amendment to the rules of unilateral implementation of retirement allowances with the principle of use;

In particular, since the employment rules already form the contents of the employment contract, it is invalid that the employer unilaterally changes it to the disadvantage of the employee. Therefore, it is invalid to unilaterally revise the rules of the implementation of retirement allowances to exclude bonuses from the average wage for the calculation of retirement allowances.

Article 95 of the Labor Standards Act

Supreme Court Decision 76Da983 delivered on July 13, 1976 (No. 11270, Supreme Court Decision 24Du212 Decided July 13, 197, Supreme Court Gazette 543No. 9299 Decided July 13, 197 (No. 236 of the Civil Code)

Plaintiff 1 and four others

Korea Coal Corporation

Seoul Central District Court (75 Gohap187) in the first instance trial

1. The part against the defendant against the plaintiff 2 and 3 ordering the payment of money exceeding the upper limit amount cited below among the original judgment is revoked and the above plaintiffs' claims corresponding to this part are dismissed.

2. The defendant shall pay to the plaintiff 2 an amount of 101,677 won and the amount of 60,522 won from February 16, 1973 to the plaintiff 2, and an amount of 60,522 won to the plaintiff 3, and an amount of 60% per annum from March 13, 1973 to the date of each full payment.

3. The defendant's remaining appeals against the plaintiff 2 and 3 and all appeals against the plaintiff 1, 4, and 5 are dismissed.

4. Of the costs of lawsuit, the costs of the first and second instances arising between the plaintiffs 2 and 3 and the defendant, and the costs incurred by an appeal against the plaintiffs other than the above plaintiffs, shall be borne by the defendant.

From October 20, 1973, the defendant paid to the plaintiff 1 the amount of 101,683 won and the amount of 51,552 won to the plaintiff 4 and the amount of 32,248 won to the plaintiff 5 from February 21, 1974 as well as the amount of 60,526 won to the plaintiff 3 from January 20, 1974 as well as the amount of 60,526 won to the plaintiff 3 from February 20, 1973 as well as from October 20, 1973 as well as from October 20, 1973 to the date of full payment.

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

The part against the defendant in the original judgment shall be revoked, and all the plaintiffs' claims corresponding to this part shall be dismissed. All costs of the lawsuit shall be borne by the plaintiffs

1. The plaintiffs were employed by the defendant corporation for each period of entry in column 1 of Schedule 3 and retired to each position in column 16 on each date of entry in column 3. The plaintiffs received each amount of retirement allowance from the defendant corporation to each position in column 16. The plaintiffs received each amount of retirement allowance from each of the amount of entry in column 4 column 1 of the same Schedule after deducting taxes recorded in column 4 column 2 of the same Table from the amount of retirement allowance from each of the amount of entry in column 4 column 1 of the same Table. In calculating the above retirement allowance, in calculating the above retirement allowance, the defendant corporation did not include bonuses from the average wage which is the basis for the calculation of the above retirement allowance and included only basic salary and re-paid allowances. The above amount of retirement allowance calculated on the basis of the number of days recorded in column 10 of the attached Table 3 as stated in the attached Table 1 and there is no dispute between the parties, and the purport of each entry in column 2 (wages) of the attached Table 3 as retirement allowance payment within 14 days.

2. The plaintiffs asserts that the above calculation method of retirement pay by Defendant Corporation is erroneous in that it excludes bonuses in calculating average wages. The plaintiffs' retirement amount to be actually received is the amount calculated by taking the number of payment days calculated according to the criteria in the attached Table 1 according to the plaintiffs' employment period, as the average wages calculated by including bonuses received by the plaintiffs in the period of three months prior to their retirement, and that the defendant is obliged to additionally pay the amount of each claim, which is the difference between the prescribed amount of taxes and the retirement amount received by the plaintiffs.

3. Therefore, I will first examine whether bonuses should be included in calculating the average wage which is the basis of the above retirement allowance calculation.

