(영문) 울산지방법원 2020.10.7.선고 2018가합21063 판결

The defendant shall pay to the plaintiffs 5,00,000 of the amounts stated in the separate sheet "amount of claim" with 15% per annum from March 9, 2018 to May 31, 2019; 12% per annum from the following day to the day of full payment; and 12% per annum from the following day to the day of full payment with respect to each of the remaining amounts, with respect to the purport of the claim of this case and the application for change of the cause of the claim of this case to the day of full payment.

Reasons

1. Basic facts

A. Status of the parties

The defendant is a company that runs the business of manufacturing, processing, selling, and leasing electronic, electricity, machinery, semiconductor-related materials, components, etc., and has its head office in Ulsan, Balan, Gu, U.S., Cheongju, and Suwon respectively. The plaintiffs are workers who work in Ulsan, U.S. working place of the defendant.

(b) Introduction of an annual salary system;

The Defendant, according to the previous continuous service years, was operating the salary system for the salary class system with a regular wage increase, was introduced from around 1998 to the executives and employees. From around 1999, the subject of the annual salary system was expanded from around 199. The major contents of the annual salary system are as follows: (i) common pay; (ii) capacity grade; (iii) common allowance (family allowance; (iv) common allowance (family allowance); (iv) common allowance (family allowance); (iv) common allowance of the No.S.; (iv) regular bonus; (v) self-development expenses; (vii) other allowance; (vii) permanent allowance; (iv) permanent travel expenses; and (vii) PI. The structure of the annual salary system for the employees is as follows.

A person shall be appointed.

1) As the Labor Standards Act was amended by Act No. 6974 on September 15, 2003, the working hours per week are reduced to 40 hours (Article 49). The monthly paid leave system was abolished, and the Defendant introduced the special paid leave system on July 6, 2004 as agreed at the General Labor-Management Council in order to preserve the number of days of paid leave, regardless of the reduction of working hours.

2) However, since the special leave system was not operated in the original purpose of the introduction of the extension of the number of days of leave, the Defendant discussed on February 2, 2010 at the General Labor-Management Council about the abolition of the said special leave system along with the wage negotiations in 2010. On February 25, 2010, the General Labor-Management Council agreed to compensate for the amount of four-year special leave allowances as a lump sum allowance and to abolish the said special leave.

3) The defendant around April 6, 2010 to the head of the Ulsan District Office of Local Employment and Labor as follows:

The revised rules of employment were amended.

A person shall be appointed.

(d) Introduction of the wage peak system and abolition of the paid leave system on a anniversary of the establishment of a new political party;

1) As the Act on Prohibition of Age Discrimination in Employment and Elderly Employment Promotion (hereinafter “the Elderly Employment Act”) was amended by Act No. 11791 on May 22, 2013, the retirement age of workers was extended to 60 years of age (Article 19), and the above provision was applied from January 1, 2016 to a workplace that employs more than 30 full-time workers (Article 19).

2) Around April 2014, the Defendant extended the retirement age from 55 to 60 years of age at the 55-year-old conference with wage negotiations in 2014. The Defendant discussed whether to introduce the wage peak system in which wages are reduced from 55 years of age at the initial retirement age and to abolish the paid leave system on the date of establishment of a new anniversary. On April 30, 2014, the Defendant introduced the wage peak system from 55 years of age as indicated in the table below, and changed the date of establishment of a new anniversary from the paid leave date to the paid leave date, and finally agreed to compensate for five days of annual allowances at a time on February 28, 2014.

A person shall be appointed.

3) On May 23, 2014, the Defendant: (a) on May 23, 2014, to the head of the Ulsan Regional Labor Office as follows:

The revised rules of employment were amended.

A person shall be appointed.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1, 2, 4, 5, Eul evidence Nos. 2 through 9, 12, 18, 22 and 35 (including branch numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. Summary of the plaintiffs' assertion

A. The Defendant did not pay family allowances which had been already paid after the conversion of the annual salary system in 1999. The Defendant is obligated to pay the Plaintiffs the sum of paid special allowances, overtime allowances, and late night allowances according to the reflection of the unpaid amount of family allowances and family allowances, and damages for delay.

B. Around April 2010, the Defendant revised the rules of employment without obtaining the consent of the majority of employees pursuant to the proviso of Article 94(1) of the Labor Standards Act while enacting the rules of employment to abolish the special leave system, and even if consent was obtained, the revised rules of employment is null and void since it did not go through the collective decision-making process. Therefore, the Defendant is obliged to pay wages (annual allowances) equivalent to the number of days of the special leave that would have been paid if it had been maintained the special leave.

