Judgment No. 496
Decision
1. THE DIRECTOR IS ORDERED TO WITHDRAW THE REQUIREMENT THAT THE COMMUNICATIONS TO BE DESPATCHED THROUGH THE ORGANIZATION'S FACILITIES SHOULD FIRST BE SUBMITTED TO THE ADMINISTRATION FOR DISCUSSION AND CORRECTION.
2. THE ORGANIZATION IS ORDERED TO PAY TO THE STAFF ASSOCIATION UNDER PARAGRAPH 40 ABOVE THE SUM OF 2,250 UNITED STATES DOLLARS.
3. THE ORGANIZATION IS ORDERED TO PAY TO THE COMPLAINANTS UNDER PARAGRAPH 41 ABOVE THE SUM OF 4,000 DOLLARS.
4. ALL THE OTHER CLAIMS OF THE COMPLAINANTS ARE DISMISSED.
5. THE INTERVENTIONS ARE ALLOWED OF THOSE INTERVENERS WHO WERE STAFF MEMBERS AT THE TIME OF THEIR INTERVENTION.
Summary
Extract:
The Tribunal recognises the Director's right to alter the scope of the facilities extended to the staff association. However it reserves the right to set aside any modifications which have not been properly justified. It considers as unjustified the imposition on the staff association of the requirement that communications to be despatched through the organization's facilities should first be submitted to the administration. Furthermore, it considers as a violation of the right to freedom of association the cut in the organization's contribution to the expenses of the association.
Keywords
grounds; amendment to the rules; staff union; freedom of association; facilities; judicial review; discretion; discontinuance
Summary
Extract:
The Tribunal believes that any violation of the right to freedom of association, i.e. the right to set up a professional association, may be impugned by the holder of a contract of appointment. However, the staff association itself may not intervene in this case, since access to the Tribunal is restricted to officials alone.
Keywords
locus standi; receivability of the complaint; cause of action; contract; staff union; freedom of association; official
Summary
Extract:
The Tribunal will not intervene in respect of allegations that by criticising leaders of the staff association and encouraging the formation of other associations the Director infringed the right to freedom of association. The organization is not required to meet general allegations of its punishing individual staff members for exercising freedom of association.
Keywords
freedom of association; judicial review
Consideration 36
Extract:
"It is enough to say that the absence of any evidence supporting the decision creates the suspicion that it was taken with improper motives and that such a suspicion is amply confirmed by consideration of the events leading up to it [...] The director wished to get rid of a [staff] committee which he believed to be unrepresentative. [...] The decision [...] can only be viewed either as an attempt to use coercion where persuasion had failed or as an expression of resentment at the failure. as such it is an abuse of power."
Keywords
grounds; amendment to the rules; staff union; facilities; misuse of authority; abuse of power
Consideration 37
Extract:
The administration required all communications to and from the staff association to be submitted to it for inspection "on the ground that 'factual information which the staff association conveys needs discussion between the parties when there are doubts on the accuracy of such information'. This has from time immemorial been the standard excuse for censorship; the alleged object is never to suppress the truth but just to make sure that only the truth is told. Freedom of association is destroyed if communication between the members is permitted only under supervision."
Keywords
freedom of speech; staff union; freedom of association; judicial review
Consideration 41
Extract:
"Every lawyer must be aware that the jurisdiction of the Tribunal is confined to non-observance of the terms of appointment of officials and of provisions of the Staff Regulations. By far the greater part of the complainants' contributions to the dossier consist of the presentation of what is called a class action and of the complainants' side of a controversy that is manifestly outside the Tribunal's jurisdiction. There is no reason why the organization should pay for this. The complainants have, however, succeeded in establishing an important principle; they should be allowed 4,000 United States dollars towards their costs."
Keywords
competence of tribunal; costs; iloat statute; freedom of association; staff claim
Consideration 18
Extract:
The Tribunal does not intervene in the sphere of labour relations. "The Tribunal is concerned only with allegations that the administration is violating the right to associate; breaches of labour relations may, if sufficiently grave, be relied upon in support of such allegations."
