Those EPO management criticisms: the Central Staff Committee responds

Merpel posted last week an open letter in which the management of the European Patent Office criticised staff representatives for their behaviour in the meeting that was supposed to discuss reform to the sick leave and invalidity provisions in the service regulations governing EPO employees.  Merpel expects that many readers, like her, will have wondered what really happened and what was the other side of the story.  Some clarification has appeared in the comments on the piece, but, given that there are over 100 comments, most anonymous and many off-topic, they are rather indigestible.  Well, Merpel has now received the response of the staff representatives that explains what went on from their point of view.

The reason for the uproar becomes apparent from the reply below. The committee in question (the General Consultative Committee - GCC) is required to have 10 staff representatives and 10 management representatives. However, the staff numbers dropped to 9 a few months ago yet the President of the EPO refused to endorse the (supposedly automatic) promotion of a reserve member. As a result only 9 staff members were entitled to attend the meeting, ensuring a structural minority for the staff in a committee whose rules state there must be equality. Merpel cannot see how this is anything other than a deliberate abuse, both as regards the non-appointment of the reserve staff member and as regards the chairing of the meeting under such circumstances.

Before turning to the meeting itself however, Merpel would like to remind her readers of what was the issue under discussion and why it was so contentious of itself. Merpel understood that EPO employees surrender the right to national social security and medical care according to the rule of most countries.  So the EPO sick and invalidity provisions represent the only social care to which EPO employees are entitled.  There is no other safety net for them to fall back on.  One may be able to see why apparently minor changes can cause concern and anxiety.

As Merpel understands it, there are a number of areas where the rules are proposed to become more strict (she has included references to the amended articles to convince herself that she is not making it up):

• Only 3 days of uncertified sick leave are permitted per year. After that every single day of sick leave must be certified by evidence (Art 62a)
• There is already a newly-intoduced requirement that on a day of sick leave the employee must be at their place of residence from 10:00-12:00 and 14:00-16:00, so seeking medical assistance or getting a sick note is rather onerous
• Permanent retirement for health reasons is only available after the age of 55 AND after 10 years of medical incapacity (Art 13 of pension scheme regulations)
• Even during long term incapacity, the employee must remain at his place of residence recognised by the office or seek permission to spend the leave elsewhere - this appears to mean every day spent not at home during the above-mentioned period of 10:00-12:00 and 14:00-16:00 (Art 62b referring to Art 62a)
• The medical determinations - all of them: the initial opinion, and second and third opinions when needed - are to be made solely by medical practitioners appointed by the office - the sick person's physician "may" be consulted (Art 89/90), and only if there is a final arbitration procedure to contest the initial finding, must the sick person's physician be consulted (Art 91).
• The salary of a sick employee will be reduced much faster than presently: after 125 days of sick leave in a period of 18 months, rather than after 250 days of sick leave in a period of 3 years (Art 62a). After 3 years the employee’s income will be reduced to less than 70% of his/her basic salary (Art 62b).

So, against this background, here is the response of the staff representatives to last week's letter:

Dear Mr President,

We wish to put on the record the following facts: 

1. After the elections in June 2014, the staff representation side of the GCC was duly constituted with 10 full members (and 10 alternates), all in accordance with Article 38 ServRegs. 

2. At the end of 2014, both a full member of the CSC (Mr Nigon) and the first alternate in The Hague (Ms Post) resigned from their staff representation positions. This should have resulted in the next alternate member in line by vote, Mr Brévier, taking up his duties first as a full member of the CSC, and then of the GCC. This is so because: 

a. As a parity body, the number of CSC members and management members in the GCC should be the same: Art. 38(1) ServRegs third indent. 

b. The GCC should comprise all full members of the CSC: Art. 38(1) ServRegs, second indent. 

c. There must be 10 full members of the CSC: Art. 2(1) Circular 355 

d. Following the resignations of Mr Nigon and Ms Post, Mr Brévier should have been elevated de jure to a full member of the CSC: Art. 7(3) of Circular No 355. 

3. Notwithstanding, in December 2014 (and confirmed in February 2015) you published on the Intranet a list of all members of the GCC for 2015. For the CSC, this list includes only 9 full members and 9 alternates. This is incompatible with all the provisions mentioned above which, we wish to remind you, are your own creation. 

4. You were duly informed of this composition problem, firstly by the CSC in its letter dated 19 December 2014, and secondly by Mr Brévier in his request for review dated 7 January 2015, both of which remain as yet unanswered by the Office. 

5. Nevertheless, the meeting of the GCC on 27 February 2015 was held in the presence of only nine (9) full members of the CSC and ten (10) full members of management. 

