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Monday, 9 March 2015

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.


The US anon said...

Simply, "Wow."

Macavity said...

I have two unrelated questions (even though they might look trivial). Maybe someone from the EPO could provide the answer.
1) Where was the last CCG held? in Munich or The Hague?
2) Is it foreseen in the new rules what happens to employees who are hospitalized? Clearly they cannot be home between 10 and 12 and 2 and 4.

john r walker said...

Speaking as a complete outsider, I am a bit surprised that signing the EPOs employment contract could , in principle, void what seems to be quite normal rights-freedoms, under law. For example "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 "is a pretty extreme restriction of normal liberties ( more like community detention) no?

Old Man said...

Two comments:
1) Whether it is called GSC or GAC the function of this body within the EPO is to be a forum of discussion/consultation of possible amendments to staff regulations which could affect a group or all of the staff. As it only has a consultative function, the President having consulted, can take any decision he thinks fit. No President ever did differently. But numerous decisions of the ILO-AT have made clear that before any implementation of a measure it has to be "discussed" in the GAC/GSC. Otherwise it will be set aside by the ILO-AT (International Labour Organisation-Administrative Tribunal). After a formal new consultation, the measure was nevertheless implemented, but at least some consultation took place.
It was not infrequent that dissenting opinions were voiced, but at least the role as Forum was more or less respected. Sometimes even the management representatives send a proposal back to the administration. Before BB it was composed on the side of the management by people in the rank of Director and Principal Director. They had clear instructions from the higher management, but at least some discussions took place.
Once BB took over, he placed there all members of the Management Committee, hence all the Vice Presidents, cf. R 19/12... Why on earth should the VPs express in the GSC/GAC a different view from what they had decided in the MAC? In other words, BB respected the letter of the text, but by no means its spirit. Any "consultation" in the GAC became farcical. That explains also the frustration of the staff representatives.
2) It is not the first time that the "generous" invalidity regulation has been at stake. In the early days the first President, Van Benthem, decided to change them, and introduced a lowering percentage for the invalidity lump sum from the age of 55. The nearer a staff member was from the age to be pensioned, the lower the lump sum was. This measure was ordered for all staff. Following a famous decision of the ILO-AT this decision could only be applied to new staff member recruited after the date on which this new regulation came into force. Members of staff recruited before this date would still benefit from the old regulation. It was held by the ILO-AT that this regulation was one of the reasons which has lead a member of staff to join the EPO. Any future member of the EPO receives before joining a copy of all staff regulations valid on its day of entry. When accepting a post, the candidate has to acknowledge having read the staff regulations. They are part of the contract between the EPO and each staff member. It was thus not legal for the EPO to alter unilaterally this regulation to the disadvantage of staff benefiting from it. A few other measures were also skipped this way by the ILO-AT, but the one on the invalidity was the most important one. When A. Brimelow introduced a new pension scheme, she made sure that it only applied to new staff, exactly for this reason.
BB, and his cronies, would be well inspired to have a look at this case law from the ILO-AT before pushing through the way they do. Why is there a PD legal affairs, if it is not to avoid such blunders?

Old man of EPO said...

References to 'negotiation' between the two sides is misleading. The GCC is only for consultation (the previous body was Advisory - GAC). Thus the president decides after 'consultation' and he chairs the meeting to hear the discussion - although I understand he is more of a participant (for one side). The GAC was neutral and proposers of points to be discussed would be present but not members. Now they are members. In the end the votes of the GCC are not binding anyway; the meeting is purely to satisfy the president's requirement to 'consult', even if that is not what normal people would understand to be consultation.

Zazie said...

Mr Walker,
you retain all your rights, but the epo will fire you or stop paying your pension if you exercise them.

We are the EPO said...

Another important change: The EPO obliged all staff to participate in a kind of "invalidity insurance" guaranteeing a lumpsum payment in case of invalidity. After having paid into this system for more than 20 years I am now informed that this insurance has been abolished. Without any compensation. This means I have paid for nothing AND I don't have an invalidity insurance. Unbelivable? No. Normal EPO practice.

Garfield said...

Rules, rules, rules.

There's something wrong with an organisation where staff relations are tied up and tightly constricted by so many rules.

There's something wrong when both sides play the rules to score points over the other. Where each side complains that the other side didn't play by the rules.

There's something wrong when the management side writes the rules, but is then frustrated because the staff reps are better at playing the rules (citing "no legal basis" and "judgment of the Court of Appeal of The Hague").

There's something wrong when the staff reps are equally frustrated, because they know that the management will go ahead anyway, despite losing the rule-playing game.

