[1] Whether the prohibition of the differential retirement allowance system is violated in a case where the rate of retirement allowance payment differs depending on the worker's employment period (affirmative)

[2] In a case where an employer concludes a new collective agreement with a trade union to change the provision on the payment rate of retirement benefits to an employee disadvantageously without the employee’s consent in a collective decision-making manner, the validity of the amended provision on the payment rate of retirement benefits and the scope of its application

[3] Whether the rules of a trade union, which stipulate that the representative of a trade union shall follow a resolution of the general meeting of union members on whether the draft agreement is in violation of Article 33(1) of the former Trade Union Act after having agreed on the contents of collective bargaining with an employer (affirmative)

[4] The meaning of employment rules

[1] Article 28(2) of the former Labor Standards Act (amended by Act No. 3349 of Dec. 31, 1980, and enacted by Act No. 5309 of Mar. 13, 197) provides that a different system shall not be provided within one business in establishing a retirement allowance system. The legislative purpose of this provision is to prohibit discrimination by setting different retirement allowance systems within one business type, position, and business type, and to ensure the application of a single retirement allowance system. Thus, it is also prohibited from setting a different retirement allowance system according to the payment rate according to the date of the worker's employment.

[2] A collective agreement is an agreement entered into between an employer or employers' organization on matters arising from labor-management relations, and where a trade union has agreed or approved with an employer on the criteria for determining working conditions, such as existing wages, working hours, retirement allowances, etc., the consent or approval shall take effect after the enforcement of the collective agreement, and shall be applied to the union members or workers who will be subject to the agreement. Thus, even though the rules on the payment rate of retirement allowances under the rules of employment are disadvantageous to workers, the previous rate of retirement allowance shall apply to existing workers whose interests are infringed by the employer’s modification without the consent of the worker’s collective decision-making process, even in cases where a collective agreement is entered into with the employer’s employer’s consent to comply with the changed rate of retirement allowance, the changed rate of retirement allowance shall apply to existing workers whose interests are infringed, in principle, regardless of whether the previous rate of retirement allowance should be applied to the existing workers subject to the agreement.

[3] Article 33(1) of the former Trade Union Act (repealed by Act No. 5244 of Dec. 31, 1996) provides that the representative of a trade union shall, after having agreed with an employer on the contents of collective bargaining and again undergo a resolution at the general meeting of partners on whether to conclude a collective agreement, shall be deemed to be merely nominal by completely and comprehensively limiting the representative’s authority to conclude a collective agreement. Therefore, it violates Article 33(1) of the same Act.

[4] Employment rules include working conditions, such as service rules and wages, regardless of their names.

[1] Article 28 (2) (see current Article 34 (2)) of the former Labor Standards Act (amended by Act No. 5309 of March 13, 1997) / [2] Article 95 (1) (see current Article 97 (1)) of the former Labor Standards Act (amended by Act No. 5309 of March 13, 1997), Article 36 (see current Article 33 of the Labor Union and Labor Relations Adjustment Act) of the former Trade Union Act / [3] Article 33 (1) (see current Article 29 (1) of the Labor Union and Labor Relations Adjustment Act) of the former Labor Standards Act (amended by Act No. 5244 of December 31, 1996) / [4] Article 96 (4) of the former Labor Standards Act (amended by Act No. 5309 of March 13, 197)

[1] Supreme Court en banc Decision 91Da21381 delivered on February 9, 1993 (Gong1993Sang, 928), Supreme Court Decision 93Da18365 delivered on October 12, 1993 (Gong1993Ha, 3068 delivered on February 3, 1995), Supreme Court Decision 93Da5876 delivered on September 3, 1995 (Gong1995Sang, 197Da24979 delivered on November 28, 197 (Gong1998Sang, 599), Supreme Court Decision 98Da765 delivered on August 20, 199 (Gong1999, 1964) 97Da39799 delivered on September 29, 197 (Gong1979, 599)

Plaintiff 1 and one other (Attorney Kim Young-soo, Counsel for the plaintiff-appellant)

Korean General Chemical Industry Co., Ltd. (Attorney Han Jin-hee, Counsel for defendant-appellee)

Seoul High Court Decision 2001Na26936 delivered on October 30, 2001

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

1. Ground of appeal No. 1

Article 28(2) of the former Labor Standards Act (amended by Act No. 3349 of Dec. 31, 1980, and enacted by Act No. 5309 of Mar. 13, 1997) provides that a different retirement allowance system shall not be provided in one business in establishing a retirement allowance system. The legislative purpose of this provision is to prohibit discrimination by setting different retirement allowance systems within one business type, position, and type of business and to ensure the application of a single retirement allowance system (see, e.g., Supreme Court Decision 98Da765, Aug. 20, 199). Thus, it is also prohibited to set up a different retirement allowance system according to the payment rate according to the worker's employment date.

The court below, based on the evidence established by the court below, held that the defendant company's retirement allowance of employees currently in office as a member of the board of directors held before November 29, 1985 (1) before December 31, 1980 (1) the board of directors held before December 31, 1980 (including the plaintiff) shall apply the provision of retirement allowance and retirement allowance payment provisions before the amendment (hereinafter referred to as "pre-revision provision") if the provision of retirement allowance is advantageous to the retirement time, and (2) as a member of the board of directors before December 31, 1980, the defendant company presented the agenda to the board of directors on the plan for the payment of retirement allowance of employees before and after the expiration of the period of extinctive prescription under Article 41 of the former Labor Standards Act, and there is no error in the misapprehension of the legal principles as to the payment of retirement allowance of employees before and after the amendment of Article 28 of the former Labor Standards Act, and there is no error in the misapprehension of the legal principles as to the payment of retirement allowance provision of this case.

