Procedures for modifying rules of employment under the Labor Standards Act

In order to unilaterally revise the contents of the existing working conditions to disadvantage workers due to the amendment of the rules of employment, consent shall be required by the collective decision-making method of a group of workers subject to the previous rules of employment. If there is a labor union consisting of a majority of workers, the union's consent cannot be effective as a modification of the rules of employment unless the majority of the workers' meeting consent is given, and therefore, it shall not be effective as to the workers who have individually consented to such amendment.

Article 95 of the Labor Standards Act

Supreme Court Decision 77Da355 delivered on July 26, 1977

tin-ro and four others

Korea Coal Corporation

Seoul Central District Court (74Gahap3659) in the first instance trial

Supreme Court Decision 77Da1378 Delivered on December 27, 1977

1. Of the original judgment, the part of the original judgment against the plaintiff T Young-ro, Dong Tae-dong, Dongdae-dong, Dong Ho-dong and Ri-dong shall be revoked.

The defendant shall pay 454,11 won and its amount from September 23, 1973, 378,884 won and its amount from February 4, 1973, 536,334 won and its amount from September 4, 1973 to the same head of the Dong Young-ro, and the amount equivalent to 203,986 won and its amount from January 19, 1973 to the same head of the Dong Young-ro at the rate of 6 percent per annum.

2. The remaining appeal by the plaintiff T Young-ro is dismissed.

3. All costs of the lawsuit shall be borne by the defendant.

4. The above paragraph (1) can be provisionally executed.

The defendant shall pay to the plaintiff Ha Young-ro the amount of KRW 751,315 as well as the amount of KRW 916,093 as well as the amount of KRW 916,093 as well as the amount of KRW 707,643 as well as the amount of KRW 707,643 as well as the amount of KRW 892,480 as to this head from September 3, 1973 to each full payment date.

The judgment that the lawsuit costs shall be borne by the defendant and the declaration of provisional execution

The part of each of the losing parties, such as Plaintiff Ho Young-ro, Dong Ho-dong, Dong Dong-dong, Dong-dong, Dong-dong, Dong-dong, Dong-dong, Dong-dong, and Dong-dong, among the original judgment, shall be revoked.

The defendant shall pay to the plaintiff Ha Young-ro the amount of 462,474 won and the amount of 378,884 won from Sep. 22, 1973, the amount of 536,334 won from Feb. 3, 1973, the amount of 536,334 won and the amount of 203,986 won from Sep. 3, 1973 and the amount of 5% per annum from Jan. 19, 1973 to the same head.

The costs of lawsuit shall be assessed against the defendant in both the first and second trials, and a declaration of provisional execution.

Since the plaintiff et al. retired from the position listed in paragraph (1) of the attached Table 2 on the date specified in paragraph (3) of the same Table, each service period of the plaintiff et al. retired from the position listed in paragraph (1) of the same Table on the date stated in paragraph (3) of the same Table, the plaintiff et al. received money listed in paragraph (7) of the same Table after deducting Class A earned income tax and resident tax from each amount listed in paragraph (6) of the same Table from each amount listed in paragraph (5) of the same Table upon retirement from the defendant Corporation. In paying each retirement allowance to the plaintiff et al., the defendant Corporation did not include the bonus amount paid to the plaintiff et al. for three months before the retirement, and calculated the average wage as stated in paragraph (9) of the above attached Table without any dispute among the parties, the average wage at each time of retirement of the plaintiff et al. as stated in paragraph (1) of the same Table shall be calculated by dividing the total amount of retirement allowance for the plaintiff et al. to the average wage of the plaintiff et al.

