|
|
 |
|
|
Freedom of association (529, 530, 531, 532,-666)
You searched for:
Keywords: Freedom of association
Total judgments found: 31
1, 2 | next >
Judgment 4551
134th Session, 2022
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants contest modifications made with respect to the use of mass emails within the Office.
Judgment keywords
Keywords:
complaint allowed; email; freedom of association; plenary judgment; staff union activity;
Consideration 3
Extract:
The complainants allege an infringement of their rights to freedom of association, communication, and speech, which are granted to individual employees. The Tribunal’s case law holds that each staff member of an international organisation has a right to freely associate and the organisation has a corresponding duty to respect that right. This is a necessary element of their employment (see Judgment 4194, consideration 7; Judgment 911, consideration 3). Each is entitled to commence proceedings intended to defend that right or challenge an alleged breach of it (see Judgment 4155, consideration 2). As a result, it is enough for the Tribunal that the complainants brought their complaints in their capacity as staff members [...].
Reference(s)
ILOAT Judgment(s): 911, 4155, 4194
Keywords:
cause of action; freedom of association;
Considerations 9-10
Extract:
[T]he Tribunal’s case law has long recognised that staff of international organisations have a general right to associate freely. There can be no doubt that freedom of association is a well-recognised and acknowledged universal right which all workers should enjoy. It is recognised as a right by the Tribunal as well as by a large number of international conventions and declarations (see, for example, the 1998 ILO Declaration on Fundamental Principles and Rights at Work, Article 2(a); the 1966 International Covenant on Civil and Political Rights, Article 22; the 1966 International Covenant on Economic, Social and Cultural Rights, Article 8), and by the Administrative Council of the EPO itself, which recognised the importance of human rights when formulating the rights and obligations of staff (see Judgment 4482, considerations 12 and 13). Article 30 of the Service Regulations, entitled “Freedom of association”, provides: “Permanent employees shall enjoy freedom of association; they may in particular be members of trade unions or staff associations of European civil servants”. The role of staff associations or unions is to represent the interests of members primarily in dealing with their employing organisation on issues concerning the staff. Staff associations or unions should be able to do so unhindered or uninfluenced by the Administration of the employing organisation. Were it otherwise, the role would be compromised (see Judgment 4482, consideration 8).
Freedom of association necessarily involves freedom of discussion and debate. In Judgment 274, under 22, the Tribunal stated that “this freedom when feelings run strong [...] can spill over into extravagant and even regrettable language”. Nonetheless, the Tribunal also acknowledged that freedom of discussion and debate is not absolute and that there may be cases in which an Administration can intervene if, for example, there is “gross abuse of the right to freedom of expression or lack of protection of the individual interests of persons affected by remarks that are ill-intentioned, defamatory or which concern their private lives” (see Judgments 2227, consideration 7, and 3106, consideration 8).
The Tribunal’s case law has it that a staff association enjoys broad freedom of speech and the right to take to task the Administration of the organisation whose employees it represents, but that like any other freedom such freedom has its bounds. Thus, any action that impairs the dignity of the international civil service, and likewise gross abuse of freedom of speech, are inadmissible. But the prevention of such abuse cannot give the Administration a power of prior censorship over the communication of written information produced by the groups and associations concerned (see Judgment 911 and Judgment 2227, consideration 7).
In Judgment 3156 the Tribunal held that, in specific cases, a prior authorisation for the dispatching of mass emails could be justified: “The freedom of speech and the freedom of communication [...] are not, however, unlimited. Not only is an organisation entitled to object to misuse of the means of distribution made available to its staff committee [...], but it also follows from the case law [...] that the right to freedom of speech does not encompass action that impairs the dignity of the international civil service, or gross abuse of this right and, in particular, damage to the individual interests of certain persons through allusions that are malicious, defamatory or which concern their private lives. [...] Since organisations must prevent such abuse of the right of free speech, the Tribunal’s case law does not absolutely prohibit the putting in place of a mechanism for the prior authorisation of messages circulated by bodies representing the staff. An organisation acts unlawfully only if the conditions for implementing this mechanism in practice lead to a breach of that right, for example by an unjustified refusal to circulate a particular message” (see Judgment 3156, considerations 15 and 16).
As observed earlier, the right to freely associate is a general right that enshrines more specific rights, which are necessary or useful in order to ensure that the right to freely associate is effective. It includes the rights to freedom of communication, information, and speech in all forms, including discussion and debate (see Judgment 3106, considerations 7 and 8). Such rights are vested not only in their authors (usually the staff representatives), but also in the recipients. The right of each staff member to freely associate also includes their right to freely receive communications and information, and their right to listen to speeches. In this perspective, every limitation to the right of staff representatives to send mass emails to the staff members, is also a limitation to the right of the staff members to receive mass emails.
