Contractual Rights of GS/OAS Staff Members to Parity with ...



Contractual Rights of GS/OAS Staff Members to Parity with the United Nations, and the Right to Due Process with Respect to any Proposed Departure from that System of Parity

Despite repeated decisions of the OAS Administrative Tribunal holding that the salary system under which GS/OAS staff members are paid constitutes an essential part of staff members' contracts with the General Secretariat, the Organization has, on prior occasions, sought to unilaterally depart from the existing system of remuneration.

In 1978[1], with regard to a claim brought by GS/OAS staff members complaining of the Organization’s failure to pay staff members according to the then in force system of parity with the United Nations[2], the Tribunal held that decisions of the OAS General Assembly form part of the contracts with staff members and may not be rescinded unilaterally.

With regard to modification of the Organizations' salary system, the Tribunal stated in Judgment No. 64[3], that "it is truly difficult to imagine any aspect of the employment relationship that could be considered more important than remuneration in general and salaries in particular. From this it follows that the system of remuneration must be considered as constituting an essential element of the employment relationship between the Complainants and the General Secretariat."

While the Tribunal went on to affirm the power of the OAS General Assembly (as the supreme decision-making body of the Organization) to set salaries, it also stated that "a reduction in salaries, when made unilaterally by the employer as in the present case, without the consent of the employees, constitutes a manifest disregard for the proper balance of the employment relationship, which cannot be justified in even the most difficult situations, since the General Secretariat has the possibility in such cases of using other legal means for dealing with them."[4]

Consequently, the OAS salary and emoluments system that replaced the system of parity with the United Nations between the years 1983 through 1994 (the "Comparator Index"), was approved by GS/OAS staff members via referendum prior to the implementation of the new system, as provided for by AG/RES 1319 (XXV-O/95).

In 1991, GS/OAS staff members filed a complaint with the Tribunal based on the OAS General Assembly's failure to fully apply the Comparator Index since its inception. In the resulting Judgment[5], the Tribunal once again held that the salary paid to staff members is a basic or essential element of the individual employment contract. Moreover, the Tribunal held that the existing system was unconditional and could "be eliminated or amended only if the standards and principles of due process are followed or by an agreement between the Organization in its capacity as employer and its staff or employees."[6] The Tribunal went on to rule that the financial resources of the Organization must be used to pay as a priority what is owed to staff members.[7]

Discussing the ability of the Organization to pay the corresponding salaries, the Tribunal stated that "the loss or change of a subjective right must always be preceded by the standards and principles of due process. Likewise, in the event that the subjective right is revoked for reasons of public interest, the person who stands to lose the right must first be heard and convinced, and if the decision is ultimately adopted, it must provide for the payment of damages."[8]

This reasoning by the Tribunal is properly aligned with the right to due process contained in the American Convention on Human Rights, which establishes the right to due process with respect to the determination or rights and obligations of a civil, labor, fiscal, or any other nature.[9]

Consequently, in its decision, the Tribunal held that in cases of force majeure or in extraordinary financial circumstances which prevent the OAS from paying salaries under any system agreed upon with staff members, "an individual credit on behalf of each creditor employee shall be opened, which shall be eliminated when the funds necessary to pay the amount owed become available and such payment is made."[10]

As a result of the above ruling, the decision to return to a system of parity with the United Nations, adopted by the OAS General Assembly in 1995, was not implemented until it had been approved by the staff members via referendum.

The right to proper remuneration is a basic human right, encapsulated by such international treaties as the American Declaration on the Rights and Duties of Man, Article XIV of which reads as follows:

Every person who works has the right to receive such remuneration as will, in proportion to his capacity and skill, assure him a standard of living suitable for himself and for his family.

In addition, the Article 7 of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights "Protocol of San Salvador", provides in pertinent part:

"The States Parties to this Protocol recognize that the right to work to which the foregoing article refers presupposes that everyone shall enjoy that right under just, equitable, and satisfactory conditions, which the States Parties undertake to guarantee in their internal legislation, particularly with respect to:

a. Remuneration which guarantees, as a minimum, to all workers dignified and decent living conditions for them and their families and fair and equal wages for equal work, without distinction"

The system of parity with the United Nations, which is currently applicable to GS/OAS staff members, is in place specifically for the purpose of guaranteeing that staff members receive fair remuneration for service performed. In the past, the Organization has recognized the need for the periodic adjustment of salaries, to meet the rising cost of living resulting from inflation and other economic factors.

Maintaining parity with the United Nations assures that a proper calculation of these economic factors is performed with regard to the levels of remuneration, while at the same time, freeing the OAS itself of the costly process of carrying out these calculations Parity with the United Nations also allows the General Secretariat to forego the expense of maintaining a separate salary survey.  

In addition, the recent Administrative Study prepared by Deloitte & Touche, discussing the issue of parity with the United Nations, concludes that OAS staff members' compensation levels are consistent with the market and recommended that the OAS continue to use the United Nations compensation system.

To recap, aside from the inherent advantages of maintaining the system of parity with the United Nations, the jurisprudence of the OAS Administrative Tribunal clearly establishes that (1) the remuneration system under which GS/OAS staff members are paid is a contractual right, and thus payment under those terms is a legal obligation of the Organization; (2) any departure from the existing system must not be made unilaterally by the OAS; and (3) GS/OAS staff members must agree to any such departure from the existing system of salary and benefits, and/or on the implementation of any proposed new system.

Pursuant to Article 51 of the Rules of Procedure of the Administrative Tribunal, decisions of the Tribunal are binding upon all parties. Accordingly, the OAS General Secretariat is bound by previous Tribunal jurisprudence, and should consult with and give GS/OAS staff members the right to be heard with respect to any change to the existing system of remuneration, such as a proposed moratorium on increases to staff members' salaries. In addition, unless the staff members were to agree to any such moratorium, its implementation would not legally eliminate the Organization's obligation to pay the salary increases corresponding to parity with the United Nations, albeit retroactively once the financial situation of the Organization improves.

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[1] See OASAT Judgment No. 37, Sara Buchholz et al., Beatriz Perazzo et al., and Linda Poole et al. v. Secretary General of the Organization of American States (1978). See also, OASAT Decision No. 38, Xavier Cortina et al. v. Secretary General of the Organization of American States (1978).

[2] This system of parity had previously been established by the OAS Permanent Council and adopted by the OAS General Assembly.

[3] Anna Chisman et al. and George P. Montalván et al. v. Secretary General of the Organization of American States (1982), at paragraph 39. See also, OASAT Decision No. 86, Félix E. Hurtado de Mendoza v. Secretary General of the Organization of American States (1985) and No. 91, Hugo D. Valverde et al. v. Secretary General of the Organization of American States (1985).

[4] See Judgment No. 64, ibid, at paragraph 52.

[5] See OASAT Judgment No. 124, Jairo Torres et al. v. Secretary General of the Organization of American (1994), at paragraph

[6] See Judgment No. 124, ibid, at resolutive paragraph 5.

[7] Ibid, at resolutive paragraph 6.

[8] Ibid, at point "XV".

[9] The full text of Article 8(1) of the Convention provides: "Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights and obligations of a civil, labor, fiscal, or any other nature."

[10] Ibid, at resolutive paragraph 7.

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