Plaintiff (Law Firm U.S. Law, Attorney Sung-sung et al., Counsel for plaintiff-appellant)

The Chairman of the National Labor Relations Commission

The Saemaul Movement Federation (Law Firm Sejong, Attorneys Kim Dong-dong, Counsel for the defendant-appellant)

May 18, 2017

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff, including the part resulting from the supplementary participation.

On June 29, 2016, the Central Labor Relations Commission revoked the decision made by the Central Labor Relations Commission on the application for reexamination of unfair dismissal among the Plaintiff and the Intervenor joining the Defendant (hereinafter referred to as the “ Intervenor”), which was an incorporated Saemaul Movement Federation, No. 386 of the Central 2016.

1. Details of the decision on retrial;

A. The intervenor is an incorporated association established pursuant to the Support of the Saemaul Movement Organization Act with the objective of leading the Saemaul Movement to promote it as a permanent national movement and cultivating community service spirit through citizens' autonomous participation, thereby contributing to the balanced development of communities and national development.

B. On May 1, 1986, the Plaintiff was subject to an order of personnel management from the Intervenor on December 31, 2015 (hereinafter “instant retirement”).

C. On January 7, 2016, the Plaintiff filed an application for remedy with the Gyeonggi Regional Labor Relations Commission on the ground that the Intervenor’s retirement measure constitutes an unfair dismissal. On March 2, 2016, the Gyeonggi Regional Labor Relations Commission determined that the Plaintiff’s retirement age constitutes an unfair dismissal, on the ground that: (a) the Intervenor’s amendment of the personnel regulations on September 8, 2015 and the provision on the date of birth indicated in the personnel record card prepared at the time of entry into the retirement age is not allowed as a retroactive application to the Plaintiff, and thus, the instant retirement age constitutes an unfair dismissal.

D. On April 11, 2016, the Intervenor appealed and filed an application for reexamination with the National Labor Relations Commission on April 11, 2016, and the National Labor Relations Commission, on June 29, 2016, the provision of this case is valid as it obtained the consent of the Saemaul Movement Workers’ Union (hereinafter “instant trade union”). Accordingly, when calculating the Plaintiff’s retirement age, the retirement age on December 31, 2015 is the temporary retirement age, and the Plaintiff’s vested rights were not infringed upon under the instant provision, and thus, the instant retirement age is justifiable, and upon receiving the application for reexamination, revoked the decision of the Gyeonggi Regional Labor Relations Commission (hereinafter “instant decision on reexamination”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 and 2, the purport of the whole pleadings

2. Whether the decision on the retrial of this case is lawful

A. The plaintiff's assertion

The judgment of the retrial of this case, which held that the retirement age of the plaintiff is justified as it is based on the provisions of this case, shall be revoked as follows.

1) The instant provision is a disposal provision for only the Plaintiff, and there is no reasonable ground to justify the discriminatory discipline against the Plaintiff. Therefore, it violates the constitutional equality principle.

2) The instant provision was intentionally established to avoid the application of Article 19 of the Act on Prohibition of Age Discrimination in Employment and Elderly Employment Promotion, which was enforced from January 1, 2016, as a mandatory provision notwithstanding the Plaintiff’s application for change of personnel records, to the extent that the Intervenor intentionally prevents the application of Article 19 of the Act on Prohibition of Age Discrimination in Employment and Elderly Employment Promotion (hereinafter “Act on Employment of the Aged”). The instant provision is null and void since

Even if the provision of this case is valid, it should be deemed that there was an implied agreement between the Plaintiff and the Intervenor to calculate the retirement age on the basis of the actual date of birth in light of the content of the Intervenor’s personnel regulations and the purport of the retirement age system, and the establishment and application of the provision of this case infringed on the Plaintiff’s trust and acquisition of the retirement age, and this is not only a violation of the Plaintiff’s interests on the retirement age due to the enactment and application of the provision of this case, but also an unfair discrimination against Nonparty 2 and Nonparty 1, who are other employees of the Intervenor, compared

B. Relevant provisions

It is as shown in the attached Form.

(c) Fact of recognition;

1) The Plaintiff’s date of birth indicated in the Plaintiff’s personnel record card (date of birth 1 omitted) was “(date of birth)” at the time when the Plaintiff became an employee of the Intervenor’s corporation on May 1, 1986.

