A. Validity of amendment to the rules of employment that did not obtain the consent of the worker in accordance with the collective decision-making method while changing the existing working conditions to the disadvantage of the worker (=

B. Whether the revised rules of employment applies to a worker who accepted a working condition pursuant to the revised rules of employment and acquired a labor relationship where a revision to the rules of employment becomes null and void due to the worker’s consent (affirmative)

A. As a matter of principle, an employer is entitled to prepare and revise the rules of employment according to his/her intent, but the employer is subject to the restriction that should obtain consent in cases where a trade union or a majority of the workers are heard in accordance with Article 95 of the Labor Standards Act, and where an unfavorable revision is made to the workers, it is necessary to obtain consent in a case where the existing conditions of employment is modified disadvantageously to the workers. Therefore, the consent of the workers necessary is required to be given by the collective decision-making

B. When an employer amends the working conditions stipulated in the rules of employment to a disadvantage to an employee, if the employer did not obtain the consent of the employee, the effect of the revision does not extend to the existing employee relationship whose vested interests are infringed, and the validity of the previous rules of employment is maintained as is. However, the revised rules of employment should be applied to the relationship with the employee who accepted the working conditions under the revised rules of employment and acquired the employment relationship, and there is no ground to view that the previous rules of employment should be applied by denying the validity of the revision to the employee after the revision without any ground to exclude the infringement of vested interests.

[Dissenting Opinion]

If the rules of employment were amended disadvantageous to workers, and without the consent of the workers' group, the revision of the rules of employment is null and void, and therefore, it cannot be deemed that the previous rules of employment remain valid, and as a matter of course, the revised rules of employment should be applied to the relationship between the existing workers whose vested interests are infringed, but the effect of the previous rules of employment is maintained, and the relationship between the workers who have

Article 95 of the Labor Standards Act

A. Supreme Court Decision 90Da15952, 15969, 15976 decided Feb. 12, 1991 (Gong1991, 979) (Gong1991, 979) 92Da30566 decided Nov. 10, 1992 (Gong1993, 213), 91Da31753 decided Nov. 24, 1992 (Gong193, 1993), 89Da7754 decided Apr. 27, 199 (Gong190, 1157), 190. The Supreme Court Decision 89Da3143 decided Jul. 10, 190 (repealed) (Gong190, 1688) (Destruction) 91Da78794 decided Dec. 10, 191 (Gong199, 789, Jul. 294)

[Judgment of the court below]

Gangwon Industrial Company

Seoul High Court Decision 91Na13757 delivered on November 8, 1991

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. According to the reasoning of the lower judgment and the record, the following facts are recognized.

The rules of employment of the defendant company was originally enacted and revised on March 1, 1964, January 1, 1973, and on three occasions on August 1, 1974, but the rules of employment under the above rules of employment were amended to the disadvantage of the worker without the consent of the worker.

In the lawsuit of this case, the plaintiff joined the defendant company on Sep. 1, 1978 and retired from the defendant company's implied mining center on Jan. 31, 198, and the plaintiff's retirement allowance calculated on Sep. 31, 198. The plaintiff asserted that the retirement allowance rules under the first rules of employment (Evidence A-7-3) should be applied to each of the above changes on the premise that all changes in the above rules of employment have been null and void. The defendant argued that the revised rules of employment (Evidence A-5 and its revised date of Jan. 1, 1973) of the defendant's revised rules of employment (the plaintiff's written statements and its written statements presented by the court below on Feb. 21, 1990, which were enforced on Jan. 1, 1973) should be applied.

However, the court below held that the defendant company has separate retirement allowance rules for employees who are assigned to the position of employees and employees who are not assigned to the position of employees, but separate retirement allowance rules for employees who are not assigned to the position of employees. However, as to the establishment of retirement allowance system under Article 28 (2) of the Labor Standards Act by Act No. 3349 of Dec. 31, 190, the above provision was prohibited, and pursuant to the proviso of Article 28 (1) of the Addenda of the Labor Standards Act, the above provision was enforced since April 1, 1981. According to Article 28 (2) of the Addenda of the above Act, when the collective agreement or rules of employment at the time of entry into force of this Act violates the provisions of Article 28 (2) of the above Act, the employer shall revise this Act to the head of the labor office by March 31 of the above year and report it to the head of the labor office, and thus, it shall be deemed that the rules of employment apply to the plaintiff or the defendant company's respective rules of employment are applied to the majority of the defendant company's labor union.

In addition, it is clear in the record that the contents of the rules of employment in the plaintiff's argument are more favorable to the workers than those of the rules of employment revised on August 1, 1974, which was enforced by the plaintiff at the time of employment.

