ILO is a specialized agency of the United Nations
ILO-en-strap
Site Map | Contact français
> Home > Triblex: case-law database > By thesaurus keyword > noblemaire principle

Judgment No. 3921

Decision

The complaint and the applications to intervene are dismissed.

Summary

The complainant challenges modifications to the grading and salary structure.

Judgment keywords

Keywords

noblemaire principle; salary; scale

Consideration 3

Extract:

The Tribunal has stated on a number of occasions and recently with increasing frequency that it is inappropriate to effectively incorporate by reference into the pleas in the Tribunal, arguments, contentions and pleas found in other documents, often a document created for the purposes of internal review and appeal (see, for example, Judgment 3692, consideration 4). In this matter, the Tribunal will only have regard to arguments in the complainantís brief and rejoinder and will disregard any additional or other arguments in the Request for Resolution.

Reference(s)

ILOAT Judgment(s): 3692

Keywords

legal brief

Consideration 6

Extract:

As to the complainantís right to maintain these proceedings on behalf of the staff of the Global Fund in his capacity as a member of the Staff Council, there is some support for the proposition he can do so in earlier jurisprudence of the Tribunal (see, for example, Judgment 2919, consideration 5). However that judgment does not reflect the Tribunalís current case law (see, for example, Judgments 3515, consideration 3, and 3642, considerations 9 to 12 and 14). The adoption of the new arrangements in relation to salary structure and grading system was a general decision requiring implementation for each staff member. That general decision cannot be challenged by an individual staff member even if that individual is a member of the staff committee unless and until the general decision is implemented. That is not to say, it cannot be challenged when implemented by challenging a payslip that reflects its implementation. A recent example concerned a salary freeze where the complainants were able to challenge the general decision by challenging its implementation in a payslip. While the general decision to freeze salaries was not immediately reflected in the payslips (the complainantsí salaries remained the same and the freeze would only operate in the future), the Tribunal was able to conclude, in that case, that the general decision as implemented in the payslips was liable to cause injury because the decision to freeze salaries would necessarily negatively impact on the salaries in due course (see Judgment 3740, consideration 11). Nonetheless, as a matter of general principle, a complainant must, in order to raise a cause of action, allege and demonstrate arguably that the impugned administrative decision caused injury to her or him or was liable to cause injury (see, for example, Judgment 3168, consideration 9).

Reference(s)

ILOAT Judgment(s): 2919, 3168, 3515, 3642, 3740

Keywords

general decision; individual decision; locus standi; scale; staff representative

Consideration 9

Extract:

While good management practice would suggest such consultation is desirable, the case law of the Tribunal which has insisted on consultation and set aside decisions where there has been none (see, for example, the discussion in Judgment 3883, considerations 20 to 21) has been rooted in a legal obligation imposed by a normative legal document (for example, a staff rule or regulation) that the organisation consult a specified body in a specified way (see, for example, Judgments 3736, consideration 7, and 3449, consideration 7). It will be the terms of the normative legal document that will provide the yardstick by reference to which the content of the obligation to consult will be measured and whether it has been satisfied. Insofar as the complainant alleges that there has been a failure to consult without pointing to any legal requirement for such consultation, he has no cause of action and, in this respect, the complaint is irreceivable. In this respect the complainant does not, as the Global Fund argues, point to any non-observance of the terms of his appointment or of the Staff Regulations, to use the language of Article II, paragraph 5, of the Tribunalís Statute.

Reference(s)

ILOAT Judgment(s): 3449, 3736, 3883

Keywords

cause of action; patere legem; consultation; staff representative

Consideration 10

Extract:

While a complainant can add to her or his pleas in a rejoinder (but not add additional claims: see, for example, Judgment 2965, consideration 11), she or he runs the risk, as illustrated by this case, that a detailed and persuasive answer by a defendant organisation emerges in the surrejoinder to which no response is provided by the complainant beyond what had earlier been said in the rejoinder.

Reference(s)

ILOAT Judgment(s): 2965

Keywords

new plea; rejoinder

Consideration 11

Extract:

The case law concerning the Tribunalís consideration of changes to salary structures and grading systems makes clear that the role of the Tribunal is limited and the discretionary power of the organisation to make such changes based on policy or budgetary considerations must ordinarily be respected (see, for example, Judgments 1118, considerations 19 to 20, and 3274, consideration 10).

Reference(s)

ILOAT Judgment(s): 1118, 3274

Keywords

salary; budgetary reasons; judicial review; discretion

Consideration 12

Extract:

The Tribunal discussed the essential elements of the Noblemaire principle in Judgment 825, consideration 1. The Tribunal there observed that the Noblemaire principle, which dates back to the days of the League of Nations and which the system of the United Nations took over, embodies two rules. One is that, to keep the international civil service as one, its employees shall get equal pay for work of equal value, whatever their nationality or the salaries earned in their own country. The other rule is that in recruiting staff from all Member States, international organisations shall offer pay that will draw and keep citizens of countries where salaries are highest. However it is a principle that generally has been applied to organisations which participate in the United Nations common system. That it should be applied to those organisations is not controversial. The issue that ordinarily arises in proceedings in the Tribunal is whether it has been applied correctly. However, the Global Fund is not part of the United Nations common system. Indeed in its surrejoinder, the Global Fund points to the normative legal documents that establish the basis on which it determines and maintains grading and salary structures. Those provisions appear to be unexceptionable. It cannot be assumed, as the complainant seems to suggest, that the Noblemaire principle should be grafted on to those legal arrangements notwithstanding that the Global Fund is not part of the common system. The Tribunal rejects the suggestion it should be.

Reference(s)

ILOAT Judgment(s): 825

Keywords

noblemaire principle

Consideration 13

Extract:

[T]he Tribunal observed in relation to the arguments advanced by the complainants in those proceedings, that they raised issues of a very technical nature and similar considerations applied as in Judgment 3273, under 6, where the Tribunal noted that ďan evaluation or classification exercise is based on the technical judgement to be made by those whose training and experience equip them for that task. It is subject to only limited review. The Tribunal cannot, in particular, substitute its own assessment for that of the organisation. Such a decision cannot be set aside unless it was taken without authority, shows some formal or procedural flaw or a mistake of fact or of law, overlooks some material fact, draws clearly mistaken conclusions from the facts or is an abuse of authority (see, for example, Judgment 2581).Ē

Reference(s)

ILOAT Judgment(s): 2581, 3273

Keywords

post classification; judicial review; discretion



 
Last updated: 20.03.2018 ^ top