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Raw: Collective Accountability for Staff Committees Over Anonymous Letters?

Posted in Europe, Patents at 4:51 am by Dr. Roy Schestowitz

These letters (or just one letter) were allegedly used as a pretext for cracking down on dissent among EPO staff

EPO management mockery

Summary: A report from 4 years ago, ending with a section about “Anonymous letter / Defamation” or “defamatory letters [which] had been circulated in the Office” (about half a year earlier)

Report on the Meeting between the CSC and the President 20 Nov 2013

The Meeting lasted over two hours and all the points on the agenda were covered including four additional points which were raised during the meeting. In general, the mood was calmer than during previous meetings and it was possible to exchange views without major incident. As has been the case with previous meetings, the President introduced two new points as his agenda: “social democracy” and the new salary method.

With regard to the existing claims of staff which are the subject of industrial actions and legal challenges, no progress was made. The President clarified his position on these topics, but was unwilling to make any concessions. Towards the end of the meeting the proposal of the CSC to use a mediator was briefly discussed, but dismissed because the President saw “no added value” by engaging in mediation.

Overall, it would be fair to characterise this meeting as civil but largely unproductive: no signs of willingness to address the concerns of staff were apparent. The individual points are covered below. Comments in [brackets] are supplementary information and were not made during the meeting.

Social Democracy

Under the topic of “social democracy”, the President clarified that he sees problems with regard to the representative character of the staff committee and their lack of an ability to make decisions. He proposed a more centralised role with direct election for central bodies: they may intend to have the members of the GAC elected in the future. The administration argues that they have no control over the election process, but that the President can be held accountable for any problems, therefore the administration proposes to make new regulations regarding the elections of the staff committees. The administration also proposed to have a more proportionate system where the number of staff representatives better reflects the number of staff they each represent. We understood this to imply less representation in the smaller sites. The administration also proposed to change the current regulations regarding time and resource allocation for staff representation activities. All such changes would require further changes to our Service Regulations. Nothing was said with regard to the recognition or status of staff unions.

The CSC delegation stated that it is not the right time to discuss any reforms to the staff representation when we are in the middle of an intense social conflict. We also noted that the Administration’s problem definition was very one-sided, failing totally to address any of the concerns of staff. The President proposed an ad-hoc working group on Social Democracy to discuss his proposals. The CSC delegation stated that this would need due consideration and that any new approach would need to take into account staff representation views and concerns on social democracy. The CSC delegation indicated that the CSC would give a written answer as to its position to such a working group in about two weeks, i.e. after the next CSC meeting. It was noted that many of the current issues, for example internal appeals process and conflict resolution are in the view of staff important aspects of “social democracy”. It was further stated by the CSC delegation that the lack of collective conflict resolution mechanisms in the EPO was a major cause of concern.

The President stated that ultimately he decides and neither the staff committees nor the unions have veto rights, the working group process being purely consultative. The proposed calendar is extremely tight: the new regulations should be ready by the end of January so they could be presented to the GAC in February for opinion and possible approval by the Council in March.

Salary method

The President indicated that he would like to start discussions on a replacement method or formulae. Any discussion would assess the performance of the existing method and then make proposals for a new method. The new method should follow the general lines of the present method, in particular by providing an automatic indexing of salaries without any performance related element. The CSC delegation agreed to nominate to this working group.

The right to strike and the IFLRE Ballot

The President stated that he was not willing to change the strike regulations which had been approved by the Administrative Council and that these were (in his opinion) legal. He rejected the claim that these were inconsistent with “fundamental norms”, which he described as “excessive language”.

On the IFLRE petition, he stated that the regulations apparently stipulate a petition for a new ballot cannot take place within an existing strike period. He further stated that the regulations foresee early dialogue (“a strike should be a last resort”) and that any group requesting a strike must nominate representatives able to enter into dialogue on their behalf, since he cannot discuss the strike claims with more than 1000 staff members. These points he claimed were “common sense” and were an obvious interpretation of the strike regulations. For these reasons he had rejected holding a ballot on the IFLRE petition.

The staff representatives stated that in their view neither of these criteria were part of the current strike regulations and asked for further clarification regarding the “representatives” requirement. The President elaborated that this would require either the CSC or the union would support the petition to strike and agree to enter into dialogue on their behalf, or the petitioners would have to select from amongst their own ranks representatives to deal with him directly. On the question on how the petitioners could organise themselves with the existing e-mail constraints, he noted they will “find their ways” similar to those used in establishing the strike petition.

He stated that from 12 November, he would reconsider a new petition admissible since it would at least meet the first of his “clarified” requirements.

The staff representatives agreed to the principle that a strike should be a last resort, but that cooling off periods must be combined with structures that support dialogue such as mediation and arbitration. No such structures exist within the EPO. They also noted that no means exist to resolve collective disputes and this was one reason for the high incidence of individual appeals. It would behove the EPO to create such procedures, since these would surely significantly reduce the level of social conflict.

To these proposals, the President once again stated forcefully that any social dialogue is a consultation only. In the end, it is he who decides. Neither the staff committees nor the unions nor any other group have a right of veto.

