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SA-23/04-05
24 February 2005
Dear Ambassador Einaudi:
During one of the previous meetings of the Staff Committee with you, we all
agreed that we would advise you before calling a Staff Assembly and discuss
with you what concerns of the staff we would be dealing with at that
meeting. The staff of the Organization is very restive. We have had a
number of requests for a Staff Assembly. Each person has questions related
to their personal future with the Organization as well as questions about
the course of events that surround us.
We
are aware that you understand this because you too are buffeted by many of
the same events and processes that confront the staff: the Secretariat's
current near destitute fiscal state; the formulation of the 2006 budget and
the Reduction in Force (RIF) that it will likely engender; and the
elections of the next Secretary General and Assistant Secretary General and
the speculation about what any of the possible results of those elections
might mean for the staff and for our Organization.
The Secretariat is awash in rumors and speculation. The staff members have
many questions, some of the most pertinent of which we have included or are
implicit in this letter. We write to you in the hope that you can clarify
some of these issues, so that in conveying your answers to the assembled
staff we will leave them with a more realistic and reasonable picture of
what the future might entail.
We
wish to engage you in this process, but we are hesitant to suggest how full
this involvement might be. We would like your response to the current
realities as we have drawn them. We would like to meet with you before the
assembly to discuss this situation, so that we can clearly relate to the
staff your thoughts and feelings. Ideally, we would like the Assembly to
take place during the following week. Finally, we wish to invite you to
address the Staff Assembly, where you can be as extensive in your
explanations as you deem appropriate.
While you graciously invited this committee to comment on the revised
executive order, and we did send you some detailed observations, we could
not address the key issue, which would perhaps have negated your entire
attempt to revise and make more reasonable that executive order. Many of
the root causes of the staff's current concerns begin with Secretary
General Rodriguez's executive order and with the downgrading of senior
level posts. We realize that it was not something you initiated, but
something you had to deal with.
Executive Order 05-03 states, in operative paragraph 1.c that:
c.
The Chiefs of Staff of the Secretary General and of the Assistant Secretary
General, the Inspector General, the Directors of each of the five
Departments and the Executive Secretaries of SEDI and of IACHR shall be at
the D-1 level; Directors of each office and secretariats at the office
level shall be at the P-5 level; the officer in charge of each Division
shall be a Division Chief at the P-4 level; the officer in charge of each
Section and Unit shall be a Section or Unit Chief, respectively, at the P-4
level or below.
The Staff Committee has earlier discussed with you the negative effects of
this downgrading (or so-called "grade compression"). The adverse
consequences are three: unilateral departure by the Organization from
parity with the United Nations, not agreed to by staff; an arbitrary cutoff
of career advancement, and the chilling effect on the OAS's ability to
attract and retain highly qualified staff - the latter was one of the
stated purposes of the OAS return to parity with the UN.
Secretary General Rodriguez's proposal to freeze staff salaries along with
the process of grade compression which he initiated, would have effectively
ended OAS parity with the United Nations
The return to parity with the United Nations, which was approved by
referendum of staff in 1995, covered issues beyond salary adjustments. One
of the components of parity, which was explicitly included in the
referendum, is adherence by the OAS to the UN Job Classification Standards
- evidenced by the fact that in 1994, members of the staff were trained in
the writing of Job Descriptions according to UN standards, all JDs were
rewritten accordingly, and post audits were conducted.
The UN/OAS Job Classification System responds not to an a priori idea of a
staff hierarchy of a certain number of posts at a particular grade level or
salary. Rather, it looks at a complex series of factors in each individual
job, to which points are assigned on a well-defined scale of
responsibilities. Executive Order 05-03 and the subsequent (8 February
2005) memo from Ms. Lesley Zark, Acting Director of the Office of Human
Resources, on "Policy for filling vacant posts," represent a serious
departure from UN/OAS classification standards.
There are many and interrelated results of that executive order as well.
Posts that were previously classified as D-2 and D-1 were downgraded in
September 2004 to P-5, without any consequent diminution of functions,
responsibilities, contacts or consequences of error. The Job Descriptions
of these former D-2 and D-1 posts have not been rewritten to remove
functions and responsibilities (as ought to have happened in a
downgrading), their posts have not been audited, and their previous
functions have not been redistributed among other staff. Their new grade
levels were determined by fiat, and given that the posts were declared
positions of trust, the staff occupying or named to those posts were forced
to accept the new levels or be out of a job.
In
the name of "grade compression", responding to a notional concept of
organizational and salary hierarchy ordered but not explained by former
Secretary General Rodriguez, the UN Classification system operating in the
OAS has been undermined, to the detriment of all staff. The downward
pressure has already been felt at lower grade levels: the Staff Committee
is aware of some cases in which non-trust posts previously classified at a
higher level have had their JDs rewritten to conform to this a priori
concept of hierarchy, which does not reflect the reality of their
functions.