Keywords
competence of tribunal; freedom of association; staff claim
Consideration 17
Extract:
The grant of facilities to the staff association is not a privilege which can be withdrawn at will. "The organization does not provide facilities purely out of benevolence but because it is in the interests of the organization that the functions which the association discharges should be fully and competently performed. Facilities should be granted only when it is in the interests of the organization that they should be; likewise, they should be withdrawn, wholly or in part, only when the withdrawal is in the interests of the organization."
Keywords
staff union; facilities; organisation's interest
Consideration 34
Extract:
Within the limits determined by the organization's interests, "the Director has the widest discretion in determining the extent of the facilities which the organization offers to the staff association and in making from time to time such changes in them as he thinks to be desirable. Changes do not have to be negotiated and agreed [...]. [The Director] may not, as is the rule in all his decisions, act without taking all the relevant facts into consideration and he can hardly do that without ascertaining the views of the staff association. But after these have been considered, the decision is for him alone."
Keywords
organisation's duties; amendment to the rules; staff union; consultation; facilities; misuse of authority; abuse of power
Consideration 14
Extract:
"There is evidence that the Director approved of the formation of a separate professional association at Cepanzo and that he encouraged others. There is no evidence that he interfered in any way with the freedom of choice of staff members and therefore no evidence that he interfered with freedom of association."
Keywords
staff union; freedom of association; other
Consideration 9
Extract:
"Since the breach alleged is an infringement of the right to associate and since that right is enjoyed by every staff member, it is manifest that every staff member has a right which may be affected by the judgment to be given. It is unnecessary therefore for any staff members to show any further ground for his intervention." The interveners who ceased to be staff members at the time of their intervention "must show special ground for intervention."
Keywords
intervention; cause of action; separation from service; freedom of association; official
Consideration 7
Extract:
"The staff association, being the formal organisation created under [the rules], seeks to intervene as a 'collective personality'. It is unnecessary to decide whether or not the association has such personality. Assuming that it has, it is not a personality which holds a contract of appointment by the organization so it is not a person to whom the Tribunal is open under Article II" of the Statute. The intervention is not receivable.
Reference(s)
ILOAT reference: ARTICLE II OF THE STATUTE
Keywords
locus standi; intervention; receivability of the complaint; staff union
Consideration 6
Extract:
The principle of freedom of association "is accepted by the organization and [the Staff Regulations require] the Director to make provision for staff participation in the discussion of policies relating to staff questions and Staff Rules made thereunder give effect to the principle. The rules provide inter alia that staff shall have the right to associate themselves together in a formal organisation for the purpose of developing staff activities [...] and making representations to [the organization] concerning personnel policy and conditions of service".
Keywords
staff regulations and rules; provision; working conditions; staff union; freedom of association; staff claim
Consideration 6
Extract:
The Staff Rules give effect to the principle of freedom of association by providing inter alia "that staff associations shall have the right to request their membership for [...] financial contributions; and that the [organization] may give financial assistance to any such association in the furtherance of activities beneficial to the staff provided that the membership of the association also contributes substantially to such activity."
Keywords
contributions; staff union; freedom of association; facilities
Considerations 2-3
Extract:
"The organization contends that the appeal was irreceivable by the [Appeal] Board and is therefore irreceivable by the Tribunal. [...] The complaint had been dismissed by the Tribunal under Judgment No. 408 [...] [this] ground fails. The appeal was dismissed as irreceivable. Such a dismissal constitutes no barrier to a second presentation if the objection of irreceivability can be overcome."
Reference(s)
Jugement(s) TAOIT: 408
Keywords
complaint; receivability of the complaint; internal appeal
Consideration 4
Extract:
The complainants appealed to the internal board and then, without awaiting the outcome of the proceedings, to the Tribunal. By applying directly to the Tribunal "the complainants [...] obviously had no intention of abandoning their appeal; their wish was to expedite the hearing. As a matter of procedure they made a mistake in asking for the case to be withdrawn, but the situation was unprecedented and it was one to which the inactivity of the organization had contributed. A procedural error should not in this instance be held against the complainants."
Keywords
receivability of the complaint; administrative delay; direct appeal to tribunal; internal remedies exhausted; flaw; procedural flaw
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