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Summary: The Central Staff Committee of the EPO has issued a detailed "report on the GCC meeting," adding "five documents on the official agenda. The President had scheduled one and a half hour for the meeting, which turned out to be insufficient, as usual, For the first time in his term, the President was absent and delegated chairmanship to Vice-President DG5."

THE Central Staff Committee (CSC) of the EPO has released a report or a set of position papers/documents. Here is the introductory text:

Zentraler Personalausschuss Central Staff Committee Le Comité Central du Personnel

Munich, 01/12/2022 sc22143cp

Report on the GCC meeting of 5 October 2022

Dear Colleagues,

There were five documents on the official agenda. The President had scheduled one and a half hour for the meeting, which turned out to be insufficient, as usual, For the first time in his term, the President was absent and delegated chairmanship to Vice-President DG5.

We sent the President a written and reasoned opinion on all four documents submitted “for consultation” (see annexes). As already noted in previous reports, it seems that the categorisation is becoming more and more arbitrary.

The Central Staff Committee

Annexes:

- Opinion on GCC/DOC 14/2022: Living our values – A Handbook on Workplace Ethics...” - Opinion on GCC/DOC 15/2022: Public Holidays 2023 - Opinion on GCC/DOC 16/2022: Transfer of funds from the Office's Treasury to the RFPSS and to the Salary Savings Plan (CA/66/22) - Opinion on GCC/DOC 17/2022: Periodical Review of Service Regulations

So António Campinos, who refer to himself as "the f***ing president" and boasts about being a master negotiator, did not even attend. Wonderful!

What a "f***ing president"; "f***ing president" indeed...

"We sent the President a written and reasoned opinion on all four documents submitted “for consultation”," the CSC added. "As already noted in previous reports, it seems that the categorisation is becoming more and more arbitrary..."

Here are the 4 documents in full, as HTML (later plain text and GemText):

Opinion of the CSC members of the GCC on GCC/DOC 14/2022:

Living our values – A Handbook on Workplace Ethics

The CSC members of the GCC give the following opinion on GCC/DOC 14/2022.

Introduction

The document is not a binding code of conduct, and it has no legal value¹: it is not intended to replace the legal provisions in the Service Regulations and it does not touch upon the conditions of employment of staff, strictly speaking. It is about “going beyond compliance”². Staff representatives support and try to live up to true values, such as trust, fairness, mutual respect and collaboration. Accordingly, there can be no objection against consulting in the GCC on a document aimed to raise awareness.

The preface is about “Building our workplace together”. Nevertheless, the contrast is striking against the stance of the President in various other occasions, in which he refuses to table documents for consultation in the GCC. One obvious recent example is “Bringing Teams Together”, which introduces many concrete changes in the way teams work and cooperate day in day out but which the President refused to submit “for consultation” and which he merely presented “for information” in the GCC meeting of 5 July 2022³. Is the President more interested in the opinion of staff representatives on non-binding and general matters than on changes affecting real working conditions?

We are the Office: theory and practice.

The document is mainly written in the “we” form. It is sometimes unclear whether the word “we” means the staff, managers or both. In a well-functioning organisation, it should be possible to use “we” regardless of the hierarchical position. In the Office, the recent Staff Engagement Survey 2022 has shown that it is not the case: there is a clear divide and staff do not trust management.

The document appeals for individual responsibility and accountability. The CSC members of the GCC support this. However, the daily practice must show that this is meant to include all levels of the hierarchy and managers cannot sift their own responsibility onto staff.

The CSC members of the GCC cannot help but notice the discrepancy between the declarations in the document and practice. For instance, ethics includes the respect of the rule of law. The Tribunal has recently ruled in several casesi that the Office violated

_____________ ¹ During the GCC meeting, it was said that this document would replace the existing code of conduct – but neither the document nor the speaker clarified how this would happen or how this document would be made to fit into our legal/employment framework. It seemed more like a statement of intent. ² See page 4 of the document. ³ As document GCC/DOC 13/2022

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fundamental rights. The CSC members of the GCC cannot see that the present management is trying to mitigate such obvious violations, unless forced to do so by external instances but they hope that managers will (also) feel addressed by this handbook.

On the content

The document contains a mix of considerations that relate to true values and ethics, but also many tips about behaviours that management expect from staff to “improve our products and services”, sometimes down to a very mundane level⁴. In that it is genuinely a “handbook”. The CSC members of the GCC leave it to interested staff to try and sort it out in this 29-page long handbook.

Still, a few remarks:

● On social dialogue: The Office seems to misunderstand social dialogue. According to the International Labour Organization, it should take place between (higher) management and staff representatives⁵. Expressing individual views to managers and participating in staff consultations organised exclusively by management is no social dialogue, at least not in the eyes of ILO and its Administrative Tribunal (ILOAT). In addition, the CSC members of the GCC would have welcomed a mention of the role of trade unions in social dialogue.

