European Ombudsman
Decisione nel caso 714/2012/JF - Revisione annuale dello stipendio degli agenti locali delle delegazioni dell’UE
Decisione
Caso 714/2012/JF - Aperto(a) il 31/05/2012 - Decisione del 14/03/2014 - Istituzione coinvolta Servizio europeo per l’azione esterna ( Nessuna ulteriore indagine giustificata ) |
Il denunciante è un rappresentante del personale presso la delegazione dell'Unione europea in Guyana (di seguito "la delegazione"). Nel 2009, in occasione della revisione annuale degli stipendi degli agenti locali impiegati presso la delegazione ad opera del servizio europeo per l'azione esterna (nel prosieguo il "SEAE"), è stato chiesto di considerare i livelli salariali applicati in altre tre organizzazioni presenti nel paese. Inoltre, il personale locale ha richiesto gli assegni per i figli a carico. Non avendo ricevuto una risposta soddisfacente, il denunciante si è rivolto al Mediatore.
Le prove fornite al Mediatore non hanno rivelato alcuna infrazione delle norme vigenti da parte del SEAE, in particolare in riferimento al Regolamento quadro del 1990 che stabilisce il regime applicabile agli agenti locali della Commissione delle Comunità europee con sede di servizio nei paesi terzi, o al metodo per definire e adeguare le retribuzioni degli agenti locali in servizio in paesi terzi. Alla luce di quanto suesposto, il Mediatore ha stabilito che, a seguito di tale denuncia, non erano giustificate ulteriori indagini.
Inoltre, il Mediatore ha osservato che, nel corso dell'indagine, il SEAE ha assicurato che stava valutando la richiesta del personale locale in merito agli assegni per figli a carico. Tuttavia, il processo si è prolungato e gli agenti locali in servizio presso la delegazione non hanno ricevuto notizie in merito per quasi due anni.
Di conseguenza, il Mediatore ha formulato un’ulteriore osservazione invitando il SEAE a informare il personale locale della delegazione sulle modalità di elaborazione della loro richiesta di assegni familiari e, in particolare, a comunicare l'eventuale adozione e attuazione di una decisione in merito a tale concessione e, in caso negativo, a comunicare quando intendesse emanare e/o attuare una decisione. Il Mediatore ha archiviato il caso.
The background to the complaint
1. At the relevant time, the key legal and procedural rules concerning the Delegation local staff's salaries were: (i) the 1990 Framework Rules laying down the conditions of employment of local staff of the Commission of the European Communities serving in non-member Countries (the 'Framework Rules') [1] ; (ii) the Rules laying down the specific conditions of employment of local staff serving in Guyana (the 'SCE'); (iii) a " Method for establishing and
adjusting the remuneration of local staff serving in third countries " (the 'Salary Method') [2]
agreed between European Commission's (then) Directorate-General for External Relations ('DG RELEX', presently the EEAS) and staff trade unions and associations; (iv) the Notes VM 0321/10 and VM 0335/10 from DG RELEX to various delegations setting out, respectively, the
" guidelines which did not replace the [Salary] method but explained the main issues " and the rules on the affiliation of delegations' local staff to social-security schemes; and (v) the Explanatory Remarks to the Salary Method (the 'Explanatory Remarks'). Each year, the salaries and allowances of delegation local staff are adjusted in accordance with the local legislation and in line with the changes in the salaries of staff of other international bodies and embassies present in the country, used as reference employers (the 'comparators'). Any problems arising from the application of the Salary Method were discussed by the EEAS and the trade unions/staff associations in a Technical Group on Remuneration, which meets at least once a year. Any issue giving rise to a persistent disagreement must be submitted to "
concertation " [3] .
2. In December 2009, the Delegation started processing the salary review for its local staff for that year (the '2009 Salary Review'). On 20 July 2010, the Head of Delegation sent the 2009 Salary Review to DG RELEX. He proposed that the Authority Empowered to Conclude Contracts (the 'AECC') accept three international organisations present in Guyana, namely the Caribbean Community ('CARICOM'), the Inter-American Development Bank ('IADB') and the United Nations Development Programme ('UNDP') as comparators and take the pension contributions of the two last-named institutions into consideration when determining the salaries of the Delegation's local staff. In addition, he asked that local staff be granted dependent child allowances.