What's needed is to ditch the rules. What's needed instead is a spirit of cooperation on both sides. Unfortunately, cooperation would require a fundamental change of attitudes on both sides. Neither side can do it by itself, and neither side is going to change.

I blame both sides. They are as bad as each other. Everyone loses. But the biggest losers are the ordinary employees, who are stuck in the middle. Perhaps the staff reps should remember that when they play the rules.

Dilbert said...

Dear Garfield,
Sitting on the fence with both ears to the ground won't help.
Fact is that there was always conflict of some sorts, but in the end compromise solutions were usually found. Since BB became president, things have changed. Compromises are no longer sought by the administration. BB knows best, and that is it.

Garfield said...

Dilbert, I don't doubt what you say, but it's just one aspect of my point. Cooperation would require a fundamental change of attitudes on both sides.

The reason I'm sitting on the fence and supporting neither side is because I don't have a solution. Sorry.

Old man of EPO said...

Would tend to agree except this is an uneven battle. The staff cannot make rules, discipline management, deprive management of human rights (as defined by court) etc. In practice, unions can only ever force obedience of rules of management seeks to hide behind the rules to justify any decision taken. The current top management find difficulties in that even they are hamstrung by the rules they create and then ignore them. Staff aren't fighting to obtain new benefits or even to protect unfair ones. They are just trying to ensure that current rules are actually applied.

Pistols at Dawn said...

"What's needed is to ditch the rules. What's needed instead is a spirit of cooperation on both sides."

Piffle and bunk.
What's clearly needed in a situation like this are pistols at dawn !

And may the best man win.

Dilbert said...

If it's pistols at dawn, BB will bring a squad of machine gun toting heavies, and change the rules beforehand to make sure the other side don't turn up with anything more lethal than a tennis ball.

Anonymous said...

Ditch the rules .... le rêve de ton patron !

We have rules to regulate the jungle and if the social situation is exacerbated it is because they are unilaterly violated by those have the power to decide : Battistelli and his clique

AIDS said...

The invalidity reform foresees "house arrests" for staff in incapacity: place of residence must be 100km around the office, and the staff member must be available for sickness verification from 10.00h to 12.00h and 14.00h to 16.00h. This applies until the staff member has reached the age of 55 AND has spent 10 years in incapacity.

And do you know what the EPO doctors courageously said about the reform?

"Having been reassured that the Office will take a human approach in regards of cancer patients in incapacity that might want to return to their home country in case of terminal disease and not having fulfilled the criteria to 10 years incapacity we support the entire document..."

Great! And what if the staff member suffers from AIDS? Or multiple sclerosis?

It's sickening!

superann said...

To Garfield: in a perfect world, indeed there would be no need for "rules". Since the world is not perfect, there are laws (or rules). Would you really advocate a lawless world? Who do you think would end up on top?

It is disingenuous to pretend that rules are unnecessary and to blame each side equally. The staff representatives have no power and the management has every power. there is a gross inequality here for which the remedy is obvious, sorry. The rule of law must be respected and be enforceable against anyone who breaks it - NOT the case in the EPO.

bambi said...

How can this be a matter for "investigation"?

My wild guess is that management finds it suspicious that elected non-SUEPO staff reps tend to resign rather quickly.

I think Garfield's point is that ordinary employees have gained nothing from (for example) the staff reps showing up with just 9.

Let's assume the staff reps are right that "according to the rules" a 10th full member should have been appointed. How does that justify not bringing along an alternate member in order to optimise the chances of having a decent consultation that maybe, just maybe, could lead to something?

The staff reps might hope that by "outsmarting" management in this way the consultation process is now tainted with a flaw that will cause ILOAT to set aside the decision 10 years from now. But they should realise that ILOAT will easily see through this rather silly game.

In my view, the right thing to do for staff reps is to adapt to hostile circumstances as well as possible and to try to act with dignity even when management fails to reciprocate. If some "rule" gets broken, they should make an objection and if necessary file an appeal, but they should not let their petty annoyance interfere with what really matters. In this case, there was really no need to mix up the delay in appointing a 10th full member with the interests of ordinary staff they were supposed to defend.

Mozart said...

when I read the reasoned position of the Staff Reps and compare it to the pathetic paper of the management.... well I am happy to be represented by those chaps who take the blame, threats and other disciplinary measures to defend my rights

Picasso said...

@ bambi : the staff rep cannot decide to invite they are bound by the management to organise their missions. when the management allows for 9 missions, were informed for weeks that the composition was problematic, go to the meeting and blame the staff reps ....

Please Bambi next time stand to elections you will see how much your weltanschaaung differs from the hard reality ;o)

Macavity said...

