Two birds, one stone: pretending (to the media) there's peace while crushing imminent strikes contractually

Key part of the MoU, whose real purpose is to crush SUEPO (representing nearly half of all EPO staff)

Summary: Benoît Battistelli and his 'circle' are growing nervous because of an upcoming strike (organised by the staff union which is supported financially by thousands of employees) and it uses famous union-busting methods -- presumably yellow unions too -- in an effort to deal SUEPO (already decapitated with controversial dismissals) a death blow, just before Battistelli et al are themselves ousted by the Organisation's Council (and the union dismissals reversed pending an external investigation)

Battistelli is, metaphorically speaking, "dead man walking." He is running out of time as a lot of European media turns against him right now.

The MoU, which is internally referred to as "the Memorandum of MisUnderstanding," is a sham. Petra Kramer, a Dutch activist (nothing to do with the EPO), wrote to us with some analysis of the situation implicating the Dutch secretive group (hard to retrieve information), FFPE-EPO.

"Court documents prove that FFPE-EPO only represents the Dutch office," she wrote, enclosing the image below.

"Proof that FFPE-EPO has a bigger grudge against SUEPO than EPO," she wrote, adding the image below.

"Proof that SUEPO feared FFPE-EPO was out to dethrone them as leading union," she wrote, adding the image below. "Which has happened," she added, "because EPO now recognizes FFPE-EPO while SUEPO is still in legal limbo."

That's why it's called a "yellow union" here. We suspect this, but cannot be sure yet. Petra Kramer too is trying to get certainty either way.

"What I am trying to find out," she wrote, "is how many members FFPE-EPO has. No luck thus far but I found the results good enough to share."

We still welcome leaks to shed light on this.

"A 2 days old article by NRC claims FFPE has 75 members, 1% of EPO-staff," Petra said before working on a translation (also amending some bits [1, 2]), later noting: "Quite funny: the head honcho of FPPE has 1 endorsement on LinkedIn."

Upon further research she also started using expletives: "The fucking idiots signed a carte blanche! Union recognized, no strikes allowed."

Here is the article as put by Petra Kramer (PK), with her comments added in-line to her translation from Dutch:

European Patent Office agrees with union representing 1 percent of staff

After a year of negotiations the European Patent Office, which has been criticized by unions, signed an agreement in Brussels last Wednesday officially recognizing a trade union. It's not the largest union, SUEPO refuses to sign as a form of protest. The signer is FFPE-EPO, which represents 1 percent of the 7,000 employees with about 75^* members. (^*Citation needed ~PK)

Employees of the Patent Office, which approves European patents and is based in four countries (five according to wikipedia ~PK), have been complaining for some time about the pressure, intimidation by management and restriction of their right to strike. Thus far, the agency acknowledged no unions because as an international organization it claimed national labour laws did not apply.

Last year the agency invited the unions to hold a "social dialogue" which should lead to recognition. But SUEPO withdrew in June when the patent office took punitive measures against three trade union leaders. Two of them have been fired.

Last week leaks made clear that the President of the Agency, Frenchman Benoît Battistelli, came into conflict with the Administrative Council, the supreme body. The Council is "deeply concerned" about the sanctions. That same week Battistelli invited the unions to negotiate an agreement on recognition. (Which of course is insane, you either organize or you don't. You don't let your boss decide on that. If we did so there would never have been any union in our history whatsoever ~PK).

SUEPO, which represents almost half of the 7,000 employees, refuses to sign as long as its staff is "unlawfully threatened and persecuted." SUEPO considers it a "toothless agreement" without clear "rights and obligations."

Samuel van der Bijl, President of FFPE-EPO, acknowledges that his union is small, but he hopes the agreement will draw in more members. The agreement says nothing about the right to strike, but that is the first and foremost point on the agenda, according to Van der Bijl.

The patent office says it is one of the first international organizations to recognize unions. Battistelli has declared "all work related issues" to be open to debate. ___________________________ Human corrected machine translation of: http://www.nrc.nl/next/2016/03/02/conflict-akkoord-europees-octrooibureau-met-vakbon-1596848 Paywalled, but each visitor gets 5 free articles per month. Throw away your cookies because that is how they keep their tally.

In order to understand the context of it all, consider the following recent letter:

INTERNATIONALE GEWERKSCHAFT IM EUROPÄISCHEN PATENTAMT STAFF UNION OF THE EUROPEAN PATENT OFFICE UNION SYNDICALE DE L'OFFICE EUROPEEN DES BREVETS

Zentralbüro | Central Bureau | Bureau central

29 February 2016 su16029cl –3.1

To:

Heads of Delegation Administrative Council European Patent Organisation

Letter of the President “Memorandum of understanding – invitation for signing”

Dear Delegates,

On 24 February 2016, we received an invitation from the President of the Office to sign a Memorandum of Understanding (MoU) between SUEPO and the EPO. Regrettably, we have to inform you that we had to decline this invitation.

