Judgment No. 37
Complaints No. 63, 65, and 66
Sara Buchholz et al., Beatriz Perazzo et al., and Linda Poole et al. v. Secretary General of the
Organization of American States
THE ADMINISTRATIVE TRIBUNAL OF THE ORGANIZATION OF AMERICAN STATES,
Composed of Alejandro Tinoco, President; Francisco José Guerrero, Vice President; and Humberto
García Ortiz, Judge,
Has before it for judgment the proceedings on the complaints entered by Sara Buchholz et al., Beatriz
Perazzo et al., and Linda Poole et al. against the Secretary General of the Organization of American
States.
The Complainants were represented by Juan F. Bauta, attorney (Buchholz), and Ovidio Martínez,
attorney (Perazzo and Poole), and the Secretary General by Robert M. Carswell, attorney of the
Department of Legal Affairs of the General Secretariat, all in conformity with Article 22 of the Rules
of Procedure of the Tribunal.
WHEREAS:
I. On June 27, 1978, the attorney for Sara Suárez de Buchholz, Ruth Marie Connolly, Mirtha
Araujo, and Miriam Castellón; on July 31, 1978, the attorney for Beatriz Perazzo and 12 other staff
members, and on August 18, the attorney for Linda Poole and 318 staff members, filed complaints
against the Secretary General of the Organization of American States, as authorized by the Statute of
the Administrative Tribunal. All the Complainants stated that in filing this brief they were making use
of their right to take action against the Secretary General's noncompliance with the conditions set
forth in their letters of appointment, which are being violated by the payment of salaries and, where
applicable, post adjustments that are less than they should be according to the Staff Rules and other
provisions. After complying with the requirements as to their personal and official status, the
Complainants stated:
That by resolution of the Permanent Council of the OAS, adopted on July 22, 1969, it was
decided:
To establish for staff members of the Secretariat, as of July 1, 1969, the scales of salaries and post
adjustments prevailing in the United Nations. . . .
That the General Assembly, by resolution AG/RES. 5 (I-E/70), adopted in July 1970, confirmed
the existing scales of salaries and post adjustments for OAS employees. Rule 103.1 of the Staff Rules
that entered into force on January 1, 1971, contained the following provision:
In furtherance of the principle of maintaining parity with the United Nations on salary matters, the
standard salary scales of the United Nations shall be used by the General Secretariat.
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That Rule 103.1 of the Staff Rules now in force, which went into effect on January 1, 1975,
provides that:
In order to maintain parity with the United Nations, the General Secretariat shall use the salary scale
of that Organization to establish and revise the salary scale of the staff of the General Secretariat.
That in resolution AG/RES. 258 (VI-0/76) of the General Assembly, adopted at the sixth regular
session held in June 1976, it was decided:
To maintain the principle of parity with the United Nations in the salaries of the OAS staff members
at headquarters and in the field. . . .
That the amount of the salaries and post adjustments they are being paid is less than it should be
according to the scales in effect at the United Nations.
That the right to be paid salaries and, where applicable, post adjustments that correspond to the
United Nations scales is an employment right that forms part of their contracts and therefore may not
be modified or eliminated without the Complainants' express consent. By failing to pay them their
salaries and post adjustments in the proper amount, the Secretary General is violating their contracts
with the General Secretariat. The very serious financial injury that is being inflicted on them by the
violation of their contracts is described extremely well in the document "Salaries and Benefits in the
OAS General Secretariat, the United Nations and the U.S. Civil Service: A Comparative Study by the
OAS Staff Committee."
That they pray the Tribunal:
a. To order oral proceedings.
b. To declare that parity with the United Nations in remunerations and working conditions in the OAS
General Secretariat is a contractual stipulation that since July 7, 1970, the date on which the General
Assembly of the Organization adopted resolution AG/RES. 5 (I-E/70), forms part of each of the
contracts that govern the employment relations between the OAS and its officers and employees.
c. That the obligation claimed by the Complainants is the payment of the total remuneration to which
they are entitled under their employment contracts at the same levels and in the same amounts that the
United Nations pays its professional and general services personnel, which, as a contractual
stipulation, is an employment obligation that must be honored by the Organization of American
States.
