In case where the personnel regulations that the Human Resources Development Service of Korea intended to revise for the extension of retirement age under the collective agreement do not go through a resolution of the board of directors, whether the contents of the collective agreement on the extension of retirement age in conflict with the provisions of the personnel regulations (negative)

Articles 1, 12, 18, and 22 of the former Korea Manpower Agency Act (Amended by Act No. 9320, Dec. 31, 2008); Articles 1, 17, 40, and 51 of the former Act on the Management of Public Institutions (Amended by Act No. 9277, Dec. 31, 2008); Articles 31(1), and 33 of the Trade Union and Labor Relations Adjustment Act

Supreme Court Decision 2010Da86235 Decided April 28, 2011 (Gong2015Sang, 287) Supreme Court Decision 2012Da32690 Decided January 29, 2015

Plaintiff 1 and nine others (Law Firm Space, Attorneys Oap-sik et al., Counsel for the plaintiff-appellant)

Human Resources Development Service of Korea (Law Firm Doll, Attorneys Gyeong-jin et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2012Na24172 decided November 2, 2012

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

The grounds of appeal are examined.

The former Act on the Operation of Public Institutions (amended by Act No. 9277 of Dec. 31, 2008) provides for the State's strict supervision over the overall management and operation of quasi-governmental institutions by prescribing fundamental matters concerning the operation of quasi-governmental institutions and necessary matters for the establishment of autonomous management and responsible management system, to rationalize management and enhance transparency in the operation thereof, to establish a board of directors for deliberation and resolution on matters such as budget, amendment of the articles of incorporation, enactment and amendment of bylaws, etc., and detailed matters concerning the composition of the board of directors, appointment and dismissal of executives, etc., and prescribing detailed matters concerning the determination and amendment of a budget bill, such as obtaining approval from the competent Minister as a result of the resolution of the board of directors, obtaining supervision over the implementation of guidelines for management or proper execution of entrusted projects (Articles 17, 40, 51, etc.)

The defendant is a corporation established pursuant to the Korea Manpower Agency Act (hereinafter the "Agency Act") for the purpose of promoting the smooth development of the national economy and contributing to the promotion of national welfare by using the State's contributions or entrusted revenues as its main financial resources to support lifelong learning of workers, conducting workplace skill development training, conducting qualification examinations, etc., and thereby contributing to the promotion of the sound development of the national economy. It constitutes a commissioned-type quasi-governmental institution subject to preferential application of the Act on the Operation of Public Institutions. The former Corporation Act (amended by Act No. 9320, Dec. 31, 2008) has a board of directors to deliberate and determine important matters, and stipulates that the Minister of Labor shall obtain the approval of the Minister of Labor when preparing or amending the business plan and budget for each business year (Articles 12, 18, 22, etc.).

On the other hand, the extension of retirement age inevitably entails changes in personnel regulations, budget expenditure, new scale of employment, etc., and thus, it can be evaluated as an important matter necessary for the resolution of the board of directors to determine or implement the contents thereof.

Considering such Defendant’s nature and purpose of establishment, the process of raising and executing operating funds, various regulations on the management and supervision of the State, and the impact on the expenditure of the budget for extending retirement age, etc., where the personnel regulations that the Defendant intended to amend to extend retirement age pursuant to the collective agreement did not go through a resolution of the board of directors, even if the contents of the collective agreement are reflected, the said personnel regulations do not have any effect (see, e.g., Supreme Court Decision 2010Da86235, Apr. 28, 201). Furthermore, the contents of the collective agreement on extension of retirement age inconsistent with the existing personnel regulations do not have any effect on

In full view of the adopted evidence, the lower court acknowledged the fact that the Defendant concluded a collective agreement with the labor union on November 28, 2008 to extend the retirement age for employees of Grade III or lower to 58 years of age, and held a board of directors to amend the existing personnel regulations that conflict with this, but rejected the amendment at the board of directors. However, the lower court rejected the Plaintiffs’ claim based on the premise that the part relating to the extension of retirement age under the collective agreement of this case regarding personnel and budget becomes effective only after obtaining the approval of the Minister of Labor as a result of the resolution of the board of directors, even without the amendment of personnel regulations approved by the Minister of Labor as a result of the resolution of the board of directors

In light of the above legal principles and records, the lower court’s conclusion that a collective agreement with respect to the extension of retirement age does not extend to the Plaintiffs is justifiable, and contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal principles on the validity

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 Ko Young-han (Presiding Justice)