Although the document is apparently ready for signature by the EPO, it is far from ready for signature by SUEPO, the union which represents around half of the staff. Because SUEPO is a reliable social partner, we had already submitted a proposed model “Framework Agreement” on 5 February 2014 (su14020cl), which is a serious document based on acknowledged practice in Europe. Later, on 29 November 2015 we submitted to the Chairman of the AC another model document, the Memorandum of Understanding which was agreed upon in the EU (su15182cl, re-attached for your convenience). Both proposals are examples of European “best practice” and either of them would, in our opinion, be a much more suitable starting point for discussion between the Office and SUEPO. We note with regret that the current Administration chose to totally disregard both these proposals without any further discussion.

More importantly, we reminded the EPO in a letter dated 13 January 2016 (su16002cl) on our position that we cannot participate further in the corresponding working group on union recognition while SUEPO leaders or experts remain sanctioned or under severe attack by the Administration, as is presently the case. Only two days later, the situation worsened with very severe sanctions being applied to three Union officials.

Our position is now only more resolute: a meaningful discussion on the issue that might lead to a MoU or other agreement that is acceptable to all parties is impaired to the extent that it is in our opinion impossible in the current, deteriorating situation. Nowhere in Europe does a union negotiate whilst its officials are being pursued.

As soon as the situation with regards to all disciplinary cases and pending abusive, vexatious investigations involving union officials has been successfully resolved, SUEPO will be ready to re-discuss the issues at hand. Once this is the case, we would like to invite the Administration

---

to kindly reconsider both reasonable proposals which have been put on the table as a new starting point for the negotiations. At the same time, we await a more serious negotiation partner from the side of the Office.

Yours sincerely,

Joachim Michels Chair SUEPO Central

Elizabeth Hardon Vice-Chair SUEPO Central Chair SUEPO Munich

Alain Rosé Vice-Chair SUEPO Central Chair SUEPO The Hague

Wolfgang Manntz Vice-Chair SUEPO Central Chair SUEPO Berlin

David Dickinson Vice-Chair SUEPO Central Chair SUEPO Vienna

Usefully enough, some people have mentioned this comment about a 'leak' of the MoU:

A copy of the Memorandum of Understanding is available online.

Judge by yourself.

http://de.scribd.com/mobile/doc/301894955/EPO-Memorandum-of-understanding

There was a comment on this in the evening. It said:

Is that the actual MoU? I've never seen anything like it. All very revealing about how the world looks from inside that Battistelli brain. Management is a simple matter of deciding how people are going to behave.

And how long is the MoU valid for? This memorandum which enters into force on 1st April 2016 shall be valid for a period of three years, i.e. until 28 February 2019. Er... how long is that exactly?

A lot more curious is the following bit about timing:

The MoU will terminate before it actually can come into force because the FPPE can not be considered a union under Article 7, because it limits membership to employees in The Hague by its statutes.

Interesting fact: The invitation for signing was for February 24th, yet it was only published the day a critical TV report was to be broadcasted. They even forgot to fill in a sensible date over the signatures before publishing it...

Now, putting it in HTML form (for our record), here is the "Proposed MoU between European Patent Office and trade unions." It may be out of date, there may be numerous versions, but it's probably close enough to the final 'product'.

MEMORANDUM OF UNDERSTANDING BETWEEN

THE EUROPEAN PATENT OFFICE

AND

THE TRADE UNIONS AND STAFF ASSOCIATIONS

The European Patent Office (EPO), represented by the President of the Office

and

the following trade unions and staff associations

Union ......, represented by ....

Union ......, represented by ....

hereinafter referred to as ‘Union (s)’

having regard to Articles 30 and 33-38a ServRegs

have agreed as follows

CHAPTER I GENERAL PROVISIONS

Article 1 Scope

This Memorandum governs relations between the EPO and the union parties thereto.

Article 2 Freedom of association

The parties confirm their support for freedom of association as enshrined in Article 30 of ServRegs. All employees and former employees referred to in Article 1 of ServRegs may be members of unions of international civil servants.

---

Article 3 Role of the unions

1. The EPO recognises the role and responsibility of the unions as important social dialogue partner as set out in the present Memorandum.

2. The unions shall act in the general interest of the staff. The Office recognises the aim of the unions to strive towards improvements of the employment conditions at the EPO. In the exercise of this aim, the union officials shall be bound by the legal framework applicable at the EPO and respect the relevant national laws that may apply to them. The unions shall act without prejudice to the competences conferred to the Staff Committee and other statutory bodies under the Service Regulations. The rights and obligations conferred to the signatory parties under the present Memorandum shall be exercised without prejudice to the competences and powers of the appointing authorities in accordance with the EPC.

