취업규칙의 불이익 변경과 기존 근로계약 ― 대법원 2018다200709 판결의 비판적 검토 ―

This paper is critical of the Supreme Court's ruling on Nov. 14 last year. The target ruling said that the employment rules changed disadvantageously to workers cannot have the effect of overriding the existing individual labor contracts that set favorable conditions even if they received collective consent. However, the previous cases were that the changed conditions should be applied ‘whether or not individual consent’ by the workers or ‘without the need to obtain individual consent’ if collective consent is obtained in relation to the disadvantageous change of employment rules. I think that the laws of decision-making, which deviates from the objective meaning of the existing case law, need to be settled through full-member judgement. The target ruling said that the principle of such a free decision on working conditions should be observed even if the employment rules have been changed to workers disadvantageously with collective consent, based on the provisions set forth in Article 4 of the Labor Standards Act, “Work conditions should be determined according to their free will in an equal position.” The Labor Law sometimes seeks to guarantee equalization of labor-management parties as collective consent, because equal agreement between labor and management is difficult among individual parties, and the proviso of Article 94 of the Labor Standards Act are one such case. The question of how far the ruling will be applied is expected to arise in the future. This is because, if the principle of favourable terms-first is accepted for all existing work contracts, individual consent must be re-acquired after the change in employment rules, but the content and format of individual labor contract vary and the application of the favourable condition-first principle may differ accordingly. And in terms of the Korea-Japan comparative law method, the judgment of the target can be viewed critically. Korea's employment rules are characterized as not easy to change, as they require collective consent to make them disadvantaged. As it is not easy to obtain the consent of a majority of the unions or the majority of the workers, it is natural to let the original function of the employment rules be revived once it is obtained. However, this legal system is feared to falter following the target ruling.