Free communication, information, and speech also imply:
(i) the right to the confidentiality of communication, information, and speech; and
(ii) the right to freely choose the means by which the communications are sent, information is provided, and speeches are given.
An organisation is entitled to issue reasonable guidelines in order to govern the use of the office emails by staff members and staff representatives, and to establish authorised and non-authorised uses. Insofar as the criteria on the use of mass emails are underpinned by general interests, such as those listed in Communiqué No. 10 of 29 March 2006, they shall be considered lawful, as they ensure a reasonable balance between the interests of the organisation and the fundamental rights to free communication, information, and speech, vested in the staff members and their staff unions and representatives. This general balance should not allow a prior supervision or preventive censorship by the organisation on the content of the communications, information, and speech (see Judgment 2227, consideration 7). However, the Tribunal’s case law considers lawful a mechanism of prior authorisation under exceptional circumstances (see Judgment 3156, considerations 15 and 16 quoted in full in consideration 9 [...]).
Staff members and their representatives are not allowed an indiscriminate and unfettered exercise of their rights to freedom of communication, information, and speech. Their “freedom” must be consistent with the duties of the staff members towards the Organisation and towards fellow staff members. Freedom of communication, information, and speech is not freedom to insult or to offend (see Judgment 3106, considerations 7 and 8). The communication, information, and speech fall within the responsibility of their authors. Those that exceed the boundaries of freedom and fail to respect the duties of a staff member or result in insults or offences should be subject to disciplinary proceedings and sanctions.
Whether a communication, information, or speech violates the duty of the staff members can be established only on a case-by-case basis, and, normally, after the communication, information, and speech are divulged.
Reference(s)
ILOAT Judgment(s): 274, 911, 2227, 2227, 3106, 3106, 3156, 4482
Keywords:
email; freedom of association; freedom of speech; international instrument; staff representative;
Judgment 4550
134th Session, 2022
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the “social democracy” reform introduced by decision CA/D 2/14 and implemented in particular by Circular No. 356.
Consideration 7
Extract:
The Tribunal considers that the Staff Committee, which is the body elected by the staff to represent them before the Office’s bodies, must be free to choose the persons whom it appoints as members of the Appeals Committee, which is an essential joint body. This freedom of choice is one of the components of the staff members’ right to freely associate.
Keywords:
freedom of association;
Consideration 5
Extract:
In support of his claims against decision CA/D 2/14, the complainant argues subsidiarily that this decision was adopted unlawfully because the composition of the General Advisory Committee, which was consulted prior to the deliberation of the Administrative Council, was flawed. However, pleas of this nature cannot be usefully raised in the present proceedings. Indeed, the complainant cannot approbate and reprobate. The invocation of the right to freely associate upon which he wished to engage the Tribunal’s jurisdiction renders irrelevant the question whether the decision was also legally flawed for the other reasons raised by the complainant in this case and therefore shall not be examined by the Tribunal (see above-mentioned Judgment 4482, consideration 6, and Judgment 4483, consideration 6).
Reference(s)
ILOAT Judgment(s): 4482, 4483
Keywords:
consultation; freedom of association; general decision;
Consideration 8
Extract:
[I]t is important to stress first of all that, although the Appeals Committee’s members appointed by the staff representation obviously are not, contrary to the Staff Committee’s members, defending the employees’ interests as a matter of principle, since it is their responsibility – as it is the responsibility of the members of the Appeals Committee appointed by the President of the Office – to examine the appeals before them in compliance with the requirements of independence and impartiality, the very purpose of the joint composition of this body is nevertheless to allow the expression of the respective points of view and sensitivities of the members appointed by the President and by the Staff Committee. The balance between the representation of the Administration and that of the staff within the Appeals Committee is therefore a fundamental guarantee for employees.
Moreover, the Tribunal’s case law requires, to ensure that this guarantee is effective, that this balance be respected not only in terms of the number of members sitting on the Appeals Committee, but also in terms of the quality of the staff representation provided within this body.
Keywords:
freedom of association; internal appeals body;
Judgment keywords
Keywords:
complaint allowed; freedom of association; internal appeals body; plenary judgment;
Consideration 4
Extract:
[A]s the Tribunal has already stated on several occasions, staff members of an international organisation enjoy the right to association freely and there is an implicit clause in their contract of employment compelling the organisation to respect that right (see, in particular, Judgments 496, consideration 6, 3414, consideration 4, and 4482, consideration 5).
