In July 2005, a complainant known as Kim filed a complaint with the National Human Rights Commission of Korea (NHRCK), contending that " requiring caddies to quit working at the age of 42 under the pretext of their autonomous bylaws regardless of their physical condition and ability constitutes unfair age discrimination." Concerning the complaint, the Commission recommended that oo Country Club reconsider the automatic retirement age for caddies.
Caddies primarily facilitate golf games by explaining the golf course to players, carrying and delivering golf clubs, and providing other such services. They also maintain the golf course by replacing grass in divots, weeding, removing stones, and picking up refuse.
The NHRCK determined that the automatic retirement age of 42 for caddies was arbitrary and 00 Country Club did not take into account the performance of duties by caddies, given that there exists no rational justification for applying a uniform age limit because persons at the age of 42 are not inherently unable to perform their duties and that it is difficult to determine each individual" s ability to perform such duties.
If certain physical qualities and abilities are needed for caddies to carry out their duties, it would be reasonable to establish a thorough assessment and verification procedure. Nonetheless, oo Country Club has failed to do so and instead uniformly requires all caddies to retire at the age of 42. The NHRCK determined that such requirement constitutes employment discrimination on grounds of age. The NHRCK has noted that the retirement age of other regular workers associated with the same labor union is 55, and the NHRCK sees no justifiable reason for applying a retirement age of 42 to caddies. It also deems such requirement to be inconsistent with the ordinary retirement age of 55 to 60.
The respondent, oo Country Club, argued that caddies at its place of business can hardly be deemed its workers because they have organized and operated their own council and that their by-laws were determined independently in 2004 by the executive body of the council based on the opinions of all member caddies. In addition, oo Country Club maintained that the management and labor had agreed to apply these rules to the caddies.
Caddies, classified as at-will employees, are essential to normal and efficient operation of a golf course. They are substantially subordinate to their country club personally and economically. No Supreme Court ruling denies that caddies are workers as defined by the Trade Union and Labor Relations Adjustment Act. Under the National Human Rights Commission of Korea Act, the relations between oo Country Club and the victims can be acknowledged as relations between an employer and employees. The respondent has also not accepted the argument by the victims that their automatic retirement age should be raised to 55, the retirement age for other union members. In sum, their automatic retirement age has effectively been maintained by the respondent rather than the caddies. Under this situation, the NHRCK determined that the respondent is obligated to redress its age discrimination.
Even if the retirement age of 42 had been determined by an agreement between the labor and management, such agreement cannot be acknowledged if it conflicts with the law or universally accepted beliefs. The details of a collective agreement are subject to the principle of equality, one of the general principles of the law, even in cases where the agreement was worked out in consent between the labor and management. Therefore, discriminatory details of a collective agreement are hardly deemed effective unless there exist justifiable reasons.
The NHRCK issued said recommendation to oo Country Club in the belief that its discriminatory practice of applying a retirement age of 42 to caddies should be corrected.
