(영문) 대법원 2019.3.14.선고 2018다269838 판결

The part of the judgment of the court below against the plaintiffs in the annexed Form 1 is reversed, and that part of the case is remanded to the Seoul High Court.

All appeals filed by the plaintiffs in attached Form 2 are dismissed.

The costs of appeal by the plaintiffs in attached Form 2 shall be borne by the plaintiffs in attached Form 2.

Reasons

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

1. As to the Plaintiffs’ grounds of appeal listed in Appendix 2

A. Regarding ground of appeal No. 1

For the reasons indicated in its holding, the lower court determined that the labor-management agreement concluded around January 2014 by the Seoul Metropolitan Government Urban Railroad Corporation (Seoul Metropolitan Government Urban Railroad Corporation was established after its merger with Seoul Matart on June 30, 2016, and the Defendant took over the instant lawsuit; hereinafter “Defendant” without distinguishing between the Seoul Urban Railroad Corporation and the Defendant; hereinafter “Defendant”) concluded the labor-management agreement, the labor-management agreement concluded by the Defendant on June 2014, the personnel management regulations and regulations within the enforcement thereof (hereinafter “instant retirement age regulations”), and Article 4-4 of the Act on Prohibition of Age Discrimination and Elderly Employment Promotion (hereinafter “the Elderly Employment Act”), Article 19 of the Labor Standards Act, and Article 6 of the Labor Standards Act were not violated.

Examining the relevant legal principles and records, the lower court did not err in its judgment by misapprehending the legal principles under Articles 4-4 and 19 of the Elderly Employment Act, Article 6 of the Labor Standards Act, etc., contrary to what is alleged in the grounds of appeal.

B. Regarding ground of appeal No. 2

The lower court, on the grounds stated in its reasoning, determined that the Defendant’s labor-management concluded a collective agreement on June 2, 2016, the validity of the instant retirement age provision stipulated as of June 30, 2016, even if the Defendant’s retirement date of the employee in 1956 remains intact.

In light of the relevant legal principles and records, the lower court did not err in its judgment by misapprehending the legal doctrine on the interpretation of a collective agreement, etc., contrary to what is alleged in the grounds of appeal.

2. As to the Defendant’s ground of appeal

A. As to the grounds of appeal Nos. 1 and 2

For the reasons indicated in its holding, the lower court determined that the instant retirement age provision, which was set by June 30, 2016, was against Article 19 of the Elderly Employment Act, which stipulates that the retirement age of workers shall be at least 60 years old, and that the Plaintiffs as stated in Appendix 1 did not violate the good faith principle, in relation to the Plaintiffs as stated in Appendix 1, born in the second half of 1956, as alleged in the grounds of appeal. Examining the relevant legal principles and records, the lower court did not err in its judgment by misapprehending the legal principles on Article 19 of the Elderly Employment Act, the good faith principle, etc., and thereby adversely affecting the conclusion of the judgment.

B. As to the grounds of appeal Nos. 3 and 4, pursuant to Article 19 of the Elderly Employment Act, an employer shall set the retirement age of workers at 60 years or older (Paragraph 1), and where an employer sets the retirement age below 60 years of age, the retirement age shall be deemed set at 60 years of age, and thus, a labor contract, employment rules, or collective agreement that stipulates that the retirement age of workers below 60 years of age shall be null and void to the extent that it violates the aforementioned provisions. Moreover, “retirement age” in this context should be calculated on the basis of the actual date of birth (see Supreme Court Decision 2016Da249236, Mar. 9, 2017).

2) According to the reasoning of the lower judgment and the reasoning of the first instance judgment cited by the lower court, Article 39 of the Defendant’s Personnel Management Regulations provides that “The retirement age of employees shall be 58 years old,” and Article 59 of the Enforcement Regulations of the Personnel Management Regulations (hereinafter “Enforcement Regulations”) stipulates that “The retirement age shall be December 31 of the year in which the retirement age reaches the retirement age.”

B) However, the defect that Article 19(1) of the Elderly Employment Act was revised on May 22, 2013, thereby setting the retirement age of workers at least 60 years, and the Defendant’s labor and management reached an agreement to extend the retirement age around the end of 2013.

C) The Defendant’s labor and management concluded a collective agreement on January 31, 2014 and agreed to set the retirement age of employees as the end of December of the year in which the employee reaches the age of 60 years. However, the employees of 1957, who were at the time of retirement from December 31, 2012, decided to extend the retirement age gradually by taking into account the balance with the employees of 1954 who already retired on December 31, 201, and the financial burden due to the uniform extension of the retirement age, etc. The employees of 1955 agreed to set the retirement age on December 31, 2014, the employees of 1956, the employees of 2016, 6, 30, and 1957, and the employees of 1957, agreed to retire on December 31, 2017 (hereinafter “instant labor-management agreement”).