Reference(s)
ILOAT Judgment(s): 496, 3414, 4482
Keywords:
contract; freedom of association; terms of appointment;
Judgment 4483
133rd Session, 2022
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the “social democracy” reform introduced by decision CA/D 2/14 insofar as it abolished the Local Advisory Committees.
Judgment keywords
Keywords:
complaint dismissed; freedom of association; general decision; staff representative;
Consideration 6
Extract:
The complainant in these proceedings seeks to impugn decision CA/D 2/14 on the basis that a number of anterior procedural and allied irregularities attended the adoption of the decision and impact on its lawfulness. As noted in another judgment adopted at this session concerning another complainant (see Judgment 4482), these arguments are not available to the complainant in the present proceedings. The complainant cannot approbate and reprobate. The invocation of the right to freely associate upon which he wishes to engage the Tribunal’s jurisdiction renders irrelevant the question whether the decision was legally flawed for the other reasons raised by the complainant in this case. Consequently, there is a legal boundary for arguments the complainant may maintain.
Reference(s)
ILOAT Judgment(s): 4482
Keywords:
complaint; freedom of association; procedural flaw;
Consideration 9
Extract:
There can be no doubt that effective consultation with staff is a desirable objective recognised in a number of judgments of the Tribunal (see, for example, Judgment 4230). But the right to freely associate fundamentally concerns the right of staff to organise themselves, free of interference from the Administration, in order to advance their collective interests which can also involve advancing individual interests though collectively. Ordinarily that would occur through a staff union or staff association (whether recognised in the rules or not, see Judgment 2672, considerations 9 and 10) and by officials representing those bodies. Those interests will include levels of remuneration and terms and conditions of employment and embrace, without describing matters exhaustively, security of employment, safety in the workplace and post-employment income. A necessary incident of freedom of association is that the staff representatives have an opportunity to discuss staff grievances with the administration of an international organisation even if the opportunity is created by strike action (see, for example, Judgment 4435, consideration 9). While bodies such as the LACs and the GAC provided an avenue for consultation and discussion, it was an avenue outside the framework comprehended by the notion of freedom of association. That is because it was not consultation as part of a broader and integrated process of collectively advancing and protecting the interests of staff through staff unions or staff associations but rather was a singular, discrete and, in this sense, isolated process. As a result of decision CA/D 2/14, LSCs continued in name though fundamental and unlawful changes were made to the manner in which members of LSCs were elected, a matter addressed in another judgment adopted at this session (see Judgment 4482). Nonetheless LSCs were given, by operation of new Article 37 of the Service Regulations, a role at a local level to engage in discussion, on behalf of staff at the local level, about matters including those concerning conditions of employment of those staff. These arrangements are consistent with the right of staff to freely associate, and the abolition of another parallel system of consultation embodied in the LACs did not compromise or deny that right of staff at a local level. In the result, the complainant has not established the abolition of the LACs was unlawful for the reason he advanced.
Reference(s)
ILOAT Judgment(s): 2672, 4230, 4435, 4482
Keywords:
consultation; freedom of association; staff representative; staff union;
Judgment 4482
133rd Session, 2022
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the “social democracy” reform introduced by decision CA/D 2/14.
Considerations 8-9
Extract:
There is a consistent line of case law of the Tribunal which makes clear, in a variety of ways, that organisations should not interfere in the affairs of a staff association or union (however described) and the association or union must have the concomitant right to conduct its own affairs and regulate its own activities (see, for example, Judgment 4043, consideration 13). It also includes the right to freely elect their own representatives. This is so whether the association or union is established and operates under and by reference to staff regulations or came into existence and operates outside the confines of such regulations (see Judgment 2672, considerations 9 and 10). There are obvious reasons for this approach. The role of staff associations or unions is to represent the interests of members primarily in dealing with their employing organisation on issues concerning the staff. Staff associations or unions should be able to do so unhindered or uninfluenced by the Administration of the employing organisation. Were it otherwise, the role would be compromised.
There are other less obvious reasons. A staff association or union is likely to be more robust and thus more effective if the members perceive it to be independent and have confidence in it allied to a sense of ownership of it. Any involvement by the employing organisation in its activities, including elections, would most likely affect that perception and diminish or dampen that confidence and sense of ownership. While this latter reason should not be overstated, it nonetheless should be recognised (see Judgment 403, consideration 3).
