Effect of revised rules of employment to establish a differential retirement allowance system within one business

Article 28(2) of the Labor Standards Act, Article 28(2) of the Addenda (amended by December 31, 1980) and Article 28(2) of the same Act are inconsistent with the purpose of legislation. On April 1, 1981, when there was a different retirement allowance system from each other in the type of occupation, position, and type of business within one business as of April 1, 1981, only the retirement allowance system applicable to the largest number of workers within one business shall apply to all workers from the same day. If there is a change in the rules of employment to establish different retirement allowance system from the type of occupation, position, and type of business within one business after April 1, 1981, the change in the rules of employment shall not take effect

Articles 28(2) and 95 of the Labor Standards Act ( December 31, 1980), and Article 28(2) of the Labor Standards Act, and Article 95 of the Addenda of the Labor Standards Act ( December 31, 1980) (

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Doz., Counsel for plaintiff-appellant)

Plaintiff

Hanjin Shipping Co., Ltd., Counsel for the defendant-appellant-appellee and 8 others

Seoul Civil District Court Decision 93Na12403 delivered on October 14, 1993

The judgment of the court below is reversed and the case is remanded to the Panel Division of the Seoul Civil Procedure District Court.

We examine the Plaintiff’s ground of appeal.

1. Article 28(2) of the Labor Standards Act (amended by Act No. 3349 of Dec. 31, 1980 and enforced from April 1, 1981) provides that a different system shall not be provided within one business in establishing a retirement allowance system. The legislative intent of the above provision is to prohibit discrimination by setting different retirement allowance systems within one business type, position, and type of business, and to apply a single retirement allowance system. Meanwhile, Article 2 of the Addenda of the same Act provides that if an employer fails to revise the rules of employment to make a report to the Minister of Labor by March 31, 1981 (i.e., the unification of the rules of employment) and fails to report it to the Minister of Labor by March 31, 1981 (i.e., the unification of the rules of employment).

In light of the above legal provisions and legislative intent, if there are different retirement allowance systems for all workers within one business as of April 1, 1981, the retirement allowance system applicable to the largest number of workers within the business should be applied to all workers from the same day. If there is a change in the rules of employment to establish different retirement allowance systems for one business after April 1, 1981, the change in the rules of employment would not take effect due to the violation of Article 28(2) of the Labor Standards Act even if the change in the rules of employment was made with the consent of the workers.

2. In the instant case, examining the entries in the petition of appeal stated by the Plaintiff on the date of the first pleading of the lower court on January 1, 1972, the Plaintiff did not apply the above revised rules of employment to the Plaintiff, even if the Plaintiff was enrolled in the Defendant Company on November 28, 1980 after the amendment of the rules of employment as above, and thereby revising the rules of employment to stipulate the system of short-term retirement payment as a single method of short-term retirement payment only to only the Plaintiff (the Plaintiff is a large number of seafarers within the Defendant Company, and thus, the Plaintiff’s change of the rules of employment to the Plaintiff’s retirement pay system to the Plaintiff and its crew within the Defendant Company did not coincide with the different rules of employment between the Plaintiff and its crew (the Plaintiff and its crew at sea) until March 31, 1981. In light of the legal principles as seen earlier, the Plaintiff’s change in the rules of employment to the Plaintiff’s retirement pay system cannot be seen to the effect that the change in the rules of employment to the Plaintiff’s retirement pay system to the Plaintiff 12.

Nevertheless, without making any decision on the plaintiff's above assertion, the court below erred in the misapprehension of the judgment by applying the rules of employment revised as of January 1, 1972 and as of April 1, 1982 to the plaintiff without making any decision on the plaintiff's above assertion, and therefore, it is obvious that such illegality affected the judgment, and therefore, it is reasonable to point this out.

3. Therefore, without examining the remaining grounds of appeal, we reverse the judgment below and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cho Chang-tae (Presiding Justice)