2. The second ground for appeal

A. A. A collective agreement is an agreement entered into between an employer or employer organization and a labor-management relationship. Where a trade union has agreed or approved on the criteria for determining working conditions, such as pre-existing wages, working hours, retirement allowances, etc. with an employer, the consent or approval shall take effect after the collective agreement entered into force, and the labor union or workers shall be subject to the agreement. Thus, even though the rules on the payment rate of retirement allowances under the rules of employment disadvantage workers, the previous retirement allowance payment rate shall apply to pre-existing workers whose profits are infringed upon by the employer’s modification without the consent made in collective decision-making method, in cases where a collective agreement is entered into with the employer with the employer to comply with the changed rate of retirement allowance, the revised rate of retirement allowance payment shall apply to pre-existing workers whose profits are infringed (see Supreme Court Decision 96Da6967, Aug. 22, 1997).

The court below, based on its evidence, acknowledged that the provision on the payment of retirement benefits in this case, which was enforced until February 5, 1981 by the defendant company, was revised to reduce the payment rate of retirement benefits as stated in its reasoning (the revised provision hereinafter referred to as the "the first revised provision") and applied the provision on the first revised provision in Article 38 as retirement benefits at the time of renewal of the collective agreement on August 28, 1981. The court below determined that the defendant company's trade union retroactively applied the provision on the first revised provision in its collective agreement, which stated that the provision on the payment of retirement benefits in this case was effective as of August 28, 1981. The defendant company's trade union was established before this date, and more than a majority of the employees of the defendant company was admitted to the trade union at the time of the collective agreement, and that the provision on the first revised provision in the collective agreement was effective as of whether the provision on the first revised provision in the collective agreement was effective.

In light of the above legal principles and records, the above fact-finding and judgment of the court below are just, and there is no error of law such as misconception of facts or misapprehension of legal principles due to violation of the rules of evidence or incomplete hearing.

All of the Supreme Court precedents in the grounds of appeal are different from those pertaining to the case where the rules of employment amended in the collective agreement are not provided for.

B. Furthermore, the court below rejected the plaintiffs' assertion on the ground that the defendant company trade union's renewal of the collective agreement was not subject to the resolution of the representatives' conference at the time of renewal of the collective agreement, and it cannot be effective as a legitimate decision-making of the trade union, and that there is no such authority on the part of the chairperson of the trade union where the rules of employment are modified disadvantageous to workers in the company where there is a trade union composed of a majority of workers, the consent of the trade union should be obtained from the trade union. In this case, the consent of the trade union should not be deemed to be a representative of the trade union unless there are special circumstances to deem that the consent of the head of the trade union was restricted by the statutes,

According to the records, Article 19 subparagraph 7 of the Rules of the defendant company's trade union provides that the general meeting shall deliberate and decide on the matters concerning the conclusion and amendment of the collective agreement. However, the representative of the trade union shall go through a resolution of the general meeting of the union members on the matters concerning whether the collective agreement was entered into with the employer after agreement on the contents of the collective agreement with the employer according to the collective bargaining result. Since the representative of the trade union shall go through a resolution of the general meeting of union members on the matters concerning whether the collective agreement was entered into, in fact, by completely and comprehensively limiting the representative's authority to conclude the collective agreement, it is against Article 33 (1) of the former Trade Union Act (amended by Act No. 5244 of Dec. 31, 1996). Therefore, the restriction of the representative authority under the above Rules does not affect the validity of the collective agreement concluded by the president on behalf of the union, the court below's rejection of the plaintiffs' above assertion is somewhat insufficient, but is justified, and there is no violation of law such as misconception of facts or incomplete as alleged in the grounds for appeal.

3. Ground of appeal No. 3

The rules of employment contain the rules on working conditions, such as service rules and wages (see Supreme Court Decision 97Da24511, Nov. 28, 1997, etc.). According to the facts acknowledged by the court below, the second revised rules of this case stipulate the rules on the calculation method of retirement allowances, which are one of the working conditions, and have the nature of the rules of employment regardless of its form. The court below erred in the judgment below, contrary to the allegation in the grounds of appeal, by understanding the characteristics of the "plan for the payment of retirement allowances to be employed before and after the board of directors of the defendant company on Nov. 29, 1995," which was deliberated upon and passed by the board of directors of the defendant company on Nov. 29, 1995, and on this premise, it is clear that the above rules were null and void in violation of Article 28 (2) of the former Labor Standards Act. Accordingly, it cannot be viewed as an individual compensation agreement between the defendant company and its recipient.

4. Ground of appeal No. 4

The court below held on November 29, 1995 that the defendant's resolution of the second revised payment provision of this case was legitimate since the board of directors passed a resolution of the second revised payment provision of this case for about four years, and publicity or commitment was made to both the plaintiffs and withdrawn from the plaintiffs' letter submission of the plaintiffs' letter of opinion in the case of the so-called IMF incident, but the audit results of this and the audit results of the IMF situation were followed and the plaintiff's assertion that the non-payment of other retirement benefits is abuse of right and is against the good faith principle cannot be viewed as abuse of right or violation of the good faith principle. Upon examining the records, the above judgment of the court below is acceptable, and there is no error in the misapprehension of legal principles as to the good faith principle, etc.

5. Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cho Cho-Un (Presiding Justice)