Reference(s)
ILOAT Judgment(s): 403, 2672, 4043
Keywords:
freedom of association; staff union;
Consideration 12
Extract:
This case presents a situation where a remedy, which may intrude into the exercise of power by the Administrative Council, is appropriate to protect a fundamental right of a member of staff and, indeed, all members of staff which was a term of their appointment as officials of the EPO. The adoption of those parts of the new rules concerning elections by decision CA/D 2/14 entailed non-observance of that term of appointment. There can be no doubt that freedom of association is a well-recognised and acknowledged universal right which all workers should enjoy. It is recognised as a right by the Tribunal (see Judgment 4194). It is a right recognised in the 1998 ILO Declaration on Fundamental Principles and Rights at Work, Article 2(a), as an obligation for all ILO Member States arising from the very fact of their membership in the ILO. Freedom of association is a right recognised by the 1966 International Covenant on Civil and Political Rights, Article 22, and also by the 1966 International Covenant on Economic, Social and Cultural Rights, Article 8.
Reference(s)
ILOAT Judgment(s): 4194
Keywords:
compensation; freedom of association; ilo instruments; international instrument; terms of appointment;
Judgment keywords
Keywords:
complaint allowed; freedom of association; general decision; plenary judgment;
Considerations 3-5
Extract:
The EPO raises, as a threshold issue, whether the relief sought is within the competence of the Tribunal and the related question of whether the complaint is receivable in all respects. Foundational to this argument is that a member of staff cannot impugn in proceedings in the Tribunal a general decision of the governing organ of an organisation which is regulatory in character unless and until an individual decision which affects the member of staff personally is made based on the general decision.
This issue was recently addressed in several judgments involving the EPO concerning the right to strike, which is an aspect of freedom of association. The following discussion is found in one of those judgments, namely Judgment 4430. There is a long line of Tribunal case law to the effect that a general decision cannot be challenged by a staff member unless and until an individual decision is taken adversely affecting the staff member (see, for example, Judgment 4274, consideration 4). But the Tribunal’s case law contains an exception or limitation. As the Tribunal said in Judgment 3761 at consideration 14: “In general, [an administrative decision of general application] is not subject to challenge until an individual decision adversely affecting the individual involved has been taken. However, there are exceptions where the general decision does not require an implementing decision and immediately and adversely affects individual rights.”
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). This is equally true of the more general right to associate freely (see, for example, Judgments 496, consideration 6, and 3414, consideration 4). As the Tribunal observed in that latter case, all officials of international organisations have a right to associate and an implied contractual term in the appointment of each that the relevant organisation will not infringe that right. Accordingly, the complainant can invoke the Tribunal’s jurisdiction to seek to argue that his rights have been directly affected by the amendments to the Service Regulations effected by the impugned decision.
Reference(s)
ILOAT Judgment(s): 496, 2342, 3414, 3761, 4274, 4430
Keywords:
freedom of association; general decision;
Consideration 15
Extract:
Having regard to the fact that those amendments violated the complainant’s right to freedom of association as already discussed and created this tension, it is appropriate to quash those elements of decision CA/D 2/14 which had this effect, namely the introduction by Article 6 of decision CA/D 2/14 of a new clause (5) of Article 35 of the Service Regulations in substitution for clause 6 of Article 35 of the pre-existing Service Regulations. The central order the Tribunal will make is intended to operate prospectively. That is to say, is intended to operate in relation to future elections but not affect the tenure of staff representatives already elected under the election regime put in place by decision CA/D 2/14. Retrospective operation would create unacceptable legal uncertainty about the actions, including decisions, of staff representatives and committees in the lengthy period since decision CA/D 2/14 was adopted. It is also intended to apply the pre-existing provisions, mutatis mutandis, to the election of staff representatives for the Central Staff Committee and Local Staff Committees as established by decision CA/D 2/14. In this respect, the order revives the pre-existing rules (see Judgment 365, consideration 4). Necessarily the applicable Implementing Rules, Circular No. 355, will have no legal effect.
Reference(s)
ILOAT Judgment(s): 365
Keywords:
compensation; freedom of association; order;
Judgment 4201
128th Session, 2019
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the decision taken by the Executive Committee of the Staff Association to reject his application for legal support in connection with a complaint he had filed with the Tribunal.
Judgment keywords
Keywords:
administrative decision; competence of tribunal; complaint dismissed; freedom of association; ratione materiae; summary procedure;
Judgment 4194
128th Session, 2019
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants challenge the refusal to consult them concerning the use of external contractors.
Considerations 7-9
Extract:
Each staff member of an international organisation has a right to freely associate and the organisation has a corresponding duty to respect that right. This is a necessary incident of their employment (see, for example, Judgment 911, consideration 3). On the assumption that, as an incident of freedom of association, an organisation has a duty to meet or satisfy a staff representative’s legitimate request for information as an element of a broader obligation to consult (see, for example, Judgment 2919, consideration 15), and fails to do so, then a staff representative would, in that individual capacity and on this assumption, have a cause of action to enforce that duty.