C. Around May 2014, the Defendant revised the rules of employment to introduce the wage peak system and abolish the paid leave system on the date of the establishment of a new anniversary without the consent of the employees in accordance with the collective decision-making method. Therefore, the revised rules of employment is null and void ( even if the revised rules of employment is valid, the rules of employment stipulate that the rules of employment shall be subject to the wage peak from the age of 56, but the Defendant mistakenly applies the wage peak system from the age of 55). Therefore, the Defendant is obligated to pay to the Plaintiffs the difference in the amount equivalent to the wage paid by the unreasonably reduced wage pursuant to the above provisions of the wage peak system (the reduced wage, the reduced wage, the expenses incurred by life saving, the target discount, and the performance incentive) and damages for delay.

3. Determination

A. The assertion regarding family allowances

In light of the following: (a) the annual salary system and the salary system are different wage systems; (b) wage items existing in the salary system are not required to be maintained in the annual salary system; (c) there is no assertion or proof of the fact that family allowances are items to be existed in the annual salary system; and (d) there is no evidence to prove that there was a decrease in the amount of wages corresponding to the amount of family allowances that the Plaintiffs had already received after the introduction of the annual salary system, the evidence submitted by the Plaintiffs alone is insufficient to acknowledge the fact that the Defendant should pay family allowances to the Plaintiffs; and there is no other evidence to support this part of the Plaintiffs’ claims.

(b) Claim regarding the abolition of the special leave system, the introduction of the wage peak system, and the abolition of the paid leave system on the anniversary of the establishment of the

1) Relevant legal principles

A) In order for an employer to amend the existing working conditions to the disadvantage of an employee due to the amendment of the rules of employment, the consent of the employee who was subject to the previous working conditions or the rules of employment is required to be made in a collective decision-making manner, and the consent without obtaining such consent is not effective. If there is no trade union, the consent by the meeting method requires the consent of a majority of the employees, and the consent by the meeting method is allowed in exchange for opinions between the employees under the condition that the intervention or interference between the employer is excluded by the organization or unit department of the business or the workplace. In this context, the employer's intervention or interference means the case where the employer forces the employer to give consent in an explicit or implied manner to the extent that it interferes with the autonomous and collective decision-making of the employees, and it does not mean that the employer's unfair intervention or interference exists between the employer and the employee (see, e.g., Supreme Court Decisions 201Da18322, Nov. 14, 2003; 2004Da31294, Apr. 29, 2015>

B) In principle, an employer is not allowed to unilaterally impose working conditions on an employee by unilaterally preparing or amending new rules of employment. However, even when considering the necessity and content of the relevant rules of employment in light of the degree of disadvantage suffered by the employee, the application of the said rules of employment may not be denied solely on the ground that there is no consent by collective decision-making of the employee subject to the previous rules of employment or the rules of employment, in a case where it is deemed reasonable under the generally accepted social norms to the extent that the legal nature of the said provisions remains acceptable. Furthermore, to recognize that the formulation or revision of the rules of employment is reasonable under the generally accepted social norms, it does not go against the legislative intent of the Labor Standards Act that intends to protect the employee, such as not substantially unfavorable to the employee. As such, the existence of rationality under the generally accepted social norms ought to be determined by comprehensively considering the degree of disadvantage suffered by the employee in itself due to the revision of the rules of employment before and after the revision, the necessity and degree of amendment of the rules of employment, reasonableness of the content after amendment, target measures, etc.

2) As to the assertion on abolition of the special leave system

A) Whether the rules of employment were modified disadvantageously

As seen earlier, the fact that a special leave system was abolished due to the revision of the rules of employment of April 2010, and the number of days of leave has been reduced compared to the previous one, and thus, the allowances equivalent to the amount of a four-year leave would be paid in a lump sum instead of the previous one. However, considering the fact that there was any disadvantage that the Plaintiffs were unable to receive monetary compensation due to their failure to use a more special leave after the lapse of the four years and making their use of the same, it cannot be readily concluded that the Plaintiffs’ working conditions were not modified disadvantageously due to the amendment to the rules of employment

B) Whether to consent by collective decision-making methods

In full view of the following circumstances, the rules of employment amended as of April 2010, based on workers’ free will and the process of jointly gathering opinions, it is reasonable to deem that the rules of employment amended as of April 2010, based on collective decision-making method, has consented to the following, in view of the respective descriptions as stated in subparagraphs 2, 11, 17 through 21, and 32, and the purport of the entire pleadings:

(1) The General Labor-Management Council announced the result of the 2010-year wage adjustment including the abolition of the special leave system through the internal bulletin board, etc. Accordingly, the Defendant’s workers, including the Plaintiffs, were aware of the abolition of the special leave system.