3. On 7 March 2011, the Head of Delegation sent to the EEAS the job descriptions relating to the different categories of local staff at the IADB and CARICOM. Among other things, the Head of Delegation emphasised that the IADB confirmed that it abides by the Guyanese labour laws. As regards CARICOM, the Head of Delegation indicated that that international organisation explained that its local staff were not recruited under local Guyanese law, but rather under its Secretariat's recruitment policy and guidelines, which had been approved by all its Member States, including Guyana. The Head of Delegation and the local staff,
therefore, " justified " the IADB and CARICOM as non-standard comparators. As regards pension schemes, the Head of Delegation considered it clear that the Guyanese National Insurance Scheme was the primary pension scheme for all comparators (including the UNDP) and that their own pension schemes were complementary, and thus non-compulsory under the Guyanese legislation. Finally, the Head of Delegation stated that local staff awaited the EEAS's comments on dependent child allowances.
4. On 10 March 2011, the EEAS replied to the Head of Delegation that the eligibility and job matching of any non-standard comparator has to be " justified " by the Delegation and agreed by the AECC. The EEAS noted that CARICOM does not recruit its local staff under local law. Therefore, CARICOM could not be considered as comparator. As regards, second, the UNDP and IADB pension schemes, the EEAS found that those bodies' responses indicated that they did not contribute to the Guyanese National Insurance Scheme. Therefore, in the EEAS's view, the UNDP and IADB's contributions to their own pension schemes could not be
considered complementary and, for that reason, should not be included in the calculations.
The EEAS would need written confirmation from both the UNDP and the IADB that they contributed to the National Insurance Scheme to be able to consider their pension schemes as complementary. Finally, the EEAS enclosed a salary grid relating to the 2009 Salary Review with local staff gross salaries (the 'Proposal'). It stated that once it received the Delegation's agreement on the Proposal, it would send it the official final salary grid, which would then enter into effect on the same day as the Salary Review.
5. On 28 April 2011, the Head of Delegation informed the EEAS that local staff did not agree with the Proposal. The subsequent videoconference between the EEAS and the local staff of the Delegation did not resolve the dispute. The further Technical Group on Remuneration meeting between the EEAS and the trade union was to no avail to the dispute either.
6. On 25 November 2011, the EEAS confirmed its Proposal in a letter to the Head of Delegation. It encouraged him to accept the Proposal and to launch the subsequent 2010 Salary Review as soon as possible. The Head of Delegation replied that the local staff rejected the Proposal and that they intended to pursue the matter further.
7. On 27 February 2012, the EEAS sent a reminder to the Head of Delegation in respect of the Proposal. It expected a formal request for technical " concertation " from a recognised union. Three months after its last note confirming the Proposal, no official response from the Delegation had been received. The EEAS needed to close the 2009 Salary Review in order to allow the Delegation to launch the salary revisions for 2010 and 2011. Consequently, acting as the AECC, the EEAS decided officially to apply the salary table attached to its Proposal.
8. On 4 April 2012, the complainant turned to the Ombudsman.
The subject matter of the inquiry
9. The complainant alleged that, when conducting the 2009 Salary Review, the EEAS failed to respect: (i) the Salary Method and the Framework Rules; (ii) the Explanatory Remarks; (iii) the SCE; and (iv) Notes VM 0321/10 and VM 0335/10.
10. The complainant claimed that the EEAS should comply with the above-mentioned Salary Method and Framework Rules, Explanatory Remarks, SCE and Notes VM 0321/10 and VM 0335/10 by correcting its position regarding eligible comparators, complementary pension schemes, and the dependent child allowance in the 2009 Salary Review and in subsequent reviews.
The inquiry
11. The Ombudsman forwarded the complaint to the EEAS for an opinion. The complainant made observations on that opinion.
The Ombudsman's analysis and conclusions
Preliminary remark
12. On 30 August 2012, when the EEAS submitted to the Ombudsman its opinion on the complaint, the Ombudsman was informed for the first time that the trade union did not follow up the local staff's request for " concertation " and that the Delegation's local staff did
not appeal against the EEAS's final decision on the 2009 Salary Review, in accordance with the applicable rules.