In light of the employee's wage rules, the above bonus is not paid as remuneration for work but as it does not correspond to the above average wage in light of its nature, the above bonus cannot be calculated as remuneration for work, and the above employee's retirement allowance rules have been settled on this premise. Therefore, the previous employee's retirement allowance rules have been handled accordingly. Such handling practices are established in customs, which is the fact among the employees of the defendant corporation, and it is reasonable to include the above bonus in the calculation of the average wage as it is established in the objective interpretation of the above employee's retirement allowance rules, and it is reasonable to include the above bonus in the calculation of the average wage. Thus, the above provision under Article 6 of the Enforcement Decree of the Labor Standards Act provides that the employee's retirement allowance rules shall be calculated based on the employee's retirement allowance provisions under Article 9 of the Labor Standards Act, which provide that the employee's retirement allowance rules shall be calculated based on the employee's retirement allowance provisions under Article 5-1 through 3 (total Wage Mark and Contents of the Labor Standards Act).

However, the employee's average wage calculation date shall be the initial date of the wage calculation date immediately before the date on which the ground for calculation occurred, and the established rule on the calculation of the average wage as of December 19, 1969 by the Defendant Corporation provides that the calculation period is less than three months and the basic wage shall be the total amount of the wages during that period, and the basic wage shall be the total amount of the wages during that period. Meanwhile, Article 3 of the employee's wage rules of the Defendant Corporation classifys the wages of the Defendant Corporation as the basic salary and allowances bonus, and Article 24 of the same Act provides that the bonus shall be less than four times a year and not more than 100 of the ordinary wage at one time according to the management performance of the Corporation.

However, each of the facts stated above that payment shall be made with the approval of the Minister of Trade, Industry and Energy, and the collective agreement of the defendant corporation provides that payment shall be made not more than 100 of ordinary wages once a year according to management performance, and the defendant corporation shall continue to pay 100 of ordinary wages once every three months to employees, regardless of its proper management, and there is no evidence contrary to the above facts. Thus, in light of the above facts, it is reasonable to view that this bonus is not just a mutually advantageous but its payment obligation and payment obligation as the object of work under the Labor Standards Act which are regularly and finally determined as the object of work under the above regulations and collective agreement, and it is reasonable to view that it is a form of wages in the nature of the nature of the wage under Article 9 of the above regulations and the principle of average wages under the above regulations and the principle of average wages under Article 19 of the Labor Standards Act, which is applicable to average wages under Article 9 of the above regulations, and even if there is no reason to interpret that it should be included in the above retirement allowance of the defendant corporation.

Next, even if the defendant's attorney assumed that the family bonus should be included in the calculation of the average wage of the plaintiff et al., the defendant corporation has already paid the amount exceeding the minimum amount of retirement as retirement allowance to the plaintiff et al. under Article 28 of the Labor Standards Act. Thus, the defendant corporation's claim that the obligation to pay the retirement payment to the plaintiff et al. was extinguished. However, the defendant's claim for the exemption of the defendant is not reasonable, that is, the defendant's claim for the payment of retirement allowance to the plaintiff et al. is that the employer should establish and enforce the

Therefore, we examine the amount of retirement allowance to be paid by the defendant to the plaintiffs, and the amount to be paid to the plaintiffs shall be the difference between various taxes and the retirement allowance already paid by the plaintiffs from the amount calculated including bonuses for the calculation of average wages as stated in the above statement.

If a bonus received by the plaintiffs for three months prior to their retirement as stated in attached Table 10 above is included in the average wage which is the basis of the calculation of the retirement allowance for the plaintiffs, and if the number of the payment dates of the retirement allowance is calculated by applying the progressive provisions in attached Table 1's retirement allowance regulations for employees of the defendant corporation as stated in the above attached Table 1's employment years, the same is as stated in the above preceding Table 8. Meanwhile, according to the above evidence No. 7 and evidence No. 1-3 (Special Measures Concerning Calculation of Retirement Allowances) and evidence No. 1-2 (Guidelines No. 1-2) of the above evidence No. 3, the above evidence No. 7 and the above evidence No. 1-2 ( must be calculated separately on December 30, 197; the total amount of the payment dates of the retirement allowance to the plaintiff 1-50,000 won should be revised by the resolution of the board of directors for five years from 197 days prior to his employment.