d. To declare that on the basis of the facts alleged and proven in the present complaint, the
Organization of American States and the General Secretariat of the OAS, which is its central,
permanent organ, have not fulfilled their obligations with respect to parity with the United Nations in
the total remuneration that should have been paid to the professional and general services staff since
January 1, 1978.
e. To order the Secretary General of the OAS to effect the operations and settlements necessary in
each case to determine the amounts that the Organization of American States owes each of the
Complainants from January 1, 1978, to the date of notification of the judgment because of its
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noncompliance with its obligations with respect to parity with the United Nations in total
remuneration; and that within 30 days after the date of notification of the judgment issued by the
Tribunal in this complaint, he pay the persons concerned all the amounts owed them.
f. To order the Organization of American States to pay the Complainants whatever amount it deems
appropriate for the costs, including attorneys' fees, incurred in defending their rights before this
Tribunal.
II. The attorney for the Secretary General answered the complaints in due time and proper form,
and stated:
That parity comprises several elements, not all of which were to be instituted or put into effect at
the same time.
That the first stage covers salaries and post adjustments; the second, other (fringe) benefits; and
the third, retirement and pensions. The fundamental element in the present complaint is the status of
the first stage.
That in a resolution adopted at a special meeting of the Council of the OAS held on January 24,
1968, the Council established a group of experts in public administration and finance to make a study
and evaluation of the internal organization and the administrative and financial procedures of the Pan
American Union. As one of the recommendations in its report (document C-d-1614 corr.1), this group
of experts stressed the need to revise the OAS system of salaries and post adjustments in order to
improve the Organization's disadvantageous competitive position in the labor market. The experts
also mentioned other elements of the conditions of employment and said they should be changed to
bring them into line with the standards and practices of other international organizations.
That in May 1969 the Council of the Organization took note of the document
"Recommendations for Revision of Conditions of Employment of the Staff of the Organization of
American States" (C-d-1662), submitted by the Secretary General, and on July 22 of that year, on the
basis of reports prepared by the General Committee (C-i-894 rev. 2) and the Committee on Program
and Budget (C-i-893), adopted a resolution on the working conditions of the General Secretariat staff
[C-sa-716 (4)] by means of which it decided:
a. To accept, in principle, parity with the United Nations in remunerations and working conditions as
an objective of the personnel administration of the General Secretariat.
b. To establish for staff members of the Secretariat, as of July 1, 1969, the scales of salaries and post
adjustments prevailing in the United Nations. . . .
That at its first special session in July 1970, the General Assembly adopted resolution AG/RES.
5 (I-E/70), "Conditions of Employment in the General Secretariat of the OAS," by means of which it
resolved:
a. To confirm, as a general standard, the decision of the Council of the OAS of July 22, 1969,
accepting, in principle, parity with the United Nations in remunerations and working conditions as an
objective of the Secretariat.
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b. To confirm the existing scales of salaries and post adjustments for OAS employees. . . .
That, to date, the Secretary General has in practice carried out these instructions in accordance
with the prevailing adverse inflationary situation. Therefore, each time the pertinent office of the
United Nations makes a change in the salary scales or post adjustments, it has been applied in the
General Secretariat as soon as the budgetary implications have been analyzed in the light of Article
119(b) of the Charter and Article 34 of the General Standards. The date on which these changes and
adjustments are applied is set so that the requirements for parity can be met as far as the possibilities
of the budget permit, and for this reason the General Secretariat has postponed the date of their
application on several occasions. Every program-budget of the Organization approved since parity
with the United Nations was accepted has included allocations of funds for the anticipated changes in
the salary scales and post adjustment factors according to estimates prepared for the fiscal period
covered by each of the budgets.
That at its fourth regular session, held in April 1974, the General Assembly adopted resolution
AG/RES. 147 (IV-O/74) on the 1974/76 proposed program-budget. Volume IV of the proposed
program-budget analyzes the impact of inflation on salary levels and states as follows:
Consequently, in accordance with the policy of parity with the United Nations, anticipated changes in
salary scales of that Organization have been taken into account by the General Secretariat in
establishing costs for this proposed program-budget, with the result of a considerable unit cost
increase in personnel.
To cover most of these periodic changes, the General Secretariat, with the experience acquired during
the time and the information provided by the United Nations, has incorporated in the proposed
program-budget an amount that could cover the expected changes in this area.
