Bonum Certa Men Certa

The European Patent Office Again Violating Workers' (Labour) Regulations and Likely the European Patent Convention (EPC) Too

posted by Roy Schestowitz on Mar 20, 2024,
updated Mar 20, 2024

New Ways of Working: From pilot to permanent?

Wants to Turn Staff Into Mere 'Visitors' or Nomads in Low-Paid 'Gig' Jobs?

Or fixed-term contracts without job security? Causing anxiety [1, 2], which lowers the quality of the work and undermines loyalty?

The short story is, founding members of the European Patent Organisation (EPO) are very sceptical of the controversial (notorious among staff) "New Ways of Working" (NWoW) scheme; they also express concerns about a lack of cohesion and a lack of any legal basis (though the lack of legal basis didn't seem like an obstacle in setting up kangaroo 'courts' for patents in the EU).


The Central Staff Committee (CSC) of the EPO has published a paper, which is dated 6 days ago.

The CSC told overworked (EPO is understaffed) colleagues that even after Benoît Battistelli left (nearly 6 years ago) worse times are ahead:

Dear Colleagues,

The New Ways of Working (NWoW) (CA/18/22) entered into full force as of 1 September 2022 following a three-month transition period as a two-year pilot (Circular No. 419).

A review of the pilot was announced in the Communiqué of 13 November 2023 and a survey “Engagement in the New Ways of Working” was launched on 23 January. The results of the survey were promised for early March but the administration decided to publish them after the meeting of the Administrative Council of 19/20 March 2024.

The pilot was initiated after lengthy discussions in 2021 and 2022 with the Member States, in particular host states. Now, the administration plans to transform the pilot into a permanent scheme. Concerns are however persisting among delegations.

This paper presents an overview of the situation.

Sincerely yours

The Central Staff Committee - CSC

The following publication shows how António Campinos and his EUIPO comrade Simon (VP4) are plotting to worsen working conditions, even faster than first envisioned:

Zentraler Personalausschuss
Central Staff Committee
Le Comité Central du Personnel

Munich, 14.03.2024
sc24015cp

New Ways of Working
From pilot to permanent?

The New Ways of Working (NWoW) (CA/18/22) entered into full force as of 1 Sep- tember 2022 following a three-month transition period as a two-year pilot (Circular No. 419). A review of the pilot was announced in the Communiqué of 13 November 2023 and a survey1 “Engagement in the New Ways of Working” was launched on 23 January. The results of the survey were promised2 for early March but the administration decided to publish them after the meeting of the Administrative Council of 19/20 March 2024. The pilot was initiated after lengthy discussions in 2021 and 2022 with the Member States, in particular host states. Now, the administration plans to transform the pilot into a permanent scheme. Concerns are however persisting among delegations. This paper presents an overview of the situation.

New Ways of Working pilot: A compromise with the delegations

Back in December 2021, Council document CA/77/21 (New Ways of Working) was added to the agenda of the 169th meeting of the Administrative Council for opinion (CA/69/21). A vote was to take place and, if positive, the proposed pilot approach would have been implemented by the Office. On the day of the meeting, however, the document was re-classified as for information only. Concerns expressed by Member States, in particular host states and major states with respect to number of patent applications, made a positive outcome of the vote very unlikely.

Mr Campinos tabled a revised version3 of the text (CA/18/22) in the following meeting of the Administrative Council on 22 March 2022:

− the maximum days of teleworking from abroad remained set at 60 days per year.

However, some important aspects were revised:

− the duration of the pilot was reduced from three to two years

− the minimum attendance on-site was raised from 40 to 60 days per year,

− the provision allowing staff from Berlin and Munich to work half of their minimum attendance days from the respective other site was removed.

Following the repeated requests of the staff representation:

− the accrual of flexi-time was allowed to all colleagues, independently of their work pattern (on- site or teleworking).

