[1] Whether separate rules of employment applicable to part of workers can be prepared in the same workplace according to the characteristics of workers (affirmative)

[2] The retirement allowance provision applicable to a worker who does not belong to the largest number of workers and whose profits have not been infringed upon when the retirement allowance provision for the largest number of workers was enforced without the consent of the worker group (=the revised retirement allowance provision)

[3] The validity of the revised rules of employment to establish a retirement allowance system within one business with the consent of the worker (negative)

[1] The rules of employment shall not apply uniformly to all workers who belong to the same workplace, and an employer may establish separate rules of employment that apply to part of workers according to the characteristics of the working conditions, the form of work, and the type of work.

[2] Even if an employer did not obtain the consent of the employee in a way of collective decision-making with regard to the amendment of the rules of employment, as long as the right to prepare and revise the rules of employment exists in the employer, the rules of employment with the legal effect after the amendment shall be the revised rules of employment. However, the corresponding provisions of the previous rules of employment shall apply to the existing worker whose vested interests are infringed. Thus, where the retirement allowance system applied to the largest number of workers within the pertinent business from April 1, 1981 pursuant to Article 28(2) of the former Labor Standards Act (amended by Act No. 5309 of March 13, 1997) and Article 28(2) of the Addenda of the former Act prohibiting the system of retirement allowance, if the rules of retirement under the rules of employment were modified to the largest number of workers without the consent of the worker in a way of collective decision-making, even if the rules of retirement allowance under the previous rules of employment apply to the employees who were employed before the amendment and the revised rules of employment shall be applied.

[3] If the rules of employment are amended to establish a different retirement allowance system from each other within one business after April 1, 1981, in which the prohibition provision on retirement allowance, etc. under Article 28 (2) of the former Labor Standards Act (amended by Act No. 5309, Mar. 13, 1997) was enforced, the modification of the rules of employment may not take effect due to the violation of that provision even if the modification of the rules of employment was made with the consent of the worker.

[1] Article 94 (see current Article 96) of the former Labor Standards Act (amended by Act No. 5309 of March 13, 1997) / [2] Article 28 (1) (see current Article 34 (1)) and (2) (see current Article 34 (2)), Article 95 (1) (see current Article 97 (1)), Article 95 (2) (see current Article 97 (1)), Article 28 (2) (see current Article 34 (2)), Article 95 (2) of the former Labor Standards Act (amended by Act No. 5309 of March 13, 1997) / [3] Article 28 (2) (see current Article 34 (2)), Article 95 (2) (see current Article 97 (2)), and Article 98 (1) (see current Addenda) of the former Labor Standards Act (amended by Act No. 5309 of March 13, 1998)

[1] Supreme Court Decision 91Da30828 delivered on February 28, 1992 (Gong1992, 1161), Supreme Court Decision 95Nu15698 delivered on February 27, 1996 (Gong1996Sang, 1146), Supreme Court Decision 96Da24699 delivered on March 24, 1998 (Gong1998Sang, 1131), Supreme Court Decision 97Nu14132 delivered on November 27, 1998 (Gong199Sang, 59Sang, 59) / [2] Supreme Court Decision 95Da32631 delivered on December 23, 196 (Gong197, 497Sang, 197Da19497 delivered on July 197, 197) / [30Da19799 delivered on July 197, 1997

Plaintiff 1 and 20 others

[Defendant-Appellant] Plaintiff 7 (Law Firm Shin & Yang, Attorney Ha Sang-tae, Counsel for defendant-appellant-appellant)

The Korean Broadcasting System (Attorney Gyeong-soo et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 96Na26260 delivered on February 4, 1998

The part of the lower judgment against the Defendant against Plaintiffs 1, 2, 3, 4, 8, 9, 10, 11, 13, 14, 15, 16, 17, 18, 19, 20, 21, and 22 is reversed, and that part of the case is remanded to the Seoul High Court. Each of the appeals by the Plaintiffs and the appeals by the Defendants against Defendants 5, 6, and 12 is dismissed. The costs of appeal between the Defendants 7 and the Defendant are assessed against the Plaintiffs 7, and the costs of appeal between the Plaintiffs 5, 6, and 12 are assessed against each Defendant.

1. We examine the grounds of appeal by Defendant Corporation.

A. As to the first ground for appeal

The court below, among 14 retired tax collectors of this case, decided 13 persons other than Plaintiff 7 (hereinafter referred to as “the collection source of this case”) from March 3, 1973 to December 13, 1982 (hereinafter referred to as “the collection source of this case”), were appointed as a contracting collection source while they continued to engage in the same duties while they were appointed as a contracting collection source and were in charge of collecting television viewing fees, but retired from the same duties during the period from February 4, 1993 to June 24, 1994. The court below acknowledged that the payment rate of retirement pay was no separate retirement pay provision for employees under the provision on retirement pay (hereinafter referred to as “the payment rate of remuneration provision”), but did not apply to the payment rate of the former retirement pay to the collection source of the payment of the payment for the payment of the payment for the payment of the payment for the payment for the payment for the payment for the payment for the payment for the payment for the payment for the payment for the payment for the payment for the payment for the payment for the payment for the payment for the payment for the payment for the service.

Furthermore, the court below held on April 1, 1981 that since there are only the retirement allowance rules applicable to the employee who is the largest number of employees, the former retirement allowance rules apply to the employee who violated the vested interests of the employee, and the revised retirement allowance rules under Article 28 (2) of the former Labor Standards Act (amended by Act No. 3349 of Dec. 31, 1980, repealed by Act No. 5305 of Mar. 13, 197; hereinafter the same shall apply) were effective only since the retirement allowance rules were effective, and also applied to the employee who is the maximum number of employees. On January 27, 1981, the revision of the remuneration rules applied to the employee of the plaintiff 1, 1981 without the consent of the employee in a collective decision-making method, it should be applied to the employee of the plaintiff 2 before the revision of the revised retirement allowance rules, and it should be applied to the employee of the plaintiff 1, 1981.