13. The Ombudsman appreciates that the EEAS did not contest the admissibility of the complaint and replied to the allegation and claim put forward by the complainant.
A. Allegation of failure to respect the applicable rules and the related claim
Arguments presented to the Ombudsman
14. In support of his allegation, the complainant argued that the Delegation provided the EEAS with sufficient evidence for it: (i) to accept CARICOM as comparator; (ii) to accept the pension schemes of CARICOM, the IADB and the UNDP as complementary pension schemes;
and (iii) to consider granting the dependent child allowance.
15. In its opinion, the EEAS took the view that the 2009 Salary Review fully respected the applicable rules and replied to the complainant's individual arguments.
On the admissibility of CARICOM as comparator
16. In the complainant's view, CARICOM complied with the criteria set out in Note VM 0321/10 for eligibility of comparators. CARICOM staff contracts were in conformity with the laws of Guyana, and the evidence submitted by the Head of Delegation to the EEAS showed that 80% of CARICOM staff were local staff.
17. In its opinion, the EEAS assured the complainant that it had analysed the information submitted by the Delegation. According to the EEAS, that information showed that, while CARICOM employees were comparable to officials and contract agents in the EU Delegations, they were not comparable to the Delegation's local staff. According to the EEAS, CARICOM officials confirmed, by e-mail, that CARICOM employment contracts " are in conformity with the laws of Guyana but that CARICOM recruits its staff under its own staff regulations and not under local law, just like EU officials. " Consequently, CARICOM did not qualify as comparator.
18. In his observations, the complainant took the view that, although CARICOM recruited staff through its own staff regulations, it had to adhere to local law. He also emphasised that the EU staff regulations comply with the local legislation through the SCE. According to the complainant, the EEAS's interpretation that CARICOM local staff were comparable to officials and contract agents in delegations was unfounded. CARICOM recruits its local staff "
respecting and conforming to the laws of Guyana ", which made it a comparator. In addition, the complainant emphasised, the AECC had already accepted CARICOM as comparator in the past, namely during the 2005 Salary Review.
The Ombudsman's assessment
19. At the outset, the Ombudsman notes that Point 4 'Eligibility of comparators' of Note VM 321/10 reads as follows:
"t o comply with the Salary Method, comparators must employ staff under local law [...]
The ... standard comparators [are] UNDP, British embassy or British High Commission, US embassy, Dutch embassy [...]
The eligibility and the job matching of any "non standard" comparators has to [be] justified by the Head of Delegation and agreed by the AECC. This requires in particular checking that the job matching concerns only local staff (i.e. only staff recruited under local law contracts carrying out tasks comparable to those performed by the delegation local agents) .
The comparators must authenticate with a stamp and signature the documents submitted for salary reviews. The comparators have to provide enough information (organization chart, job descriptions, staff regulations... ) to allow the AECC to validate the job matching. " (emphasis added)
20. The Ombudsman's understanding of the above provision is that, in order to be eligible, a non-standard comparator must provide evidence of its employing staff (performing tasks comparable to those of the local staff of the Delegation) under local law.
21. The evidence available to the Ombudsman indicates that CARICOM has provided the Delegation with copies of job descriptions relating to the different categories of its local staff.
On 7 March 2011, the Head of Delegation sent those copies to the EEAS, emphasising CARICOM's alleged confirmation that its:
"[l] ocal staff are not recruited under local Guyanese law contracts, but rather under the CARICOM Secretariat recruitment policy and guidelines, which in turn have been approved by all CARICOM member states, including Guyana. " (emphasis added by the Head of Delegation) 22. The Ombudsman considers that it results from the sentence set out above that CARICOM cannot be a comparator because its local staff are not recruited under local law contracts. Therefore, the EEAS's position that, in sum, CARICOM does not fulfil the conditions of eligibility for a reference employer provided for in Note VM 321/10 appears to be correct.