There is no issue that, at the time these complaints were filed, each of the complainants had ceased being a member of the Munich Staff Committee even if one or a number may have held another office as a staff representative. Thus, when the proceedings were commenced in the Tribunal, the foundation of their cause of action had been removed. Their complaints are irreceivable.
This is not a barren technical conclusion. If their complaints were receivable, the merits of the case and the grant of relief would depend on the complainants demonstrating an ongoing right to be provided with the information and a right, if it existed, to continue to require the EPO to do what had been earlier requested. An immediate and probably insuperable problem would arise concerning relief if the complainants were able to establish, on the merits, they had been and were entitled to some or all of the information they had sought or had a right to request that certain things be done. But as they are no longer members of the Munich Staff Committee, they are not now entitled to any information of the type sought in the letter of 17 September 2009 nor to assert a right that the EPO do certain things. However this conclusion is not a barrier, more generally, to the enforcement of a right a member of a staff committee may have to be provided with information or a right to require the organisation to act in circumstances where the membership of the committee fluctuates over time. That is because when a staff representative has asserted a right arising from that status, the assertion or vindication of that right in proceedings before the Tribunal can be pursued by a newly elected staff representative as a “successor in title” (see Judgment 3465, consideration 3).
That would ordinarily involve the relevant committee approving the new staff representative assuming the role of the former staff representative. If approval was given then all steps taken by the former staff representative could be treated as steps taken by the new staff representative. In this way, steps taken by the former staff representative to pursue the grievance by way of internal appeal can be treated as steps taken by the new staff representative. The prosecution of a complaint in the Tribunal by the new staff representative would not be defeated by an argument that the new staff representative had not exhausted internal means of redress. She or he would have done so vicariously because of the actions of the former staff representative.
Reference(s)
ILOAT Judgment(s): 911, 2919, 3465
Keywords:
cause of action; duty to inform; freedom of association; internal remedies exhausted; ratione personae; staff representative;
Judgment 4155
128th Session, 2019
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants challenge the decision to allow all staff to vote when members of the Staff Council are elected.
Consideration 2
Extract:
[T]hese proceedings [...] concern fundamentally the right of each staff member to freely associate and the duty of WIPO to respect it which is a necessary incident of their employment (see, for example, Judgment 911, consideration 3). It is a right enjoyed by each of the complainants as a member of the staff of WIPO. Each is entitled to commence proceedings intended to defend that right or challenge an alleged breach of it.
Reference(s)
ILOAT Judgment(s): 911
Keywords:
freedom of association;
Judgment keywords
Keywords:
complaint allowed; decision quashed; election; freedom of association; practice; staff representative;
Considerations 7-8
Extract:
In November 2014, the Director General sent a message to the staff effectively declaring that Staff Regulation 8.1 required all staff to be able to vote in an election for the Staff Council. Thereafter the Administration, guided by an opinion of the JAG, took steps to alter the status quo ante and bring about the election of members of the Staff Council by all staff rather than only those who are members of the Staff Association. [...]
The circumstances prevailing immediately before November 2014 were that the body described in Staff Regulation 8.1 was constituted by members of the Staff Association who had been elected to the Association’s Staff Council under the rules of the Association. This involved, at least implicitly, an acceptance by the Administration that Staff Regulation 8.1 permitted or authorised the constitution of the Staff Council in this way. What, in effect, WIPO has done, is adopt and assert an interpretation of Staff Regulation 8.1 which is partisan in the sense that it is an interpretation which was obviously aimed at disadvantaging the Staff Association and its members, having regard to the long-standing practice concerning the constitution of the Staff Council, and favouring the Administration in the sense that it does not have to deal with individuals, as members of the Staff Council, with, necessarily, what is almost certainly significant authority deriving from the membership of the Staff Association and their election by that membership. This constitutes an abuse of power.
Keywords:
abuse of power; freedom of association; misuse of authority; practice;
Judgment 4148
128th Session, 2019
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decision to impose on her the disciplinary measure of suspension without pay for five working days.