Article 4 Membership

Membership in a union and participation in union activities or the holding of office in a union shall in no way be prejudicial to the person concerned.

Article 5 Exchange of information

1. The unions shall provide the President with: - their statutes or articles of association which should fully respect and comply with the EPO legal framework inter alia the EPC, Service Regulations, Implementing Rules and Circulars - the names of their officials within ten working days from the entry into force of this memorandum.

2. Any changes shall be also communicated to the President within the same time frame.

3. The parties ensure that any exchange of information between them occurs in transparency and good faith.

---

CHAPTER 2 RECOGNITION OF UNIONS

Article 6 Recognition

1. The parties agree on the principle of official recognition of the unions of the EPO staff.

2. This recognition implies the acceptance by each party of the other as a social dialogue partner without prejudice and fully respecting the role and powers conferred on the Staff Committee and other statutory bodies under the Service Regulations.

3. The parties undertake to ensure that relations and communications between them are guided by mutual respect fully complying with the EPO legal framework and the Code of Conduct.

Article 7 Criteria for recognition of the unions

The unions shall be recognised if they: - declare that their statutory aim is the defence of the interests of all members of staff without any discrimination based on any ground, such as job group, nature of connection with the EPO, ethnic or national origin, opinions or beliefs, gender, sexual orientation or disabilities - confirm that they have been legally constituted.

Article 8 Groupings of recognised unions

Recognised trade unions may act alone or may form groupings of recognised trade unions. They may be affiliated to international trade unions.

Article 9 Representativeness of the unions

1. Subject to meeting the requirements set out in Article 7, the EPO shall recognise as representative the unions which meet the following criteria:

- they elect their officials in democratic and transparent elections; - they present candidates in official elections with the purpose of having elected staff representatives or - they have elected staff representatives.

2. Trade unions meeting the above representativeness criteria may sign this memorandum of understanding.

---

Article 10 Loss of recognised union status

Any union which no longer meets one of the requirements set out in Articles 7 and 9 shall be notified by the Administration and its rights under the present memorandum shall be suspended within three months. Such rights shall be immediately restored on verification that the requirements in question have been again met.

CHAPTER 3 NEGOTIATION PROCESS

Article 11 Consultation process- mutual exchange of information

1. At the beginning of each calendar year, the President shall send to the signatory trade unions a provisional list of the main items that are to be the subject of consultation and mutual exchange of information.

2. This list may be amended during the course of the year according to the EPO’s strategic goals, policies and social issues at any given time.

3. The unions may also inform the President of the list of items they wish to have discussed within the framework of social dialogue. The items on the social dialogue list and their priorities ranking shall be established in mutual agreement by the President and the unions and the list shall be published to all staff

Article 12 Scope of the negotiation process

1. The negotiation process may relate to proposals relating to staff policy and the working conditions of the whole or part of the staff. The aim of the discussion is to reach an agreement on a proposal to be submitted to further statutory consultation process for the final decision by the Administrative Council.

2. The parties have to agree on the subject matters that will be subject to negotiations.

3. Before starting the negotiation, the parties define a maximum time to reach an agreement.

---

Article 13 Negotiation process meetings

1. Negotiation process shall take place in a meeting to which attend a maximum of one representative per local signatory union and one representative per central signatory union.

2. Each signatory union shall be free to decide on the choice of its representatives among EPO staff in active service.

3. The President shall designate a number of Office representatives not more than the union representatives.

4. Based on the social dialogue list established in accordance with Article 11, the agenda shall be set by the President and sent to the signatory unions before the date of the meeting.

5. Following the negotiation process meeting a document summarising the positions of each party and the agreement or disagreement on the relevant social dialogue item shall be drawn up. This document shall be included in the further statutory consultation mechanism within GCC.

6. In case agreement is reached, the signatory unions shall call for social peace as regards the relevant proposal, refrain from issuing a call for a strike, and call on their members not to participate in any other industrial actions. The signatory unions shall in this case not support or encourage individual litigation actions.

CHAPTER 4 RESOURCES AND FACILITIES GRANTED TO THE SIGNATORY UNIONS

Article 14 Provision of resources to unions

The unions are financed by the contributions of their members. Notwithstanding this principle, the Office shall provide the necessary means for the communication between signatory unions and staff members as well as facilities to participate in the negotiation process.

Article 15 Premises

1. The EPO shall make premises available for trade unions for the purpose of meeting staff and holding union committee meetings.

2. The unions shall have the right to hold meetings for staff at large and general assemblies in the EPO buildings outside core hours subject to a prior notice of at least three working days to be submitted to the site manager and

---

Vice-President DG 4. Organisers shall ensure that staff attending these meetings must comply with the security and safety rules applicable in the Office premises.

