ILOAT Reform
Staff Union Bullet Points - Ranked
By Category
- Fundamental Due Process—Most
Important Under System of Natural Justice in order
to ensure fair procedures
STANDARDS
OF JUSTICE
1.1 The Union proposed
that all complaints brought before the ILOAT are to
be heard in accordance with the principles of due process,
fair procedures, audi alteram partem (the right
to a hearing and defense), nemo iudex in re sua (no
one shall judge his own cause), and international law,
including without limitation, relevant labour standards,
and the ILO Declaration of Fundamental Principles and
Rights at Work. (The Union would like this provision
to be made a part of a preamble to the ILOAT Statutes).
DISCLOSURE
1.2 The Union wishes
to ensure that in any appeal, all relevant and pertinent
documents in the hands of the parties shall be
made available to the other side. The Union and Office
have agreed in principle to an amendment to the Tribunal’s
Rule of Procedure based on the provisions used by the
IMF Administrative Tribunal.
STARE
DECISIS
1.3 The Union proposed
that in any decision rendered by the ILOAT, it shall
strictly adhere to all prior legal precedents set out
in its previously decided cases unless it clearly demonstrates
in its written judgment that the prior precedent is
distinguishable in law or in fact from the present case
and therefore not applicable, or that the prior precedent
was patently incorrect, or is now contrary to the generally
accepted principles of international law. (The Union
would like this provision to be made a part of a preamble
to the ILOAT Statutes).
WITNESSES
AND TESTIMONY[1]
1.4 The Parties have
agreed in principle to request that the Tribunal be
required to hold oral hearings (for the making of oral
arguments and examination of witnesses) when they are
requested by both parties to an appeal (although the
Union would prefer to have such hearings mandatory when
requested by any party).
ESTABLISHMENT
OF A PROCEDURE FOR APPELLATE REVIEW OF ILOAT DECISIONS
1.5 The Union desires
that a procedure be established so that judgments of
the ILOAT may be challenged, either on factual or evidentiary
grounds (which presently may only be done through a
request for review of judgment to the Tribunal itself),
or on legal grounds (which presently cannot be challenged
at all). The Union has proposed either that an appeal
to an ILOAT judgment be held before all seven Tribunal
judges (including appeals on legal grounds), or that
all ILOAT judgments be appealable to the ICJ (which
today is only available with the agreement of the Defendant
organization).
- Typical Characteristic
of Due Process under Natural Justice—Desirable but
not absolutely necessary to ensure due process and
fair procedure
STANDARDS
OF PROOF
2.1 The Union
has proposed that the ILOAT codify the standards
of proof it follows in different types of cases
(such as misconduct, procedural irregularity, etc.),
and further, that the burden of proof in appeals
shift to the organization upon a showing on the
part of a complainant of a prima facie case.
The Office opposes such codification.
UNION
AS AMICUS CURIAE (LITERALLY, 'FRIEND OF THE COURT')
2.2 As an alternative
to this suggestion on the part of the Union (to
allow the Union to officially comment in writing
on any case before the Tribunal), the Office has
offered to allow the Union to bring appeals in its
own name[2].
There is disagreement to the extent that this right
might be applied. The Union desires the right to
apply to any claim that may be brought by an individual
staff member, while the Office wishes to limit it
to cases where Union prerogatives are impinged,
or where a regulatory decision by the DG is challenged
(such as in the case of application of salary scales).
MISCELLANEOUS
CHANGES TO ILOAT STATUTES AND RULES
2.3 The Union
proposed that a Complainant may plead his or her
own case or appoint for the purpose of representation
any agent of his or her choosing (choice of representatives
is currently limited to qualified lawyers, or current
or retired staff members). The Office opposes this
proposal.
2.4 The Union
proposed that parties be advised in advance of any
and all communications from one party to an appeal
to the ILOAT, and be given the right to comment
on or oppose such communication in writing. The
Office opposes this proposal.
RULES
OF EVIDENCE
2.5 The Union
desires that the Tribunal promulgate a clear set
of rules governing the admissibility of evidence
before the Tribunal; the Office would not agree
to same.
CODE
OF CONDUCT FOR LEGAL REPRESENTATIVES/AGENTS
2.6 The Union
desires that the Tribunal promulgate a clear set
of ethical rules governing the conduct of legal
representatives appearing before the Tribunal; the
Office would not agree to same.
