Judgment No. 3408
The complaints are dismissed.
The complainants unsuccessfully challenge the decision to apply to them a salary adjustment index they considered illegal.
joinder; salary; adjustment; complaint dismissed
Whether the duty to consult has been met or violated is not to be applied in a vacuum. If, as here, it is alleged information was not provided or not provided in a timely way, the duty to consult is violated with legal consequences only if that information is material to the matter in issue and on which there should be consultation and, additionally, proper consultation is frustrated by its absence.
Considerations 8 and 9
The next contention of the complainants is that there is a clear principle that any methodology of adjustment of, amongst other things, salaries must ensure that the results are “stable, foreseeable and clearly understood”, referring to Judgment 1265, consideration 27, and Judgment 1821, consideration 7. They contend that this principle has been violated, at least in the sense that a methodology yielding a negative salary adjustment could not be “clearly understood” and, presumably, was not clearly understood. The complainants refer to the fact that the Finance Committee meeting in November 2011 was in a restricted session and that the Staff Association was not given access to the minutes of that meeting and that of the Council of December 2011. In the brief the concluding submission is that “the Staff Association, through its representatives, and consequently the complainants, were not informed of all the data behind the Council’s decision and consequently, could not understand the results arrived at”. However the die was cast and the method of computation established by the decision of the Tripartite Group at its meeting of 8 March 2011 to recommend, as the minutes record, “[the application of] an exact adjustment for the year 2011 [of minus 1.5 per cent] to the 2012 salary adjustment calculation”. It is true that the minutes also record concerns about the quality of the data input, the availability of the data and its (the methodology’s) retroactive changes. However, insofar as the adjustment of minus 1.5 per cent is concerned, there was, after March 2011, ample opportunity for the representatives of the staff to consult with the Administration about the calculation of the minus 1.5 per cent. Moreover, the jurisprudence the complainants rely on concerns methodology, not the minutiae of particular data used when applying the methodology. The real grievance is with the result, namely a reduction in salaries and other emoluments. That is not to say that data is always immune from challenge. Indeed, the complainants seek to challenge data on the third basis identified earlier.
The challenge to the data is based on the principle, as described in the brief, that “international organisations are bound under law to check that the decision of an external authority is legal, before incorporating it within their own legal order”. The complainants refer to Judgments 382, consideration 6, 825, consideration 18, 1000, consideration 12, 1265, considerations 21 and 24, 1713, consideration 3, 2303, consideration 7, and 2420, consideration 11.
Jugement(s) TAOIT: 382, 825, 1000, 1265, 1265, 1713, 1821, 2303, 2420
general decision; competence of tribunal; salary