23. In addition, the Ombudsman notes, the matter has been discussed in the Technical Group on Remuneration, in accordance with the Salary Method [4] . The Ombudsman therefore understands that all parties involved, that is to say, the EEAS and the trade union representing the complainant and the Delegation's local staff, have had the opportunity to put their differing views and further arguments (namely those relating to CARICOM's having allegedly been, according to the complainant's observations, a comparator during the 2005 Salary Review exercise) forward in the Technical Group on Remuneration.
24. Finally, given that the Salary Revision is a yearly exercise, it is not excluded that, in case of continuing disagreement, the matter will finally be brought to " concertation ", in accordance with the Salary Method.
25. In light of the above, the Ombudsman concludes that no further inquiries into this aspect of the complaint are justified.
On the comparators' pension schemes
Arguments presented to the Ombudsman
26. In his complaint, the complainant argued that the National Insurance Scheme is the only primary and compulsory pension scheme foreseen under the local laws of Guyana.
Therefore, all other schemes which are not mandated by local legislation were complementary and should be included in the salary calculation. According to the complainant, the comparators confirmed to the Delegation that their schemes were not compulsory under the local Guyanese legislation.
27. In its opinion, the EEAS argued that, since neither CARICOM nor the IADB nor the UNDP contribute to national schemes, their pension schemes were therefore always primary and thus excluded from the salary review.
28. In his observations, the complainant reiterated his arguments.
The Ombudsman's assessment
29. According to the Explanatory Remarks,
" [c] ontributions to primary social security are not considered as part of the remuneration and are not inserted to the support programme.
In most of the countries the Commission contributes not only to the local social security system but has also established a complementary pension scheme [...]
Any contribution of the reference employers to a pension scheme complementary to the local social security system, and which is not compulsory under local legislation, will also be taken into consideration. Detailed data on the complementary pension scheme(s) and the payments of the reference employers is therefore required and has to be transmitted to Headquarters. "
30. The Ombudsman's understanding of the above provision is that, for a comparator's contribution to a pension scheme to be taken into consideration, that pension scheme must
be complementary to a primary social-security scheme and must be voluntary. In other words, if the comparator contributes exclusively to a compulsory primary pension scheme, that contribution is not taken into consideration. If, in addition to contributing to the compulsory primary scheme, the comparator also voluntarily contributes to a
complementary pension scheme (as, according to the Explanatory Remarks, the Commission does in most of the countries), the non-compulsory complementary contribution is taken into consideration for the support programme [5] .
31. According to the complainant, the primary social-security system in Guyana is the National Insurance Scheme because the comparators' pension schemes are neither
compulsory nor required under local law. According to the EEAS, however, none of the three comparators, that is to say, CARICOM, the IADB or the UNDP, contributes to that national scheme. They instead have pension schemes of their own. The Ombudsman thus
understands the EEAS's position to be as follows: even though the only primary
social-security scheme in Guyana is the National Insurance Scheme, the above international organisations are exempted from contributing to that scheme. Consequently, because each of the above comparators contributes only to its own pension scheme, all those pension schemes cannot be reasonably considered to be complementary and not compulsory. This differs from the situation in the Delegation because, the Ombudsman notes, the Delegation is obliged to affiliate its local staff to the National Insurance Scheme and, consequently, all of its other contributions are necessarily complementary to that primary pension scheme [6] . 32. The Ombudsman notes that, in its letter of 10 March 2011, the EEAS nevertheless accepted that the comparators' pension schemes could be indeed seen as complementary and not compulsory, as long as these comparators confirmed, in writing, that they
contributed to the Guyanese National Insurance Scheme. The Ombudsman therefore concludes that the evidence provided by the Head of Delegation in his letter to EEAS dated 7 March 2011 was insufficient to comply with the requirement in the Explanatory Remarks that
"[d] etailed data on the complementary scheme(s) and the payments of the reference employers is therefore required ".
33. The complainant provided the Ombudsman with no evidence that the EEAS's above request had been satisfied. It follows that the complainant was unable to cast doubt on the EEAS's position on the eligibility of the CARICOM, IADB and UNDP's pension schemes.
34. In light of the above, the Ombudsman concludes that no further inquiries into this aspect of the complaint are justified.