Judgment keywords
Keywords:
complaint allowed; decision quashed; disciplinary measure; freedom of association; suspension;
Consideration 7
Extract:
If comments by a staff member made in the context of a debate about employment matters are defamatory of another staff member (in the sense that the comments have injured a person’s reputation or tarnished her or his good name), the fact that they are defamatory does not, by itself, deny the staff member making the comments the protection afforded by the principle of freedom of association. So much is apparent from the observations of the Tribunal in Judgment 3106, consideration 9. In that judgment the Tribunal noted in consideration 8 (citing Judgment 274, consideration 22) that the existence of a freedom of discussion and debate, inherent in the freedom of association, can have the consequence that when feelings run strong the discussion and debate can spill over into extravagant and even regrettable language. There are, of course, limits on the freedom of discussion and debate that the Tribunal noted in consideration 8 of Judgment 3106. In the present case, the GBA and the Director-General did take into account the complainant’s right to freedom of expression within the umbrella of the freedom of association but found that the language was inappropriate. However, the complainant clearly had strong and not obviously illegitimate views about the procedure finally adopted involving the use of the Clinical Attendance Memo form and the role of the President of the Staff Association as a member of the working group. The complainant was able to criticise him and was not obliged to do so, within the umbrella of the freedom of discussion and debate inherent in the freedom of association, in entirely temperate or polite language. The Tribunal is satisfied that what the complainant said was comprehended by her right to freedom of association and was thus not misconduct.
Reference(s)
ILOAT Judgment(s): 274, 3106
Keywords:
defamation; freedom of association; freedom of speech;
Judgment 4043
126th Session, 2018
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to dismiss him for misconduct.
Consideration 13
Extract:
Ordinarily an international organisation would have no legitimate interest in the lawfulness or otherwise of an agreement between a staff association and its members. As the Tribunal said in Judgment 3106, consideration 7, the principle of freedom of association “precludes interference by an organisation in the affairs of its staff union or the organs of its staff union (see Judgment 2100, under 15). A staff union must be free to conduct its own affairs, to regulate its own activities and, also, to regulate the conduct of its members in relation to those affairs and activities.” This is all the more so if the agreement concerns the funding of legal advice in the pursuit by staff members of grievances against the international organisation. Whether the agreement was lawful or not would be a matter for the parties to the agreement, namely the staff association and the member concerned. The question of lawfulness would only arise if the legal efficacy of the agreement was contested by one of the parties. There is nothing to suggest that either the complainant or Mr C. had any reservations about the legality of the agreement when it was signed and plainly Mr C. was to derive a benefit under it. Moreover, as a matter of principle, there is nothing untoward about a staff association providing funding to a member of the association employed by an international organisation to obtain legal assistance to pursue a grievance against the organisation.
Reference(s)
ILOAT Judgment(s): 2100, 3106
Keywords:
freedom of association;
Consideration 18
Extract:
[T]he complainant was entitled to share the letter with others in SUEPO, as a general critique of the lawfulness of the general agreement. It is well settled that staff representatives must enjoy a broad freedom of speech (Judgment 3156, consideration 12) and it was not unlawful for the complainant, in the circumstances of this case, to disseminate the letter [...] as he admitted doing.
Reference(s)
ILOAT Judgment(s): 3156
Keywords:
freedom of association; freedom of speech; staff representative;
Judgment 4002
126th Session, 2018
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the decision dismissing as clearly irreceivable his grievance complaint against several members of the Staff Council.
Judgment keywords
Keywords:
complaint dismissed; freedom of association; staff representative;
Considerations 7-8
Extract:
In Judgment 3106, under 7 and 8, the Tribunal discussed the principle of freedom of association and the implications of that principle in terms of the relationship between an organization and the staff union. The Tribunal observed:
“[T]hat principle has two important aspects. The first is that it precludes interference by an organisation in the affairs of its staff union or the organs of its staff union (see Judgment 2100, under 15). A staff union must be free to conduct its own affairs, to regulate its own activities and, also, to regulate the conduct of its members in relation to those affairs and activities. [...] Further, an organisation must remain neutral when differences of opinion emerge within a staff union: it must not favour one group or one point of view over another. To do so would be to diminish the right of a staff union to conduct its own affairs and to regulate its own activities. Nor does an organisation have any legitimate interest in the actions of staff members in their dealings with their staff union and/or other staff union members with respect to the affairs and activities of the union. Thus, it was said in Judgment 274, under 22, that ‘[a] staff member’s conduct of [his] private life is not the concern of the Director-General [unless it] brings the Organization into disrepute’, and that trade union activities ‘likewise constitute an area that is ““prima facie”” outside the Director-General’s jurisdiction’, although ‘there may be exceptional cases’.
The second aspect of freedom of association [...] is that it necessarily involves freedom of discussion and debate. [...] This notwithstanding, the Tribunal has acknowledged that the freedom of discussion and debate is not absolute and that there may be cases in which an organisation can intervene if, for example, there is ‘gross abuse of the right to freedom of expression or lack of protection of the individual interests of persons affected by remarks that are ill-intentioned, defamatory or which concern their private lives’ (see Judgment 2227, under 7). [...]”