Article 16 Use of IT tools and distribution of union documents

1. Unions may use the designated intranet site, as well as notice boards in the communal areas of the Office to publish information to staff. Additionally, they are provided with RSS feeds allowing staff members to receive up-dates of union’s intranet sites directly to their chosen email inbox. The published content is made under the content providers’ responsibility. The unions shall observe the rules in force with regard to communication and ensure that its publications are professional and respectful and meet the standards expected of the international civil service and under the EPO legal framework.

2. The printing of any documents shall be carried out by using union own resources. Upon request, the Office’s internal services and facilities may be used for distribution of such documents by each signatory union up to two times per year.

3. Upon request, a signatory union may dispatch per year up to two e-mails to all staff, inter alia for the purpose of convening a general assembly, distributing activity reports etc.

4. The signatory union shall ensure that the documents and e-mails referred to above are formulated in a fair and respectful manner, in factual terms and in accordance with the standards expected of the international civil service.

Article 17 Staff hired by the unions

1. The unions may, out of their own funds and strictly under their own responsibility, employ staff under private law contracts in the EPO premises made available to them. Such contract must expressly state that there is no contractual relationship with the EPO.

2. The unions must inform the Office of the identity of such staff and the tasks to be carried out by them.

Article 18 Time deductions for union representatives

1. Union representatives who participate in a negotiation process meeting shall be entitled to deduct reasonable time for the preparation, participation and follow up of such a meeting. This time deduction is limited up to three

---

days per meeting and includes travelling time of up to half a day per leg of the trip if applicable.

2. The above time deduction is not granted to fully exempted Staff Committee members.

Article 19 Special leave for union officials

Upon justified request, each signatory union may be granted up to four working days special leave per calendar year for the purposes of its officials participating in the events organised by their central bodies, other unions or organisation of unions as well as in trainings relevant to union work.

Article 20 Final provisions

1. This memorandum which enters into force on 1st April 2016 shall be valid for a period of three years, i.e. until 28 February 2019.

2. After an initial period of two years from the date of its entry into force: - this memorandum may be reviewed upon request of any of the parties based on the experience gained;

- any party may withdraw from this memorandum provided that it gives six months’ notice in writing to the other parties concerned.

3. On 1st March 2019, this memorandum shall be automatically extended for a further period of three years, unless any of the parties to this memorandum requests renegotiation of any of its terms by giving six months’ notice in writing to the other parties concerned.

SIGNATURES

The above is already out there on the Web and someone in IP Kat linked to it. We don't know how it got there, but upon further investigation we found out about context.

As this stage, it didn't look as though SUEPO was in any way prepared to sign, but still, nevertheless, Battistelli chose to pretend that the offer was open to both unions (the apparently yellow one and the real one). Here is what Battistelli wrote:

European Patent Office 180298 MUNICH | GERMANY

European Patent Office 80298 Munich Germany

Office address: Bob-van-Benthem-Platz 1 80469 Munich Germany

www.epo.org

The President

Tel. +49 (0)89 2399 - 1000 Fax +49 (0)89 2399 - 2892 president@epo.org

Date: 24.02.16

To:

● SUEPO Central ● FFPE

Memorandum of Understanding - invitation for signing

Dear Union representatives,

In March 2015, the call for a renewed social dialogue was jointly launched by the Administrative Council and the President. Unions represented at the EPO were invited to discuss the modalities of the recognition of unions and thus, to fill a longstanding vacuum.

The resulting Memorandum is now open to signature to all trade unions present at the EPO. Beyond the formal recognition of unions as social partners, it creates a collective bargaining scheme. Furthermore, the Memorandum will specifically address:

- criteria for the recognition of unions; - consultation process on the basis of a mutually established social dialogue list and with an aim to reach an agreement; - resources and facilities to be granted to the signatory unions.

In this framework, the Office states its readiness to address any topic linked to the working conditions and acknowledges that during the discussions related to the Memorandum, both the FFPE The Hague and the SUEPO expressed their wish to discuss the specific roles of signatory unions in the call and organisation of a strike. The Office agrees to include this topic in the first set of items to be subject to negotiation following the signature of the Memorandum.

You are then invited to a meeting for the purpose of signing the Memorandum. It will take place in Brussels, at the Bureau of the Office, avenue de Cortenbergh 60, on 2 March 2016 at 14:30. In this regard, thank you to indicate to the HR department the names of the representatives of your unions who will participate to it (for practical reasons the number will be limited to 5 by trade union). Looking forward to meeting you.

Yours sincerely,

Benoît Battistelli

Notice in the above (highlighted in yellow) how Benoît Battistelli made the right to strike, which he evidently does not tolerate, subject to signing the MoU. What a nice trap, right? It's almost like a sort of blackmail (into signing a deal which is bad in hopes of improving it later). The term mort gage, in Old French, means "dead pledge." This one is more like a deal with the devil -- one that only a bogus union would probably be foolish enough to agree to. ⬆