(2) Around February 2010, the Defendant took part in an explanatory meeting on the abolition of the special leave system for the head of each department. The head of each department opened an explanatory meeting and explain it to the members of the department and appears to have an interpellation and an answer time. The Plaintiffs, as the members of each department, appears to have attended the said explanatory meeting and participated in the collective decision-making process freely.

(3) Through this process, the Defendant’s workers, including the Plaintiffs, signed a written consent (standard form that the Ministry of Employment and Labor permits them to use when revising the rules of employment) from a position to recognize and accept the abolition of the special leave system, and some workers are deemed to clearly express their opposing intent by failing to sign the written consent, and there is no unfair intervention or interference on the employer’s side.

(4) The Defendant’s workers, including the Plaintiffs, received, without objection, four-year allowances for the abolition of the special leave system and the subsequent payment.

C) Whether it is reasonable under social norms

Even if the rules of employment revised as of April 2010 did not obtain the consent by collective decision-making method, the following circumstances, namely, ① the average number of days of annual use of workers during the period from 2005 to 2009, which was the introduction of a special leave system, i.e., the average number of days of annual use of workers during the period from 2005 to 1.8 days, which was the result of using the previous special leave on behalf of the workers.

In full view of the fact that the purpose of adopting the leave system was not consistent with the purpose (i.e., guaranteeing the number of days of leave, etc.), ② there were changes in working conditions, such as the basic salary of 100% in the average wage increase and 8% at the time of the revision of the working conditions in 2010, and the basic salary rate of 100% in the 2010, instead of abolition of the special leave system, it was intended to compensate for the four-year allowance in a lump sum and reduce the disadvantage to the maximum extent possible, ③ it is possible to strengthen the company's competitiveness by securing the available working hours in lieu of abolition of the special leave system, and the profits therefrom are expected to be enjoyed by workers through wage increase, etc., the contents of the above rules of employment are reasonable

3) Claim regarding the introduction of the wage peak system, and the abolition of the paid leave system on the anniversary of the establishment of a new political party

A) Persons subject to the wage peak system

The plaintiffs asserts that the wage peak system should not be applied from the age of 55 because the rules of employment provide that the wage peak system shall be applied from the age of 56.

It is recognized that the wage peak system is applied to the rules of employment revised as of May 1, 2014. However, the following circumstances, which can be known by the above basic facts, Eul evidence No. 6-9 and the purport of oral argument, are as follows: ① the retirement age of workers was changed to 60 years or more according to the revision of the Elderly Employment Act; accordingly, the defendant introduced the wage peak system in the process of changing the retirement age of workers in Ulsan workplace from 55 to 60 years; ② the proposal for the adjustment of the wages of the General Labor-Management Council provides that the wage peak system shall be implemented from January 1, 2016 to 1961; ③ the period of 1961 years reaches 55 years of age; ③ the amended rules of employment schedule No. 56 to 605 years of age should be divided into five to 605 years of age; thus, the plaintiffs' wage peak system should not be interpreted to be applied.

B) Whether the rules of employment were modified disadvantageously

The fact that the wage peak system was introduced by the revision of the Rules of Employment of May 2014 and the date of the establishment of the new anniversary of the paid leave date was to be paid in a lump sum for five-year period (five-day period) is as seen earlier. However, it is difficult to conclude that the wage peak system was established by extending the retirement age of 55 that was 60 years old and did not originally determined, and that the interests of workers were disadvantageously changed. However, considering the fact that the wage difference between the wages to be received when the establishment of the new anniversary of the paid leave date was changed by the revision of the Rules of Employment of May 2014, it is difficult to deem that the Plaintiffs’ working conditions were not disadvantageously modified due to the revision of the Rules of Employment of the Plaintiffs as of May 2014.

C) Whether to consent by collective decision-making methods

In full view of the following circumstances, it is reasonable to view that the rules of employment of May 2014, which was amended through the process of gathering and combining opinions with the employees’ free will, was approved by collective decision-making process, based on the following circumstances, comprehensively taking into account the facts as seen above, as well as the facts as stated in the evidence Nos. 6 through 9, 11, 15 through 17, 20, 21, and 32, and the purport of the entire arguments.

(1) In addition to wage negotiations at the General Labor-Management Council in 2014, the wage wage peak system and the abolition of the paid leave system on the anniversary of the establishment of a new political party were discussed. The negotiation of the General Labor-Management Council was conducted nine times, and the process of the negotiation was notified to workers by posting it on online bulletin boards, etc. On March 2014, workers conducted collective actions such as demonstration, and some workers discussed opinions on online bulletin boards. The Defendant’s employees, including the Plaintiffs, including the Plaintiffs, were aware of the fact that the aforementioned agenda was discussed at the General Labor-Management Council.