● On justice: disputes are unavoidable in an organisation. The CSC members of the GCC regret that the Office does not mention that access to justice is a fundamental right, and that “justice” is mentioned only once in the document and is associated with “litigation” and “costs”⁶.

● On health and safety, and well-being: recent developments, such as the extension of home working, indeed “blur the lines between our professional and private lives and lead to increased risks of stress”⁷. The recent Staff Engagement Survey and the Technologia Survey organised by SUEPO show this. However, this section does not have the importance it deserves, especially when compared with large sections dedicated to e.g., IT matters⁸.

_____________ ⁴ E.g. “show consideration for colleagues' schedules when organising virtual meetings”. ⁵ What is Social Dialogue: “Social dialogue is defined by the ILO to include all types of negotiation, consultation or simply exchange of information between, or among, representatives of governments, employers and workers, on issues of common interest relating to economic and social policy. It can exist as a tripartite process, with the government as an official party to the dialogue or it may consist of bipartite relations only between labour and management (or trade unions and employers' organizations), with or without indirect government involvement.” ⁶ “litigation comes at a cost” on page 9 of the document. ⁷ See page 15 in the document. ⁸ See e.g. the whole section “Working Digitally”.

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● On diversity and inclusion: D&I is not just about giving our colleagues the benefit of the doubt and opting for open dialogue, or about cosmetics or PR purposes: looking at just the pictures used in the document it is striking that most of the pictures (9 out of 14) show women, discussing and mostly smiling. While the EPO population comprises 34% of women, this choice seems to serve a stereotype rather than be a testimony to D&I. Above all, D&I is about concrete measures and actions, e.g., a fair rewards system.

● On speaking up: the CSC members of the GCC also emphasise the necessity to address issues. The document mentions contacting the Ethics and Compliance team if a red line is crossed. The work of the Confidential Counsellors must be supported but the CSC members of the GCC are worried about the current functioning of the Ombuds Office. Staff representatives and trade union representatives also comprise men and women who can be contacted in case of interpersonal conflicts or administrative disputes and who are also bound to confidentiality. Mentioning them in the document would not have been out of place. Finally, the document, and the Codex, are also silent on the protection of whistle-blowers. A framework must be set up if the “speaking up” is to be taken seriously.

The CSC members of the GCC

_____________ ⁱ In cases relating to mass emails, composition of the Appeals Committee...

Opinion of the CSC members of the GCC on GCC/DOC 15/2022:

Public Holidays 2023

The CSC members of the GCC are pleased to note that the official regional or national holidays at the places of employment are included in the proposed lists. It is welcomed that since 2020 the good habit of adopting local holiday regulations has been reinstated. Also, the special regulations for Brussels according to local circumstances and business needs appear adequate. The pragmatic approach is positively acknowledged.

The CSC members of the GCC positively recognise the longstanding practice featuring compensation in form of additional annual leave to staff at the places of employment with fewer public holidays, aligned to the location with the most public holidays.

However, the CSC members of the GCC have a negative view on the proposed closure days on 27, 28 and 29 December 2023. The document is silent on the reasons for said closure days. A reference to an “Office’s closure policy” can hardly be considered as a reference to Circular No. 22. And even if so, Circular No. 22, Rule 4 provides only for a discretionary decision by the President (“may decide, in the interest of the Office, to close the Office between Christmas and New Year”). The exercise of discretion has not been demonstrated. It is not apparent from the document that the administration has made any efforts to weigh the advantages of the proposed closure days to the Office against the disadvantages to staff.

In particular, the CSC members of the GCC have a negative regard for the order that staff shall decide at their discretion which type of authorised leave to take on the above three compulsory closure days. Said order amounts to a deduction of authorised leave days, which are thus no longer at the disposal of staff. While Article 59(2)(b) ServRegs authorises the President in combination with Article 10(2)(a) EPC to lay down the list of public holidays applicable to each place of employment, no authorisation is given for the deduction of leave days. The practice of deducting compensation hours in case the staff member does not follow the above order is also not authorised. It appears that the regulations in the document (and the according regulations of Circular No. 22) in this regard travel beyond the ServRegs and the EPC.

The reference to ILO-AT Judgment No. 4316 provided in the GCC meeting does not weaken the above findings. The judgment is about the question as to whether the President has the power to grant bridging days as paid time off, not to deduct authorised leave for bridging days. To the contrary, a clear distinction is made to annual leave not addressed by the Tribunal (see consideration 12). It rather follows from the judgment that the President is authorised to declare the days between Christmas 2023 and New Year 2024 as public holidays in the Office – which would of course be appreciated by the CSC members of the GCC.

