사회통념상 상당성 법리의 폐기와 집단적 동의권 남용의 법리 – 대상판결: 대법원 2023. 5. 11. 선고 2017다35588,35595(병합) 전원합의체 판결 –

Abstract

Employment rules refer to rules prepared by employers to uniformly establish working conditions or service regulations that will be applied to all workers in their workplace. Employment rules, along with collective agreements and labor contracts, are a means of determining working conditions between workers and employers, and many of the working conditions are set by employment rules. For this reason, the Labor Standards Act requires employers to listen to workers' opinions when they write or change employment rules, and if the change falls under an unfavorable change, they are required to obtain collective consent from workers. Previous precedents have judged that despite the provisions of the Labor Standards Act, if rationality is recognized in accordance with the "Social Convention Rationality Law", the effect of the change of the employment rules cannot be denied even without the collective consent of workers. This precedent is a ruling that abolished the rationality law according to social norms and newly proposed the law of abuse of collective consent rights. Considering the ambiguity of the concept of rationality itself in social norms, the purpose of the 1989 revision of the Labor Standards Act, the limitations of law formation by judges, and the principle of equal labor and management in determining working conditions, it is considered reasonable that the precedent abolished the rationality law in social norms. However, this precedent newly proposed the law of abuse of collective consent rights, opening up the possibility that even if the disadvantages of employment rules are changed without collective consent of workers, the effect can be recognized exceptionally. In this regard, the precedent presented criteria for judging the abuse of consent rights, such as whether the need to change employment rules is clearly recognized due to changes in related laws and social environments, and if the law of collective consent abuse is followed, the scope of acknowledging the effectiveness of changing the employment rules without collective consent of workers will be narrowed. However, since the standards presented by this precedent are unclear, it is necessary to consider minimizing the scope of the abuse of the right to consent by determining whether workers have abused the right to consent by setting the ideology of protecting workers, the obligation to faithfully comply with working conditions, the principle of equal labor-management decisions, and the principle of equal treatment as judgment criteria.