1. Method of revising the rules of employment disadvantageous to workers;

2. Validity of individual consent to such modification.

In order to revise the basic working conditions at a disadvantage to workers due to the revision of the rules of employment, consent by the method of collective decision-making of a group of workers under the previous rules of employment shall be required. The method of consent shall be the method of consent by the majority of workers, if there is no such labor union, and such labor union shall not take effect unless there is such consent. Accordingly, any change of the rules of employment shall not take effect as well as any worker who has personal consent to such amendment.

Articles 95 and 98 of the Labor Standards Act

Supreme Court Decision 76Da2939 delivered on December 27, 1977

Plaintiff 1 and two others

Korea Coal Corporation

Seoul Central District Court (74Gahap3887) in the first instance trial

Supreme Court Decision 76Da2939 delivered on December 27, 1977

1. Revocation of the part against the plaintiffs, which orders payment under the original judgment, shall be revoked.

2. The defendant shall pay to the plaintiff 1 an amount of 2,924,893 won and the amount of 1,474,228 won from March 3, 1974; from June 23, 1973; from June 23, 1973; from November 7, 1972 to the date of full payment, the amount of 2,193,440 won to the plaintiff 3; and from November 7, 1972 to the date of full payment.

3. All remaining appeals by the plaintiffs and the defendant are dismissed.

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

5. Text 1 of the original judgment and text 2 of the above disposition may be provisionally executed.

The defendant shall pay to the plaintiff 1 the amount of 3,359,560 won and the amount of 1,514,935 won from March 3, 1974, the amount of 1,514,935 won to the plaintiff 2 from June 23, 1973, the amount of 2,511,207 won to the plaintiff 3 and the amount of 6% per annum from November 7, 1972 to the date of each full payment.

The costs of lawsuit shall be borne by the defendant and a declaration of provisional execution.

The part against the plaintiffs in the original judgment shall be revoked.

The defendant shall pay to the plaintiff 1 the amount of 2,969,476 won and the amount of 1,514,935 won from March 3, 1974, the amount of 1,514,935 won to the plaintiff 2 from June 23, 1973, the amount of 2,193,441 won to the plaintiff 3 and the amount of 6% per annum from November 7, 1972 to each full payment date.

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

The part against the defendant in the original judgment shall be revoked and the plaintiffs' claim as to that part shall be dismissed.

All the costs of lawsuit shall be borne by the plaintiffs in the first and second instances.

1. The fact that the plaintiffs were employed by the defendant corporation as of each day listed in attached Table 1 and retired from their service on each day listed in attached Table 1 (2) and received the same amount as stated in attached Table 1 (3) from the defendant corporation, and the defendant corporation calculated the amount of retirement pay by including bonus to the average wage as the basis in calculating the above retirement payment, and the fact that the amount of payment was calculated and calculated in accordance with special measures such as attached Table 1 is not a dispute between the parties, and according to the evidence No. 1 of attached Table 1, the defendant corporation's retirement allowance rules provide that the amount calculated by multiplying the average wage as at the time of retirement by the number of payment days calculated in accordance with the continuous service period shall be paid as retirement pay (the retirement allowance rules for the defendant corporation's employees shall select a progressive system for continuous service days and exceed the minimum amount of payment guarantee under Article 28 of the Labor Standards Act by referring to the number of payment guarantee days in continuous service days), and such retirement allowance shall not be acknowledged otherwise.

2. The plaintiffs' bonus received for three months prior to their retirement should be included in the average wage in calculating their retirement allowances. In addition, in calculating their retirement allowances, the defendant asserted that the above bonus should be calculated only in accordance with the rules on retirement allowances for employees of the defendant corporation since special measures such as the separate entry are invalid in calculating their number of payment days. The defendant's bonus should not be included in the average wage calculation because it is not a subject of work in light of its nature or in light of the purport of the rules on employees' wages of the defendant corporation, but it is mutually beneficial and mutually beneficially paid according to the performance of the defendant corporation. In calculating the number of payment days, it is likely that the collective application of the rules on employees' retirement allowances of the defendant corporation would cause corporate insolvency, and thus, the board of directors of the board of directors of December 30, 1971 should include the above special measures such as changing the method of calculating the number of payment days of the retirement allowances for employees of the defendant corporation and the above special measures should be more than the number of payment days of the retirement allowances for employees of the defendant corporation.

First, with respect to whether the bonus should be included in the calculation of average wage, Article 7 of the Regulations on Retirement Allowances for Employees of Defendant Corporation shall be calculated by multiplying the number of days of payment under Article 5 by the basic wage under Article 6, by the number of days of payment under Article 5, the number of days of payment under Article 5, the number of days of payment under Article 6.

Article 6 of the same provision provides that the basic wage for the calculation of retirement allowances shall be the average wage at the time of retirement. (2) In calculating the average wage, the date of calculation shall be governed by the wage regulations, and Article 9 of the Labor Standards Act and its Enforcement Decree shall apply to the calculation of the average wage.