In the present case, given that the actions at issue were all taken by the Staff Council in the context of the regulation of its own activities and the regulation of the conduct of one of its members, a consideration of the merits of the grievance complaint was clearly beyond the mandate of the JGP. Moreover, a consideration of the merits by the JGP would have violated the principle of freedom of association.
Reference(s)
ILOAT Judgment(s): 274, 2100, 2227, 3106
Keywords:
freedom of association;
Judgment 3504
120th Session, 2015
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to authorise his participation, in his capacity as a staff representative, in a workshop and training course organised by the Federation of International Civil Servants’ Associations.
Judgment keywords
Keywords:
complaint dismissed; freedom of association; staff representative; training;
Judgment 3414
119th Session, 2015
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant unsuccessfully challenges the decision to remove his name from an e-mail distribution list on the ground that he had been released from his regular duties to work as President of the Staff Council.
Judgment keywords
Keywords:
complaint dismissed; freedom of association; staff representative;
Consideration 4
Extract:
"[I]t has long been recognised that all officials of international organisations have a right to associate and an implied contractual term in the appointment of each that the relevant organisation will not infringe that right (see, for example, Judgment 496, consideration 6). Moreover the principle of freedom of association is infringed if a person is subject to detriment or disability because of her or his activities within a staff association or the Staff Council (see, for example, Judgments 2704, consideration 6, and 3084, consideration 19). In the present case the complainant does contend he is being discriminated against and this has arisen by virtue of him occupying the office of President of the Staff Council. This plea is sufficient to engage the jurisdiction of the Tribunal. It is, of course, another question whether this plea can be made on the facts. But the Tribunal is competent to hear the complaint and rejects the IAEA’s contention that it is not."
Reference(s)
ILOAT Judgment(s): 496, 2704, 3084
Keywords:
competence; freedom of association;
Judgment 3106
113th Session, 2012
United Nations Industrial Development Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Judgment keywords
Keywords:
complaint allowed; decision quashed; freedom of association;
Consideration 7
Extract:
The principle of freedom of association "precludes interference by an organisation in the affairs of its staff union or the organs of its staff union (see Judgment 2100, under 15). A staff union must be free to conduct its own affairs, to regulate its own activities and, also, to regulate the conduct of its members in relation to those affairs and activities. Thus, it was said in Judgment 274, under 22, that “[t]here could be no true freedom of association if the disapproval of the Director General, whether justified or not, of what was said [in an open letter issued in connection with a staff union referendum] could lead to disciplinary measures”. Further, an organisation must remain neutral when differences of opinion emerge within a staff union: it must not favour one group or one point of view over another. To do so would be to diminish the right of a staff union to conduct its own affairs and to regulate its own activities. Nor does an organisation have any legitimate interest in the actions of staff members in their dealings with their staff union and/or other staff union members with respect to the affairs and activities of the union. Thus, it was said in Judgment 274, under 22, that “[a] staff member’s conduct of [his] private life is not the concern of the Director-General [unless it] brings the Organization into disrepute”, and that trade union activities “likewise constitute an area that is ‘prima facie’ outside the Director- General’s jurisdiction”, although “there may be exceptional cases”."
Reference(s)
ILOAT Judgment(s): 274, 2100
Keywords:
breach; competence; conduct; difference; disciplinary measure; executive head; freedom of association; organisation's duties; organisation's interest; organisation's reputation; outside activity; right; staff union; staff union activity;
Consideration 8
Extract:
The second aspect of freedom of association that is relevant to the present case is that it necessarily involves freedom of discussion and debate. It was pointed out in Judgment 274, under 22, that “this freedom, when feelings run strong [...] can spill over into extravagant and even regrettable language”. This notwithstanding, the Tribunal has acknowledged that the freedom of discussion and debate is not absolute and that there may be cases in which an organisation can intervene if, for example, there is “gross abuse of the right to freedom of expression or lack of protection of the individual interests of persons affected by remarks that are ill-intentioned, defamatory or which concern their private lives” (see Judgment 2227, under 7). Within this context, it is convenient to consider the allegedly defamatory nature of the e-mail in question.
Reference(s)
ILOAT Judgment(s): 274, 2227
Keywords:
defamation; definition; freedom of association;
Judgment 3084
112th Session, 2012
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 19
Extract:
"[A]n organisation must ensure that a staff member is not disadvantaged on the grounds of his or her participation in staff representation activities."
