Judgment No. 4137
Decision
1. The impugned decision of 22 June 2018 is set aside.
2. The complainants’ and interveners’ February 2018 payslips and all subsequent payslips implementing the ICSC’s contested decisions regarding the revised post adjustment for the duty station of Geneva are set aside.
3. The ITU shall provide the complainants and interveners with new revised payslips as from the February 2018 payslip with a post adjustment multiplier not based on the revised post adjustment index resulting from the 2016 cost-of-living survey.
4. The ITU shall pay each complainant and each intervener an amount equivalent to the difference between the remuneration actually paid to them since February 2018 and the remuneration that would have been paid to them during the same period but for the implementation of the ICSC decisions, with interest at the rate of 5 per cent per annum from due dates until the date of final payment.
5. The ITU shall also pay the complainants, collectively, costs in the aggregate amount of 8,000 Swiss francs.
6. All other claims are dismissed.
Summary
The complainants challenge the decision to apply to their salaries the post adjustment multiplier determined by the ICSC on the basis of its 2016 cost-of-living survey for Geneva, with the result that their salaries were reduced.
Judgment keywords
Keywords
complaint allowed; icsc decision; decision quashed; salary; scale; post adjustment
Consideration 4
Extract:
The complaints raise the same facts and questions of law and they are therefore joined to form the subject of a single judgment.
Keywords
joinder
Consideration 5
Extract:
The legal foundation for the complaints is the individual decision, reflected in a payslip, to reduce the salary of each complainant and likewise affecting each intervener. In such circumstances the complainant can challenge the general decision on which the individual decision is based (see, for example, Judgment 1798, consideration 6). In the present case there is potentially a succession of several general decisions of the ICSC following a survey conducted in, amongst other places, Geneva in 2016 culminating in the Geneva-based officials in the Professional category and above being paid at a reduced amount. In addition there was the general decision of the administration of the ITU to give effect to these ICSC decisions. The last mentioned decision flowed from the ITU’s membership of and adherence to the United Nations common system.
Reference(s)
ILOAT Judgment(s): 1798
Keywords
general decision; icsc decision; individual decision; payslip
Consideration 7
Extract:
Some principles in the case law of the Tribunal should be noted [...]. The first is, as observed in Judgment 1266, consideration 24, that:
“[...] by incorporating the standards of the common system in its own rules the [organization] has assumed responsibility towards its staff for any unlawful elements that those standards may contain or entail. Insofar as such standards are found to be flawed they may not be imposed on the staff and [the organization] must if need be replace them with provisions that comply with the law of the international civil service. That is an essential feature of the principles governing the international legal system the Tribunal is called upon to safeguard.”
Reference(s)
ILOAT Judgment(s): 1266
Keywords
general decision; receivability of the complaint; un common system
Consideration 8
Extract:
[A]s noted in Judgment 1160, consideration 11, [...] if the ICSC adopts a methodology, although not binding on an organization merely by virtue of the ICSC’s approval of it, the organization’s decision to apply it is one that it is not free afterwards to disclaim. Moreover, as the Tribunal observed in Judgment 1000, consideration 12:
“Some principles there is ample precedent for will bear restating. One is that 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, 1000, 1160
Keywords
general decision; icsc decision; individual decision; methodology
Consideration 10
Extract:
The salaries are essentially composed of two parts. One amount is the net salary, or base or floor salary as it is described in the United Nations common system, embodied in a prescribed salary scale. The other amount is the post adjustment established for each duty station arising from the application of Regulation 3.5 of the ITU’s Staff Regulations and Staff Rules. That provision operates to adjust the salaries for cost-of-living variations at different duty stations. The post adjustment is determined by multiplying 1 per cent of the net salary by a multiplier, the PAM. The PAI informs the amount of the PAM together with other elements including exchange rates. This process underpins a significant element of the Noblemaire principle applicable to the salaries of international civil servants, namely that “the pay of international civil servants [should be] equivalent by making its real value, or purchasing power, as uniform as possible from one duty station to another” (see Judgment 825, consideration 4).
