grade IV or lower and those of general service including Grade IV or lower, who are the employees in general service, could be promoted to Grade IV or lower, and in such a case, the employees of Grade IV or lower, including those of Grade III or lower, should be retired from general service according to the retirement age provision in this case, and the employees of Grade IV or lower, who were the employees at the time of the amendment, should be deemed to be directly or indirectly related to the entire employees.

Nevertheless, the court below determined that the employees who were disadvantaged by the amendment of the rules of employment in this case cannot be deemed to have obtained the consent of a majority of the employees in the management position on the premise that they are only management employees. In this case, the court below erred by misapprehending the legal principles on the scope of employees who were disadvantaged by the amendment of the rules of employment and the consent body of the amendment, which affected the conclusion of the judgment.

Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ahn Dai-hee (Presiding Justice)