Keywords:
equal treatment; freedom of association; organisation's duties; staff representative; staff union; staff union activity;
Judgment 2827
107th Session, 2009
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 4
Extract:
"The EPO contends that the complaints are irreceivable ratione materiae on the basis that the implied decision refusing to provide the complainants with the requested information is not a "decision relating to a specific individual" for the purposes of Article 106 of the Service Regulations. It was pointed out in Judgment 1542 that: "a complaint is receivable only if it is about an individual official's status as an employee of the organisation, not about the collective interests of trade unionists." It is well settled that a complaint may concern breach of the Service Regulations (see Judgment 1147) or other guarantees that the EPO is bound to provide to its staff (see Judgment 2649). Those guarantees extend to freedom of association and collective bargaining insofar as they are implicit in the Service Regulations. With respect to collective bargaining, it is sufficient to note that Article 34(1) mandates that the Staff Committee "shall represent the interests of the staff and maintain suitable contacts between the competent administrative authorities and the staff" and that Article 36(1) enables it to "mak[e] [...] suggestions relating to [...] the collective interests of the whole or part of the staff". However, the rights that are comprehended within the notions of "freedom of association" and "collective bargaining" that may also be the subject of an internal appeal and, subsequently, of a complaint to the Tribunal are individual rights inhering in individual staff members."
Reference(s)
Organization rules reference: Articles 34, 36 and 106 of the Service Regulations for Permanent Employees of the EPO
ILOAT Judgment(s): 1147, 1542, 2649
Keywords:
collective bargaining; collective rights; complaint; decision; freedom of association; individual decision; organisation's duties; receivability of the complaint; right; staff representative; staff union; staff union activity;
Judgment 2704
104th Session, 2008
United Nations Industrial Development Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 6
Extract:
"The principle of freedom of association is infringed if a person is subject to a detriment or disability or is discriminated against because of his or her activities within a staff association or [...] within the Staff Council."
Keywords:
breach; cause; condition; equal treatment; freedom of association; general principle; injury; official; staff union; staff union activity;
Judgment 2672
104th Session, 2008
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations 9-10
Extract:
"A staff association or union is, in essence, a voluntary association of employees and/or others in a relationship pursuant to which they perform services by way of personal exertion, who have agreed together to act collectively [...] to protect and promote their industrial interests. The powers of the association may extend to the protection and promotion of the industrial interests of those who are eligible to belong to the association. Many countries require other formalities including, sometimes, registration under the relevant domestic law. Those laws cannot apply to a staff association or union the membership of which is restricted to international civil servants. However, that is not to say that no formality is necessary for the formation of a staff association or union representing international civil servants.
For the creation of a staff association or union representing international civil servants, there must, at the very least, be some means of identifying the agreement voluntarily to associate for the purpose of protecting and promoting the industrial interests of members, the terms of that agreement and the means by which it may be varied, both in relation to individual employees and the purposes or objects of the association. [...] [B]ecause it is a voluntary association, there must be an agreement as to the persons by or through whom the association acts, the means by which those persons are selected or elected, the matters in respect of which they have authority to act and the powers that they have in relation to those matters. In the absence of agreement as to each of those matters, the agreement to associate would, in accordance with general principles of law, be void for uncertainty. And to have an agreement covering those matters, there must be rules incorporated in a charter, a statute or some other document to which the members subscribe and by which they agree to be bound."
Keywords:
applicable law; collective bargaining; collective rights; effect; freedom of association; freedom of speech; general principle; staff claim; staff representative; staff union agreement; written rule;
Judgment 2493
100th Session, 2006
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
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 2459
99th Session, 2005
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 7(a)
Extract:
"The complainants have filed three separate complaints. Each of them asserts that she is acting to defend her own personal freedom of association. This is sufficient to establish that, contrary to the defendant's view, the case does not in fact concern class actions which the Tribunal has no jurisdiction to hear, bearing in mind that Article II of the Statute of the Tribunal makes provision for a system of individual appeals (see Judgment 1392, under 24)."
Reference(s)
ILOAT reference: Article II of the Statute
ILOAT Judgment(s): 1392
Keywords:
collective rights; competence of tribunal; complaint; difference; freedom of association; iloat statute;
Judgment 1806
86th Session, 1999
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations 15-17
Extract:
The Tribunal does not support the practice of the organization of not letting employees in the personnel unit hold office on the Staff Committee in order to avoid any risk of conflict of interest. The decision to offer the complainant a post in the personnel unit should never have been attached to the condition of resigning as president of the Staff Association. "It is important both to protect the right of association and to maintain a staff association's independence."
Keywords:
condition; freedom of association; offer; organisation's duties; post; practice; staff representative; staff union; staff union activity;
1, 2 | next >
|
|
|
|
|