That at its sixth regular session, the General Assembly adopted resolution AG/RES. 258 (VIO/76), "Program-Budget of the Organization 1976/78 and Quotas 1976/77," operative paragraph 10
of which resolves, concerning salaries and post adjustments:
To maintain the principle of parity with the United Nations in the salaries of the OAS staff members
at headquarters and in the field. To that effect, the General Assembly instructs the Secretary General
to implement the new salary scales for general services staff members, effective July 1, 1976. In the
case of professional category staff members, to update the post adjustment factors to the levels at
present in effect in the United Nations as of October 1, 1976.
That the approval of these documents by the General Assembly means that the comments in
them also received the Assembly's approval. However, if not enough funds have been allocated, the
Secretary General is empowered under Article 74 of the General Standards to transfer funds from one
chapter of the program-budget to another.
That in operative paragraph 4 of resolution AG/RES. 147 (IV-O/74), the Assembly authorized
the Secretary General to transfer funds not exceeding 10 percent among chapters without the need for
prior authorization from the competent organs of the Organization.
That, according to that resolution, the Secretary General was to inform the Permanent Council at
least every quarter of all transfers made under this provision and to give the reasons for them. To
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comply with this provision, the Secretary General expressly informed the Permanent Council in
document CP/CPP-659/75 that the salary increases granted by the United Nations as of January 1975
would be put into effect in the General Secretariat in April of that year.
That the Secretary General acknowledges that parity in salaries and post adjustments should be
maintained automatically; but he also recognizes that his ability to maintain parity automatically
depends entirely on the availability of funds appropriated by the General Assembly in each programbudget. The lack of funds allocated for this purpose makes it impossible to maintain parity in salaries
and post adjustments, automatically or otherwise.
That during his term of office the Secretary General has included in every proposed budget the
amount estimated to be needed to maintain parity in salaries and post adjustments. In every programbudget the Secretary General proposed the amount required for parity, and it was approved by the
General Assembly. But in the last budget, by resolution AG/RES. 321 (V-E/77), the Assembly
approved US$644,700, which was to be used only if certain conditions stipulated in the resolution
were met and in no case before July 1, 1978. The conditions were as follows:
Salary increases for the Personnel of the General Secretariat
The General Secretariat is instructed to make a study of OAS needs for personnel to carry out the
duties for which it is responsible. The study should also cover the matter of improving OAS
personnel standards and systems, which involves comparing levels of remuneration, capacity, and
efficiency of General Secretariat personnel with those of other international organizations. An amount
of up to US$50,000, included in the budget of the Office of Personnel, is approved for hiring the
experts to conduct this study.
The Secretary General will conclude a contract with outside consultants to make the study, which will
be presented to the Advisory Committee on Administrative and Budgetary Matters before May 1,
1978. This study, with any recommendations and observations that the Advisory Committee may
wish to make, must be delivered to the Permanent Council before June 1, 1978.
An amount of US$644,700 is approved in the Regular Fund for granting salary increases to the
general services and professional staff of the General Secretariat as of July 1, 1978, if so
recommended in the aforementioned study and after consideration of the study by the Permanent
Council, in the light of the comments and recommendations presented to it in this regard by the
Advisory Committee on Administrative and Budgetary Matters.
That the fact that the General Assembly approved such specific wording on increases in salaries
and post adjustments leads to the conclusion that the Secretary General may be unable to resort to
transfers of funds within chapters, or from one chapter to another, to make funds available for
increases in salaries and post adjustments to maintain parity.
That the policy of parity with the United Nations was not drawn up at the stroke of a pen, but
rather was the object of a process that took shape gradually. In 1969, what was then the Council of the
Organization resolved "to accept, in principle, parity with the United Nations in remunerations and
working conditions as an objective of the personnel administration of the General Secretariat." At that
time, the emphasis was on the acceptance of parity in salaries and working conditions in principle, as
a general objective. However, in the same resolution the Council established for staff members of the
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General Secretariat the scales of salaries and post adjustments "prevailing in the United Nations," in
accordance with the tables cited in that resolution. At that moment, parity in all respects became a
goal to be met. Later, in 1970, the General Assembly converted the Council's earlier decision on
parity as a general objective into a general standard under the terms of Article 119 of the Charter.