_____________

1 "Staff Engagement Survey 2024 goes live today", Communiqué of 23-01-2024

2 "Staff Engagement Survey 2024 is now closed", Communiqué of 07-02-2024

3 CA/PV/ 170, par. 48


Concerns from Member States

Since 2021, delegates from some Member States regularly take the floor to express their concerns in Council meetings on the New Ways of Working pilot. These are essentially host states and founding countries of the European Patent Convention:

Germany

Back in 2021, Germany referred4 to Article 6 EPC which states that the Organisation shall have its headquarters in Munich, and “successfully” obtained the removal of the option given to employees in Germany to split the mandatory days of presence on-site between Munich and Berlin. Germany preferred a more cautious approach to teleworking and questioned whether the Office made a benchmark with other International Organisations such as the EU Commission. Germany pushed for a shorter pilot period, for example one year. In addition, the German delegate pointed to a lack of legal basis of the Guidelines. They also asked for an impact assessment on the Protocol on Privileges and Immunities (PPI). The German delegation recalled that the EPO had worked well on the basis of established teams but wondered how the Office could ensure quality was maintained whilst onboarding new colleagues working remotely. Finally, Germany was not convinced that all benefits should continue to apply for staff working remotely, for instance, the home leave allowance. Mid-2023, the German delegate still expressed5 cautiousness with respect to the pilot and recalled that the Office in their proposal (CA/18/22) had promised the Administrative Council would receive every six months transparent and global reports on all developments so that the AC could directly assess the success of the scheme and define the next steps and provide information to the delegates’ hierarchy6.

Netherlands

The Netherlands echoed the concerns of Germany and the United Kingdom in 2021. They referred to an ongoing dialogue between the EPO and the Ministry of Foreign Affairs, notably the Ambassador for International Organisations, responsible for the position of The Netherlands as host country, who raised a number of important questions with regards to privileges and immunities granted by the state. The Dutch delegation recommended that the Office take care of the coherence and centralised functioning of the Office in accordance with the EPC. They found the teleworking scheme very generous and wondered if it would be reversible and how such a scenario would affect social dialogue. The delegate noted that the scheme of teleworking abroad did not affect the expatriation benefits. However, considering that EPO staff already benefitted from generous working conditions, the Netherlands found the total package unbalanced by adding an extremely flexible teleworking scheme and had concerns regarding teleworking abroad.7

United Kingdom & Finland

In 2021, the United Kingdom asked for an annual review of the scheme8. End of 2023, the UK delegate still pointed9 at the challenge of balancing the flexibilities granted by hybrid working against the need to maintain a strong sense of community and belonging. They looked forward to seeing the evaluation of the teleworking pilot in 2024. Finland echoed the comments expressed by the UK delegate in 202110 and emphasized in 2023 the need to look more closely at the impact of the New Ways of Working11.

_____________

4 CA/PV 169, par. 75

5 CA/PV 175, par. 21

6 CA/PV 175, par. 47

7 CA/PV 169, par. 96-97

8 CA/PV 169, par. 74

9 CA/93/23, par. 76

10 CA/PV 169, par. 83

11 CA/93/23, par. 76


France

Back in 2021, France highlighted12 points deserving particular attention. First, the minimum number of working days required at the main place of employment should not be too low to ensure that cohesion and the development of a common culture was maintained between staff coming from 38 Member States. In its view, there should not be more days outside the country of employment than required in the city of employment, and justified the need for a common culture to be consistent with the homogeneity of treatment of Unitary Patents in the EPC countries. Second, the French delegation noted that teleworking required new forms of management and organisation of work which should be verified before opening up teleworking even more widely. Third, they expected consistency between “the working methods, which were greatly reduced”, and the system of remuneration and accompanying allowances, for children, for studies, or in terms of leave. These allowances were largely linked to the principle of expatriation but if in the end the geographical constraint on the agents were to be minimal, then it wondered if the coherence between the two always had the right balance. End of 2022, France repeated that it was crucial to integrate and train new recruits effectively as well as provide them with a sense of belonging and common methods because they would be the backbone of the EPO in 10 years' time13. End of 2023, France suggested a dedicated assessment of the impact of the New Ways of Working and to learn from experience and adapt the method if necessary.14