In full view of the above Gap evidence Nos. 1, 2, and 3 (collective agreement), each statement of evidence Nos. 1, 3 (collective agreement), and the purport of the oral argument with the witness of the court below, Article 3 of the Employee Wage Rules of the defendant Corporation provides that the wage system of the defendant Corporation shall be divided into three minutes of basic pay, allowances, and bonuses, and Article 24 of the same Rules provides that "the Corporation may give a bonus not exceeding 100 percent of ordinary wages once a year according to the management performance," but Article 17 of the collective agreement which applies to the labor union members of the defendant Corporation to the labor union members of the defendant Corporation shall provide that "the Corporation shall give a bonus not exceeding 100 percent of ordinary wages once a year according to the management performance, and the defendant Corporation shall, in fact, make a distinction between the labor union members and non-members once a year, and make a payment of bonuses corresponding to the average wage of 10 percent of ordinary wages, and the retirement allowance regulations of the defendant Corporation shall continue to be paid as retirement allowance regulations at the time.

In calculating average wages, the initial date of calculation shall be governed by the wage rules, and Article 9 of the above wage rules recognizes the fact that "the calculation of average wages shall be governed by the Labor Standards Act and the Enforcement Decree thereof," and some testimonys of non-party 2 and non-party 3 of the original instance witness who conflict with the above recognition cannot be trusted in light of the evidence adopted above, and no other counter-proof exists.

As acknowledged above, the long-term nature of bonus paid by the employee's wage system or the employee's wage system or the confirmation of the amount of bonus paid by the employee's Corporation is interpreted to have the nature of wage paid in consideration of the worker's work rather than a mutually advantageous payment under the employer's subparagraphs. Thus, the above bonus should be included in the concept of wage, which is the basis for calculating the average wage under Articles 19 and 28 of the Labor Standards Act, along with the basic wage and the number of the parties concerned. Meanwhile, the average wage under Article 6 of the rules on retirement allowance of the employee's corporation should be viewed to refer to the average wage under Article 28 of the Labor Standards Act in light of the relationship with the wage regulations of the employee's corporation or the Labor Standards Act as seen above, unless there are special reasons. Therefore, in calculating the average wage at the time of retirement, the bonus paid by the employee's corporation shall be included in the calculation of the wage.

However, in full view of the preceding purport of the oral argument in the statement No. 2 (Calculation Rules for Average Wage) and the testimony of Non-party 2 and 3 of the above witness without dispute over the establishment, the defendant corporation established and implemented the rules for the calculation of retirement allowances from March 1, 1968, and provided that "total Wage" received for three months retroactively from the initial date of the calculation of retirement allowances from the initial date of the calculation of the retirement allowances, but later, the above rules were unilaterally revised and received during the same period of time on April 1, 1973, and thus, it can be recognized that the above rules were excluded from bonuses from the above basic wage. However, since the above rules are merely regulations for the enforcement of the wage rules or retirement allowance rules corresponding to the rules of employment, it cannot be viewed that there was a change in the concept of average wage rules as stated in the above rules of employment, and thus, it does not constitute a violation of the above rules of employment as to the concept of the average wage of workers, which is a basis for the amendment of the rules of employment as seen earlier.

Although the Defendant’s wage rules, retirement allowance rules, etc. were enacted under the premise that bonus is not included in the average wage regardless of its external and formal system from the beginning, and they were established in customs, a fact-finding practice has already been implemented so far. However, there is no particular evidence to acknowledge it, and even if the intent of the Defendant’s internal review at the time of the enactment of the above provisions was the same as the assertion, it cannot be viewed that the objective interpretation of the nature of bonus or retirement allowance rules received at the time of the retirement of the Plaintiffs immediately after the retirement of the Plaintiffs cannot change the nature of the bonus or the objective interpretation of the above provision. Accordingly, the above Defendant’s assertion cannot be accepted.