The CSC members of the GCC

Opinion of the CSC members of the GCC on GCC/DOC 16/2022:

Transfer of funds from the Office’s Treasury to

the RFPSS and to the Salary Savings Plan

On the transfer of funds to the RFPSS and to the SSP As in the previous years the CSC appreciates the transfer of surpluses into both the RFPSS and the SSP, especially because a) these surpluses are the result of staff’s hard work and b) pension and salaries are by far the main expenses and liabilities the Office has.

Furthermore, the CSC supports the transfer of funds since it ensures the long-term stability of the pension schemes for the benefit of the staff and the pensioners as well as the long-term financial sustainability of the Organisation.

On the transferred amounts according to document CA/66/22

RFPSS The Office forecasts an annual cash surplus amounting to EUR 360m. According to the Administrative Council’s approval of the long-term sustainability bundle of measures (CA/18/20) it is proposed to invest cash surpluses into the RFPSS (40%) and into EPOTIF (60%). The Office proposes this year to deviate from the decision of the Administrative Council of June 2020 by increasing the injection into the RFPSS from 40% to 60%, resulting in EUR 216m being earmarked for pensions. EUR 196m shall be injected in the Pension Reserve Fund (PRF) thereby contributing to improving the coverage of the pension liabilities and EUR 20m shall be used for expected pension payment deficits.

The CSC appreciates the transfer in the RFPSS as well as the increase of the injections to 60% (last year 50% have been transferred into the RFPSS). Cash injections into the RFPSS can compensate possible expected decreases of the investment return in the coming years as calculated by PPCmetrics (Review of the SAA Phase I) and thus help to reduce liabilities.

SSP The Office also proposes a cash transfer into the SSP on the basis that the SSP assets (EUR 192m) represent 2.043% of the PRF assets (EUR 9 400m) on 31 August 2021. The proposed cash transfer to the SSP would be equal to EUR 4m, i.e. an amount proportional to the suggested PRF cash transfer (2.043% x EUR 196m).

The CSC also appreciates the transfer into the SSP. However, it cannot support the administration’s proposal on the distribution key. As in the previous years, the administration proposes an amount paid into each individual salary savings account proportional to the amount of contributions paid into that account in 2022 (see CA/66/22, paragraph 17).

This method creates significant distribution spreads amongst employees in the lower and higher grades of the salary scale, leading to a distribution ratio of 16:1 between a colleague in G17.1 and one in G7.1. This means that if a G7.1 colleague gets 600 Euros, a G17.1 colleague will get 9.600 Euros. This distribution ratio is perceived as being completely unfair by staff.

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Our management justifies this distribution ratio with the higher risk that higher grades carry. We can hardly understand this argument. The investment opportunities are the same for all salary levels. Thus, the relative risk (in percentage) is the same for all members of SSP. The absolute risk (in Euro) is of course higher. However, this absolute risk is increasing if even more money is injected into their SSP. As in previous years, the CSC proposes that the distribution should reflect the benefits provided by the injection into the RFPSS. Cash injections into the RFPSS protect members of staff against potential future rises in global contribution rates. Those global contribution rates are proportional to salary. This calculation method results in a distribution ratio of 3:1, which maintains a difference between the lower and higher grades. This proposal would provide a fair distribution, such that the growing unfairness could be overcome.

Broken promises on the cash injections into the SSP The CSC has made similar proposals to the administration in previous years. The President announced in the AC/158 meeting (see CA/PV 158, paragraph 112) that he would have a discussion on the topic so that there would be a positive outlook. He mentioned in the GCC on 22 November 2018 that it was important to start the discussion as soon as possible (see minutes GCC 4/2018, paragraph 48). A further year passed and this promise has not materialised.

The CSC requests as in previous years the administration to include the CSC’s proposal for the distribution key in section VI. ALTERNATIVES of a revised version of CA/66/22.

Transfer ratio into RFPSS and EPOTIF Following the orientation provided in CA/18/20 ("Long-term Sustainability - Bundle of measures for the period 2020 – 2038”), it is proposed to inject 40% of the annual surpluses in the RFPSS and 60% in the EPOTIF. The reasons being “that the EPOTIF is less exposed to market fluctuations than the RFPSS, due to the asset allocation. Moreover, the cash injected in the EPOTIF has no specific attribution and can always be redirected to cover other needs while the transfers to the RFPSS are definitive.” The CSC doubts that the transfer into the EPOTIF is a safer option than the transfer into the RFPSS, since the EPOTIF has no supervisory body comprising all stakeholders, namely the AC, the staff representatives and the pensioners’ representatives. Moreover, the RFPSS is geared towards long-term sustainability, which the EPOTIF is not. The CSC notes that the ratio of the cash injections from 40:60 to 60:40 (RFPSS:EPOTIF) is appreciated and is seen as a move into the right direction. The CSC further maintains the request that in future the transfer of funds shall be weighted such to be transferred mainly into the RFPSS and SSP.

