Judgment No. 4155
1. The complaint filed by Mr L. is dismissed as irreceivable.
2. With respect to the other complainants, the impugned decision of 27 July 2017 and the decision of 21 December 2015 are set aside.
3. The results of the elections of March 2017 of members to constitute the “Staff Council” are set aside.
4. WIPO shall pay the complainants (not including Mr L.), collectively, 8,000 Swiss francs costs payable within 30 days of the date of the public delivery this judgment.
5. All other claims are dismissed.
The complainants challenge the decision to allow all staff to vote when members of the Staff Council are elected.
complaint allowed; decision quashed; practice; freedom of association; staff representative; election
In November 2014, the Director General sent a message to the staff effectively declaring that Staff Regulation 8.1 required all staff to be able to vote in an election for the Staff Council. Thereafter the Administration, guided by an opinion of the JAG, took steps to alter the status quo ante and bring about the election of members of the Staff Council by all staff rather than only those who are members of the Staff Association. [...]
The circumstances prevailing immediately before November 2014 were that the body described in Staff Regulation 8.1 was constituted by members of the Staff Association who had been elected to the Association’s Staff Council under the rules of the Association. This involved, at least implicitly, an acceptance by the Administration that Staff Regulation 8.1 permitted or authorised the constitution of the Staff Council in this way. What, in effect, WIPO has done, is adopt and assert an interpretation of Staff Regulation 8.1 which is partisan in the sense that it is an interpretation which was obviously aimed at disadvantaging the Staff Association and its members, having regard to the long-standing practice concerning the constitution of the Staff Council, and favouring the Administration in the sense that it does not have to deal with individuals, as members of the Staff Council, with, necessarily, what is almost certainly significant authority deriving from the membership of the Staff Association and their election by that membership. This constitutes an abuse of power.
practice; freedom of association; misuse of authority; abuse of power
The complainants seek an order for their “actual costs”. This is not an order made by the Tribunal, at least ordinarily.
[T]hese proceedings [...] concern fundamentally the right of each staff member to freely associate and the duty of WIPO to respect it which is a necessary incident of their employment (see, for example, Judgment 911, consideration 3). It is a right enjoyed by each of the complainants as a member of the staff of WIPO. Each is entitled to commence proceedings intended to defend that right or challenge an alleged breach of it.
ILOAT Judgment(s): 911
freedom of association