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Right to strike (519, 520, 521, 522, 523,-666)

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Keywords: Right to strike
Total judgments found: 15

  • Judgment 4435


    132nd Session, 2021
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant, who is a former permanent employee of the European Patent Office, challenges the deductions from his remuneration that were made in respect of his absences for strike participation as well as the lawfulness of the general normative decisions on which those deductions were based.

    Considerations 14-16

    Extract:

    The question that immediately arises, in the Tribunal’s view, is whether Article 65(1)(c) is punitive. In its pleas, the EPO acknowledges that the 1/30 method would still be used to calculate salary deductions for other authorized absences which include unpaid leave on personal grounds, parental leave and family leave. The EPO argues absences on such leave include weekend days as part of, to use the EPO’s expression, the absence period (because such leave must be for a minimum of 14 days), which justifies the use of the 1/30 method. But this, in the context of the present discussion, is a flawed argument. To speak of an “absence period” obscures the fact that if, for example, a member of staff was on 14 days authorized leave on personal grounds, she or he would, at least ordinarily, be absent from work for 10 working days. In relation to each of those working days 1/30 of the monthly salary is deducted. Conceptually, weekend days are days of rest for which the employer pays.
    Moreover, if in any respect, the deduction for working days on strike could materially exceed, in aggregate, the amount a staff member would have earned had they worked, then the provision is punitive in character. The complainant has demonstrated this is so by reference to an example involving a strike for an entire month where the number of working days for that month exceeds 20 (a common occurrence). In such a circumstance, the amount deducted for working days on strike for that month by application of Article 65(1)(c) would exceed the monthly salary payable for that month.
    While the following, of itself, does not establish Article 65(1)(c) is punitive, it is nonetheless the position that the amount deducted for each day of unauthorised absence (which is, prima facie, misconduct) is the same as the amount deducted for each day a member of staff is on strike, which is entirely lawful conduct. This lends support to a conclusion that Article 65(1)(c) is punitive. The EPO relies on observations in Judgment 566, consideration 5, in which the Tribunal said: “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”. However, these observations cannot be taken to be a license to adopt rules in relation to salary deductions for absences on strike which are of a punitive character.

    Keywords:

    deduction; hidden disciplinary measure; right to strike; salary;

    Judgment keywords

    Keywords:

    complaint allowed; deduction; hidden disciplinary measure; right to strike; salary;

    Consideration 9

    Extract:

    Employees who strike by ceasing work are deploying a tool incidental to collective bargaining to place pressure on their employer, often in the context of a dispute about preserving or improving wages and working conditions, workplace safety, dismissals and freedom of association amongst other things. It is a tool employees have to redress the imbalance of power between them and their employer. Absent a right to strike, it is open to an employer to ignore entreaties by employees advanced collectively to consider, let alone respond to, their grievances about wages and working conditions or, additionally but not exhaustively, the other matters referred to at the beginning of this consideration. However, at least ordinarily, the price the employees pay for deploying the tool is that they forfeit the remuneration they would otherwise have received had they worked (see Judgment 615, consideration 4).

    Reference(s)

    ILOAT Judgment(s): 615

    Keywords:

    right to strike;



  • Judgment 4434


    132nd Session, 2021
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainants challenge the refusal to organise a strike ballot under the new rules governing the exercise of the right to strike at the European Patent Office.

    Consideration 18

    Extract:

    The complainants are entitled to moral damages for the decision of the President not to hold a ballot for a strike they and others called for in accordance with the provisions of Circular No. 347, which constituted an abuse of power in that the President purported to exercise a power which he did not have. The President’s conduct involved a significant and unilateral derogation of the complainants’ right to strike even as arising under the materially constraining scheme in Circular No. 347 and CA/D 5/13. These moral damages are assessed in the sum of 6,000 euros for each complainant.

    Keywords:

    abuse of power; misuse of authority; moral injury; right to strike;

    Considerations 12-13

    Extract:

    The President was the author of Circular No. 347. He could readily have made express what the EPO now argues is implied in the new regime (the appointment of interlocutors) or made clear what is, at best, cryptically embedded in paragraph 4 of Circular No. 347 (mandatory discontinuity of a month). He did not, and there is no warrant for interpreting Circular No. 347 in the way proposed by the EPO.
    There is simply no reference to interlocutors and the scheme of regulating industrial action operates as a cohesive whole without the implication proposed. Indeed it can scarcely be suggested that the scheme is one directed to the resolution of industrial disputes including their amicable settlement. Were that so, one could have expected detailed procedures for dispute settlement involving discussion and even mediation. But they are singularly absent.

