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Judgment No. 61

Decision

1. The Administrative Tribunal is not competent to deal with Mr. Lindsey's conclusions praying -
(a) that Regulations 9.6 f), 3.12 and 6.1 of the Staff Regulations and Rules of 1 January 1960 be quashed;
(b) that the old Pension Fund of the International Telecommunication Union be re-established in the form in which it existed on 31 December 1959.
2. The decisions of the Secretary-General of the Union dated 1 March and 7 November 1960 are quashed in as far as they declare Regulation 9.6 f) of the Staff Regulations and Staff Rules of 1 January 1960 to be applicable to the terms of appointment of Mr. Lindsey.
3. The decisions of the Secretary-General of the Union dated 1 March and 7 November 1960 are also quashed in so far as they constitute a refusal to pay to Mr. Lindsey the benefits to which he would have been entitled under the old pension scheme.
4. No ruling is called for on the complainant's subsidiary conclusions in as far as they relate to the pension scheme and the scheme of termination allowances.
5. The intervenors Matthey and Millot shall be entitled to rely on the rights recognised to the complainant under this judgment with regard to termination allowances.
6. The intervention of Mr. Corbaz is dismissed as being not receivable.
7. The costs incurred by the complainant and by the intervenors Matthey and Millot in connection with this action, the amount of which shall be taxed by the President of the Tribunal, shall be borne by the Organisation.
8. The remainder of the complaint and of the interventions of Messrs. Matthey and Millot is dismissed.

Consideration 12

Extract:

"Provisions which appertain to the individual terms and conditions of an official, in consideration of which he accepted appointment [...], should to a large extent be assimilated to contractual stipulations. Hence, if the efficient functioning of the organisation in the general interest of the international community requires that the latter type of provisions should not be frozen at the date of appointment and continue so for its entire duration, such provisions may be modified in respect of a serving official and without his consent but only insofar as modification does not adversely affect the balance of contractual obligations or infringe the essential terms in consideration of which the official accepted appointment."

Keywords

acquired right; law of contract; organisation's duties; amendment to the rules; terms of appointment; contract; organisation's interest

Consideration 12

Extract:

"The Staff Regulations and Rules contain two types of provisions, the nature of which differs according to the objects to which they are directed : [...] provisions which appertain to the structure and functioning of the international civil service and the benefits of an impersonal nature and subject to variation, and, on the other hand, provisions which appertain to the individual terms and conditions of an official, in consideration of which he accepted appointment."

Keywords

international civil servant; staff regulations and rules; provision; terms of appointment; difference

Consideration 12

Extract:

"The terms of appointment of international civil servants and, in particular, those of the [organisation in question] derive both from the stipulations of a strictly individual character in their contract of appointment and from Staff Regulations and Rules, which the contract of employment by reference incorporates. Owing, inter alia, to their increasing complexity, the conditions of service mainly appear not amongst the stipulations specifically set out in the contract of appointment but in the provisions of the [...] Staff Regulations and Rules."

Keywords

international civil servant; staff regulations and rules; provision; terms of appointment; contract

Consideration 12

Extract:

The "provisions which appertain to the structure and functioning of the international civil service and [...] benefits of an impersonal nature and subject to variation [...] are statutory in character and may be modified at any time in the interest of the service, subject, nevertheless, to the principle of non-retroactivity and to such limitations as the competent authority itself may place upon its powers to modify them."

Keywords

competence; non-retroactivity; staff regulations and rules; amendment to the rules; provision; decision-maker; organisation's interest

Consideration 13

Extract:

"International civil servants are not exclusively governed by statutory rules, such as apply to the great majority of national civil servants, which are of a different nature and afford similar guarantees by different means".

Keywords

international civil service principles; domestic law; staff regulations and rules; difference; safeguard; same

Consideration 13

Extract:

"Even where the provisions of the Staff Regulations and Rules are alone applicable, the power to modify them vested in the international organisation is governed by different legal rules according to whether the provisions concerned fall with the first or the second of the two types of provisions".

Keywords

procedure; staff regulations and rules; amendment to the rules; provision; difference

Consideration 17

Extract:

"[The] salary increases resulted from the equating of the complainant's salary to that of officials of the United Nations with similar duties and responsibilities, and such salary increases cannot be set off against any loss which the complainant can be shown to have suffered as the result of the application to him of the new conditions of service."