Denmark

In 2021, Denmark was concerned about the extremely flexible scheme proposed and wondered if it would prove irreversible. They had expected a less generous scheme and suggested an annual review to avoid having difficulties rectifying issues which could have occurred: an element of acquired rights would be introduced and staff would organise their lives accordingly. Denmark was also of the opinion that 40 days on-site were not sufficient to ensure knowledge sharing, socialising, collegiality and a proper leadership by team managers. Moreover, this would have an impact on quality. In addition, the option to telework 60 days abroad amounted to approximately half a year abroad, if one added holidays and weekends. In 2022, Denmark was still worried about the social cohesion of the Office15. Mid-2023, Denmark was keen on seeing the results of the evaluation of the New Ways of Working scheme and to know whether it affected the discussion on quality. The Danish delegate requested in-person hearings, especially when both parties agreed to having oral proceedings in-person.16 End of 2023, Denmark expressed concerns about low staff engagement and the impact of the flexible teleworking arrangements on social cohesion and the organisation over time. It believed leadership was about being present and meeting people face-to-face17.

Switzerland

In 2021, Switzerland18 emphasised that the flexibility and the form of work delivery should primarily be oriented towards the needs of the work to be done and not towards the needs of the respective staff concerned. They noted that the greatest possible discretion for the respective supervisors created great freedom of action, but harboured a considerable potential of uncertainty, unequal treatment and unrest in the organisation. Therefore, they requested to see more clarity and transparency in this area and supported a review of the system on an on-going basis and, if necessary, a revision or adjustment. In 2022, Switzerland asked to be kept regularly informed of developments, given their importance for the culture of the Organisation19. End of 2023, Switzerland requested additional information on how the Office planned to strengthen staff engagement and how

_____________

12 CA/PV 169, par. 89

13 CA/PV 173, par. 47

14 CA/93/23, par. 40 and 65

15 CA/PV 170, par. 66

16 CA/PV 175, par. 25

17 CA/93/23, par. 83

18 CA/PV 169, par. 88

19 CA/PV 170, par. 59


it would be measured. They asked to see how the New Ways of Working affected productivity, quality, collaboration, engagement, innovation, and infrastructure needs20.

Sweden

Sweden considered in 2021 that the scheme was far-reaching and that, as the world was turning at fast speed, pilot projects should be shorter21, namely have a one-year duration. The Swedish delegate was of the opinion that the number of days on which staff could work from any Member State should have been reduced.22

Italy

Italy asked in 2021 for more information about the orientations by other International Organisations such as the European Commission, WIPO and EUIPO. They also pushed for a shorter duration of the pilot to carefully evaluate its impact. In 2022, Italy questioned how the productivity of patent examiners was affected by the New Ways of Working and welcomed the initiative to bring more transparency on this topic23.

Other countries

In 2022, Croatia noted that the New Ways of Working seemed to encourage staff to work remotely, due to the fact that staff who did not benefit from a permanent office had to book an office for the day in advance and this was somewhat cumbersome24. Greece stressed in 2022 the need for guaranteeing effective collaboration and social cohesion of the staff in implementing the pilot25. Belgium looked forward end of 2023 to the evaluation of the NWoW pilot and the staff survey to be carried out26.

Does the EPO have the most “generous” scheme?

A benchmark with other International Organisations reveals that the OECD allows a maximum of 80 days of teleworking from abroad27. However, teleworking from abroad is subject to a written convention signed by the official and their whole hierarchical line for a maximum duration of 12 months28. The convention confirms acceptance also of specific requirements with regards to the presence of the officials on the premises of the Organisation. The latter remain undisclosed and subject to managerial discretion. Finally, temporary staff members shall not perform occasional or regular teleworking outside the duty country, unless authorised by the Secretary-General29.

