Is There Hope For Better WIPO Administration-Staff Relations?

The president of the World Intellectual Property Organization staff association earlier this month raised profound concerns about ongoing practices involving staff at the UN institution. The WIPO director general then took the floor to address many of the concerns, offering explanations on various points, according to participants. In the end, both sides may be looking for an improvement this year [updated].

It is typical for the staff association at international organisations to vent complaints, but at the annual WIPO General Assembly held from 5-14 October, the WIPO association president used particularly strong language to describe the situation at the agency.

“WIPO continues to go through some very difficult years,” the association president, Brett Fitzgerald, an American, said in a prepared statement [pdf] to the WIPO Coordination Committee in a closed session. The Coordination Committee is an important body of more than 80 out of the 188 members of WIPO.

The remarks came one year after the previous staff association president was fired by the director general on the eve of last year’s General Assembly. According to sources, the former association president, Moncef Kateb, received a settlement over the past year. Intellectual Property Watch did not confirm this with Kateb. [Correction: Kateb has received no settlement whatsoever, according to his attorney. See update below]

“Following the Administration’s summary firing of the previous President of the Staff Association, staff-management relations naturally deteriorated and the consultative process came to a halt,” said the new president. “The situation remains very troubling.”

Fitzgerald said the new Staff Council elected in March “has repeatedly expressed its willingness to have dialogue with the Administration when such dialogue is transparent, meaningful, based on good faith, and when the Administration ceases to interfere in the long-established criteria and procedures for election of the staff representatives on the Staff Council.” The administration, for its part, claimed that it has tried repeatedly to get the staff back to the table.

The staff association’s example of non-transparency was that French staff working in Geneva are being discriminated against by not being given a “repatriation” grant. A high percentage of WIPO administrative staff come from nearby France.

“The general atmosphere in the Organization is one of pervasive fear and distrust,” he asserted. “Staff morale is at an all-time low. The Administration continues with its efforts to rid the Organization of long-serving staff while recruiting others on precarious types of contracts.”

The association levelled strong accusations of worsening employment conditions, “ever-increasing” harassment, and continuous changes to staff regulations as evidence that the work environment at WIPO today is “unhealthy and de-motivating.” These assertions could not be corroborated by Intellectual Property Watch at press time.

“On a daily basis the Staff Council receives colleagues in distress who are frequently afraid to turn to anyone else for assistance,” he said.

The statement also restated details of an investigation opened after charges of alleged wrongdoing by the director general raised last year by the former deputy director general in charge of patents and innovation, James Pooley, an American. The staff association complained that it has been unable to get any information about the investigation and said it is “deeply concerned about the protection of whistleblowers and witnesses.”

Intellectual Property Watch confirms that there is no known responsible party to which questions can be officially directed about this top-secret investigation and obtain even the most basic of answers.

WIPO Whistleblowers

The staff association mentioned a recent decision by the US State Department to fail WIPO on a measure of whistleblower protection, leading to withholding of 15 percent of the annual funds the US government gives to WIPO, said to be valued at several hundred thousand dollars. This represents a very small portion of WIPO’s annual overall budget, most of which comes from fees for services (not government aid).

The US Department of State, Foreign Operations, and Related Programs Appropriations Act, 2015 (Div. J, P.L. 113-235) states:

SEC. 7048. (a) TRANSPARENCY AND ACCOUNTABILITY.—Of the funds appropriated under title I and under the heading ‘‘International Organizations and Programs’’ in title V of this Act that are available for contributions to the United Nations (including the Department of Peacekeeping Operations), any United Nations agency, or the Organization of American States, 15 percent may not be obligated for such organization, department, or agency until the Secretary of State reports to the Committees on Appropriations that the organization, department, or agency is—

(1) posting on a publicly available Web site, consistent with privacy regulations and due process, regular financial and programmatic audits of such organization, department,

or agency, and providing the United States Government with necessary access to such financial and performance audits; and

(2) effectively implementing and enforcing policies and procedures which reflect best practices as defined in the explanatory statement described in section 4 (in the matter preceding division A of this consolidated Act) for the protection of whistleblowers from retaliation, including best practices for—

(A) protection against retaliation for internal and lawful public disclosures;
(B) legal burdens of proof;
(C) statutes of limitation for reporting retaliation;
(D) access to independent adjudicative bodies, including external arbitration; and
(E) results that eliminate the effects of proven retaliation.

This US program is only two years old, but WIPO is the only international organization so far that has failed it so far, according to US sources.

Meanwhile, the Staff Association president raised additional concerns, including an accusation of interference by the director general, which the director general addressed in his response to member states, according to sources.

Fitzgerald said the director general sent an email to WIPO staff informing them of his new interpretation of Staff Regulation 8.1 (on Staff Council and elections), and “encouraged all staff to take action in line with his new interpretation which some colleagues naturally did by subsequently circulating a petition.” This violates International Labour Organization (ILO) Tribunal rulings, he charged. The change was to allow non-staff union employees to vote for Staff Council. He said the staff union also is concerned about a change last year allowing sanctions against staff by the director general without going through an advisory committee that had the staff union president as a member.

The statement also mentioned a concern that the WIPO Appeal Board lacks a French language speaker, which is of concern to French-speaking staff.

The president closed on an optimistic note, saying, “We want to have a work force which loves to work at WIPO, that trust and respect be restored and that fear be diminished, if not eliminated, so that staff can better contribute to working towards your goals.”

WIPO Secretariat Responds, Clarifies

Meanwhile, the WIPO secretariat, including Director General Francis Gurry, addressed the committee in closed session and according to participants answered a number of the concerns raised by the staff association. As this session was closed, Intellectual Property Watch has to rely on participants for this reporting.