6. We pointed out this serious procedural flaw at the start of the meeting and asked members of the GCC kindly to postpone the GCC consultation on the proposed CA/14/15 (reform of sick leave and invalidity) to allow you to correct this deficiency through approving a properly constituted GCC with true parity. Our request was denied, with no reason given. As you are surely aware, this formal flaw is likely to taint the consultation process with a procedural flaw that almost certainly invalidates the reform of the invalidity system. The responsibility for this fiasco would lie entirely with your team. 

7. Subsequently, on 3 March 2015, the management participants published an open letter to all staff in which they try both to diminish their own responsibility and justify their contrary position. At this stage we only wish to address a few points:

• In the open letter, the management team asserts: “all those full and alternate members elected by the staff and still in place after the series of recent resignations had received in due time an invitation to participate in the meeting” (emphasis added).

This statement is false. As can be seen from the screenshot of the calendar (ANNEXED) only the nine full members were required to “block the day” for the meeting. All nine full members duly participated. The alternate members did not receive an invitation to the meeting, and neither did Mr Brévier. PD 4.3 said (to our surprise) during the meeting that the position of Mr Brévier was still unclear because the resignations of a number of staff representatives, including those of Mr Nigon and Ms Post, were suspect and therefore under investigation; she did not mention when those investigations would come to an end. While it is clear that an alternate member can and should replace a full member who is unavailable for a particular meeting, there is no legal basis for replacing a non-existing 10th full member with an alternate. We wish also to remind you that it is the GCC Chairman’s responsibility for summoning the participants to a given GCC session.

• The open letter further mentions that PD 4.3 was “prevented from presenting the modifications which the Management envisaged to introduce in the final document to be presented to the March Council”.

This statement is also false. One of the staff representatives asked twice what aspect of the proposal management was willing to discuss with the Staff Representation; no answer was given. Surely if PD43 had substantial points to make, or was willing to discuss amendments, she would have said so. Be that as it may, we are puzzled as to why hypothetical changes should pop up at the latest minute, during the last meeting preceding the Council, and after an allegedly very long and thorough consultation process.

• Finally, the open letter alleges that CSC members present misbehaved. While the debate was at times animated, and this on both sides, we firmly deny that insulting comments were made or that any CSC member went beyond the boundaries of civil discourse.

8. For the sake of completeness, we will also put on the record the following formal points:

• We maintain our objections to the continued presence in the GCC of Vice Presidents, which is contrary to the unanimous opinion of the Internal Appeals Committee in cases RI/182/11, RI/2a/12, RI/2b/12, RI/23/12, RI/40/12 and RI/223/12.

• Any consultation procedure will now be incomplete without a bona fide negotiation with SUEPO (prior to a bona fide consultation of the GCC), to remain compliance with the judgment of the Court of Appeal of The Hague dated 17 February 2015.

Turning now to the substance of the reform proposed in CA/14/15, we will not bore you by repeating arguments already in your possession. We will simply refer you to

• the negative opinion of the Staff Representatives in the COHSEC,

• the note which you received from the Pensioner’s association,

• our interventions made in the GCC, as indicated in the CSC's “Report on the GCC”, also published to staff yesterday.

In conclusion, we consider it a necessity that another GCC meeting is held (this time correctly composed) on the reform of the sick leave and invalidity provisions. Furthermore, it should be preceded by a proper negotiation with union officials and staff representatives. We are confident that some serous changes to critical points might lead to a new, amended proposal that would be more acceptable to the staff. We remain at your disposal for such consultations. 

Sincerely yours, 

The 9 members of the CSC, members of the GCC.

In the end, Merpel understands that all of the management representatives voted in favour of the proposals to amend the service regulations as outlined above, and all the staff representatives voted against.

It seems to Merpel that the two sides in this [what should be] negotiation are more and more divided and wonders how this gap can be bridged. She also wonders who would now be motivated to stand for positions of staff representation since the job seems highly unattractive.  If the representatives are to be treated in such a way, how can the EPO management expect good candidates to present themselves in future?

Merpel also wonders about this mysterious reduction of the numbers of the staff representatives from 10 to 9.  According to the above, the resignations of two members were "suspect" and "under investigation".  In her simple world, someone has either resigned or not.  How can this be a matter for "investigation"?

The IPKat and Merpel invite comments on this matter from our dear readers. Merpel begs to remind readers of the following:

Henceforth, in respect of all EPO-related blogposts, no comment will be posted if it is merely ascribed to "Anonymous".  Any reader wishing to conceal his or her identity must adopt a pseudonym (which should not be obscene and should not be the name, or the mis-spelling of the name, of a real person).  The pseudonym need not be an actual login name, as long as it is stated clearly at the beginning and/or end of the comment itself. This way, it will be easier for people who post later comments to identify and remember the earlier comment-poster and to recall the discussion string.  Where, as has already happened on occasion, a string carries over from one blogpost to a later one on the same or a related subject, readers will be encouraged to use the same pseudonym for the sake of continuity.