The European Space Agency allows30 40% telework and even up to 80% but solely with management agreement and on a monthly basis. Telework is in principle foreseen from home (i.e. the principal residence within 100 km) and, with some limitations, it is possible to telework from another country. There is no explicit mention of a guaranteed number of days of telework from abroad. However, we hear that in practice ESA allows 80 days of teleworking from abroad but with a maximum of 9 days per month.

_____________

20 CA/93/23, par. 82

21 CA/PV 169, par. 82

22 CA/PV 170, par. 60

23 CA/PV 173, par. 41

24 CA/PV 173, par. 70

25 CA/PV 170, par. 65

26 CA/93/23, par. 88

27 OECD Staff Rules, PDF page 469/495, par. 25

28 OECD Staff Rules, PDF page 468/495, par. 16 and 17

29 OECD Staff Rules, PDF page 468/495, par. 9

30 European Space Agency – Worklife Balance


The comparison with EU institutions and bodies (see Annex) reveals that only two of them have a maximum number of days outside the place of employment at or above 60 days. The European Stability Mechanism (ESM) allows 60 days per year. The European Central Bank (ECB) allows 90 days per year. However, both have requirements in terms of frequency of presence at the office like all EU institutions and bodies. The ECB imposes 50% presence per month and a maximum of 10 teleworking days per month, not consecutive. The ESM imposes 3 days of presence per week.

The 2024 review

In the meeting of the Administrative Council of June 2023, the Office announced the review of the New Ways of Working pilot and the launch of a survey.

Ms Simon (VP4) declared31 that “the Office believed that the trends had not changed since the previous survey […] 50% of the staff’s working time was spent on site, approximately 45% was spent teleworking at home and 5% was spent teleworking from abroad”.

In the same meeting, Mr Campinos had to justify32 that “the New Ways of Working pilot had not affected quality levels or productivity”. End of 2023, Ms Simon (VP4) revealed33 that “the Office wanted to make this a more permanent scheme”.

The staff representation asked by letter of 20 September 202334 to be involved in the organisation of the survey coming in Q1 of 2024. Mr Campinos sent a reply letter dated 25 October 202335 providing no answer to this request. Later, the administration orally told us that the staff representation would be invited to send comments on the survey. Such an invitation never came.

On 23 January 2024, the Office launched the promised survey. Although presented in GCC/DOC 32/2023 as a support measure to the New Ways of Working, the (infamous) project Bringing Teams Together was not addressed in any questions.

Conclusion

Almost two years after the start of the “New Ways of Working” pilot, concerns are persisting among delegations. Mr Campinos intends to make the pilot, as it currently stands, a permanent scheme. The results of the survey “Engagement in the New Ways of Working” were promised36 for early March. The administration apparently decided to publish them only after the meeting of the Administrative Council of 19/20 March 2024.

The Central Staff Committee

Annex:
“Evaluation of the implementation of the Commission Decision on Working Time and Hybrid Working”, European Commission, September 2023 (page 55)

_____________

31 CA/PV 175, par. 45

32 CA/PV 175, par. 9

33 CA/93/23, par. 65

34 see Annex 1 to GCC opinion on GCC/DOC 32/2023 (sc23115cl)

35 see Annex 2 to GCC opinion on GCC/DOC 32/2023

36 "Staff Engagement Survey 2024 is now closed", Communiqué of 07-02-2024

Today's EPO continues to operate outside the Rule of Law while censoring those who speak about it. It even fakes its 'production' by deliberately pushing examiners to illegally grant European software patents. How fitting that EPO 'elections' are basically like Putin's elections. Fake 'elections' are a very EPO thing. There's barely even an illusion of democracy, it's just the clique selecting one of its own.

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