Keywords

staff regulations and rules; amendment to the rules; enforcement; provision; terms of appointment; salary; compensatory measure; increase; reduction

Consideration 14

Extract:

The organisation altered the pensions scheme, family allowances and termination benefits in case of abolition of post. While it "was, in principle, empowered to do so, it falls to be considered whether it thereby altered the balance of contractual obligations or infringed the essential terms of appointment in consideration of which the complainant [...] agreed to accept service with [the organisation]."

Keywords

acquired right; amendment to the rules; terms of appointment; contract; family allowance; terminal entitlements; abolition of post; pension; judicial review; consequence

Consideration 2

Extract:

"It is not for the Tribunal to issue injunctions to the [organisation], save in regard to the execution of any obligations towards an official which the Tribunal finds to have been violated."

Keywords

organisation; competence of tribunal

Consideration 10

Extract:

The interventions of Messrs. X and Y, on behalf of the staff association, are not receivable, since the association "has no cause to intervene in the present proceedings". In as far as the interveners "acted on their own behalf, they have rights which may be affected by this judgment, and their intervention is receivable in as far as the [...] Tribunal is competent to pass judgment on the complaint itself."

Keywords

locus standi; intervention; receivability of the complaint; staff union

Consideration 24

Extract:

A comparison of the old and new provisions reveals "that in the event of termination owing to the abolition of the official's post the new regulations abolish all immediate right to a pension and substitute for an allowance of a stated amount, guaranteed under the former article [...] a benefit of an amount to be decided by the administrative council at its absolute discretion; these two changes constitute a serious infringement of the [complainant's] terms of appointment [...]."

Keywords

complaint allowed; decision quashed; acquired right; staff regulations and rules; amendment to the rules; provision; repeal; terms of appointment; terminal entitlements; abolition of post; termination; pension entitlements; discontinuance

Consideration 24

Extract:

The changes in the guarantees provided in the event of abolition of post "constitute a serious infringement of the terms of appointment" of the complainant. He is therefore justified in maintaining that the Secretary-General was not entitled to declare that the material regulation was applicable to his terms of appointment.

Keywords

staff regulations and rules; amendment to the rules; provision; terms of appointment; abolition of post; termination; safeguard

Consideration 27

Extract:

The payment of family allowances is abolished in certain cases, although the entitlement has simultaneously been extended and the rates increased. The decision-making body, "far from infringing [the complainant's] rights, merely altered the conditions for the grant of family allowances within the framework of a family welfare policy which it is entitled to establish. Moreover, the changes are in general favourable to the interests of those concerned. The complaint is therefore not justified in this respect".

Keywords

acquired right; staff regulations and rules; amendment to the rules; provision; family allowance; discretion

Consideration 21

Extract:

"While the adoption of the new pension scheme seriously impaired the complainant's rights, it is impossible to assess the full extent of the impairment at this stage. In particular the Tribunal does not know at what age the complainant will retire and what provisions will then be in force. Therefore the Tribunal cannot now order the [organisation] to pay compensation to the complainant or to guarantee him a particular benefit." However, it recognises the complainant's right to receive those benefits to which he would have been entitled under the old pension scheme and the right if need be to apply once more to the Tribunal.

Keywords

injury; amount; acquired right; staff regulations and rules; amendment to the rules; provision; pension; consequence

Consideration 1

Extract:

"There is no provision in the Statute of the Tribunal empowering the latter to entertain conclusions praying for the quashing of regulations."

Keywords

competence of tribunal; staff regulations and rules; provision; judicial review; application for quashing

Consideration 18

Extract:

"Actually, it is doubtful whether, taken in isolation, these various changes seriously impaired a right that could have induced the complainant to enter the service of the [organisation], but taken in conjunction the changes did have this effect. Therefore, by making the changes applicable to the complainant, the [organisation] infringed the terms of his appointment."

Keywords

acquired right; staff regulations and rules; amendment to the rules; provision; terms of appointment

Consideration 3

Extract:

"The said letter, whatever its intent, constitutes an individual decision in respect of which non-observance of the terms of the complainant's appointment as laid down in his contract and in relevant regulations is alleged; hence the Tribunal is competent, under Article II, paragraph 5, of its Statute, to proceed to review it."

Reference(s)

ILOAT reference: ARTICLE II, PARAGRAPH 5, OF THE STATUTE

Keywords

general decision; individual decision; receivability of the complaint; competence of tribunal; terms of appointment; contract



 
Dernière mise à jour: 20.09.2017 ^ haut