However, the rules of employment are prepared in order for an employer to uniformly and uniformly establish the criteria for the service discipline or working conditions of workers in a workplace based on the business management right. This is to enforce the Labor Standards Act as part of the purpose of enhancing the basic livelihood of workers by strengthening the status of workers in substance equal on the basis of the reality of subordinate labor relations, and to guarantee their basic lives, and to grant legal norms accordingly. Thus, the right to draft and revise the rules of employment is a business owner. However, in order to unilaterally change the contents of the existing working conditions due to the revision of the rules of employment, the consent of the collective decision-making method of the workers who are subject to the previous rules of employment must be required. If there is a labor union consisting of a majority of workers, the consent method cannot be effective as a modification of the rules of employment without consent of the majority of the workers by the method of meeting if there is no such union. Accordingly,

왜냐하면 기존근로조건의 내용을 사용자가 일방적으로 근로자에게 불이익하게 변경하는 것은 위의 근로기준법의 보호법으로서 정신과 기득권보호의 원칙 및 근로조건은 근로자와 사용자가 동등한 지위에서 자유로운 의사에 의하여 결정되어야 한다는 근로기준법 제3조의 규정상 허용될 수 없다 할 것이며 그렇다고 만약 취업규칙의 불이익한 변경에 개인적으로 동의한 근로자에 대하여는 그 변경의 효력이 있고 동의하지 아니한 근로자에 대하여는 효력이 없다고 한다면 사용자는 실질적으로 대등하지 아니하는 우월한 지위에서 용이하게 취업규칙의 변경이란 형식으로 각개 근로자에 대하여 기존 취업규칙에 미달되는 근로계약을 체결할 수 있게 되어 취업규칙에 정한 기준미달의 근로조건을 정한 근로계약은 그 부분에 한하여 무효로 하고 무효된 부분은 취업규칙에 정한 기준에 의한다 하여 췽업규칙상의 기준을 최저기준으로 규정한 근로기준법 제9조 를 사실상 무의미하게 만드는 결과가 될 뿐 아니라 한 개의 사업장에 다수의 취업규칙이 사실상 병존하는 것과 같은 결과가 되어 취업규칙의 규범으로서의 획일적, 통일적 적용의 필요성에도 위배된다 할 것이며( 당원 1977.7.26 선고, 77다355 판결 참조) 위 원고들이 근로기준법 제15조 소정의 사업경영 담당자 기타 근로자에 관한 사항에 대하여 사업주를 위하여 행위하는 자에 해당한다 할지라도 이것은 각자 맡은 직무분야에 있어 자기 하위의 근로자에 대한 관계에 있어서 소위 사용자에 해당되는 것에 불과하고 피고공사에 대한 관계에 있어서는 피고공사에 고용된 근로자로서 피고공사의 취업규칙의 적용을 받는 근로자인 관계에 있다고 할 것이다( 당원 1976.10.26. 선고 76다1090 판결 참조).

Therefore, the defendant's case where the defendant is the person who did not obtain the consent of the employee's organization as the special measure on the calculation of the so-called retirement allowance disadvantageously changed the contents of the existing rules of employment to the above plaintiffs who are workers. Therefore, the defendant's assertion on this issue is without merit.

Therefore, the above retirement allowance for the plaintiff et al. calculated based on the average wage stated in attached Table 10 of the above recognition as well as the number of days of payment of retirement allowance stated in attached Table 18 of the above recognition is as stated in paragraph 19 of the same Table, and it is obvious that the amount stated in paragraph 21 of the same Table is the retirement allowance already received by the plaintiff et al. at the time of retirement as stated in paragraph 7 of the same Table, and the amount stated in paragraph 20 of the same Table is calculated as the retirement allowance for the defendant et al. at the time of retirement, after deducting the retirement allowance stated in paragraph 7 of the same Table which the plaintiff et al. received at the time of retirement, as stated in paragraph 9 of the same Table 19 of the same Table, and the above amount is calculated as the retirement allowance for the defendant et al. from the date stated in attached Table 19 of the above Table 9 to the date of payment of 14 days for each retirement allowance for the plaintiff et al., the court below accepted the above judgment 2 of the defendant's damages.

Judges Park Woo-young (Presiding Judge)