Whether a trade union, which does not have any employee who had any unfavorable rules of employment, revised the rules of employment to some workers, and which does not have any employee who suffered any disadvantage after such revision, can ex post facto change

As a matter of principle, an employer may prepare and amend the rules of employment according to his/her intent, since he/she has the authority to prepare and revise the rules of employment such as the rules of employment. However, if it is intended to revise the rules of employment disadvantageously to an employee, it is necessary to consent by the collective decision-making method of the employee who was subject to the previous rules of employment, and there is no consent thereto, and if there is no labor union organized by a majority of the employees, the consent shall be obtained from the labor union if there is no such union, but if there is such union, the consent shall be obtained from the labor union. This is also the same even if there is no employee who has joined the labor union, even if there was no consent from a majority of the workers who have joined the labor union, in a case where the amendment of the rules of employment unfavorable to only some workers is ratified after the employer was established, or there was no time at which the labor union was allowed to revise the rules of employment disadvantageously to them

Article 95(1) of the Labor Standards Act

[Judgment of the court below]

[Defendant-Appellee] Defendant 1 and 3 others

Seoul High Court Decision 92Na17848 delivered on January 8, 1993

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

1. In principle, an employer has the authority to prepare and revise the rules of employment such as retirement allowance rules, so the employer is entitled to prepare and amend the rules of employment according to his/her own intent. However, if the rules of employment were to be modified disadvantageously to an employee, consent is required by the collective decision-making method of the employee who was subject to the previous rules of employment, and any amendment of the rules of employment that did not obtain such consent is not effective (see Supreme Court en banc Decision 77Da355 delivered on July 26, 197; Supreme Court Decision 91Da45165 delivered on December 22, 1992; 91Da45165 delivered on December 22, 1992). If there is no labor union consisting of more than a majority of the workers, the consent of the labor union should be obtained if there is such a union. This is likewise true even if the labor union was established after the amendment was made at the time of unfavorable amendment to the rules of employment only to some workers, or even if some of the workers affected thereby were admitted to the labor union.

2. According to the reasoning of the judgment below, the court below adopted a differential retirement allowance system, which applies each of the simple rates of paying the average wages of 30 days for the year of continuous service to employees and production employees since the enactment of the retirement allowance rules on March 1, 1970, and Article 28 (2) of the Labor Standards Act which prohibits the differential system of retirement allowances for the year of continuous service. In order to comply with this, the court below revised the retirement allowance rules on March 31, 1981, which was enforced immediately before the amendment, and did not distinguish the retirement allowance rules from the previous employees, but did not set a lower progressive rate than the payment rate applied to all employees (the records followed by another amendment that was made before the above amendment).

.10.1. It shall be applied only to employees who have entered after September 30, 1979, but also to previous members;

As a result, with regard to the continuous service period until March 31, 1981, the rate of payment under the rules on retirement allowances is reduced to less than the previous one for employees, and as a result, the defendant company was increased to the former employees on August 21, 1987, and as the new trade union was established for all employees except for some employees, such as employees, at least Grade 1, and at least 3, at the same time the new trade union was established for each workplace, and then it was possible to establish a trade union thereafter. The new trade union was established for each of the above new trade unions to separate and establish the new trade union from the above new trade union on September 20, 198, and the previous new trade union established the new trade union's head office on the 19th anniversary of the revised rules on retirement allowances. The above new trade union's provision on retirement allowances at the 19th anniversary of the above new trade union's total revised rules on the 19th new trade union's total revised rules on retirement allowances at the same time as the above 13th new trade union.

3. The assertion that there was an error in the misapprehension of the legal principles as to Article 37 of the Trade Union Act in the judgment of the court below is nothing more than the criticism that the judgment of the court below, which was added to the determination that the amendment of the above retirement allowance provision of the defendant company was made effective ex post facto ex post facto, is unlawful. Thus, the above determination of the court below is justified in the

4. Therefore, the appeal is dismissed, and all 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 Ahn Yong-sik (Presiding Justice)