취업규칙 불이익변경과 사회통념상 합리성 및 집단적 동의권 남용 법리에 대한 고찰 - 대법원 2023. 5. 11. 선고 2017다35588, 2017다35596 병합 판결을 중심으로 -

Under Article 94 of the Labor Standards Act, any change in employment rules that deprives workers of their rights or interests or lacks collective consent shall not be recognized. The need for worker collective consent for adverse changes to employment rules has been widely recognized as a worker protection measure, as changes to employment rules that disadvantage workers result in changes to their working conditions. However, social changes have raised the need to implement a system that applies disadvantageous changes to employment rules without the collective consent of workers, and courts have recognized the effectiveness of disadvantageous changes to employment rules as an exception if the change is recognized as reasonable in the eyes of society even if there is no collective consent of workers. Over time, discussions have taken place regarding the appropriateness of these court decisions, and opinions have been expressed on how the law should be revised. The Supreme Court recently overturned the prevailing legal doctrine. The decision was unanimous. The court deemed any unfavorable employment rule alteration invalid if it lacks the collective consent of the employees, regardless of its reasonableness under the current social norms. However, the court ruled that in cases where workers have abused their right to collective consent, the effectiveness of the changed employment rules can be recognized as an exception even if the collective consent of the workers is not obtained. The judgment means that if the need for a change in employment rules is objectively obvious, and a group of workers opposes the change in employment rules without a reasonable reason, despite the employer’s sincere persuasion and efforts, this is an abuse of the right of collective consent and raises the need to separately examine whether the workers have abused the right of collective consent. The recent jurisprudence of the Supreme Court lacks predictability and legal stability on the issue of abuses of workers’ rights to collective bargaining. The jurisprudence for judging the reasonableness of social conventions, which has been recognized by the Supreme Court, is more specific than the jurisprudence for judging the abuse of the right to collective consent, and specific judgment criteria have been established through the accumulation of cases over a long period of time. The essential difference between socially acceptable reasonableness and collective consent abuse jurisprudence will continue to be a topic of discussion in the future. A further issue to consider in litigation over employment rule changes is the standard for determining whether a change is adverse. Courts have historically held that if an amendment to an employment rule creates a conflict of interest between employees, it is an unfavorable change to the employment rule. Therefore, If there is a need for an amendment to an employment rule that is beneficial to the majority of workers but detrimental to a minority group, the employer must obtain the approval of the entire workforce. Nonetheless, it is challenging to implement the court’s criteria that classify an alteration to an employment rule as unjust even if it only puts the minority workers at a disadvantage, in light of the imperative of taking proactive measures to adapt to the evolving employment environment. Hence, rather than regulating the consent of the entire workforce as a procedure for changing employment rules, it may be more feasible to use the consent of the workforce as one of the criteria for judging the reasonableness of social norms, such as the provisions of the Labor Contract Law in Japan. Efforts should also be made to put in place relevant systems to ensure that consent of minority unionized workers or workers in non-unionized workplaces is reasonable and appropriate.