2) On June 17, 2015, the Plaintiff was determined by the Seoul Northern District Court to revise the registry (age 2) by correcting the date of birth on the Plaintiff’s family relations register to “(date 1 omitted)” (hereinafter “instant decision”).

3) On July 15, 2015, the Plaintiff filed an application for changing the Plaintiff’s date of birth on the personnel record card to “(date of birth 1 omitted)” (date of birth 2 omitted).

4) On July 23, 2015, the Intervenor newly established the instant provision with the content that “the retirement age of employees shall be based on the date of birth indicated in the personnel record card prepared at the time of entry” and concluded an agreement with the partial amendment of the personnel regulations (hereinafter “instant agreement”) with the effect that the instant provision shall be applied to employees in office at the time of entry.

5) From August 10, 2015 to August 31, 2015, the Intervenor identified the consent to the instant agreement among the employees from 347 to 322 out of 342 (93%) excluding 5 absentees.

6) On September 1, 2015, the Plaintiff filed a motion on September 1, 2015 with the Intervenor to change the date of birth of the Plaintiff on the personnel record card, but the Intervenor did not comply with the motion.

7) On September 7, 2015, the Intervenor passed the draft amendment of personnel regulations under the instant Convention at the 207th meeting of the board of directors on September 7, 2015, and implemented the instant provisions on the eightth day of the same month.

8) At the time of the instant retirement, the Plaintiff was serving as the secretary general of the Gyeonggi-do branch office (Grade 2 A).

9) The instant trade union is a company-level trade union with the Korea Trade Union Federation as a superior organization. As of August 19, 2015, 306 of the Intervenor’s total 348 workers as of August 19, 2015.

10) Article 19 of the Act on the Employment of the Aged (hereinafter “the instant provision”) amended on May 22, 2013 provides that an employer shall set the retirement age of workers at least 60 and, if set below the said age, shall be deemed set at 60. The said provision was enforced from January 1, 2016 for a business or workplace that employs at least 30 full-time workers.

[Ground of recognition] Facts without dispute, Gap's 3 through 9 evidence, Eul's 1 through 4 (including each number; hereinafter the same shall apply) and the purport of the whole pleadings

D. Determination

1) Whether the instant provision constitutes a disposal provision

The provision of this case is limited to the date of birth, which serves as the basis for calculating the retirement age for the employees of the intervenor in its content, and does not specify the plaintiff as the subject of the application, nor does it exclude the application to the employees of the intervenor other than the plaintiff. Thus, the provision of this case does not constitute a disposal provision that directly generates any right or imposes any obligation on the plaintiff only.

Therefore, this part of the plaintiff's assertion is without merit.

2) Whether the provision of this case is effective

In full view of the following circumstances recognized earlier, it is difficult to view the instant provision as null and void as it was established to exclude the application of the instant legal provision, or as being unfairly discriminated against the agreement between the Plaintiff and the Intervenor, contrary to an agreement between the Intervenor and thus infringing on the Plaintiff’s trust or expectation interest or unreasonable discrimination.

Therefore, the plaintiff's assertion on this part is without merit.

A) In order for an employer to amend the existing working conditions to be disadvantageous to workers due to the amendment of the rules of employment, the employer must obtain consent by collective decision-making method of the workers who were subject to the previous working conditions or rules of employment (proviso of Article 94(1) of the Labor Standards Act). The instant provision was newly established with the consent of the instant trade union organized by the majority of the

B) As the instant legal provision enters into force, a labor contract, rules of employment, and collective agreement that provide for the retirement age of workers under 60 years of age is null and void within the scope of violation of the instant legal provision. In such cases, “retirement age” ought to be calculated on the basis of the actual date of birth (see Supreme Court Decision 2016Da249236, Mar. 9, 2017). In light of the foregoing, if the instant provision does not allow the calculation of retirement age based on the actual date of birth after the enforcement of the instant legal provision, it shall be deemed null and void in violation of the instant legal provision, but it shall be after the enforcement of the instant legal provision. If the instant provision does not become null and void for the actual reason against the Plaintiff, the Plaintiff’s retirement age under the instant provision shall be deemed null and void on December 31, 2015, and shall not be subject to the instant legal provision effective from January 1, 2016.