Specifically, it also confirmed the basic salary scales and post adjustments for General Secretariat
staff [AG/RES. 5 (I-E/70)], thus converting the first stage from an "objective" into an accepted
standard.
That this objective became a "general standard" of the Organization within the meaning of the
final paragraph of Article 119 of the Charter, under which the Secretary General exercises powers
conferred on him by this article, including fixing the remuneration of the officers and employees of
the General Secretariat. The General Assembly resolution is one of those that Article 34 of the
General Standards declares "pertinent" to the setting of salaries by the Secretary General as provided
in that article. The General Secretariat understands that this means that the first stage of parity with
the United Nations should be maintained automatically since, as has been demonstrated, (a) parity
went from being an objective to being a general standard, by decision of the General Assembly, and
(b) the Secretary General, in fixing the remuneration of the personnel of the General Secretariat under
the powers granted to him by Article 119(b) of the Charter, must observe the general standards
approved by the General Assembly, in accordance with the final paragraph of Article 119 and
pursuant to Article 34 of the General Standards.
That the General Secretariat also understands that the automaticity of parity is confirmed by the
fact that in the last paragraph of resolution AG/RES. 5 (I-E/70), the General Assembly merely
requested the Secretary General to include in his periodic financial report information on the actual
cost resulting from the decision contained in that resolution. This indicates that the Secretary General
was not required to obtain prior authorization for changes in salaries and post adjustments in order to
maintain the first stage of parity, or to submit a prior request, or to present prior reports on the costs
that would be incurred in maintaining parity.
That, as has been seen, parity in salaries and post adjustments (the first stage) went from being
an objective to being a general standard of the OAS in 1970. The Secretary General's obligation under
this standard was and is to include in each program-budget the amounts estimated to be needed to
maintain the first stage of parity. This obligation was met in each case. The General Assembly's
obligation was and is to approve the amounts budgeted for this purpose. The General Assembly has
not fulfilled its obligation in this regard. It was the General Assembly's intention, in accordance with
resolution AG/RES. 5 (I-E/70), to apply the first stage of parity in its entirety and authorize the
Secretary General to maintain it automatically. In adopting resolution AG/RES. 321 (V-E/77), the
General Assembly restricted the Secretary General's ability to maintain the first stage of parity
automatically. The terms of that resolution are such that not only were insufficient funds approved,
but also the use of the funds approved was made subject to the conditions mentioned above.
That, on the basis of the facts herein set forth, the Secretary General, prays the Tribunal
specifically:
a. To deny the complaint, without indemnity of any kind to the Complainants.
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b. To order no payment to the Complainants of the difference between what they in fact received and
what they are claiming as their right on the basis of the first stage of parity with the United Nations.
c. To order oral proceedings, if it deems them appropriate.
III. In their replies to the answer of the Secretary General, the attorneys for the Complainants
reaffirmed the arguments advanced in the complaint brief and reiterated the petitions already filed.
IV. The attorney for the Secretary General submitted his response to the replies of the
Complainants in each of the three complaints. After saying that the Complainants had presented no
new arguments in support of their claims and proffering some additional comments, he stated:
That the Secretary General reiterates the specific petitions made in the answer, and further prays
that the Tribunal order complaints Nos. 63 (Sara Buchholz et al. v. Secretary General), 64 (Xavier
Cortina et al. v. Secretary General), and 65 (Beatriz Perazzo et al. v. Secretary General) to be joined,
since the fundamental question in all these cases is parity with the United Nations in the matter of
salaries and post adjustments. This request is being made in order that the Tribunal may make more
efficient use of its time and efforts in considering and ruling on the complaints.
V. On August 23, 1978, in accordance with Article 14.2 of the Rules of Procedure of the
Tribunal, the present cases were placed on the list of cases pending consideration. Once the President
had set the opening date for the session corresponding to the fourth quarter of this year, the pertinent
steps were taken.
VI. On September 2, 1978, the attorney in the Buchholz case wrote to the Tribunal to say that the
Secretary General had transferred him to the post of Director of the Office of the General Secretariat
in Paraguay as of October 15, 1978. A copy of the transfer order was enclosed. He would
consequently be prevented from attending the oral proceedings on this case, and was therefore asking
the Tribunal to decide not to hold any.
