Judgment No. 4380
The complaint is dismissed.
The complainant challenges the changes made with respect to his salary.
icsc decision; acquired right; salary; complaint dismissed
The complainant seeks the joinder of his complaint with a complaint filed by another WFP staff member. This is not opposed by the FAO. However, as will emerge from this judgment and the judgment concerning the other staff member, different aspects of salary and different specific benefits need to be considered in both instances with potentially distinct factual and legal analyses. This results, in part, from the FAO’s pleas concerning the receivability of all aspects of the broadly framed complaint of the complainant and also that of the other staff member. Joinder is likely to confuse and obscure the real issues. The complainant appears to assume, as does the other staff member, that he can challenge in his complaint in these proceedings the cumulative effect of all the changes to salary and benefits as can the other staff member in hers. This, as discussed later, is not correct. Accordingly the complaints are not joined though some of the discussion in this judgment repeats what is said in the other.
The concept of breach of acquired rights has its genesis in the first decision given on 15 January 1929 of this Tribunal then called the Administrative Tribunal of the League of Nations. In re di Palma Castiglione v. International Labour Office, the Tribunal held: “The Administration is at liberty to establish for its staff such regulations as it may see fit, provided that it does not in any way infringe the acquired rights of any staff member.” Over the decades since, the basis for recognising and protecting acquired rights has evolved and, in particular, principles developed for demarking what are and are not such rights [...].
The applicable legal principles were recently summarised by the Tribunal in Judgment 4195, consideration 7:
“According to the case law, ‘[i]n Judgment 61 [...] the Tribunal held that the amendment of a rule to an official’s detriment and without his consent amounts to breach of an acquired right when the structure of the contract of appointment is disturbed or there is impairment of any fundamental term of appointment in consideration of which the official accepted appointment’ (see Judgment 832, under 13). Judgment 832, under 14 (cited in part, below), poses a three-part test for determining whether the altered term is fundamental and essential. The test is as follows:
(1) What is the nature of the altered term? ‘It may be in the contract or in the Staff Regulations or Staff Rules or in a decision, and whereas the contract or a decision may give rise to acquired rights the regulations and rules do not necessarily do so.’
(2) What is the reason for the change? ‘It is material that the terms of appointment may often have to be adapted to circumstances, and there will ordinarily be no acquired right when a rule or a clause depends on variables such as the cost-of-living index or the value of the currency. Nor can the finances of the body that applies the terms of appointment be discounted.’
(3) What is the consequence of allowing or disallowing an acquired right and the effect it will have on staff pay and benefits, and how do those who plead an acquired right fare as against others?”
Also, as the Tribunal recently discussed in Judgment 4028, consideration 13, international civil servants are not entitled to have all the conditions of employment or retirement laid down in the provisions of the staff rules and regulations in force at the time of their recruitment applied to them throughout their career and retirement. Most of those conditions can be altered though, depending on the nature and importance of the provision in question, staff may have an acquired right to its continued application.
ILOAT Judgment(s): 4028, 4195
[T]he Tribunal’s case law does not support an approach to determining whether an acquired right has been breached which entails the examination of an altered “package” of salary and benefits to justify a conclusion that the alteration of any given element of the package involved a violation or breach of an acquired right. The logical consequences of this approach would be that even though such an alteration to a given element may be minimal or entirely justified or both, because other changes are made to other elements of the “package” the minimal or justified alteration can be characterised as a breach of an acquired right. There is no principled basis for taking this approach though the Tribunal cannot discount the possibility that situations may arise where the effect of the alteration of a limited number of related benefits might be viewed as relevant to the characterisation of one alteration as being a breach of an acquired right.
acquired right; salary
[T]he ICSC’s reasons for the proposed changes to salaries and benefits impugned in these proceedings were rational, logical and credible. They did not involve an elimination of the benefit but the modification of how, why and in what circumstances the benefit would be paid. Their adoption by the WFP (notwithstanding opposition when being originally proposed) was in conformity with obligations arising from membership of the UN common system. This is a valid reason for change (see Judgment 1446, consideration 14), at least in the absence of any apparent unlawfulness attending the change either procedurally or substantively.
ILOAT Judgment(s): 1446
icsc decision; salary
The Tribunal’s case law recognises that the alteration of a benefit can operate to the detriment of staff and this, of itself, does not constitute the breach of an acquired right. A further element was needed, as discussed in the opening paragraph of the quotation in consideration 10: the complainant should have demonstrated that the structure of the employment contract was disturbed and that the modifications impaired a fundamental term of appointment in consideration of which he accepted employment. The complainant has not demonstrated, to the Tribunal’s satisfaction, that this further element exists in the present case in relation to the changes impugned in these proceedings.