    Keywords:

    patere legem; right to strike;

    Judgment keywords

    Keywords:

    complaint allowed; decision quashed; right to strike;



  • Judgment 4433


    132nd Session, 2021
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision to treat his participation in a strike as an unauthorised absence.

    Consideration 14

    Extract:

    [T]he threat just referred to did involve an attempt to intimidate the complainant, aggravated by the adoption by the EPO of an erroneous interpretation of its own normative legal documents. It involved an attempt to stifle, by threat, the exercise of the lawful right to strike. The complainant is, for this, entitled to moral damages assessed in the sum of 4,000 euros.

    Keywords:

    moral injury; right to strike; threat;

    Judgment keywords

    Keywords:

    complaint allowed; decision quashed; deduction; right to strike; salary; unauthorised absence;

    Consideration 11

    Extract:

    The second and alternative basis on which the deduction was unlawful, arose from the erroneous view of the EPO that there had been no lawful strike because there had been no vote in accordance with paragraph 3 of Circular No. 347. That is to say, there was no vote of employees office-wide or at sites concerned by the strike. But that provision is itself unlawful (see Judgment 4430, consideration 16). That is because it significantly derogated from the fundamental right to strike, recognised by this Tribunal as something employees are lawfully entitled to do (see Judgments 615, consideration 6, 2342, consideration 5, and 2493, consideration 11).

    Reference(s)

    ILOAT Judgment(s): 615, 2342, 2493, 4430

    Keywords:

    right to strike;

    Consideration 10

    Extract:

    [T]he definition of strike in Article 30a is descriptive of conduct (a collective and concerted work stoppage) and does not raise for consideration whether that conduct arose as a result of the procedures for calling a strike being followed. The complainant was on strike within the normal conception of that term. He was on strike as defined in Article 30a. Accordingly, he was on strike for the purposes of Article 65(1)(c). An adjustment to his salary should have been made under this provision. What he did was engage in a lawful activity albeit one that resulted in a deduction from salary. It should not have been stigmatised as an unauthorised absence from work and a deduction from salary made on that basis.

    Keywords:

    right to strike; unauthorised absence;



  • Judgment 4432


    132nd Session, 2021
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision to accept only part of the recommendations of the Appeals Committee on his appeal against the postponement of a strike ballot by the President of the European Patent Office.

    Consideration 9

    Extract:

    [T]he complainant initially sought and still seeks moral damages. In his brief he seeks 10,000 euros moral damages “for depriving [him] of his fundamental human right to strike and taking away his fundamental right to freedom of association”. But he was not deprived of the right, at least in its entirety. There was only a delay in taking a procedural step which may have led to a strike in which the complainant would have been involved. At best for the complainant, the facts reveal the EPO failed to comply with paragraph 3 of Circular No. 347 notwithstanding that it was bound by the rules it had itself issued until it amended or repealed them (see, for example, Judgments 963, consideration 5, and 3883, consideration 20). Putting it this way is not to suggest that the non-observance was trivial. The Organisation had put in place highly contentious provisions concerning a matter of fundamental importance, namely the right to strike. It could be expected that all elements of those provisions would be followed to the letter unless there was some insuperable reason for not doing so. In this case, there was not. The President acted unilaterally and arbitrarily in breach of the scheme the Organisation had adopted and, in any event, his conduct involved an abuse of power in that he purported to exercise a power which he did not have. The complainant is entitled to moral damages which are assessed in the sum of 6,000 euros.

    Reference(s)

    ILOAT Judgment(s): 963, 3883

    Keywords:

    abuse of power; misuse of authority; moral injury; patere legem; right to strike;

    Judgment keywords

    Keywords:

    complaint allowed; right to strike;



  • Judgment 4431


    132nd Session, 2021
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges a decision of the Administrative Council introducing new rules for employees of the European Patent Office concerning the right to strike.

    Judgment keywords

    Keywords:

    case sent back to organisation; complaint allowed; decision quashed; general decision; internal appeal; right to strike;



  • Judgment 4430


    132nd Session, 2021
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainants challenge the new rules governing the exercise of the right to strike at the European Patent Office.