C) When calculating the retirement age on the basis of the Intervenor’s actual date of birth (date 2 omitted), the statutory provisions of this case, which came into force on January 1, 2016, were applied, and finally, the retirement age was extended on June 30, 2018. There may be room for invalidation to the extent that the instant provision does not allow the computation of retirement age on the basis of the actual date of birth after the enforcement of the instant statutory provisions, and as a result, the period in which the instant provision was fully effective is determined to be from September 8, 2015 to December 31, 2015. However, the instant provision is not entirely null and void after the enforcement of the instant statutory provisions, and it is difficult to view that the Intervenor’s failure to permit the computation of retirement age on the basis of the actual date of birth at the time of the enactment of the instant provision from the standpoint of the Intervenor was in violation of the instant statutory provisions, and it is difficult to deem that there was no evidence suggesting that the Intervenor’s intention to exclude the Plaintiff from the instant provision without delay.

As seen earlier, considering the fact that the instant legal provision is a mandatory provision and has the effect of nullifying an employment contract, rules of employment, and collective agreement contrary thereto, barring any special circumstance, the intent of the Intervenor’s act that belongs to an autonomous legal relationship should not be inferred without permission by emphasizing the purport of the instant legal provision that has been enforced after the establishment of the instant provision, barring any special circumstance.

D) The instant provision cannot be deemed to infringe on the Plaintiff’s trust or acquisition interest with respect to the retirement age. Before the enactment of the instant provision, there was an agreement between the Plaintiff and the Intervenor to calculate the retirement age on the basis of the Plaintiff’s date of birth indicated in the personnel record card at the time of the Plaintiff’s entry, and there was only the expectation and trust interest that the Plaintiff would be able to work until December 31, 2015, the retirement age calculated accordingly.

The court's decision to correct the registry may have anticipated that the plaintiff will work until the retirement age calculated on the actual date of birth. However, such expectation is not given by the intervenor. The plaintiff was aware of the fact that his actual date of birth was different from the date of birth indicated in the personnel record card from his/her actual date of birth from his/her membership. On the other hand, the intervenor could not at all predict it, barring any special circumstance. The retirement age system is a system that terminates a labor relationship regardless of his/her ability or intent when the worker reaches a certain age. The purpose of the system is to exclude the high wages and the age of the worker, which are not consistent with the nature or contents of his/her work, and to secure a new Ambassador of the personnel affairs under the premise of his/her supply. However, the retirement age also is one of the working conditions that can be changed by an agreement between his/her employee and the employer, and it is difficult to view that the provision of this case does not have any special circumstance to be remarkably lack rationality and to be evaluated as deviating from the purpose of the labor union.

E) The instant provision cannot be deemed null and void on the ground that the Intervenor did not immediately deal with the Plaintiff’s application for change of personnel records. Although Article 86(4) of the Enforcement Rule of the Personnel Regulations provides that the head of the personnel department in charge of the Intervenor shall adjust the relevant employee’s personnel records without delay upon receipt of an employee’s application for change of personnel records, even if the Intervenor accepted the Plaintiff’s application for change of personnel records on July 15, 2015 and arranged the Plaintiff’s personnel records card immediately, the latter provision was amended, and accordingly, the Plaintiff’s retirement age was determined on the basis of the date of birth on the former personnel records card.

F) In the case of Nonparty 1 and Nonparty 2, who is an employee of the Intervenor, the status of issuing a retirement order after calculating the retirement age on the basis of the date of birth changed according to the court’s decision, is recognized, but Nonparty 1 and Nonparty 2 retired on December 31, 2012, and Nonparty 2 retired on December 31, 2013 and retired before the enactment of the instant provision. Unlike the Plaintiff, the personnel rights against Nonparty 1 and Nonparty 2 did not exist in the Federation, it cannot be deemed that the Intervenor provided any trust in calculating the retirement age on the basis of the changed date of birth to the Plaintiff, or that the Plaintiff was unfairly discriminated against Nonparty 1 and Nonparty 2.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment]

Judges Park Jong-soo (Presiding Judge)