취업규칙 불이익변경의 효력과 그 한계에 대한 고찰

Korean Labor Standard Act requires collective consent of majority of workers (or labor union representing majority of workers) in change of unfavorable working conditions in the employment rules in Article 94. Until recently, it has been accepted as a general interpretation that the employment rules that got the collective consent of majority of workers, apply to all workers in the workplace regardless of agreement of individual worker. However, in the judgment of Korean Supreme Court sentenced on 14th of Nov, 2019, the changed employment rules could not be applied to individual worker who did not agree to the disadvantageous change of employment rules if individual labor contact were more advantageous than the employment rules even if they got collective consent of the workers in unfavorable change of the employment rules. Some legal experts criticize that the judgement is making the Article 94 which stipulates the procedure requirements for changing the disadvantageous employment rules of collective cosent of workers meaningless, and contradicts precedents of Korean Supreme Court on the same issue, while other expert legal argue that it is within the scope of legitimate interpretation of the Labor Standards Act in light of the specificity of the facts of the case based on various grounds. In this regard, the main issues are which one(between employment rules and labor contacts) is higher in the hierarchy, and the maine premises are the interpretation of Article 97 of the Labor Standards Act, the relationship between Article 94 of the Labor Standards Act and Article 97 of the Labor Standards Act, and the meaning of the principle of equalization of the working conditions parties under Article 4 of the Labor Standards Act. Furthermore, the judgement and reasons for each issue are drawing keen attention as the issue of whether to apply the changed employment rules to individual worker who do not agree on the disadvantageous change in employment rules at many workplaces before and after the sentencing of the judgement of Korean Supreme Court. Given that the employment rule system is essentially a user-unilaterally drawn-out service regulation in a workplace, strict procedures are needed to disadvantage the working conditions under individual labor contracts signed by the parties in equal positions and limitations in their application is inevitable. If the contents of the labor contract are determined by linking it to the employment rules, and if it is concluded as a separate labor contract, the effect of the change in disadvantage of the employment rules will be different. The ruling is a case in which labor and management signed a new annual salary contract every year, and the wage peak system introduced by the employment rules violates the rights of the labor contract, and unlike when the working conditions set by the employment rules are replaced by the new employment rules, the principle of labor contracts and employment rules is applied. In subsequent precedents on the same issue, this interpretation is being confirmed and more clearly.