취업규칙의 불이익변경과 집단적 동의

As the enterprise or workshop itself is a small society made up of its own members, it also needs standing rules in order to maintain internal order, to establish the standards of labor conditions and to regulate the behavior of its members. Strictly speaking, these are matters that should be decided in individual labor contracts. However, since the labor relationship between both parties is considerably standardised nowadays, it is not only troublesome but unnecessary to arrange these matters with every individual employees. Here, rules of employment are the rules stipulating such matters as constituting the contents of the individual labor contract, which is established by the employer and applies to all the employees uniformly in the enterprise for the convenience of managing individual labor relations. In fact, the rules of employment serve as a norm since they apply to all employees in an enterprise or workshop as contents common to each labor contract. They are not a contract in themselves since they are drawn up and amended unilaterally by the employer, despite the fact that labor law declares the equality of both parties in deciding working conditions. Moreover, the rules of employment can hold good in spite of objections from a group of employees. However, legally speaking at least, the rules of employment are not a legal norm because the employer has no right to establish a legal norm without authorisation from the state. Therefore, the rules of employment should obtain an employee's consent in any form in order to be accepted as contents of the labor contract. If an individual employee has concluded a labor contract without any clear objection to the rules of employment as a whole, s/he is regarded as having consented to them even if s/he does not understand their meaning sufficiently. The employer, on the other hand, has to inform the employees of the rules of employment and of the gist of the labor Standards Act and its by-laws by displaying or posting them in places accessible to all employees, for the rules of employment take effect only after the employee's consent. Employer shall seek the opinions of a trade union, if there is a trade union composed of the majority of the workers in the workplace concerned, or the opinions of the majority of the workers if there is no trade union composed of the majority of the workers, with regard to the preparation and amendment to the rules of employment. Provided, however, that the rules of employment are modified unfavorably to workers, the employer shall obtain workers' consent(LSA Article 94). When an employer submits the rules of employment in accordance with the provisions of Article 94, a written document containing the opinions referred to in paragraph (1) shall be attached.