The CSC members of the GCC

Opinion of the CSC members of the GCC on GCC/DOC 17/2022:

Periodical Review of Service Regulations

The CSC members of the GCC appreciate that an advanced copy of the document could be discussed in a GCC-SSPR meeting on 23 September 2022 and in a meeting of the working group on Appeals Committee reform on 26 September 2022. The discussion resulted in several changes visible in the document CA/44/22 uploaded on 26 September 2022 to MICADO so as to keep the time limit given in Article 9(2.1) of the Council’s rules of procedure. While the CSC members of the GCC note the changes positively, it is regrettable that the President had already sent the document CA/44/22 to the Council before the official consultation of the GCC took place on 5 October 2022. In particular with regard to a “periodic review”, no urgency is apparent and an earlier consultation would have been appropriate.

Document GCC/DOC 17/2022 contains a number of shortcomings, of which the CSC members of the GCC comment on the following five in particular.

Healthcare insurance

The proposed change in the wording of Article 83a ServRegs to replace “years actually served at the Office” for “years of reckonable service” will affect colleagues who transferred pensions rights accrued under their previous pension schemes to the Office according to Article 12 of the Pension Scheme Regulations. Such an inward transfer resulted in a number of years of reckonable service calculated according to the rules foreseen in the Implementing Rules to the Pension Scheme Regulations. The affected colleagues could legitimately expect that the regulations based on said years of reckonable service would not be changed, at least not be changed fundamentally. The proposed change, however, means that in case of a deferred retirement pension the years of reckonable service resulting from the transfer of pension rights will no longer be taken into account in the following sense: The period of time an employee continues to be insured as provided for in Article 83a(1) ServRegs because of said transfer is reduced to zero days. This amounts to a fundamental change. Therefore, the CSC members of the GCC consider that proposed amendment to be negative and to the detriment of the colleagues. Legal disputes can be reasonably expected because of the lost rights.

Update to the personal file in light of digitisation

The proposed change to Article 32 ServRegs on the procedure of communication of documents to be included in the staff’s personal file will result in legal uncertainty. If an employee no longer has to sign a received document or if the communication is not effected by registered letter, the evidence of receipt is doubtful. It is necessary that an employee is able to take note of the content of a document to be included in their personal file. This is no longer guaranteed by the proposed wording “[a]n employee shall be notified of the documents or reports ... that are to form part of their personnel file”. Therefore, the CSC members of the GCC consider that proposed amendment to be negative.

Update required to implement Judgment No. 4550 (Appeals Committee)

The proposed wording of Articles 36(2) and 111 ServRegs resulting in no limitation of the CSC appointees in the Appeals Committee to elected staff representatives only is a result of Judgment No. 4550 of the ILO-AT. It had been a longstanding request by the Staff Committee to be able to nominate to the Appeals Committee from all staff without limitations. It had also been the old practice before “Social democracy” was introduced by CA/D 2/14. The CSC members of the GCC note with regret that it was necessary that the Tribunal had to set aside parts of the Administrative Council’s decision CA/D 2/14 and that the issue could not be solved internally and earlier. The CSC members of the GCC emphasise that further amendments are needed so as to enable the Appeals Committee to function. Nominees to the Appeals Committee need an appropriate time budget for their work. They need a guaranteed protection from sanctions under the incompetence procedure. They need an adequate guarantee for their professional career.

Gainful employment

The CSC members of the GCC regard the proposed changes to the wording of Articles 16, 44a, 56, 61a, 68, 83a and 114 ServRegs and Implementing Rules for Articles 83a, 84 and 84a ServRegs (“gainful activities and employment” instead of “gainful employment” or “gainfully employed”) with a negative view. Such changes amount to a severe restriction for the affected colleagues. The CSC members of the GCC appreciate that document CA/44/22 does not contain said proposal.

Death insurance for permanent and fixed-term employees (Articles 84 and 84a ServRegs)

The proposed wording that a “permanent/fixed-term employee is ensured as long as they are in active service” means that employees in non-active status (see Article 42) could be excluded. The CSC members of the GCC are against such a modification of the Service Regulations because colleagues in parental leave, family leave etc. should not be affected. The CSC members of the GCC recognise that the above wording is no longer envisaged in CA/44/22.

The CSC members of the GCC

The general public deserves to have access to this material. The EPO's staff and their famililies (direct family members) are about 20,000-30,000 in number, not even counting pensioners. Their actions affect billions of people all around the world, not just citizens of Europe. The integrity of their job -- and the ability to perform their role as laid out in the EPC -- has a profound effect on everyone; ethical concerns expressed by staff must be heard. ⬆