In cases where there is a change in the position during the continuous service period, the method of calculating retirement allowances is stipulated in the rules of employment or collective agreement, and such change does not violate Article 28(1) of the former Labor Standards Act, whether the calculation of retirement allowances is lawful (affirmative)

Even in cases where a temporary employee is employed and has been employed as a regular employee and has been employed without a blank period of service, the period of service of a temporary employee and the period of service of a regular employee shall be deemed to be the period of continuous service which serves as the basis for calculating retirement allowances. However, in cases where a change of job category is made in the middle of the continuous service period and there is a difference in the rate of payment of retirement allowances depending on the job category, the method of calculating retirement allowances is legitimate pursuant to the rules of employment or collective agreement, unless it violates the provisions of Article 28(1) of the Labor Standards Act.

Article 28(1) of the former Labor Standards Act (amended by Act No. 5309 of March 13, 1997) (see Article 34(1) of the current Labor Standards Act)

Supreme Court Decision 84Da1409 Decided February 24, 1987 (Gong1987, 506), Supreme Court Decision 93Da46841 Decided May 24, 1994 (Gong1994Ha, 1798), Supreme Court Decision 94Da6789 Decided December 23, 1994 (Gong1995Sang, 636), Supreme Court en banc Decision 93Da26168 Decided July 11, 1995 (Gong195Ha, 2577), Supreme Court Decision 95Da32631 Decided December 23, 1996 (Gong197, 482)

Plaintiff 1 and eight others

National Agricultural Cooperative Federation

Gwangju High Court Decision 96Na5338 delivered on April 17, 1997

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

We examine the plaintiffs' grounds of appeal.

1. The first, second, and fourth points shall be deemed the same;

Even in cases where a temporary employee is employed and has been employed as a regular employee during the middle and has been employed without any blank period, the continuous employment period and the total period of service as a regular employee should be considered as the continuous employment period, which serves as the basis for calculating retirement allowances. However, as such, the rules of employment or collective agreement on the method of calculating retirement allowances are lawful unless there is a change of job category in the middle of the continuous employment period and there is a difference in the rate of payment of retirement allowances depending on the job category, and it does not violate the provisions of Article 28(1) of the Labor Standards Act (see Supreme Court en banc Decision 93Da26168 delivered on July 11, 1995).

According to the reasoning of the judgment of the court below, the court below acknowledged the facts based on the evidences, and judged that there is a provision in the rules of employment or collective agreement as to the method of calculating retirement allowances due to changes in the job category during continuous service period at the defendant National Federation, which is a business place whose rate of payment of retirement allowances is different according to the job classification, and since the payment of retirement allowances under each of the above provisions does not violate the provisions of Article 28 (1) of the Labor Standards Act, it is justifiable for the defendant to calculate retirement allowances due to the above provision. In light of the records, the above judgment of the court below is just and it is not erroneous in the judgment contrary to the Supreme Court precedents such as the theory of lawsuit.

The precedent of a party member cited by the theory of lawsuit is inappropriate to be invoked in the instant case, since the case differs from the instant case.

In addition, since the Defendant enacted the Agricultural Cooperative Employee Retirement Benefits and Disaster Compensation Regulations, the court below has been excluding the Plaintiffs from the regular employees subject to the above provisions, and accordingly, determined the purport of the Defendant’s retirement benefits-related regulations based on the data such as the fact that the amount of retirement benefits charges under the fund system has started to be paid only to the regular employees after being appointed as the regular employees, and that the payment of retirement benefits charges to the Plaintiffs was made only after being appointed as the regular employees. Accordingly, there is no error of law such as the theory of lawsuit.

2. On the third ground for appeal

In light of the records and the contents of the relevant statutes, the decision of the court below which rejected the plaintiffs' assertion that the defendant's retirement allowance provision was unilaterally established without the worker's consent and violated the legal principles such as the principle of equality of workers, equal treatment as stated in the Labor Standards Act, prohibition of workers' discrimination, etc. is just, and there is no violation of the law

3. Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Sung-sung (Presiding Justice)