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ILOAT Reform

Staff Union Bullet Points - Ranked By Category

 

  1. Fundamental Due Process—Most Important Under System of Natural Justice in order to ensure fair procedures
  2. 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).


  3. Typical Characteristic of Due Process under Natural Justice—Desirable but not absolutely necessary to ensure due process and fair procedure
  4. 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.

  5. Above and Beyond Minimum Due Process Standards—Present in the most advanced and neutral judicial systems abiding by Natural Justice, if at all
  6. 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.

  7. Proposal Unique to ILOAT system (but otherwise would fall under Category I. above)
  8. 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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Updated by FQ. Approved by MS. Last update: 22November 2002.