On the dependent child allowance
Arguments presented to the Ombudsman
35. In his complaint, the complainant referred to the Salary Method, the Explanatory Remarks and the SCE, and took the view that these demonstrated that dependent child
allowance could be accommodated during the 2009 Salary Review. The complainant
emphasised that the Head of Delegation duly informed the EEAS that both the IADB and the UNDP paid dependent child allowances to their staff.
36. In its opinion, the EEAS argued that it is not obliged to grant dependent child allowances, even if other employers do, but it may decide to grant those allowances taking into account the local labour market situation. Under the Salary Method and Note VM 0321/10, a salary review takes into account only allowances which are granted by the Delegation and the comparators to the majority of local staff considered as a group. Individual allowances, that is to say, those which are paid only to some members of the local staff (depending, for example, on their family composition), such as dependent child allowances, are not included in a salary review.
37. The EEAS explained further that granting dependent child allowances entails a lengthy process, which is separate from a salary review. The AECC grants that allowance when it is compulsory or when reference employers grant similar allowances as a general practice. The EEAS could, therefore, grant the Delegation's local staff dependent child allowances taking into account similar allowances paid by other employers. However, in order to establish that there is such a general practice, the EEAS needs a sample of reference employers larger than the one that is considered for a salary review.
38. In his observations, in addition to, in sum, repeating his previous arguments, the
complainant emphasised that the EEAS had already taken about two years to assess the local staff's request for dependent child allowances and that no update had been received in that respect.
The Ombudsman's assessment
39. The Ombudsman welcomes the EEAS's statements in its opinion that it was processing the local staff's request for dependent child allowances and that it could grant those allowances to them [7] . No further inquiries into this aspect of the complaint are therefore justified. As to the complainant's observations that no further information in respect of the above request has been received, the Ombudsman will address a further remark to the EEAS below.
B. Conclusion
On the basis of her inquiry into this complaint, the Ombudsman closes it with the following conclusion:
No further inquiries into the complaint are justified.
The complainant and the Chief Operating Officer of the EEAS will be informed of this decision.
Further remark
The EEAS could inform the Delegation's local staff of how it has followed up their request for dependent child allowances, in particular, whether it has taken and implemented a decision to grant them those allowances, and, if not, when it expects to take and/or implement a decision on those allowances.
Emily O'Reilly
Done in Strasbourg on 14 March 2014
[1] Administrative notices, Special Issue of 22.06.1990.
[2] Note of the Director-General of DG RELEX dated 27 November 2001 (D(2001)103353).
[3] Point XI 'Technical Group on Remuneration' of the Salary Method.
[4] Point XI 'Technical Group on Remuneration' of the Salary Method provides that: "[a]
technical group on local staff remuneration shall be established. It shall be composed of representatives of DG RELEX and the trade unions and staff associations.
This group shall meet at least once a year to consider reports by DG RELEX on the functioning of the method. It shall discuss and propose solutions to any problem arising from the application of the method or its interpretation. It shall have access to all information with regard of the method...
"
[5] See also Point 5 'Comparison of gross salaries' of Note VM 321/10: "[t] he salary compared is the gross salary, including all general allowances ... This is done by: [...]
- adjusting for differences between the comparators and the delegation in complementary social security funds . If the delegation local agents are affiliated to the provident fund the adjustment for the 5% difference is done directly on the average. There is no adjustment for primary social security ". (emphasis added)
[6] Note VM 335/10 states: "[i] t is clear that the Delegation has to affiliate its local staff to the social security system not only when the local legislation obliges [it] to do so but also when the local scheme gives [it] the possibility to do so [...]
Moreover, the affiliation should be performed irrespective of the practice of other embassies or international organisations in the host country [...]
In addition, it is necessary to bear in mind that the Complementary Sickness Insurance Scheme (CSISLA) and the Commission Provident Fund (FdP) are supplementary schemes . It should be stressed that their role is not to become primary cover in relation to local security schemes ...
" (emphasis added)
[7] According to the EEAS's opinion, " [d] ependent child allowance can be granted by the AECC but could not be included in the salary review because it is a lengthy and separate process which is currently ongoing. "
