성과연봉제 가처분 사건의 법적 쟁점과 분석

The Legal Issues and Analysis in Relation to the Case Regarding the Injunction on Incentive Based Salary

Upon the suggestion of the government to adopt the performancebased salary system in government agencies in February 2016, many government agencies have gone forward to amend the Rules of Employment to accommodate the changes through the resolution of the Board of Directors in direct opposition to the labor unions, and by June 2016, 120 government agencies have successfully adopted the performance-based salary system. Labor unions and workers have argued that the adoption of the performance-based salary system is an unfavorable change to the Rules of Employment and require the majority consent of the labor unions or workers. In this regard, the labor unions and workers have sought to annul the Rules of Employment and applied for injunctions over the newly amended Rules of Employment all around the country. We hereby discuss the legal issues surrounding this injunction case regarding performance-based salary. (i) Regarding the Rules of Employment, there are legal opinions that state that this injunction case lacks any preservable rights citing the court decision that the object of the action for declaratory relief shall be a specific right or legal relationship, and one cannot submit an actin for declaratory relief seeking the annulment for any general or abstract laws or rules. However, should the Rules of Employment be amended due to performance-based salary, the actual salary that the workers are compensated for their work will change, thus we are of the opinion that this action has as its object a current and specific right and legal relationship. (ii) Whether performance-based salary is an unfavorable change to the Rules of Employment is a debatable issue that needs to be determined on a case-by-case basis. While the plus-sum method does not lower the actual wages and therefore don’t qualify as an unfavorable change, the zero-sum method would bring about the conflict between favorable and unfavorable change, thus making it an unfavorable change in the Rules of Employment. (iii) Regarding the collective consent method, recent court decisions have ruled in favor of the substantial protection, and thus have partially restricted the circulation and association method of consent forms that used be allowed under the law. This ruling is in line with the legislative intent behind Article 94 Paragraph 1 of the Labor Standard Act of Korea and is therefore applaudable. Nonetheless, the debate on how the discussion method will be compatible with collecting opinions will continue. (iv) If the adoption of the performance-based salary accompanies unfavorable change in the Rules of Employment, then according to the precedents up to date, socially accepted reasonableness would come into question. (v) There is also the question of standing of the workers in the action for declaratory relief, however, as the employer is obligated to pay wages to workers pursuant to the Rules of Employment one can argue that the workers positions is under clear and present danger, and even if taking into consideration the probability of filing for a lawsuit or litigation economics, we should accept that workers have standing in such cases. There is also the question of whether labor unions have standing considering that they only have indirect and factual relationship to the case, but once we take into account the fact that the majority consent of the labor union is mandatory according to Article 94 Paragraph 1 of the Labor Standard Act of Korea, at the least the majority of the labor union should be construed to have a specific and legal relationship. (iv) For injunctions the necessity for preservation of the rights is a issue that needs to be addressed, and should be determined strictly. It is also current practice to examine the necessity for preservation of the rights as an independent element and require high level evidence for its admission. However, considering the unique status of labor injunctions, one needs to be careful in directly appl