Reference(s)
Organization rules reference: Regulation 3.5 of the ITU’s Staff Regulations and Staff Rules
ILOAT Judgment(s): 825
Keywords
noblemaire principle; salary; post adjustment
Considerations 20-22
Extract:
It is desirable to refer to some of the principles that govern the Tribunal’s consideration of cases such as the present. First, an international organization is free to choose a methodology, system or standard of reference for determining salary adjustments for its staff provided that it meets all the principles of international civil service law (see, for example, Judgments 1821, consideration 7, and 3324, consideration 16). Further, the Tribunal has noted that cases such as the present can raise issues of a highly specialised nature being “based on the technical judgment to be made by those whose training and experience equip them for that task” and that it will not substitute its own assessment for that of the organization (see, for example, Judgment 3360, considerations 4 and 5). While an international organization is free to choose a methodology, system or standard of reference for determining salary adjustments it must be a methodology which ensures that the results are stable, foreseeable and clearly understood or transparent (see, for example, Judgments 1821, consideration 7, and 2095, consideration 13). The requirement that the results must be stable, foreseeable and clearly understood or transparent does not mean a salary regime is fixed once and for all and is incapable of change (see Judgment 1912, consideration 14), or that this requirement excludes reasonable variations in the results yielded (see Judgment 3676, consideration 6). Moreover “a methodology cannot be applied without a degree of flexibility and without leaving some room for interpretation by the competent authority, which [is] entitled to take into account the imbalances generated by past applications of the adopted methodology in order to try to attenuate the effects thereof and properly to implement the Noblemaire principle” (Judgment 2420, consideration 15).
The Tribunal has recognised that “[t]he whole subject of post adjustment is of great complexity and [...] the constant changes in the factors that are considered relevant, mean that the methodology will probably never attain perfection” (see Judgment 1459, consideration 10; see also Judgment 1603, consideration 6).
However, if the organization is relying on an external body for advice and assistance, it nonetheless needs to ensure these principles have been applied (see, for example, Judgment 1765, consideration 8, where the Tribunal said in relation to erroneous calculation by the ICSC):
“[The organization] has the duty of checking the lawfulness of any decision by another body on which it bases its own decision. So too must it check the adequacy of action by that other body to correct any mistake it may have made, and make sure that such corrective action respects the rights of staff. Authority for that is in Judgment 826 [...] under 18. If the [ICSC]’s original reckoning was unlawful, so is a second one that fails to redress fully the wrong.”
To the same effect was Judgment 1713, consideration 3, and later, Judgment 2303, consideration 7. In Judgment 1713 the Tribunal observed that a decision on local pay cannot “stand if, say, it overlooks or misconstrues some particular factor, or if some method is applied for the wilful contrivance of lower figures of local pay, or if corners are cut for the sake of saving time, but to the detriment of staff interests” (consideration 8).
Reference(s)
ILOAT Judgment(s): 826, 1459, 1603, 1713, 1765, 1821, 1912, 2095, 2303, 2420, 3324, 3360, 3676
Keywords
salary; post adjustment; methodology
Consideration 23
Extract:
The Tribunal’s mandate deriving from its Statute is, fundamentally, to resolve individual disputes between an organization and one or a number of members or former members of its staff. Over the life of the Tribunal a matrix of legal principles has been developed and applied by the Tribunal to ensure just and principled outcomes both from the perspective of members of staff and also the perspective of organizations as employers. In its judgments the Tribunal has recognised and accepted the existence of the United Nations common system and respected its objectives. However, the existence of the United Nations common system and a desire to maintain its integrity should not, in itself, compromise the Tribunal’s adjudication of individual disputes in any particular case or series of cases involving the application of its principles. Indeed, in Judgment 2303, consideration 7, the Tribunal acknowledged the argument of the organization that considerable inconvenience arose from an earlier judgment (Judgment 1713) and it was virtually impossible for the organization to depart from the scale recommended by the ICSC. The Tribunal has to recognise that an organization’s legal obligations arising from the operation of the common system could have legal ramifications for an organization that inform or even determine the resolution of any particular dispute. However notwithstanding these matters, the Tribunal must uphold a plea from a staff member or members if it is established that the organization has acted unlawfully.