D) On October 23, 2014, the Defendant amended Article 39 of the Personnel Regulations according to the labor-management agreement of this case, thereby changing the retirement age of employees into 60 years of age. Notwithstanding Article 39 of the Addenda to the Personnel Regulations, the 1955s of the 1955s of the 1955s of the 1955, notwithstanding the provisions of Article 39 of the Addenda to the Personnel Regulations, the 1956s of the 1956s of the 2016, June 30, 2016, and the 1957s of the 2017s of the 201

Each time limit was set forth in the article 2, Paragraph 2 of the Addenda to the Enforcement Rule. In addition, despite the provision of Article 59 of the Addenda to the Enforcement Rule, the birth in 1956 has a provision that "the retirement shall be made on June 30, 2016."

E) On June 30, 2016, the lower court determined as follows: (a) the instant labor-management agreement and the supplementary regulations of the Labor-management agreement and the Personnel Affairs Regulations, which set the retirement date of the employees of 1956 on June 30, 2016, were null and void against Article 19 of the Elderly Employment Act in relation to the Plaintiffs listed in attached Table 1; and (b) such partial regulations do not exist from the beginning.

B) Therefore, Article 39 of the Defendant’s Personnel Management Regulations and Article 59 of the Enforcement Regulations are applied to the Plaintiffs listed in Attached Form 1, and the retirement date of the Plaintiffs listed in Attached Form 1 is December 31, 2016.

C) Therefore, the Defendant is obligated to pay the wages or retirement allowances which the said Plaintiffs would have additionally received when they retire on December 31, 2016, as well as damages for delay thereof, to the Plaintiffs listed in attached Form 1.

4) However, in light of the above legal principles and the above factual relations, the lower court’s aforementioned determination is not acceptable for the following reasons. (A) Article 19(1) of the Elderly Employment Act, which stipulates that the retirement age of workers shall be at least 60 years old, was amended on May 22, 2013, but its Addenda, made it possible for a local government-invested public corporation under Article 49 of the Local Public Enterprises Act, such as the Defendant, to implement the said provision from January 1, 2016.

B) Therefore, the Defendant’s labor and management, according to the former retirement age regulations, was able to autonomously determine the standard of reasonable retirement age for the employees of 1955 who were anticipated to retire until December 31, 2015, prior to the enforcement of Article 19 of the Elderly Employment Act by December 31, 2015, pursuant to the former retirement age regulations of 58. However, Article 19 of the Elderly Employment Act should not be in conflict with the said provisions after the enforcement of the said provisions.

C) Accordingly, the Defendant’s labor and management agreed to extend the retirement age gradually, ① the retirement age of the employees in 1955 is one year, the retirement age of the employees in 1956 is one year and six months, and the retirement age of the employees in 1957 is two years, respectively. ② The employees who were born thereafter agreed to extend the retirement age from 58 to 60 years by allowing them to retire at the end of December of the year in which they turn 60.

D) In addition, the Defendant revised the personnel regulations and regulations in accordance with the labor-management agreement of this case. Thus, Article 39 of the revised personnel regulations and Article 59 of the Enforcement Rule shall be deemed to apply respectively to the remaining employees except for the employees from 1956 to 1957, and each supplementary provision of the personnel regulations and the Regulations in force shall be deemed to apply to the employees from 1956 to 1957.

E) However, the employees born during the second half of the year of 1956, which was extended on June 30, 2016 by the date of retirement, namely, the Plaintiffs listed in attached Table 1 do not reach 60 years of age until June 30, 2016, and thus, in relation to the said Plaintiffs, the supplementary provisions to the labor-management agreement and the amended personnel management agreement and to the Regulations on the Enforcement of the Regulations on the Employment of the Aged, which stipulate the date of retirement as of June 30, 2016, are in violation of Article 19(1) of the Act on the Employment of the Aged, which came into force on January 1, 2016, and are null and void to the extent of violation.

F) Article 19(2) of the Elderly Employment Act provides that the retirement age shall be set at 60 years of age in such a case, i.e., when setting the retirement age of an employee under 60 years of age. Thus, the retirement age of the Plaintiffs listed in attached Form 1 shall be deemed to be the date of birth of the said Plaintiffs in 2016, the date when the said Plaintiffs reach 60 years of age. From the beginning to the beginning, Article 39 of the revised Personnel Regulations, which was not anticipated to be applicable to the 1956 employee, and Article 59 of the Enforcement Rule, which was not applicable to the 1956 employee, shall not be applied to the employees of 1956.5) Nevertheless, the lower court erred by misapprehending the legal doctrine on interpretation of Article 19(2) of the Elderly Employment Act and the juristic act, which affected

3. Therefore, the part of the judgment of the court below against the plaintiffs in the annexed Form 1 is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The plaintiffs' appeals in annexed Form 2 are all dismissed, and the costs of appeal by the plaintiffs in annexed Form 2 are assessed against the losing party. It is so decided as per Disposition by the assent of