[Note: in the view of the staff representatives this statement is in contradiction with the repeatedly expressed wish of the President that the CSC should take decisions. Similarly, he states that dialogue should take place prior to strike action, yet has never tried to discuss beforehand about any strike action during the current conflict.]

Limitations of the use of communication (Email) and disciplinary threats

The staff representatives asked if the President was willing to remove the limitations to communication and disciplinary threats/measures aimed at staff and their representatives. The President stated all measures taken were both legal and proportionate and he was not willing to change them or withdraw the disciplinary threats or letters to staff. Any participation in an “illegal” strike is considered an unauthorised absence. However, he confirmed that the letters sent concerning this alleged “unauthorised absence” should be regarded as information only and will have no further consequences.

With regard to the sending of emails by staff representatives to more than 50 people, he stated that those involved would receive warning letters and he would not confirm that no further action would be taken. He stressed that in future all staff must comply with the existing regulations, regardless of whether or not they agree with them.

Revision of the Investigation Guidelines

The staff representatives asked if the President was now willing to review the investigation guidelines. They noted that the circular foresees a revision and the procedures have been in force for almost a year now. They also requested the involvement of independent legal experts in the review. The President stated he was not willing to do so at this time, and that there was no need for independent experts.

Problems with the system of appeal

The staff representatives raised concerns about increasing backlogs, both at the ILOAT and the Internal Appeals Committee (IAC). In the ILOAT, the backlog is more than 450 cases; in the IAC the figure is over 650. The President acknowledged that there were problems. He stated that he had no official confirmation yet from the Tribunal (ILOAT), but that he understood that the limit of 5 EPO cases per session had been removed. He also indicated that he expects to be notified shortly that the Tribunal will hold a dedicated EPO session in 2014. Whilst these are clear improvements, the staff representation considers them insufficient to significantly reduce the growing backlog problem.

With regard to the IAC delays, the President stated that he was aware of the problems but he claimed that they were due to the poor functioning of the IAC, an issue which he intended to address. He stated that there was a lot of redundancy in the procedure which needed to be removed. The IAC should focus more on facts. He also declared his intention to reform the secretariat of the IAC and give the IAC members more time credits to hold additional sessions.

[The staff representatives are sceptical about this analysis since we consider that the main problems are more related to a chronic lack of resources and staff to support the appeal process. Mr Battistelli does not appear willing to maintain the additional posts provided in 2009 to start addressing the backlog problems, which will lead to a considerable reduction in the capacity of the appeals process.]

With regard to the procedure following receipt of the opinion of the IAC, the staff representatives stated that they had feedback that indicated the President was not following majority or even unanimous opinions when he disagreed with them.

The President first stated that the IAC was simply an advisory body and he was not legally bound to follow their opinion. He then claimed that more than 2/3rds of the majority/unanimous opinions were followed: any that were not were for non-legal reasons such as procedural errors; conflicts of interest within the IAC members; bias; or that the IAC had gone beyond the scope of the service regulations.

[Note that according to ILOAT jurisprudence, the President is required to follow the opinion of the IAC unless he has reasoned grounds not to do so.]

Problems following the opinion of the Medical Committee

The staff representatives raised concerns regarding the failure of the President to follow the opinion of the Medical Committee in invalidity cases.

The President stated that during his term in office there had been 61 cases of invalidity, of which there were only 2 cases where he had not followed the recommendations. Again, he claimed that in both these cases there were procedural flaws and he would request a new Medical Committee to reassess them.

Any other business

The following points were raised during the meeting and briefly discussed:

Appointment of a new Data Protection Officer (DPO)

In response to questions regarding rumours that the DPO position would be replaced on contract basis, the President stated that although the current nominee would leave her function as DPO, she would continue until a replacement was nominated. The DPO function is not associated with a specific post (with a corresponding selection procedure), rather it is an appointment. He also confirmed that the future nominee will remain a permanent staff member.

Use of 3 Year contracts for examiners

The staff representatives raised the concern that in the last academy (October) there were 27 examiners recruited on 3 years contracts of which roughly 50% have German or French as their mother tongue. The original stated purpose of such contracts when they were approved by the AC was to ensure the EPO was able to recruit nationals from countries which are currently under represented, e.g. new member states. The President stated that the procedure had two goals:

  • to enable the Office to recruit good (technical) candidates from any member state who do not yet fully met the language criteria,
  • to support the recruitment of examiners from newer member states

He noted that the current application of the procedure had been more successful for recruiting examiners in the first category, but that the Office was seeking additional measures to increase recruitment from the newer member states.

[Note: Only the second category was declared to the AC when this procedure was discussed, approved and introduced]

Anonymous letter / Defamation

The President brought to our attention that more anonymous, defamatory letters had been circulated in the Office. The targets were apparently a number of managers in DG2. The President asked the CSC to distance itself from such practices.

The staff representatives stated that they were neither aware of the letters, nor their content, but would consider their position in this regard. They stated that in principle they do not agree with such methods, but they held the view that transparent and impartial investigation of any and all such allegations made would surely help to reduce such behaviour.

RFPSS Contribution Increase

The President stated that he would follow the advice of the actuaries.

Next Meeting

The President proposed to hold the next meeting in the first half of February.

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