Judgment No. 1001
Decision
1. THE DECISIONS THAT SET THE COMPLAINANTS' PAY IN KEEPING WITH THE SALARY SCALES THAT CAME INTO EFFECT AT 1 OCTOBER 1987 ARE SET ASIDE.
2. THE CASES ARE SENT BACK TO THE ORGANIZATION FOR THE RECALCULATION OF THEIR PAY AS PRESCRIBED ABOVE.
3. THE ORGANIZATION SHALL PAY THE COMPLAINANTS A TOTAL OF 40,000 FRENCH FRANCS IN COSTS.
Consideration 12
Extract:
"When impugning an individual decision that touches him directly the employee of an international organisation may challenge the lawfulness of any general or prior decision, even by someone outside the organisation, that affords the basis for the individual one (cf. Judgments 382 [...], 622 [...] and 825 [...]). The present complainants may accordingly challenge the lawfulness of the general methodology and of the 1987 survey of Vienna, which, taken together, constitute the basis in law of the decisions under challenge."
Reference(s)
ILOAT Judgment(s): 382, 622, 825
Keywords
general decision; receivability of the complaint; competence of tribunal; inquiry; salary; decision-maker; reduction of salary; investigation
Consideration 12
Extract:
"A decision by an organisation may be reviewed, albeit on limited grounds: it will be set aside if there was no authority to take it, or if there was a breach of form or of procedure or some obvious mistake of fact or of law, of if the decision was arbitrary, or if there was abuse or misuse of authority (cf. Judgments ranging from No. 39 [...] to No. 972 [...])."
Reference(s)
ILOAT Judgment(s): 39, 972
Keywords
judicial review; discretion
Consideration 3
Extract:
"The parties agreed to dispense with prior referral to the Joint Appeals Board and to put the dispute directly to the Tribunal, as Rule 112.03 of UNIDO's Staff Rules allows." Because of that provision in the Organization's Rules, the requirement set out in Article VII of the Tribunal's Statute is met.
Reference(s)
ILOAT reference: ARTICLE VII(1) OF THE STATUTE
Organization rules reference: RULE 112.03 OF THE UNIDO STAFF RULES
Keywords
receivability of the complaint; direct appeal to tribunal; exception; staff regulations and rules; enforcement; executive head; acceptance
Summary
Extract:
The complainants, who are employed by UNIDO in the general service category, seek the quashing of decisions setting their pay according to the new salary scales brought in as from 1 October 1987. They are objecting to the flat 2.4 per cent salary cut included in scales drawn up on the basis of an International Civil Service Commission recommendation to account for the so-called "commissary benefit". UNIDO Staff Regulation 6.5(a) says that the pay of staff in the general service category shall be based on "the best prevailing conditions of employment in the locality" (Flemming principle). The Tribunal holds that for the purpose of establishing parity with local pay the only relevant items are the ones defined in the Staff Regulations and financial rules of the organisation and paid out of its own funds. It follows that such a benefit as access to the commissary, which is provided for neither in the Staff Regulations nor in the financial rules and is a form of tax relief bestowed by the host country at no cost to the Organisation, may not count in a comparison of this nature. The Organization's decision to reduce salaries is unlawful and cannot stand. The cases are sent back to UNIDO for the recalculation of their pay.
Reference(s)
Organization rules reference: UNIDO STAFF REGULATION 6.5(A)
Keywords
icsc decision; flemming principle; headquarters agreement; staff regulations and rules; enforcement; general service category; reckoning; salary; fringe benefits; scale; privileges and immunities; flaw; elements; reduction of salary
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