However, the employee's average wage calculation date shall be the initial date of the calculation of wages immediately before the date on which the ground for the calculation occurred. Article 3 of the same provision provides that the system of wages shall be classified into basic wages, allowances and bonuses, and Article 2 of the Rules on the Calculation of Average Wage (No. 1441-1240) of December 19, 1969 provides that "the calculation period shall be three months before the initial date, and the basic wage shall be the total wage during that period, and Article 24 of the above Rules on the Employee's Wage may provide bonuses for bonuses four times a year and once within 100 percent of ordinary wages according to the management performance.

However, while the collective agreement of the defendant corporation provides that a witness of the Ministry of Trade, Industry and Energy shall be paid by the defendant corporation, 4 times a year and 100 percent or less of ordinary wages shall be paid by the business performance, and the defendant corporation shall be able to recognize the fact that a bonus equivalent to 100 percent of ordinary wages is customary by continuing to pay the employees once every three months and once every year and 4 times a year, and there is no other counter-proof. Thus, in light of the above fact of recognition, it is reasonable to view that the defendant corporation cannot be considered as a mutually advantageous payment, and that the bonus is paid as a price for work, and it shall be included in the average wage under Article 19 of the Labor Standards Act. In addition, in light of the fact that Article 28 of the Labor Standards Act provides that the average wage under Article 6 of the Regulations on the Retirement Allowances of the defendant corporation enacted based on the above average wage should be interpreted as the same meaning as the average wage under Article 28 of the above Act, and thus, the plaintiffs should be interpreted as the basis for calculating the average wage under Article 28 of the above provision.

Then, with respect to whether the special measures in the separate entry of the defendant Corporation are invalid or not, in principle, the right to prepare and revise the rules of employment should be the employer, but if the basic working conditions are to be modified disadvantageous to the workers due to the revision of the rules of employment, the consent by the collective decision of the group of workers under the previous rules of employment shall be required. The consent method shall be the consent of the union if there is a labor union consisting of a majority of the workers, and if there is no such labor union, the consent shall be made according to the meeting method of the workers, and such modification shall not be effective unless there is such consent. Therefore, the special measures of the defendant principal shall not be effective with respect to the employees who have consented to the amendment of the rules of employment. Accordingly, the part of the calculation method of the retirement allowance regulations of the defendant Corporation against the workers regarding the calculation method of the number of payment days, which serve as the basis of the calculation method of the retirement allowance of the worker. Thus, the above special measures are effective only when there is a consent by the collective decision method of the worker necessary for its effective.

Finally, Article 28 of the Labor Standards Act is merely a provision that sets the lowest line of retirement allowances to be paid by the retired employee, so if the retirement allowance regulations of the employee of the defendant corporation established based on the same law exceed the lowest line above, the retirement allowance shall be calculated accordingly. Although the amount actually paid by the plaintiffs from the defendant corporation exceeds the minimum line stipulated in Article 28 of the Labor Standards Act, the defendant's argument cannot be accepted.

3. Furthermore, in calculating the amount of retirement pay, the average daily wage of the plaintiffs, including bonuses that the plaintiffs received for three months prior to their retirement, is the amount listed in attached Table 4. The fact that the number of payment dates for each plaintiffs' retirement pay stated in attached Table 5 is the number of payment days for each plaintiffs' retirement pay stated in attached Table 5, because there is no dispute between the parties concerned (the plaintiff 1 asserts that the average wage per day is about 4,316.95 won above 4,316.95 won, but there is no evidence to acknowledge that it is above 4,316.95 won) with regard to the amount of each retirement pay of the plaintiffs, the amount listed in attached Table 6 shall be the amount, and the amount of each resident tax shall be the amount stated in attached Table 7, and each resident tax shall be paid to the plaintiffs under the same Table 9, and it shall be clearly stated that the amount of each plaintiff's retirement pay should be paid to each of the plaintiffs as stated in the same Table 9.

4. Ultimately, the defendant is obligated to pay each claim of this case to the plaintiffs for payment of the amount of money listed in paragraph (1) of the same Table and the same Table 1 of the same Table with each due date (if the due date of retirement allowances is within 14 days from the date of retirement, the same shall apply as mentioned above) at the rate of 6% per annum from each due date to each due date (if the due date of retirement allowances is within 14 days from the retirement date, the commercial act is applicable to the commercial activity of defendant Corporation which is a public corporation and the act of extracting minerals, the labor contract entered into with the defendant corporation with the plaintiffs is an auxiliary commercial activity performed by the defendant corporation for the above business, so it is reasonable to see that the labor contract is an incidental commercial activity performed by the defendant corporation for the above business. Thus, the defendant's claim of this case is justified within the above recognized limit and dismissed as the remainder without reason. Thus, the judgment of the court below partially citing part of the above recognized amount of provisional execution and dismissed the remaining amount of the plaintiffs' appeal by applying Article 96 of the Civil Procedure Act to each part of the plaintiffs.

Judges Kim Jong-sik (Presiding Judge)