Ⅱ. Procedures for Amending the Rules of Employment

Employers are not allowed to revise working conditions by amending the rules of employment in a one-sided manner that is unfavorable to the employees. This violates the spirit behind the protection law under the Labor Standards Act(LSA), the principle of protecting vested rights, and Article 4 of the LSA(Establishment of Working Conditions): The working conditions shall be freely established on the basis of equality, as agreed between workers and their employer.

1. Authority to amend the rules of employment

The employer has full authority concerning amendment of the rules of employment. If an employer revises the rules of employment to the disadvantage of a group of employees without their consent, the revised rules of employment are still legally effective. However, current employees whose vested interests are infringed upon shall be subject to the previous rules of employment.

2. Need for agreement

(1) Advantageous amendment
If the amendment of the rules of employment is neither advantageous nor disadvantageous, the employer is not obliged to comply with, but only hear, the opinions of his/her employees.

(2) Disadvantageous amendment
If an employer intends to modify the rules of employment to the disadvantage of employees, the employer shall obtain consent from the majority of the employees by way of a collective decision-making process or a meeting. In this case, the employer shall obtain consent from the labor union representing the majority of the employees or, if there exists no such union, consent from the majority of the employees. Individual consent is not effective without group consent.

(3) Standards for judgment of disadvantageous amendment
Whether the amendment of the rules of employment is disadvantageous or not should be evaluated by considering all factors such as socially accepted rationale, disadvantageous changes, reasons and procedures for its amendment, characteristics of job quality, and other reasons. Accordingly, it is not decided upon the basis of one working condition, but upon a collective evaluation of the working conditions.
1) The rules of employment are null and void when their revision results in a clash of advantage and disadvantage for the employees.
In cases where there is a clash of advantage and disadvantage for employees due to the amendment of the rules of employment, this revision shall be considered as unfavorable to employees. Accordingly, it would be made null and void as a result of violating Article 95 of the Labor Standards Act if the employer did not receive consent from all the employees or the labor union consisting of the majority of employees.
2) If there is no consent from the labor union in the disadvantageous revision of the rules of employment to employees, this revision has no legal effect.
It is true that Paju Agricultural Bank received the later approval from 60 out of 64 union members about its amendment of the rules of employment; but in cases where there is a workplace with a labor union consisting of more than a majority of employees, disadvantageous amendment of the rules of employment shall require the approval from the labor union itself, and approval from individual employees belonging to the labor union cannot replace this. Therefore, as the revision of personnel regulations does not apply to employees, it is unfair for the disciplinary measure, an order to leave one’s post and wait for further action, to be based upon this amendment of the rules of employment .
3) If the severance pay rate is amended unfavorably after a merger or acquisition, if other improvements(according to social rationale) occur, such as an extension of the retirement age, salary increase, and promotion of the salary table, an employer can apply the new working conditions to the employees without obtaining their consent .

(4) Newly regulated amendments
Additional rules are acceptable even without the employees’ agreement as long as they are not in the previous rules of employment. However, if a company that has failed to specify the retirement age fixes a new regulation regarding retirement age, the company first must obtain collective agreement from its employees if the amendment is deemed disadvantageous.
♣ A new disciplinary factor unmentioned in the previous rules of employment can be included in the new rules of employment, if it does not conflict with the collective agreement or rules of employment.

3. Method of consent

1) Provided that the collective agreement is required, individual consent in writing of his/her acceptance of the terms as set out in a circular notice or a committee member’s consent of the labor-management council shall not be regarded as majority consent of the employees. However, it may be admitted as majority consent if the employees delegate their right of consent to the committee members on the labor-management council.
2) The department reaching a pros-and-cons decision is permitted in the absence of the employer at the meeting .
3) If the disadvantageous amendment of the rules of employment only applies to non-union members, an employer does not have to gain the consent of the labor union but just majority consent from the non-union members.

4. Effect of consent

1) In the event the amendment is agreed upon by the labor union, it is effective even if it appears disadvantageous to certain employees.
2) According to judicial ruling, even if there is no mutual consent through collective decision-making for an amendment to the rules of employment, consent is retroactively applied in cases where an agreement is reached in accordance with the collective agreement.