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Judgment No. 1451

Decision

1. THE DECISION OF 20 OCTOBER 1992 AMENDING ARTICLE 19 OF THE REGULATIONS OF THE UPU'S PROVIDENT SCHEME IS SET ASIDE AND THE PARTIES' RIGHTS AND OBLIGATIONS SHALL BE DETERMINED ACCORDINGLY.
2. THE UNION SHALL PAY THE COMPLAINANTS A TOTAL OF 7,000 SWISS FRANCS IN COSTS.
3. THE APPLICATION TO INTERVENE IS ALLOWED.

Consideration 18

Extract:

"In Judgment 1932 - submits the [organisation] - the Tribunal held under 18 and 24 that [...] a suit, [filed in the general interests of the civil service,] of which the hallmark is action by staff associations or agents professing to represent them, does not form part of the system of individual appeal that the organisations which have recognised the Tribunal's jurisdiction commonly provide for in their rules and that the Tribunal's own Statute contemplates. The Tribunal need not revert to that case law since this is not such a complaint. It has been filed by several officials with the commendable aim of making the proceedings simpler, and each of them is defending his own individual interests, even though they are the same as the others'. The objection [to receivability for being a 'collective' complaint] fails."

Reference(s)

ILOAT Judgment(s): 1392

Keywords

complaint; complaint allowed; locus standi; complainant; receivability of the complaint; internal appeal; competence of tribunal; decision quashed; case law; iloat statute; staff regulations and rules; staff union; staff representative

Consideration 19

Extract:

The organisation objects to the receivability of the complaint because "the impugned decision makes amendments to the regulations and is therefore a general one about the tenor of rules. As was said in Judgment 1393, under 6 to 8, the Tribunal has often ruled on the issue, especially for the purpose of determining when the time limit starts for appeal. It has held that where a general decision gives rise to decisions affecting individuals the time limit is set off only on notification to the official of the individual decision that affects him. Moreover, as was held in Judgment 1000, under 12, the employee may, when impugning an individual decision that touches him directly, 'challenge the lawfulness of any general or prior decision [...] that affords the basis of the individual one'. In sum, the staff member need not ordinarily impugn at once a general decision he believes has caused him injury but may, without any risk of being time-barred, wait until the general decision affects him in the form of an individual one."

Reference(s)

ILOAT Judgment(s): 1000, 1393

Keywords

complaint; complaint allowed; general decision; individual decision; receivability of the complaint; cause of action; internal appeal; time limit; date of notification; start of time limit; time bar; decision quashed; case law; staff regulations and rules; amendment to the rules

Consideration 20

Extract:

"The [amendment in question] strikes out of the terms of employment ipso facto the safeguard of international judicial review and vests jurisdiction in municipal courts instead. The amendment brings about an immediate and almost irreversible change in the system of appeal. So [...] every staff member has an actual and present interest in having light shed on the matter. The Tribunal affords guarantees of a system of international law within the bounds of its competence: see Judgments 1265, under 24, and 1328, under 13. It would therefore be wrong to deny the staff the right of appeal on the grounds that the impugned decision is general in purport."

Reference(s)

ILOAT Judgment(s): 1265, 1328

Keywords

complaint; complaint allowed; general decision; receivability of the complaint; cause of action; internal appeal; tribunal; competence of tribunal; right of appeal; decision quashed; case law; municipal court; staff regulations and rules; amendment to the rules; safeguard

Consideration 21

Extract:

"The [organisation pleads] that to quash a general decision on an application from a few might damage the interests of others who wanted it to remain in force. The plea is certainly material since [...] the staff of the UPU seem to disagree about the amendment [in question]. But the Tribunal is satisfied that when a decision has been challenged, albeit by only a few, it has a duty to rule in full objectivity and as soon as possible. The Union itself has well defended the interests of those who want to keep the decision, and they themselves may do so by filing applications to intervene."

Keywords

complaint; complaint allowed; general decision; intervention; receivability of the complaint; decision quashed; staff member's interest; staff regulations and rules; amendment to the rules; application for quashing

Consideration 23

Extract:

"The Tribunal concurs fully with what the Union says about the legal process it chose to follow in setting up its provident scheme [under municipal law]. It is true that other such schemes have been set up under international law and that the Tribunal has generally preferred that any dispute it may hear be resolved by the rules of the international civil service. But it has also been at pains to except any case in which there is express renvoi to municipal law in an organisation's rules or in the terms of appointment: for recent examples see Judgments 1311 and 1369, both under 15."

Reference(s)

ILOAT Judgment(s): 1311, 1369

Keywords

complaint allowed; decision quashed; applicable law; case law; domestic law; staff regulations and rules; contract; provident fund

Consideration 27

Extract:

"In this case there are close enough connections with both municipal and international law to warrant recognition of both jurisdictions, each for different issues. A staff member may therefore go to whatever tribunal he deems competent, and any tribunal with which suit is filed will determine whether the material issues of the particular case make it the most suitable jurisdiction. Such is the universally acknowledged doctrine of the forum conveniens".

Keywords

complaint allowed; competence; tribunal; competence of tribunal; decision quashed; municipal court

Consideration 28

Extract:

"[Certain] conclusions may be drawn from [...] considerations of comparative law. Jurisdiction is conferred where there are significant connections with a particular forum; recourse to a specific system of law is one such connection; there may be more than one forum which has jurisdiction; the connections are to be assessed against the interests of both parties to the litigation and against the public interest as well; and any conflict of jurisdiction must invariably be so resolved as to allow no judicial void where conflicting jurisdictions decline competence."

Keywords

complaint allowed; competence; decision quashed; applicable law; general principle; domestic law; municipal court

Consideration 30

Extract:

"The reinstatement of the status quo by the quashing of the decision [to amend the rules of the provident fund so as to confer sole jurisdiction on a national tribunal] restores a situation which is quite consistent with the requirement of rational division of jurisdiction in the international context. Each of the jurisdictions that may be competent - the [national] tribunal and this Tribunal - will be able to determine its own competence according to the material rules on conflict. That was what the Tribunal held in Judgment 1258 on a case in which there was similar conflict of jurisdiction: it said under 4 that it was for each court to rule on its own competence."

Reference(s)

ILOAT Judgment(s): 1258

Keywords

complaint allowed; competence; competence of tribunal; decision quashed; applicable law; case law; general principle; domestic law; municipal court



 
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