(2) Around 2014, 2014, 2,124 workers of the Defendant’s Ulsan shop were 2,124 workers, and the Defendant, on May 12, 2014, on the basis of the head of the department, conducted an explanatory meeting on the wage peak system and the abolition of the paid leave system on the date of the establishment of a new anniversary. The head of each department shall proceed with an explanatory meeting for the members of the department from May 12, 2014 to May 14, 2014, and may have an interpellation and answer time. The Plaintiffs, as the members of each department, appears to have participated in the said explanatory meeting to freely exchange opinions and participated in the collective decision-making method.

(3) Through this process, the employees of the defendant, including the plaintiffs, have signed a written consent, recognizing and accepting the introduction of the wage peak system and the abolition of the paid leave system on the anniversary of the establishment of a new anniversary, and some workers have clearly expressed their opposing intent by not signing the written consent, and it is not deemed that there was unfair intervention or interference on the part of the employer.

(4) The Defendant’s workers, including the Plaintiffs, received allowances, etc. without objection after the abolition of the paid leave system on the anniversary of the establishment of a new anniversary.

D) Whether it is reasonable under social norms

Even if the rules of employment revised as of May 2014 did not obtain the consent by collective decision-making method, the following circumstances are as follows: ① the Defendant’s wage peak system was designed by means of lowering the existing wage level for the period of work equal to that of the extended retirement age instead of extending the existing retirement age; ② the Elderly Employment Act was amended to enforce the retirement age at 60 years or above; ② the Defendant appears to implement the wage peak system for some workers who did not receive benefits from the extension of retirement age, ③ the government at the time of negotiations on the wage peak system was also announced to increase the support for the wage peak system in order to encourage the introduction of the company’s wage peak system; ④ the Defendant’s wage peak system was finally established at the time of negotiations on the number of paid leave days to the maximum extent possible; ⑤ the change in the working conditions in the new one-year anniversary of the date of establishment of a new work holiday; ⑤ The Defendant appears to have changed the working conditions in the previous one-year anniversary of the date of establishment of a new work holiday; and ⑤ the above change in the working conditions for five years or more.

4. Conclusion

Therefore, all of the plaintiffs' claims are dismissed. It is so decided as per Disposition.

Judges

The presiding judge, the senior judge;

Judges Yellowia

Judges Lee Dong-young

Note tin

(i) Article 94 (Procedures for Preparation and Amendment of Rules);

(1) Where there is a trade union organized by a majority of workers at the business or workplace concerned with the preparation or modification of the rules of employment.

any trade union organized by a majority of the workers shall hear the opinion of a majority of the workers: Provided, That employment rules

When any rules are modified disadvantageous to workers, they shall obtain consent thereto.

(2) An employer shall attach documents stating the opinion referred to in paragraph (1) to a report of employment rules pursuant to Article 93.

2) In lieu of the abolition of the special leave system in 2010, the Defendant changed other working conditions (wages with wage increase, the basic salary of self-innocation costs, and the fluctuation in the changed working conditions)

100% fixed pay, changes in the method of payment of bonus, expansion of health examinations, increase in the amount of compensation covered by group insurance, adjustment of transport expense subsidies hours, fostering of children of middle students.

Non-Support, the operation of a riverbed resort, the support for the Enmark Ski rights, the support for children's and employees' fishing campaigns, the support for the right to freedom of Enbland, 30 well-beingC

D. However, the evidence submitted by the Defendant alone cannot be deemed to be a disadvantageous change when considering the introduction of a member card.

It is insufficient to recognize that the items are in a quid pro quo relationship with the abolished special leave system.

참조조문

-고용상 연령차별금지 및 고령자고용촉진에 관한 법률

-근로기준법

-근로기준법 제94조

-근로기준법 제94조 제1항

참조판례

-대법원 2003. 11. 14. 선고 2001다18322 판결

-대법원 2004. 5. 14. 선고 2002다23185, 23192 판결

-대법원 2015. 8. 13. 선고 2012다43522 판결

유사 판례

-서울남부지방법원 2020.01.10 2019나55185

-서울동부지방법원 2018.06.21 2016가합107897

-서울남부지방법원 2020.01.10 2019나55185

-수원지방법원 성남지원 2019.1.29. 선고 2018가합400475 판결

-서울고등법원 2019. 9. 5. 선고 2018누73234 판결