There are three distinct phases of international civil service law: litigation, administrative decisions, and rule making.
While the first two phases receive most of the attention from employees of international organizations, their staff associations and UN attorneys, rule making receives less emphasis. However, today's new rules will determine the rights of staff members and international civil servants tomorrow!
To better claim their rights in the future, staff members of international organizations and the United Nations must help shape their employers’ policies.
Nothing in this article is legal advice. When in doubt review the relevant rules of your international organization, as rules vary, and seek legal advice.
What is International Civil Service Law?
During the course of their careers, employees of international organizations - such as the World Health Organization, World Trade Organization, International Federation for the Red Cross, World Food Programme and the United Nations - may unfortunately have disputes with their employer about the terms and conditions of their contracts. The body of law that determines these disputes is referred to as international civil service law.
International labour law courts such as the International Labour Organization Administrative Tribunal, United Nations Appeals and Dispute Tribunal, and World Bank Administrative Tribunal apply this law to individual disputes.
The sources of the law applied by these courts are the international organization’s Staff Regulations and Staff Rules, its administrative procedures and issuances, and the body of caselaw already established by these tribunals. UN attorneys and private lawyers litigate in front of these tribunals.
The 3 Phases of International Civil Service Law
International civil service law has three distinct phases: litigation; administrative decisions; and rule making. Each phase is concerned with a different period of time.
Litigation Judges the Past
Litigation enables staff members' disputes with their organization to be resolved by a judge. The judge finds the facts and examines them against the rules that the organization has put in place. A court’s judgment produces legal certainty, meaning that it will be binding on the parties involved. The judgment might also set a precedent for others. (In many specialized international organizations, a peer-review process known as an internal appeal takes place before the dispute can be raised to the court.)
In short, litigation judges the past.
It is purely retrospective because only the past is scrutinized. It is also retrospective because in most cases the organization will have already taken the action that the staff member had wished they would have avoided in the first place.
For instance, in litigation relating to selection processes, someone else will have been chosen in the staff member’s place for a desired role. This person may now be discharging the functions of the position. Consequently, it may not be feasible to place the staff member back in the place in which the employee would have been had the organization not broken the law.
Similarly, when we consider the abolition of posts, staff members will already have been removed from their roles by the time the dispute is resolved through litigation. This makes reintegration into an employee's former role oftentimes impractical from an operational perspective – even if a legal challenge is successful.
The normal remedy in litigation is financial, which might not fully repair the harm that the staff member suffered.
Additionally, litigation for UN employees is usually individualized. Sometimes similarly situated employees may have their case joined together in a class action lawsuit, but this is an exception.
Finally, filing a lawsuit is inherently adversarial. One side will win at the expense of another. Once litigation begins, the relationship of trust and good faith between the staff member and the organization can become strained. Staff members frequently need to seek support and be courageous to follow through with litigation.
Lawyers and UN attorneys should usually be involved once staff members litigate before international administrative tribunals and internal appeal boards. They play a fundamental role in ensuring that a staff member’s rights are properly claimed.
Administrative Decisions Determine the Present
In contrast to litigation, administrative decisions determine the present.
This phase is bureaucratic. UN officials such as human resources personnel, directors and other decision-makers of international organizations must apply their organization’s policies to a specific situation.
The definition of an administrative decision is exceedingly broad. It is any act by an officer of an organization that has a legal effect. A legal effect means there is a direct impact on you as an employee of a UN entity (i.e., an impact on your contract or the conditions of your employment).
As Stafflawyer has explained, administrative decision-makers possess “discretionary authority”, which means that they have the freedom to act and choose among a range of acceptable outcomes.
The main constraint on this decision-making authority is the organization's own rules. Another important constraint is that a decision-maker must properly examine the facts upon which they are basing a decision.
Generally speaking, while litigation is adversarial, the administrative decision-making process can be collaborative. Shrewd decision-makers will take the temperature of the room before exercising their authority. Nevertheless, administrative decisions are frequently taken without full regard to the interests of the staff members concerned, which is a major cause of workplace conflict.
In most international organizations, a process of “administrative review” (in organizations such as the World Health Organization and others) or “management evaluation” (in the United Nations system) allows the organization to reexamine a decision that has recently been taken, sometimes permitting the decision to be corrected even before it is implemented.
Nevertheless, many organizations that conduct administrative reviews uphold the vast majority of the decisions which are reviewed. These reviews instead serve the purpose of a necessary step on the path towards litigation.
Lawyers and staff representatives therefore play an important role in helping staff members persuade an organization’s decision-makers to adopt favorable administrative decisions.
Rule Making Shapes the Future
Rule Making is entirely future-focused.
The rights of staff members tomorrow will be determined by the rules created today.
Thus, rule making shapes an organization’s future actions towards its personnel.
This is because a fundamental principle of law is that international organizations are obliged to follow the rules that they themselves have adopted.
Unlike the first two phases, rule making should always be collaborative and consultative, involving analysis, strategic planning and input from an organizations employees and its staff associations.
In fact, nearly every international organization has adopted a duty of consultation as part of their Staff Regulations and Staff Rules. For example, the ILO Staff Regulations list 41 instances in which the organization may set rules "after consulting the Joint Negotiating Committee." This committee was established by the ILO as the forum for discussion and agreement on major collective issues affecting personnel.
ILOAT caselaw also states that organizations must duly consult their staff before making rules. Proper consultation must allow a reasonable amount of time for a staff association to discuss the issue, have its important questions answered and to provide reasoned advice or recommendations, and for the decision maker to take that advice into consideration before taking a final decision.
The rule making phase results in the adoption of rules or procedures that will impact all similarly situated staff members in the future.
For example, in many organizations, a staff member will be charged with non-cooperation (a separate form of misconduct) if they refuse to participate in an investigative interview seeking evidence of their own misconduct. The ILOAT has not to date enshrined a right for staff members accused of misconduct to have the right to remain silent.
To fill this gap in due process, at the urging of staff, the European Patent Office promulgated a rule enabling staff members to be protected from the right of self-incrimination, by allowing them to remain silent when questioned on matters concerning their own misconduct. The EPO Staff Association therefore used the rule making process to proactively strengthen the due process rights of staff.
7 Best Practices for Rule Making
Staff associations can strengthen the rights of staff by focusing on rule making.
Seven best rule making practices for staff members and staff associations are listed below.
7 Best Practices for Rule Making:
- Consistently propose new rules to management, don't wait for management to make new rules;
- Ensure full respect for consultative rights by the employer. Any failures to consult must be documented in writing;
- Adopt coherent negotiating tactics when management consults staff on possible rule changes;
- Express constructive dissent in writing towards adverse rule making;
- Establish a clear written record of reasoned staff objections for any future staff litigation;
- Be optimistic. Use adverse rule proposals as an opportunity to demand other positive rule changes in exchange;
- Collaborate with other staff associations and private sector unions to ensure rule making reflects evolving employee rights.
Stafflawyer believes that rule making is one of the most effective ways to improve overall staff wellbeing.
Ideally, to ensure effective rule making a staff association will benefit from collaboration with experienced legal counsel, negotiators and policy personnel.
Under international law, we refer to the persistent objector doctrine which requires a country to be persistent and consistent in objecting to the development of an adverse rule. Similarly, it is critically important for staff and their unions to sufficiently invest in loudly expressing their views towards favorable rule making, as well as their opposition to adverse rule proposals.