Francisco Guerrero and Humberto García Ortiz disqualified themselves from hearing complaints
Nos. 65, Perazzo, and 66, Poole, under Article 7.1(b) of the Rules of Procedure of the Tribunal, since
they were of the same nationality as some of the Complainants. Alejandro Tinoco disqualified himself
from hearing Complaint No. 66 on the same ground. After the self-disqualifications had been
considered in accordance with the pertinent regulations, the parties expressed themselves in favor of
the continued participation of Messrs. Tinoco, Guerrero, and García Ortiz. The Tribunal was therefore
composed of Alejandro Tinoco, President; Francisco J. Guerrero, Vice President; and Humberto
García Ortiz, Judge. It met as scheduled, deliberated on the case sub judice, and decided that, in
accordance with articles 17 and 18.3 of the Rules of Procedure, testimony would be taken.
By Resolution No. 65, the Tribunal decided to join the complaints filed by Beatriz Perazzo et al.
and Linda Poole et al. to the complaint brought by Sara Buchholz et al. It ruled that, under Article
18.3 of the Rules of Procedure, the oral proceedings requested by the parties in complaints Nos. 65
and 66 would be appropriate.
Once the oral proceedings were concluded, the Tribunal decided that further evidence was not
necessary and, in accordance with Article 27 of the Rules of Procedure, designated one of its
members to draft the judgment.
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Having examined the proceedings the Tribunal now
CONSIDERS:
I. COMPETENCE OF THE TRIBUNAL
That it is competent to hear the present complaint, pursuant to Article II of its Statute.
The Complainants are requesting the Administrative Tribunal to order that they be paid the
differences in salaries and post adjustments not received between the date on which they began the
hearing procedure (February 1978) and the date of the judgment.
II. SIGNIFICANCE OF THE COMPLAINT
The foregoing is the fundamental issue in the complaint. The Administrative Tribunal is fully
aware that the substance of the present complaint involves a claim that is of great significance both
for the staff of the Organization and for the Organization itself. The record clearly establishes, and the
General Secretariat has acknowledged, that there is a normative principle governing the salary scale
of the staff of the Organization under which they should receive remuneration in the same amount as
the staff of the United Nations.
III. EVOLUTION
It has likewise been proved that this principle has evolved, starting with the legislative approval
by the General Assembly at its first special session, held in July 1970, of resolution AG/RES. 5 (IE/70). This was later confirmed by another resolution AG/RES. 147 (IV-O/74) of the fourth regular
session of the General Assembly, which approved the program-budget of the Organization of
American States for the fiscal period from July 1, 1974 to June 30, 1976. This program-budget
affirmed that "in accordance with the policy of parity with the United Nations, anticipated changes in
salary scales of that Organization have been taken into account by the General Secretariat in
establishing costs for this proposed program-budget. . . ."
IV. 1976-1977 BUDGET
This principle was once again confirmed when the program-budget of the Organization for the
biennium 1976-77 was approved by resolution AG/RES. 258 (VI-O/76), which resolved "to maintain
the principle of parity with the United Nations in the salaries of the OAS staff members at
headquarters and in the field." To that effect, the General Assembly instructed the Secretary General
to implement the new salary scales for general services staff members effective July 1, 1976, and to
update the post-adjustment factors for professional staff members, to the levels then in effect at the
United Nations as of October 1, 1976.
V. 1978 BUDGET
Finally, in its resolution AG/RES. 321 (V-E/77), the General Assembly authorized US$644,700
for salary increases to the general services and professional staff of the General Secretariat as of July
1, 1978, if the study that was ordered so recommended. Also was approved US$50,000 to contract
experts to conduct a study involving a comparison of the remuneration levels, capacity, and efficiency
of General Secretariat personnel with those of other international organizations.
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What this resolution does is instruct the General Secretariat to make a study of OAS needs for
personnel, which would involve a comparison of the remuneration levels, capacity, and efficiency of
General Secretariat personnel with those of other international organizations. It also approved
US$644,700 in the Regular Fund for salary increases to the general services and professional staff of
the General Secretariat as of July 1, 1978, if the study so recommended. With this, in the opinion of
this Tribunal, the General Assembly was saying that the Advisory Committee on Administrative and
Budgetary Matters should give its opinion on the levels of remuneration of the General Secretariat
staff as compared with those of other international organizations, and that if it thought that OAS
salaries should be brought into line with those of the other organizations, a fund of US$644,700
would be available to cover the increases authorized.
