Judgment No. 566
Decision
1. THE IMPUGNED DECISIONS ARE SET ASIDE INSOFAR AS THEY DEDUCT FROM THE COMPLAINANTS' SALARIES ON ACCOUNT OF THE STRIKES SUMS IN EXCESS OF THOSE AUTHORISED UNDER ARTICLE 65 OF THE SERVICE REGULATIONS.
2. THE COMPLAINANTS ARE REFERRED BACK TO THE EPO FOR CALCULATION OF THE SUMS TO BE REFUNDED.
3. THE COMPLAINANTS SHALL BE PAID INTEREST AT 10 PER CENT A YEAR ON THE SUMS WRONGFULLY WITHHELD WITH EFFECT FROM THE DATE OF PAYMENT OF EACH CORRESPONDING MONTHLY SALARY UP TO THE DATE OF REPAYMENT.
4. EACH COMPLAINANT IS AWARDED 1,000 GUILDERS AS COSTS.
Consideration 3
Extract:
"The parties are agreed that a staff member who goes on strike is not entitled to payment for the period during which he has ceased to work. This is a corollary of the principle which says that remuneration is due only for services rendered. The sole point in dispute is the method of calculating the deduction."
Keywords
reckoning; salary; deduction; entitlement for service rendered; right to strike; strike
Consideration 5
Extract:
Following strike action, an administration decision led to a circular explaining that salary deductions would be calculated using a method different from that set out in the Service Regulations. "The executive head is not competent to adopt such rules [...] To accept the [organisation's] submissions would be to allow the imposition of a covert disciplinary sanction. The [...] staff exercised an acknowledged right and did not commit any misconduct." The deductions were calculated unlawfully and should be invalidated.
Reference(s)
Organization rules reference: ARTICLE 65 OF THE EPO SERVICE REGULATIONS
Keywords
organisation's duties; staff regulations and rules; breach; provision; reckoning; salary; deduction; hidden disciplinary measure; right to strike; strike
Consideration 5
Extract:
"Even where a strike is not an abuse of right an organisation would of course be entitled to make special rules on salary deductions different from the rules on absence from duty for other reasons. But such rules must be incorporated into the Staff Regulations in accordance with the prescribed procedure [...] The executive head is not competent to adopt such rules, let alone such rules which are retroactive."
Keywords
applicable law; non-retroactivity; staff regulations and rules; no provision; salary; deduction; right to strike; strike
Consideration 5
Extract:
"If the strike involved the breach of obligations under the rules or contractual obligations or led to unlawful acts, it would be admissible for the administration to take special measures, but in that event there would not be a strike in the proper sense, and the measures would be disciplinary. The strike was not of such a kind in this case."
Keywords
misconduct; staff member's duties; disciplinary measure; right to strike; strike; condition
Consideration 5
Extract:
"As a matter of principle a strike is lawful. It does not break the contract of employment or the administrative link between an organisation and its staff. The employee continues to be a member of the staff and the only provisions of the Staff Regulations to be suspended are those which are incompatible with the work stoppage. Salary is withheld by virtue of a provision in the Regulations, the requirement of payment for services rendered, and any provision which is not incompatible with the existence of a strike remains in force."
Keywords
contract; salary; entitlement for service rendered; right to strike; strike; consequence
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