2. The gist of the grounds of appeal by the Plaintiff’s attorney is that the amendment to the rules of employment was made without the consent of the employees who were subject to the above three times more unfavorable amendments to the rules of employment. Therefore, the payment rate to be applied in calculating the Plaintiff’s retirement allowance should be the payment rate under the first rules of employment, which was enforced before February 29, 1964, and the court below erred by misapprehending the legal principles, thereby applying the payment rate under the above collective agreement. Thus, it is reasonable to view whether the rules of employment in the Plaintiff’s assertion can be applied to the Plaintiff until the Plaintiff entered the Defendant company and retired from office.

As a matter of principle, an employer may prepare and revise the rules of employment according to his/her own intent, although an employer is entitled to prepare and revise the rules of employment, in cases where a trade union or a majority of the workers are required to hear opinions and especially disadvantageously modify the existing conditions of employment to workers, under Article 95 of the Labor Standards Act, it is limited to obtaining such consent. If an employer revises the existing conditions of employment disadvantageously to workers, the consent of the employees is required to be given in a collective decision-making manner and it is consistent opinion of the members that there is no validity of any modification of the rules of employment without such consent (see, e.g., Supreme Court Decision 77Da355, Jul. 26, 197; Supreme Court Decision 87Meu2578, May 10, 198; Supreme Court Decision 88Meu4277, May 9, 198; 90Da15952, Feb. 12, 191; 2001>

Therefore, when an employer amends the working conditions stipulated in the rules of employment to a disadvantage to an employee without the consent of the employee, the effect of the revision does not extend to the existing worker’s relationship with which vested interests are infringed, and the validity of the previous rules of employment is maintained as is. However, the revised rules of employment should be applied as a matter of course to the relationship with the employee who accepted the working conditions according to the revised rules of employment and acquired employment relations, and there is no ground to view that the previous rules of employment should be applied by denying the validity of the revision to the employee after the revision without any ground to exclude the infringement of vested interests.

In such a case, the rules of employment applicable to employees employed after revision of the rules of employment and the rules of employment applicable to existing employees seems to exist concurrently. However, the currently effective rules of employment are the revised rules of employment, but the previous rules of employment are only applicable to the extent that it does not affect the infringement of vested interests in relation to existing workers, so it cannot be deemed as having established two or more rules of employment within one business.

In addition, Article 28(2) of the Labor Standards Act prohibits the establishment of a differential retirement allowance system within one business, but since the revised rules of employment infringes on the vested interests of the existing workers, it would be inevitable for them to be subject to the previous rules of employment without its effect, and thus, it would result in the application of a separate retirement allowance system from the retirement allowance system applied to the employed workers after the revision to the rules of employment that do not have such vested interests, it cannot be deemed that the case also constitutes a case where a differential retirement allowance system is established under the above law.

On the contrary, if the rules of employment regarding retirement pay were amended disadvantageously without the consent of the employees who were subject to the rules of employment by collective decision making, the rules of employment before the revision should be applied to the employees employed after the revision, and the previous precedents of the party members (Supreme Court Decision 89Meu754 delivered on April 27, 190; Supreme Court Decision 89Meu3143 delivered on July 10, 1990; Supreme Court Decision 91Da877, 8784 delivered on December 10, 199, etc.) should be repealed.

3. Ultimately, on the premise that the revision of the retirement allowance rules of the defendant company for three times more is null and void, it cannot be accepted in light of the above legal principles. It is more favorable to the worker under the revised rules of employment as of August 1, 1974, which was enforced by the plaintiff at the time of employment. As seen above, there is no need to determine whether the measure of the court below that calculated the plaintiff's retirement allowance pursuant to the rules of employment under the collective agreement was legitimate in the case of this case for which only the plaintiff appealed, and there is no reason to discuss the appeal.

Therefore, the appeal shall be dismissed and the costs of appeal shall be assessed against the losing plaintiff. It is so decided as per Disposition by the assent of all participating Justices except the separate opinion by Justice Park Jong-dong and Justice Song Man-chul.

Concurring Opinion by Justice Park Dong-dong and Justice Song Man-chul is as follows.

1. The Majority Opinion’s view is that the employer has the right to revise and amend the rules of employment, and even if the rules of employment were modified disadvantageously to workers and did not consent to the employees, it is not effective only in relation to workers whose benefit of profit is infringed due to the revision, and even if the revised rules of employment are applied to employees employed after the revision, it cannot be deemed that multiple rules of employment have been established within one business, and it does not violate Article 28(2) of the Labor Standards Act.

However, such view is contrary to the legal principles and spirit maintained by the majority opinion, such as that the amendment of the rules of employment does not take effect as an amendment of the rules of employment, unless the previous rules of employment is approved by collective decision-making method of the employee group that was subject to the previous rules of employment, and that there is no legal effect as an amendment of the rules of employment, and that the amendment does not take effect as to the employees who have individually consented to the amendment of the rules of employment (see, e.g., Supreme Court Decision 91Da3031, Mar. 27, 191; Supreme Court Decision 91Da17542, Sept. 24, 191; 91Da17542, Sept. 24, 199; and therefore, it is against the general reality to revise the rules of employment in order to apply the existing workers to them as its subject. Therefore, we cannot agree with this.