Consequently, this Tribunal holds that the Secretary General's argument that he has been unable
thus far to implement resolution AG/RES. 321 is a valid one, since this resolution establishes the
procedure to be followed in applying the principle of parity. In other words, while the Organization of
American States has recognized the validity of the principle of parity with the United Nations, and
while this parity is automatic, the only possibility open to the Secretary General is to abide by the
modus operandi the General Assembly directed him to use in applying this principle.
VI. THE PROCEDURE ESTABLISHED
The procedure is for the report on the required study to make a favorable recommendation, for
the Advisory Committee on Administrative and Budgetary Matters to consider the report and make
favorable recommendations on it, and, lastly, for the Permanent Council to take a favorable decision
after considering the report and the recommendations and observations of the Advisory Committee.
This Tribunal is aware, from the record, that the report was submitted and that it favors
maintaining parity; all that remains is a decision by the Permanent Council.
The Tribunal has no jurisdiction or authority to require a decision by the Permanent Council: it
may only review decisions of the Secretary General that entail violation of the General Standards of
the General Secretariat or of the Staff Rules. The Tribunal reaffirms its previous ruling that decisions
of the General Assembly form part of the contracts and may not be rescinded unilaterally, but it
cannot fail to recognize the validity of the Secretary General's objection that he could not meet certain
obligations when the General Assembly established a specific procedure for him.
However, the Tribunal observes that in this case the only requirement remaining for the
implementation of resolution AG/RES. 321 is authorization by the Permanent Council, and that
therefore if, when the decision is made, it is favorable, the Complainants would be entitled to an
adjustment in their salary scales, for general services and professional-category staff, and to an
updating of the post-adjustment factors to the levels currently in effect at the United Nations, all of
which would be applicable to the 1978 budget.
The Tribunal deems totally inapplicable the claim by some of the Complainants that "the
customary remedies are the attachment of the debtor's property and its sale at public auction, with a
declaration of bankruptcy," and that "the form in which one or the other modality would be adapted to
the present case would be a question to be resolved by the Tribunal, in the very unlikely event that the
Secretary General really could not find the resources to meet the payments we are requesting for a
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mere 4 of the 1,500 members of the Secretariat staff." The reason for this is that the unique legal
status of the Organization of American States does not permit it to be likened to a financially oriented
commercial or civil corporation.
On the other hand, the Tribunal also considers improper the Respondent's assertions that since
the Secretary General is the legal representative of the General Secretariat and not of the Organization
of American States, obligations to the Secretariat staff are not contracted by the Organization itself.
The Tribunal rejects this, since when the Secretary General hires his staff members, they are in fact
hired by the Organization, and the obligations in those contracts are obligations of the Organization of
American States.
By virtue of the foregoing, and pursuant to Article VII.1 and 2 of its Statute, the Administrative
Tribunal unanimously
RESOLVES:
1. To uphold the Complainants' petition that parity with the United Nations in remuneration and
working conditions is a contractual stipulation that forms part of the contracts between the OAS and
its employees.
2. To uphold the Complainants' petition that the payment of their total remuneration at the same
levels and in the same amounts as the United Nations pays its staff is an employment obligation that
must be honored by the Organization of American States, an obligation not yet honored by the
Secretary General.
3. To deny the Complainants' petition that within 30 days after the date of notification of this
judgment, they be paid the amounts owed them, since the Tribunal holds that for such purposes the
Secretary General must abide by the procedure established by the General Assembly of the
Organization.
4. To set the sum of US$1,000 as the amount to be paid for attorney's fees by the General
Secretariat to the Complainants Sara Buchholz et al., the sum of US$1,000 as the amount to be paid
for attorney's fees by the General Secretariat to the Complainants Beatriz Perazzo et al., and the sum
of US$1,000 as the amount to be paid for attorney's fees by the General Secretariat to the
Complainants Linda Poole et al.
Let notification be given.
Washington, D.C., November 3, 1978
Alejandro Tinoco, Esq. / President
Francisco J. Guerrero, Esq./ Vice President
Humberto García Ortiz, Esq. / Judge
Domingo E. Acevedo, Esq. / Secretary
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