Reference(s)
ILOAT Judgment(s): 1713, 2303
Keywords
general decision; icsc decision; competence of tribunal; un common system
Considerations 27-28
Extract:
In ascertaining the ICSC’s powers, the text of the Statute construed purposively is of paramount importance. The text of Articles 10 and 11 is comparatively clear, particularly having regard to the immediate context. The two articles are clearly intended to demark different functions or powers. If the power to determine post adjustments in a quantitative sense is conferred by Article 10(b), then the power is not conferred by Article 11 and, specifically, by the expression “[establishing] the classification of duty stations for the purpose of applying post adjustments”. Each provision is mutually exclusive of the other in the sense that the power to decide in relation to specified matters is conferred by one Article and the power to recommend only in relation to other specified matters is created by the other Article. It is inconceivable that each provision confers a power to address or deal with the same subject matter.
Even if the words “[t]he scales” are intended to qualify not only “salaries” but also “post adjustments”, there is little room to doubt that Article 10(b) is concerned with the quantification of salaries and post adjustments that would be the subject of recommendation. Indeed, Article 12(2) creates an exception to the limitation that the ICSC is only to recommend salary scales. That paragraph confers power to determine salary scales at a particular duty station rather than make a recommendation if requested by the executive head after consultation with staff representatives. The existence of this exception in relation to salary scales and its absence in relation to post adjustments, reinforces the construction of the Statute that the ICSC’s power in relation to the quantification of post adjustments is limited to making recommendations. The Tribunal is satisfied, having regard only to the text of the Statute, that Article 11(c) is not a source of power to make a decision quantifying post adjustments.
Keywords
icsc statute; interpretation
Consideration 31
Extract:
[W]hatever may have emerged systemically by actions of the General Assembly cannot, in the absence of an amendment to the Statute, found an interpretation of the Statute, adopted almost one and a half decades earlier, which is at odds with its terms. Article 30 of the Statute provides that amendments to it are to be made by the General Assembly and are subject to the same acceptance procedure “as the present statute”. Article 1 provides that acceptance involves notification thereof in writing by the executive head of the organization.
Keywords
icsc statute; interpretation
Consideration 32
Extract:
The ICSC did not have power to decide, itself, the amounts of post adjustments with the ultimate consequence that the salaries of Geneva-based officials in the Professional category and above be reduced. The ICSC could only make recommendations and not decide on amounts. That was the preserve of the General Assembly.
Keywords
icsc decision; post adjustment
Consideration 33
Extract:
The scheme of the ICSC’s Statute is relatively clear. On some matters the ICSC is authorised to make a decision. On some matters it is authorised to make a recommendation to the General Assembly. In the latter situation, the reservation of the power to decide to the General Assembly is intended to ensure that the actual decision is made at the highest level. The role of the General Assembly is not intended to be nominal or symbolic. Otherwise there would be no purpose served by conferring on it the power to decide rather than on the ICSC. The General Assembly, obviously aided by the recommendations of the ICSC and the reasons for those recommendations, must give genuine and realistic consideration to the matter on which a decision must be made. If there is information known to the General Assembly that, in a material way, bears upon whether it should accept and act on the recommendation of the ICSC or reject the recommendation, then it must have regard to the information or material.
Keywords
icsc statute
Consideration 33
Extract:
T]he purpose for which the whole scheme of post adjustments was established, namely to give effect to the Noblemaire principle [...], is not to create economies by reducing salary costs even if, in relation to any particular duty station, that is a consequence of the operation of the scheme for the purpose for which it was established.
Keywords
noblemaire principle; salary; post adjustment; un common system
Consideration 42
Extract:
It is necessary to consider what is the appropriate relief. In a number of cases in which the complainants have established that a decision to adjust salaries was unlawful, the order of the Tribunal has been to set aside the impugned decision and to remit the matter to the organization to consider the matter afresh and make a new decision (see, for example, Judgments 1821, consideration 11, and 3324, considerations 22 and 23). However, in the present case, the unlawfulness of the administration’s decision flowed from the unlawfulness of the decision of the ICSC. The decisions to implement ICSC/CIRC/PAC/518 and ICSC/CIRC/PAC/522 are unlawful. The ITU cannot, by a new decision, render the ICSC’s decisions lawful. Accordingly, the ITU should be ordered to reinstate the applicable PAM in place immediately before the decision to reduce salaries was taken and pay the complainants and interveners the salary lost between then and the time the PAM is reinstated, together with interest.
Reference(s)
ILOAT Judgment(s): 1821, 3324
Keywords
icsc decision; post adjustment; compensation; material damages
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