However, we cannot agree with the decision of the court below that the ground provision for the calculation of retirement pay differs depending on whether the employee's date of the collection of this case was before or after the amendment date of the retirement allowance provision, considering that the retirement allowance provision under the payment provision applies to the viewing fee collection officer who did not prepare the retirement allowance system under the above circumstances.

The rules of employment do not uniformly apply to all workers who belong to the same workplace, and the employer can prepare separate rules of employment applicable to part of the worker according to the working conditions, forms of work, and characteristics of work (see Supreme Court Decision 95Nu15698, Feb. 27, 1996). It is clear that the above rules of employment, which has been enforced before April 1, 1981, exclude the application of the viewer fee collection agency and only the employees are subject to its application. Since the above rules of employment are different not only from the type of work and the form of work, but also the contents of remuneration and the method of its determination (see Supreme Court Decision 2009Da15698, Apr. 28, 1982). The above rules of employment deleted the provisions that had been amended to collect the viewer fee, and newly established the rules of employment fee collection provision to the worker, which newly established the rules of employment fee collection duty to the worker under the Labor Standards Act.

In addition, even if the employer did not obtain the consent of the employee in the way of collective decision-making with regard to the amendment of the rules of employment, as long as the employer has the right to prepare and revise the rules of employment, the rules of employment with the legal effect after the amendment shall be the revised rules of employment. However, the corresponding provisions of the previous rules of employment shall apply to the existing workers whose vested interests are infringed. Thus, in applying the retirement allowance system applicable to the largest workers within the pertinent business from April 1, 1981 pursuant to Article 28(2) of the former Labor Standards Act and Article 28(2) of the Addenda of the former Act prohibiting the system of retirement pay, if the rules of retirement under the rules of employment were changed disadvantageously to the largest workers without the consent of the workers in the way of collective decision-making, if the rules of retirement under the rules of employment were applied to those who belong to the largest number of workers before the revision of the rules of employment in order to protect the vested interests, the rules of employment under the amended rules shall be applied to those workers whose vested interests are not infringed (see Supreme Court Decisions 2039Da31965, 196, Dec. 3965, 197.

Therefore, in this case, the retirement allowance rules that apply to the viewer from April 1, 1981 are the retirement allowance rules under the revised remuneration rules that have legal effect to the employees who are the largest number of employees of defendant corporation. Thus, the court below's calculation of the retirement allowance according to the former remuneration rules that excludes plaintiffs 5, 6, and 12 from the collection sources of this case is erroneous in the misunderstanding of legal principles as to the calculation of retirement allowances, which affected the conclusion of the judgment. Thus, the ground of appeal pointing this out is justified.

B. On the second ground for appeal

If the rules of employment are amended to establish different retirement allowance systems from each other within one business after April 1, 1981, in which the prohibition of the retirement allowance system under Article 28(2) of the former Labor Standards Act was enforced, the modification of the rules of employment may not take effect due to the violation of the provision (see Supreme Court Decision 93Da58776, Feb. 3, 1995).

In this case, the retirement allowance rules of the Enforcement Rule of the Regulations on Handling Business of Receiving Fees, which was enacted on July 31, 1991 and amended on September 27, 1993, vary between the scope of continuous service period, and the items and methods of calculating the standard remuneration, compared to the retirement allowance rules of the revised retirement allowance rules as amended on January 27, 1981, and therefore, the enforcement rules are deemed to have established a retirement allowance system different from the employee with respect to the viewing fee collector. This is in violation of Article 28(2) of the former Labor Standards Act.

Therefore, the court below's amendment of the enforcement rule is just in holding that the retirement allowance rules under the enforcement rule are null and void regardless of whether the consent of the non-permanent trade union consisting of the members collecting the viewing fee is obtained, and it is not erroneous in the misapprehension of legal principles as to the prohibition of the retirement allowance system.

The ground of appeal on this point is rejected.

C. On the third ground for appeal

In light of the records, the decision of the court below that the period of sick leave and leave of absence due to a disease while in office in the defendant corporation does not constitute a period excluded from the number of years of continuous service as prescribed by the remuneration regulations before the amendment is just and it is not erroneous in the misapprehension of legal principles as to the interpretation of the remuneration regulations.

We do not accept the allegation in the grounds of appeal.

2. Regarding the plaintiffs' appeal

The plaintiffs did not state the grounds for appeal in the petition of appeal, and did not find that there was a reason to investigate ex officio on April 13, 1999 after 20 days of receipt of the record receipt notice.

Therefore, the plaintiffs' appeals are dismissed in accordance with Article 399 of the Civil Procedure Act.

3. Conclusion

Therefore, the part of the judgment of the court below against the defendant against plaintiffs 1, 2, 3, 4, 8, 9, 10, 11, 13, 14, 15, 16, 17, 18, 19, 20, 21, and 22 shall be reversed, and the part of the case shall be remanded to the Seoul High Court. The plaintiffs' appeals and all appeals against plaintiffs 5, 6, and 12 shall be dismissed, and the costs of appeal between plaintiffs 7 and the defendant shall be assessed against the plaintiff at their own expense, and the costs of appeal between the plaintiff 5, 6, and 12 shall be assessed against the plaintiff 7 and the defendant. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jong-sik (Presiding Justice)