- Above and Beyond
Minimum Due Process Standards—Present in the most
advanced and neutral judicial systems abiding by Natural
Justice, if at all
JUDGMENTS
3.1 The Union
proposed that in any decision rendered by the ILOAT,
it shall expressly address all legal issues or claims
raised in the complaint (as well as those raised
in any amicus curiae briefs), and shall explain
and incorporate same in its written judgment.
3.2 In the event
a complaint before the ILOAT may be equally adjudicated
on the basis both substantive and/or procedural
grounds, the Tribunal whenever possible shall base
its judgment on the substantive rather than the
procedural grounds. (The Union would like both of
these provisions to be made a part of a preamble
to the ILOAT Statutes).
TIME
LIMITS
3.3 The Parties
have agreed that the present time limits for the
filing of pleadings by both complainants and organizations
is unreasonable, regularly requiring a request for
extensions; more reasonable delays will be suggested
to the Tribunal. The Parties have also agreed that
in the event the Tribunal moves to dismiss a complaint
as irreceivable of its own accord, the affected
complainant should be advised of this motion, and
be given the opportunity to oppose such action prior
to its implementation.
INTERLOCUTORY
REDRESS
3.4 The Union
has proposed a mechanism in the event an impugned
decision of the Office will cause a staff member
irreparable harm, for the ILOAT to
enter an intermediate order maintaining the parties
in status quo ante (i.e., preventing an illegal
termination pending completion of the appeal process).
The Office opposes such a mechanism.
MISCELLANEOUS
CHANGES TO ILOAT STATUTES AND RULES
3.5 The Union
has proposed that Tribunal judges be appointed upon
consensus of the Office and Union. The Office opposes
this, but has offered a "gentlemen’s agreement"
to solicit and consider the views of the Union on
Tribunal candidates prior to appointment.
3.6 The Union
has proposed that the term of a Tribunal judge be
limited to a maximum of 2 terms, and that the renewal
decision on a judge’s appointment also be subject
to the consensus of the Office and Union. The Office
opposes this proposal.
3.7 The Union
proposed that the office bear all costs and/or expenses
occasioned by a complaint filed with the ILOAT.
The Office opposes this proposal.
3.8 The Union
proposed that the posts of ILOAT Registrar and Assistant
Registrar shall be filled in accordance with the
selection competition procedures as provided for
in the ILO Staff Rules, and that the successful
candidates for the posts be limited to a maximum
of two (2) four year terms. The Office opposes this
proposal.
- Proposal Unique to
ILOAT system (but otherwise would fall under Category
I. above)
PRIVILEGES
AND IMMUNITIES
4.1 The Union
has proposed a mechanism for the privileges and
immunities of the Office or an official to be lifted
in the event a complainant is not satisfied with
the results of an appeal to the ILOAT, in order
to allow the case to proceed before a national court,
also requiring the Office to assist in lifting such
privileges and immunities. The Office opposes such
mandatory lifting of the privileges and immunities.
4.2 In cases
where the ILOAT disallows or dismisses a case on
procedural grounds, notably when the ILOAT is not
competent or where the case falls outside the jurisdiction
of the Tribunal because it is not administrative
in nature, or does not involve a review of an administrative
decision of the Office in respect of an official
( (such as in cases of criminal behavior by officials,
harassment causing physical harm, in cases where
complainants suffer personal injury or other tortuous
conduct by other officials outside the normal scope
of an employment contract), upon such a negative
jurisdictional determination by the ILOAT, the Director-General
must and shall lift the privileges and immunities
of all officials involved, so that the course of
justice in front of a competent national court is
not impeded. This provision is pursuant to the Office’s
Headquarters Agreement with the Swiss Confederation,
which states (in Article…)[3].
[1]
The Union also proposed that in the event a complainant
requests a hearing before the ILOAT and is denied, same,
then the factual findings of the Joint Panel were to
be deemed final and controlling upon the ILOAT. The
Office opposed this proposal.
[2]
In view of this suggestion, the Parties have agreed
to suspend the Union's specific proposal to create a
separate "Class Action" procedure within the ILOAT.
[3]
"Point 40", newly added 10-9-2002
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