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Strike (522, 523,-666)
You searched for:
Keywords: Strike
Total judgments found: 27
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Judgment 4631
135th Session, 2023
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 and the decision to issue him a reprimand for subsequent unauthorised absences on days when he was likewise participating in strikes.
Judgment keywords
Keywords:
complaint dismissed; moral injury; strike;
Judgment 4630
135th Session, 2023
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.
Judgment keywords
Keywords:
claim moot; complaint dismissed; intervention; strike;
Judgment 4629
135th Session, 2023
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants challenge the decision to treat their participation in a strike as an unauthorised absence.
Judgment keywords
Keywords:
claim moot; complaint dismissed; intervention; strike;
Judgment 4626
135th Session, 2023
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the rules introduced with effect from 1 July 2013 governing the exercise of the right to strike at the European Patent Office.
Judgment keywords
Keywords:
complaint dismissed; moral injury; strike;
Judgment 4562
134th Session, 2022
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants challenge the deductions from their remuneration that were made in respect of their absences for strike participation as well as the lawfulness of the general normative decisions on which those deductions were based.
Judgment keywords
Keywords:
claim moot; complaint dismissed; moral damages; strike;
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; strike;
Judgment keywords
Keywords:
complaint allowed; deduction; hidden disciplinary measure; right to strike; salary; strike;
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; 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; 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; strike;
Judgment keywords
Keywords:
complaint allowed; decision quashed; right to strike; 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 [in question] 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; strike; threat;
Judgment keywords
Keywords:
complaint allowed; decision quashed; deduction; right to strike; salary; strike; 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; 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; 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; strike;
Judgment keywords
Keywords:
complaint allowed; right to strike; 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; 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; 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; 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; 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; 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; 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 8
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; strike; unequal treatment;
Judgment keywords
Keywords:
complaint allowed; decision quashed; deduction; right to strike; salary; strike;
Judgment 4421
132nd Session, 2021
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the deductions made from her remuneration in respect of her absences due to participation in strikes.
Judgment keywords
Keywords:
complaint allowed; deduction; right to strike; salary; strike;
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; strike;
Judgment 3691
122nd Session, 2016
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants challenge the salary deductions made following their participation in strikes.
Judgment keywords
Keywords:
complaint allowed; decision quashed; joinder; right to strike; strike;
Consideration 8
Extract:
Employees on strike must be considered to be in service with regard to social security coverage and the days of strike are counted as regular days with regard to the accumulation of pension.
Keywords:
deduction; right to strike; salary; strike;
Consideration 6
Extract:
[T]he complainants claim that the salary deductions, made as a consequence of their participation in the strikes, were not made in good faith and should be reimbursed as the strikes were rendered pointless by the unlawfulness of the decision. This claim is unfounded. The salary deductions were the necessary consequence of the complainants’ participation in the strikes in accordance with the principle of payment for services rendered. The reasons for the strikes and the complainants’ individual decisions to participate in the strikes are irrelevant. The deductions “merely give effect to a general rule, lawfully applied in the Organisation, which does not allow remuneration to be paid for services not rendered” (see Judgment 2516, consideration 6).
Reference(s)
ILOAT Judgment(s): 2516
Keywords:
deduction; right to strike; salary; 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;
Consideration 7
Extract:
"[T]he decision taken by the EPO to apply a deduction of one twenty-fourth was due to the calculation, based on arithmetically irreproachable principles, that the complainant had absented herself, while participating in an eight-hour strike, for a period equivalent to 1.25 of her average working day, having regard to the specific terms of her part-time employment regime. In so doing, the EPO sought to implement an approach based on proportionality which led it to conclude, as stated in its submissions, that the remuneration of an employee who is absent due to a strike must be reduced by an amount equivalent to the duration of such absence as a proportion of the employee’s normal working hours.
Such an approach is certainly quite understandable in terms of equity and expediency. However, the Tribunal is bound to observe ...] that this approach is legally inconsistent with the applicable statutory provisions, which are based on a different perspective in this regard."
Keywords:
deduction; right to strike; strike;
Consideration 17
Extract:
"[The Tribunal] has already ruled that the various allowances paid by the EPO to its employees, including the dependants’ allowance, are in fact subject to a deduction in the event of a strike under the same conditions as the basic salary (see Judgments 1041, under 3 and 4, and 1333, under 3, also referred to on this issue in Judgments 1567, under 4, and 1658, under 6).
Noting that, according to paragraph 2 of Article 64 of the Service Regulations, “[r]emuneration shall comprise basic salary and, where appropriate, any allowances”, the Tribunal held that the “remuneration” referred to in aforementioned subparagraph 1(b) of Article 65, from which deductions may be made, must perforce be understood as including such allowances.
Moreover, the fact that the dependants’ allowance consists of a lump sum is not in itself sufficient to exclude it from any application of the principle, embodied in the Tribunal’s case law, according to which remuneration is due only for services rendered (on this point see Judgments 566, under 3, 615, under 4, and 616, under 4)."
Reference(s)
ILOAT Judgment(s): 566, 615, 616, 1041, 1333, 1567, 1658
Keywords:
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 2440
99th Session, 2005
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations 8-9
Extract:
An international organisation cannot presume that a staff member participated in industrial action, and withold part of his/her salary, if it does not have proof of his/her participation in the collective actions.
Keywords:
deduction; entitlement for service rendered; evidence; organisation's duties; participation; right to strike; salary; strike;
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;
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