    Judgment keywords

    Keywords:

    complaint allowed; decision quashed; general decision; right to strike;

    Consideration 15

    Extract:

    In the absence of any implementing decision, the question that then arises is whether, in relation to the complainants, there has been an immediate and adverse effect on individual rights. The Tribunal is satisfied there has been. Circular No. 347 did have an immediate and adverse effect on the complainants’ right to strike. It is immaterial that they did not go on strike in June 2013 or that circumstances had not arisen where one or a number of the provisions of the Circular operated on or applied to conduct of the complainants. The effect was immediate because, at the date of promulgation of the Circular, it legally constrained future exercise of the right to strike or imposed burdens to the same effect. The complaints are receivable.

    Keywords:

    cause of action; general decision; receivability of the complaint; right to strike;

    Consideration 16

    Extract:

    [I]f the class who have a right to vote on whether the strike should start extends beyond (and potentially well beyond) the employees who wish to strike, then that wider class has a capacity to veto the strike. This problem is compounded by the percentages (40 per cent of employees and 50 per cent of voters) at the conclusion of this provision. Additionally, the requirement that the vote be conducted by the Office violated the right to strike. Employees themselves should be able to make arrangements for the vote (see Judgment 403, consideration 3).

    Reference(s)

    ILOAT Judgment(s): 403

    Keywords:

    right to strike;

    Consideration 13

    Extract:

    It has long been recognised that staff of international organisations have a right to strike and that generally it is lawful to exercise that right (see, for example, Judgment 2342, consideration 5).
    Employees who strike by ceasing work are deploying a tool incidental to collective bargaining to place pressure on their employer, often in the context of a dispute about preserving or improving wages and working conditions, workplace safety, dismissals and freedom of association amongst other things. It is a tool employees have to redress the imbalance of power between them and their employer. Absent a right to strike, it is open to an employer to ignore entreaties by employees advanced collectively to consider, let alone respond to, their grievances about wages and working conditions or, additionally but not exhaustively, the other matters referred to at the beginning of this consideration. However, at least ordinarily, the price the employees pay for deploying the tool is that they forfeit the remuneration they would otherwise have received had they worked (see, for example, Judgment 615, consideration 4).

    Reference(s)

    ILOAT Judgment(s): 615, 2342

    Keywords:

    right to strike;

    Consideration 16

    Extract:

    [T]he time limit placed on the duration of strike violated the right to strike. Striking staff should be able, themselves, to determine the length of the strike.

    Keywords:

    right to strike;



  • Judgment 4428


    132nd Session, 2021
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the refusal of her request to combine a half day of absence for strike participation with a half day of leave.

    Consideration 7

    Extract:

    The complainant is entitled to an award of moral damages for the unlawfulness of the impugned decision, which amounted to a deliberate violation of the exercise of her right to strike, and the negative effects of this decision, including unequal treatment. The Tribunal assesses these damages in the amount of 5,000 euros.

    Keywords:

    moral injury; right to strike; unequal treatment;

    Judgment keywords

    Keywords:

    complaint allowed; decision quashed; deduction; right to strike; salary;



  • Judgment 3786


    123rd Session, 2017
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainants challenge a decision of the Administrative Council introducing provisions in the Service Regulations for permanent employees regulating the right to strike.

    Judgment keywords

    Keywords:

    case sent back to organisation; complaint allowed; decision quashed; joinder; right to strike;



  • Judgment 3369


    118th Session, 2014
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant impugns the application of deductions to her dependant’s allowance for participation in a strike and the amount deducted from most elements of her remuneration.

    Judgment keywords

    Keywords:

    complaint allowed; deduction; right to strike; strike;



  • Judgment 2494


    100th Session, 2006
    European Organisation for the Safety of Air Navigation
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 6

    Extract:

    The complainants were issued a reprimand on the grounds that they had participated in industrial action which management considered to be unlawful and for abandoning their post in the course of their shift. "Considering Eurocontrol's special missions relating to the safety of air navigation, the right to strike - the lawfulness of which is not disputed - must not lead to sudden stoppages of activity such as occur when shift work is abandoned. The complainants do not deny the charges made against them in this respect. The Tribunal therefore considers that, while the first ground mentioned by the Agency - namely, participation in unlawful strike action - could not legally justify the contested disciplinary measure, this second ground did justify a penalty."

