Abstract
This chapter examines the duty of care from the perspective of employment law. The aim is to identify whether and how the content of international organizations’ duty of care obligations may vary according to the different types of employment contracts. In the absence of a clear and uniform system of regulatory sources, this remains a controversial issue, for reasons that are examined at the start of this chapter. The various forms of employment relationship that international organizations enter into with mission personnel are then examined, analysing whether the duty of care varies according to the type of labour contract. From a legal point of view, the worker’s rights depend on their legal status and traditionally the protection of labour law is granted only to employees and is based on the employment contract. The analysis in this chapter shows that the classification of labour relations used by international organizations has developed separately from the provisions of national systems, introducing a categorisation based on the distinction between staff-members and non-staff members.
Annex II—the Table of Cases—can be accessed online here: http://extras.springer.com/.
Vania Brino, Associated Professor of Labour Law, Ca’ Foscari University (Venice), Via Cannaregio 873, Fondamenta San Giobbe, 30121 Venice, Italy, vania@unive.it
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Notes
- 1.
Reinisch 2006, according to which ‘this exemption from national employment law, together with the immunity from national labour courts, is often regarded as necessary in order to create and maintain a uniform and independent international civil service’. However, a reference to national legislation is possible where the parties act as if they are bound by it and refer to it in the labour contract, and also where it is specifically stipulated in the staff rules, and finally if the national labour laws express a general principle on labour law. In this sense ILOAT, Re Kock, N’Diaye and Silberreiss, 6 July 1995, Decision No. 1450.
- 2.
- 3.
- 4.
See Federation of International Civil Servant Associations 2015, according to which in 2012 ‘in a system that employs about 185,000 staff members, some 90,000—i.e. 48.6 per cent of the total workforce—belong to the so-called non-staff category. Such employees can serve for many years on short, precarious contracts, often without the benefit of health insurance for themselves and their families, and can be deprived of other social security provisions such as sick leave, maternity leave and pension’.
- 5.
Terzi and Fall 2014, point 168.
- 6.
Ibid.
- 7.
- 8.
Claus 2010.
- 9.
- 10.
- 11.
In the UN Staff Regulations 2017, the expression ‘United Nations Secretariat’, ‘staff members’ or ‘staff’ refers to ‘all the staff members of the Secretariat, within the meaning of Art 97 of the Charter of the United Nations, whose employment and contractual relationship are defined by a letter of appointment subject to regulations promulgated by the General Assembly pursuant to Art 101, paragraph 1, of the Charter’.
- 12.
UN International Civil Service Commission 2016.
- 13.
Ibid.
- 14.
Ibid.
- 15.
UN Chief Executives Board for Coordination 2011, p. 16.
- 16.
Terzi and Fall 2014, point 168.
- 17.
See the recent case which involved two UN experts killed in Congo in 2017, De Freytas-Tamura K, Sengupta S (2017) For 2 Experts Killed in Congo, U.N. Provided Little Training and No Protection. https://www.nytimes.com/2017/05/20/world/africa/congo-zaida-catalan-michael-j-sharp-united-nations-democratic-republic-of-congo.html. Accessed 1 September 2017.
- 18.
UN Secretariat 2013.
- 19.
Ibid., p. 12.
- 20.
UN Secretariat 2013.
- 21.
Ibid.
- 22.
Ibid.
- 23.
Terzi and Fall 2014, point 111.
- 24.
De Freytas-Tamura and Sengupta 2017.
- 25.
UN International Civil Service Commission (2016) Conditions of service applicable to both categories of staff: contractual arrangements: review of the implementation of the three types of contracts. http://www.ccisua.org/wp-content/uploads/2016/06/ICSC83R4-Final.pdf. Accessed 1 September 2017, p. 8, which reveals the increased use of contingency workforce.
- 26.
Hoppe and Williamson 2016.
- 27.
UNGA (2016) Safety and security of humanitarian personnel and protection of United Nations personnel. http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/71/129. Accessed 1 September 2017.
- 28.
High-Level Committee on Management 2016.
- 29.
High-Level Committee on Management 2017.
- 30.
UNDT, Edwards v. Secretary-General of the UN, 26 January 2011, Decision No. 22 (see Annex II, Case 39). In particular para 60 affirmed that ‘in its Judgments No. 1125, Mwangi (2003), and No. 1204, Durand (2005), the former UN Administrative Tribunal took the view that staff regulation 1.2(c) codified a duty of protection having the value of a general principle of law. In the former Judgment, it stated: […] even were such obligation not expressly spelled out in the Regulations and Rules, general principles of law would impose such an obligation, as would normally be expected of every employer. The United Nations, as an exemplary employer, should be held to higher standards and the Respondent is therefore expected to treat staff members with the respect they deserve, including the respect for their well being’.
- 31.
UNDT, Edwards.
- 32.
Stoddard et al. 2011.
- 33.
- 34.
Ibid.
- 35.
High-Level Committee on Management 2016.
- 36.
UNGA Resolution A/72/490 (2017) Safety and security of humanitarian personnel and protection of United Nations personnel. https://reliefweb.int/sites/reliefweb.int/files/resources/N1729514.pdf. Accessed 1 December 2017.
- 37.
UNGA (2017) Safety and security of humanitarian personnel and protection of United Nations personnel. http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/71/129. Accessed 1 December 2017, para 24.
- 38.
See for example UN Chief Executives Board for Coordination 2016.
- 39.
High-Level Committee on Management 2016.
- 40.
See UN Department of Safety and Security 2011.
- 41.
See Federation of International Civil Servant Associations 2015, point 99.
- 42.
Terzi and Fall 2014, p. 1.
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Brino, V. (2018). International Organizations as Employers: Examining the Duty of Care in the Light of the Different Forms of Employment Relationships. In: de Guttry, A., Frulli, M., Greppi, E., Macchi, C. (eds) The Duty of Care of International Organizations Towards Their Civilian Personnel. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-258-3_6
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