According to participants, the secretariat responded to the concerns about possible interference in amendments to the staff regulations, changes to staff, and the lack of French speakers in the appeal system.

The WIPO staff regulations state that the Staff Council is to be elected by all staff, not just the members of the staff association who have paid their dues, the secretariat said, according to the participants. A group of about 50 staff submitted a petition to a WIPO advisory group asking to review the interpretation. The advisory group, which includes three people named by the director general, three elected by the staff, and the secretary of the human resources department, agreed that non-paid-up staff should also be able to vote for Staff Council. The WIPO legal counsel also agreed with this, it said. The Staff Council should accept this change for its next annual elections in the spring.

The director general said his only “interference” was to supervise the system that allows for staff to raise questions such as this, the participants said.

On the question of temporary staff, the director general said it has been a repeating concern, but it is part of an attempt by the secretariat to comply with demands from the member states to control staff costs. For the next biennium, he said, income is expected to rise by 6 percent and under an agreed policy, a nearly 5 percent increase in expenditures was proposed, with expenses on staff going up 2 percent, and contract service providers and other non-staff rising 10 percent. Staff numbers overall have stayed level for 7 years, he said, adding that many UN agencies are facing this same question.

Meanwhile, using non-staff contract workers offers clear advantages to an organisation, he said. For instance, there are no long-term liabilities, another issue on which member states have raised concern. At this month’s General Assembly, one issue was how to meet the cost of after-service health insurance (ASHI). And contract workers give flexibility to have people with specialised expertise on specific projects. Examples are in information technology and language translation, the participants said. For translation, WIPO has moved away from in-house translators to outsourcing to an international network. Gurry also mentioned that the makeup of needed languages has changed in the past 15 years. Now, 21 percent of Patent Cooperation Treaty (PCT) applications are filed in Japanese, 13 percent in Chinese and about 6 percent in Korean.

The bottom line was that the policy is not intended to harm current staff as much as take advantage of open innovation networks, as is currently the practice worldwide, the sources said.

Separately, on the treatment of French nationals and repatriation and education grants, the director general said the decisions followed the recommendations of the WIPO external auditors and the UN Joint Inspection Unit. He said the secretariat pushed for preserving rights on education allowances.

And on amendments to the staff rules, the human resources director told the committee that management tried numerous times unsuccessfully to hold discussions with the Staff Council. There were written exchanges, the director said, and the Staff Council raised concerns through those. She said the WIPO administration did take some proposals from the staff into account, the participants said.

The WIPO legal counsel also weighed in some issues, according to participants. He said the number of appeals in the ILO Administrative Tribunal has dropped significantly, and there is only one active case.

The legal counsel said on the French language concern that as much as 45 percent of cases filed at the WIPO internal appeals board were in French, which showed balance.

In addition, the legal counsel clarified the language of Regulation 8.1, which refers to a “staff council elected by the staff members.” His office has always viewed this as meaning the whole staff must elect the Council, not just the association members. But he acknowledged that there are differences between the secretariat and the staff on this point, the sources said.

The director general wrapped up by saying the secretariat looked forward to engaging with the Staff Council.

And, the participants said, the Coordination Committee chair urged the director general and administration to engage with the Staff Council to ensure a positive workplace.

UPDATE: RIGHT OF REPLY

[Note: Intellectual Property Watch received and has agreed to publish this right of reply below. IP-Watch takes no position on this issue.]

“WITHOUT PREJUDICE

As you may recall, I represent Mr. Moncef Kateb, who was the former President of the WIPO Staff Council until he was irregularly and illegally dismissed summarily from his post in September 2014.

I am writing to you now in regard to your article dated 29 October 2015, entitled “Is There Hope For Better WIPO Administration-Staff Relations?”, which was published on the IP Watch website at the following URL:         http://www.ip-watch.org/2015/10/29/is-there-hope-for-better-wipo-administration-staff-relations/ .

In your article, in the 6th paragraph from the top, you asserted that Mr. Kateb “received a settlement over the past year”.  On behalf of Mr. Kateb, please be advised that Mr. Kateb has received absolutely no settlement whatsoever from WIPO, and that his appeals of his illegal suspension without pay and his wrongful separation from service, and his separate claim that his summary dismissal amounted to misconduct and an abuse of power on the part of senior WIPO officials, are all currently under active appeal using the internal WIPO appeal mechanisms, and will likely soon end up at the ILOAT.

I have also demanded on behalf of Mr. Kateb that the US Congress  withhold fifteen (15%) percent of the annual US appropriation to WIPO on account of its failure to provide Mr. Kateb access to independent, external arbitration for his claims that he has been retaliated against by WIPO on account of his protected, whistleblower activities, under the US legislation cited in your article, as well as due to WIPO’s refusal to treat his claim for whistleblower protection on the merits.

It would also appear that your quote of the WIPO Legal Advisor in the 6th paragraph from the bottom that “only one case against WIPO is active before the ILO Administrative Tribunal” is untrue.  Mr. Kateb alone has at least two (2) prior appeals already pending before the ILOAT against WIPO (separate and apart from the above mentioned appeals), and it is our information and belief that approximately seven (7) collective appeals filed by the WIPO Staff Council against WIPO with the ILOAT on behalf of their staff association constituents during Mr. Kateb’s tenure as president are still pending before the ILOAT; I urge you to confirm the foregoing with the Registrar of the ILOAT, Mr. Drazen Petrovic (trib@ilo.org).

Please treat this note as a request for a right of response on behalf of Mr. Kateb; we ask that you publish this note unredacted on your website with a link to the subject original article, in the same format as the article of 29 October.

Thank you for your prompt attention to the foregoing; we look forward to the courtesy of your reply.

Respectfully,

EP Flaherty
Counsel to Mr. Kateb

cc:  WIPO Staff Council”

 

Image Credits: Catherine Saez