2. The revised rules of employment are only the revised rules of employment, and it is reasonable to view that the previous rules of employment is still valid unless the revision of the rules of employment unfavorable to workers becomes effective due to the worker's consent. In this case, in relation to the existing workers, the effect of the previous rules of employment is null and void, and the revised rules of employment should be applied to the newly employed workers. It would be difficult to avoid criticism that the revised rules of employment would be applied to the existing workers, including the revision of the rules of employment, and the revision of the rules of employment would be applied to the newly employed workers, or that the revised rules of employment would be applied to the newly employed workers.

Therefore, according to the majority opinion, the revised rules of employment and the previous rules of employment cannot be deemed to exist multiple, and even in such a case, it cannot be deemed that only the amended rules of employment have been established.

Except as otherwise provided, the amendments to the rules of employment are currently applicable to all future workers, and shall be amended for the purpose of doing so, and if it is intended to apply the previous provisions only to the newly employed workers, it shall be revised in such a way as to establish such transitional provisions or to provide for such purpose, and it may be said that there is a single rules of employment for one business.

In addition, it is difficult to think that it is in principle against Article 28 (2) of the Labor Standards Act because it is unreasonable to set the retirement allowance system on the date of entry in one business. However, it does not necessarily violate the previous provisions that allow the employees to continue to apply the previous provisions in favor of the existing workers with the transitional provisions while changing the retirement allowance system disadvantageous to the workers.

3. As to the instant case, according to the health class, and the record, it is clear that the Defendant Company’s revision of the rules of employment over three times to the existing workers is not intended to apply only to the newly employed workers.

Therefore, if such revision of the rules of employment unfavorable to workers, and without the consent of the employee group, this amendment is null and void, and therefore, the previous rules of employment shall be deemed null and void. Therefore, the previous rules of employment shall maintain the validity of the previous rules of employment only in relation to the existing workers whose vested interests are infringed, and the revised rules of employment shall, as a matter of course, be applied to the relationship with the workers who have the employment relationship after the revision.

The majority opinion is the same as required to apply the revised rules of employment to newly employed workers. However, it is doubtful whether the newly employed workers have a labor relationship with the intent to accept the working conditions according to the revised rules of employment even if the newly employed workers have no validity of the revision of the rules of employment. Moreover, it is unreasonable to agree with the legislative nature of the rules of employment beyond the legislative nature of the rules of employment.

4. However, according to the reasoning of the judgment below, the court below calculated retirement allowances against the plaintiff on the ground that the above amendment of the rules of employment was valid and it was not calculated on the basis of the revised rules of employment, but on the basis of the revised rules of employment, without all mentioning the validity of the amendment to the rules of employment, the court below should assert and prove that the rules of employment apply to the plaintiff and the defendant in order to apply the rules of retirement as asserted by the plaintiff and the defendant pursuant to Article 28 (2) of the Labor Standards Act, which was newly established by Act No. 3349 on December 31, 190, and its addenda, and there is no assertion and proof that the rules of employment apply to the plaintiff and the defendant, and the majority of workers of the defendant company calculated retirement allowances against the plaintiff on the ground that the rules of employment should be applied to the plaintiff on the ground that the above rules of employment should be applied as an employee subject to the collective agreement. Thus, in this case, the issue is whether the amendment to the above rules of employment will

However, the Plaintiff’s legal representative asserted as the ground of appeal on the premise that the Plaintiff is a person subject to the rules of employment, and on the ground that the modification of the rules of employment was not effective since it did not obtain the consent of the employee group, the Plaintiff’s initial rules of employment should apply to the calculation of the Plaintiff’s retirement allowance. Furthermore, there is no assertion that the lower court’s calculation of retirement allowance based on the above collective agreement is unlawful even if the retirement

However, the Labor Standards Act newly established Article 28(2) by Act No. 3349, Dec. 31, 1980; Article 28(2) of the Labor Standards Act provides that a different system shall not be provided in establishing a retirement allowance system; and Article 28(2) of the Addenda provides that if the collective agreement or employment rules at the time of enforcement of this Act violate the provisions of Article 28(2), an employer shall revise and report to the effect that they are consistent with this Act before the enforcement date of the amended Act, and if they do not do so, the retirement allowance system applicable to the most large number of workers within the pertinent business shall be applied. Thus, it is proper for the court below to determine that the retirement allowance provision of the above collective agreement shall be applied to the plaintiff after the enforcement of the above amended Act. The plaintiff did not assert that the method of calculating retirement allowances is unlawful, and the plaintiff did not claim that the method of calculating retirement allowances apply to the largest number of workers of the defendant company, and therefore, the appeal shall be dismissed on this ground.

Chief Justice Lee Yong-ju (Presiding Justice) of the Supreme Court of Justice Lee Jae-ho (Presiding Justice)