To Bambi

Your comment is rather disingenuous when you state: "How dos that justify not bringing along an alternate member...?

Attendance at this type of meetings is by invitation only.

Or are you suggesting staff reps should have brought an uninvited member along only to have him\her thrown out of the meeting?

bambi said...


1. Too easy. Do you seriously think the uninvited member would have been thrown out? Fact is they did not even give management the chance to throw out an uninvited 10th member.

2. Did staff reps even bother to enquire beforehand about the lacking invitation? Or did they consider this opportunity just too good to pass up? We both know the answer.

Even if you expect the other side to be unreasonable and unwilling, that is no reason to be unreasonable and unwilling yourself.

Old man of EPO said...

Sorry but you miss the point that BB issues the invitations, not the staff committee. The CSC raised the point well in advance but a 10th member was not invited because, as PD HR explained, mgt had its reasons. The CSC offered the 1st alternate and he was refused by mgt.

bambi said...

@Old man:

Let's try not to spin this thing even further. The CSC only raised the issue of the appointment of an alternate member as full member. Management indeed refused that, at least for the moment. Perhaps wrongly so, but that is not the issue here.

The issue here is that the CSC could easily have pointed out to management, or to whoever organised the meeting, that only 9 of them had received an invitation. Or they could have brought along an alternate to the meeting and resolve the issue then and there.

But no, they did not. They decided to play a silly rule game. They won it! They have shown they are smarter! But ordinary staff loses.

Anonymous said...

BamBi, you are the one who is naive or worse. It has happened a numb rod times that uninvited staff reps who had not been invited nevertheless turned up and indeed were refused access. BB makes rules, the staff reps keep to them, or at least try it, but BB does not. It is easy to reproach the staff reps, but either you do not work at the EPO or you belong to management, as suggested by your name B(am)b(i).


Garfield said...

You all miss my point. You are arguing about the minute details of the rules, about what rules were broken and by whom. That's part of the problem. That's how the rules tie you up.

My point was that "There's something wrong with an organisation where staff relations are tied up and tightly constricted by so many rules."

I'm not saying that the rules are your fault. I'm not saying that there should be a lawless world with no rules at all.

Although I wrote "ditch the rules", what I meant is that the current rules don't help. They just tie both sides in knots and prevent you from reaching solutions. That's exactly what happened at the meeting you are discussing. Those rules should indeed be ditched, in favour of something better.

What I am saying is that the whole procedure should be much more flexible. Rules should provide both sides with a flexible framework that you can both work within, that enables you to cooperate. Instead, you have rules which are far too rigid and detailed. They strangle cooperation instead of promoting it.

I don't want to have a long discussion about whose fault it is that you are stuck with these rules. I'm just trying to show that the rules are a significant part of the problem.

Unfortunately, as I said earlier, I'm sorry but I don't have a solution. In order to cooperate and reach solutions, both sides need a change of attitude, as well as a change of rules. "Neither side can do it by itself, and neither side is going to change." But cooperation requires give and take on both sides, as well as less proscriptive rules that permit it.

Sir Grantsalot said...

Garfield, we get your point: There are too many rules, what's needed are fewer rules and for everyone to be warm and fuzzy and play nice in the sandbox.

The fact is Battistelli has created all these new rules (not only GCC RoP, but also new rules for strikes, sick leave registration, annual leave registration, etc.). The list goes on and on -- I wouldn't be surprised if we soon have rules for potty breaks!

Then, having erected this labyrinth of rules, Battistelli and his management team cannot even follow their own rules!

If staff doesn't follow the rules, we get disciplined, degraded, or dismissed.

Time to wake up from your cat nap now, Garfield.

Indignant staff representatives are not the problem. Bad management is the problem.

Old man of EPO said...

The rules aren't an unintended consequence; they are very much part of the policy of control. Creating rules which ban unions from holding strike ballots is not a nit-picking element; it's a deliberate policy. Learned at ENA no doubt.

Anon Gamma said...

A fair field full of folk...

Then began I to dream a marvellous dream,
That I was in a wilderness wist I not where.
As I looked to the east right into the sun,
I saw a tower on a toft worthily built;
A deep dale beneath a dungeon therein,
With deep ditches and dark and dreadful of sight
A fair field full of folk found I in between,
Of all manner of men the rich and the poor,
Working and wandering as the world asketh.
Some put them to plow and played little enough,
At setting and sowing they sweated right hard
And won that which wasters by gluttony destroy.

Anon Delta said...

“The rights of every man are diminished when the rights of one man are threatened.” ― John F. Kennedy

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