    Keywords:

    abandonment of post; acceptance; censure; disciplinary measure; enforcement; grounds; limits; right to strike; strike;



  • Judgment 2493


    100th Session, 2006
    European Organisation for the Safety of Air Navigation
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 9

    Extract:

    The complainants were issued a written warning on the grounds that they had participated in industrial action which management considered to be unlawful and that caused them to be absent from duty without authorisation. They contend that the Director General had no authority to decide whether the collective action was illegal. "There is no doubt that in the absence of any statutory provisions or collective agreement between the Agency and the staff representatives, it is up to the Director General to take whatever measures are necessary to prevent actions which he deems unlawful, to warn members of staff against participating in such actions and, if necessary, to lay down guidelines for the exercise of the collective rights of staff in accordance with the general principles of international civil service law. From this point of view, one cannot object to the Director General's legitimate right to take action when he, 'in the absence of an agreement with the unions', issued on 13 March 2003 - in other words, three days after the start of the industrial action - an Office Notice setting out 'General provisions applicable in the event of a strike at Eurocontrol'. Nevertheless, the general measures taken by the administration and the individual decisions taken to implement those measures must not have the effect of restricting the exercise of the collective rights of members of staff in such a way as to deprive them of all substance."

    Keywords:

    applicable law; collective rights; competence; condition; consequence; disciplinary measure; effect; enforcement; executive head; general decision; general principle; individual decision; information note; international civil service principles; limits; no provision; organisation's duties; provision; right to strike; staff regulations and rules; staff representative; staff union; staff union agreement; strike; unauthorised absence; warning;

    Consideration 11

    Extract:

    The complainants were issued a written warning on the grounds that they had participated in industrial action which management considered to be unlawful and that caused them to be absent from duty without authorisation. "[I]f it were a work stoppage not involving unlawful actions, the question arises as to whether the Agency could, in view of the provisions of Article 11 of the Staff Regulations whereby an official is bound to ensure the continuity of the service and must not cease to exercise his functions without previous authorisation, deem participation in the collective action by the officials in question to be unlawful. Without overlooking the fact that a strike will necessarily affect continuity of service, the Tribunal considers that, if the answer to that question were yes, it would in practice deprive of all substance the exercise of a right, the existence of which the Agency does not deny and which, according to the case law, is lawful in principle (see, for instance, Judgments 615 and 2342 of the Tribunal). To make the exercise of that right conditional on obtaining leave of absence would clearly be incompatible with the principle itself, the necessary corollary of which is the freedom of officials to follow or not to follow a call to strike duly issued by their representative organisations."

    Reference(s)

    Organization rules reference: Article 11 of the Staff Regulations governing officials of the Agency
    ILOAT Judgment(s): 615, 2342

    Keywords:

    collective rights; condition; consequence; continuance of operations; disciplinary measure; freedom of association; general principle; provision; right to strike; staff member's duties; staff regulations and rules; staff union; strike; unauthorised absence; warning;



  • Judgment 2342


    97th Session, 2004
    European Organisation for the Safety of Air Navigation
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 5

    Extract:

    "Undoubtedly, as recalled in the case law (see, for instance, Judgment 566), as a matter of principle a strike is lawful, but this applies only in the case of a collective work stoppage"

    Reference(s)

    ILOAT Judgment(s): 566

    Keywords:

    case law; condition; right to strike; strike;



  • Judgment 805


    61st Session, 1987
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Summary

    Extract:

    While acknowledging the complainants' right to strike, the Tribunal concludes that the organisation did not in this case exceed the proper scope of its authority. the number of staff ordered to work was relatively low with respect to the total number of staff members in the Office.

    Keywords:

    abuse of power; misuse of authority; requisition; right to strike; strike;



  • Judgment 615


    53rd Session, 1984
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Summary

    Extract:

    As a matter of principle, a strike is lawful; it follows that the consequences of a strike are covered by the Staff Regulations insofar as these are not are incompatible with the work stoppage. In this case, the regulation on salary deductions due to absence is applicable, and the organisation is invited to comply with it.

    Reference(s)

    Organization rules reference: ARTICLE 65 OF THE EPO SERVICE REGULATIONS

    Keywords:

    analogy; deduction; enforcement; provision; right to strike; salary; staff regulations and rules; strike;

    Consideration 8

    Extract:

    "A dispute over the calculation of deductions to be made in the event of a strike is not tantamount to impediment of the right to strike. There will be such impediment only where some act is committed that is of such gravity as to disturb the proper balance between the rights and duties of the parties."

    Keywords:

    deduction; reckoning; right to strike; salary; strike;



  • Judgment 566


    51st Session, 1983
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    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:

    consequence; contract; entitlement for service rendered; right to strike; salary; 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:

    breach; deduction; hidden disciplinary measure; organisation's duties; provision; reckoning; right to strike; salary; staff regulations and rules; strike;


 
Last updated: 22.09.2021 ^ top