In addition, even if the family bonus should be included in the wage speed, which is the basis for calculating the average wage, the amount of retirement paid by the defendant to the plaintiffs, instead of including the bonus in the basic wage, exceeds the minimum limit of the retirement allowance guaranteed by Article 28 of the Labor Standards Act, and therefore, the plaintiffs' claim for additional payment of the retirement allowance is disputed that there is no reason. However, even if the defendant's assertion that the amount of retirement allowance is above the minimum limit of the Labor Standards Act, as long as the amount of retirement allowance is based on the employee's retirement allowance regulations enacted by the defendant corporation under the same Act, it cannot be denied for the reason that the above provision of the Labor Standards Act or the above provision of the Labor Standards Act increased the payment rate. Thus, the defendant's assertion is groundless.

4. However, in full view of the following facts: (a) evidence Nos. 4 (Special Measures); (b) evidence Nos. 5 (Business Guidelines); (c) evidence Nos. 6 (Personnel Record Card); and (d) evidence Nos. 8 (Personnel Record Card); and (c) partial testimony of Non-Party 2 and 3, which do not conflict with the establishment, Defendant Corporation shall establish the special measures such as the attached Form No. 2, which partially changed the calculation method of the number of payment days following the resolution of the board of directors of the Defendant Corporation on December 30, 1971, on the ground that the block application of the cumulative calculation system for the past continuous service as shown in the attached Table No. 1, with respect to the calculation method of the number of payment days constitutes a cause of insolvency in corporate management; and (b) it cannot be acknowledged that the application of the above evidence Nos. 6, which was conducted from January 6, 1972 only for the employees of Class 2 or higher who are not subscribers to the labor union until the date of the Plaintiff’s retirement allowance is determined as follows No.

The plaintiff 1 asserts that the above special measure is null and void because the above special measure was unilaterally established by the defendant without the above plaintiff's consent. Thus, since the above special measure is partly modified to the calculation method of the number of days of payment which serves as the basis for calculation of retirement allowances, it shall be deemed that it constitutes a modification of the rules of employment, which is the basis for calculation of retirement allowances. In general, the rules of employment is interpreted as a uniform and uniform standard for working conditions and employment regulations in the workplace based on the management right, and the modification of the rules of employment does not only become null and void even if it did not go through the procedure for modification of the rules of employment under Article 95 of the Labor Standards Act. However, since the part concerning working conditions in the rules of employment is deemed to already form the contents of the labor contract, it can not be deemed null and void without the worker's consent.

Therefore, the above special measure that reduces the number of days of retirement pay as in this case refers to changing the working conditions disadvantageous to the worker, so it is null and void, in particular, in the absence of the consent of the plaintiff 1 who is an employee. Even if the above plaintiff continued to serve without retirement of the defendant after being promoted to the Class 2 employee after the execution of the above special measure, it is difficult to view that the above plaintiff's consent to the implementation of the above special measure is not sufficient, and if the above witness 2's testimony was excluded from the above witness's partial testimony that the above witness 2 did not believe, there is no specific evidence to deem that the above plaintiff consented to the above special measure (the testimony of the above witness 3 is recognized that the defendant corporation received each letter from the employee who consented to the implementation of the above special measure, and there is no evidence to support the fact that the above plaintiff submitted it.) Ultimately, the above special measure cannot be deemed null and void in relation to the above plaintiff.

5. Accordingly, the amount of retirement benefits to be paid to the plaintiffs should be the amount obtained by taking away the number of payment dates in Annex 10 calculated in accordance with the guidelines set forth in Annex 1, which are set forth in Annex 3, which is calculated on the average wages at the time of retirement including bonuses. Since the facts that the plaintiffs' average wages calculated prior to retirement are the same as the entry in Annex 6, and that each of the above average wages calculated except the bonus is five columns, there is no dispute between the parties, and it is clear that the average bonus per day divided by three months prior to retirement of the above column 7 is the amount of eight columns, and the average wages of the plaintiffs, including bonuses, calculated by the above portion of the above column 9 shall be the amount of money for each of the above column 11, which is to be paid by the defendant to the defendant for the above part of the defendant's retirement benefits calculated on the ground that each of the above column 4, which is to be paid by the defendant to the defendant for the remaining remaining amount of payment of the plaintiff's retirement benefits to each of the above column 13, it shall be dismissed.

[Attachment Omission]

Judges Lee Chang-chul (Presiding Judge)