Furthermore, Ms. Zark's memo of 8 February actively encouraged directors to
consider "under-filling" (which the Staff Committee interprets as
"downgrading") non-trust vacancies at P-4 and above, to a level no higher
than P-3. The same memorandum also gives carte blanche to directors to
"under fill" non-trust vacancies at G-6 and above, to a level no higher
than G-5 in the General Services category.
The Staff Committee views this active encouragement by management to
disregard the UN/OAS classification standards as a clear and blatant attack
on our staff referendum on return to parity, and as a violation of the
Staff Rules. It goes without saying that the effect on staff morale has
been negative.
The Staff Rules, which are also part of the parity agreement, are quite
clear about reduction in grade:
Rule 105.4 Reduction in
Grade
(a) A staff member may be
demoted to a lower grade as a consequence of reclassification of his
present post or reassignment to another post of lower grade. The latter may
occur:
(i) At the staff member's
own request; or
(ii) As an alternative to
separation from service in cases of reduction in force after the
possibilities for transfer under the terms of Rule 110.6 have been
exhausted.
(b) Upon assignment to a
post of a lower classification because of any of the reasons indicated
above, a staff member's step in the new grade shall be that step which most
nearly corresponds to the salary of his previous grade. However, the salary
that he receives in the new grade shall in no case be greater than that of
the top step of the new grade, except as otherwise stated in paragraph (c)
below.
(c) If a staff member is
demoted to a lower grade because of a reclassification of his present
position, he shall retain the same salary and benefits that he enjoyed in
the earlier grade level. (Our emphasis).
According to Staff Rule 105.4 (c) cited above, no director, division chief
or head of office who previously held at D-1 or D-2 position and is now
downgraded to a P-5 as the result of Executive Order 05-03 should have had
his or her previous salary reduced.
The Staff Committee does not often find itself in the position of arguing
the rights of senior staff in positions of trust. But in this instance, the
rights of some senior staff holding higher level posts before September 15
have been violated, to the detriment of us all.
Since you and the Staff Committee have discussed the near certainty of a
RIF, it is important that we are clear about the situation of those staff
members who employed through continuing contracts and what the RIF will
mean to them. Continuing contracts were approved by AG/RES.1873
(XXXII-O/02) and implemented in 2003. Some 45 staff members are now on
continuing contracts.
Article 19.e of the current General Standards sets out in general the terms
and conditions of continuing contracts. However, those general terms and
conditions have not yet been incorporated into either the Staff Rules or
into the employment contracts of continuing staff. The Staff Committee
requests that you direct the Department of Legal Affairs and Services to
formulate Staff Rules governing continuing contracts and to develop a new
contract that staff on continuing contract should sign.
Why is this worrisome? The Staff Committee's concern is motivated by the
following:
Article 19.e (i) of the General Standards states that the holder of a
continuing contract may be terminated only "for cause", which the Staff
Committee interprets as "serious misconduct" under Staff Rule 110.5,
"Discharge for Serious Misconduct." Absent such serious misconduct, a
continuing contract is an indefinite contract that terminates only upon
retirement of the staff member at the age of 65.
In
the event of a RIF affecting the Regular Fund, the rules for career staff
members are clearly spelled out in Staff Rule 110.6, and the rules,
definitions and procedures for such a RIF have been developed over many
years, in what is an orderly, if always unwelcome, process. However, the
contracts of career staff do not carry the guarantee afforded to continuing
contracts that they can only be terminated "for cause."
Therefore, the Staff Committee would like to ask for a definition of the
following:
Can a career staff member whose post is abolished in a RIF, bump a staff
member holding a continuing contract (given that the latter can only be
terminated for cause)?
Assuming that a career staff member whose post is abolished in a RIF is
successful in bumping a continuing contract staff member, what happens to
the latter; who has an indefinite contract that can only be terminated for
cause?
It
appears to the Staff Committee that absent any rules to the contrary, staff
on continuing contracts has the same rights as career staff to a RIF
procedure, which assures an orderly process of relocating staff and
guaranteeing them due process. (See at the end of this letter clarification
given at meeting with the Acting Secretary General on 3 March 2005.)
The Staff Committee has carefully noted that the guidelines for the
preparation of the 2006 budget (memorandum from Mr. James Harding, Director
of the Department for Administration and Finance, dated 8 February 2005)
point to a 1 April 2005 deadline for the start of a RIF process. A vital
component of the RIF process is the definition of "vacant posts".
While we welcome the issuance of Executive Order No. 05-05 clarifying the
composition of the RIF Committee, the Staff Committee notes, with deep
concern, that Ms. Lesley Zark's memorandum of 8 February 2005 on "Policy
for filling vacant posts," would allow "vacant posts" to be filled, albeit
temporarily, through 30 June 2005, at a time when a RIF is potentially in
effect. If vacant posts are filled by the time a RIF comes into effect,
there will be very few vacancies available for career staff to fill.
Staff Rule 110.6 (g) (ii) states that in a RIF situation, the Office of
Human Resources Services "shall suspend all action on appointments to
vacant posts calling for minimum qualifications that might be met by staff
members affected by the reduction".
The Staff Committee and the staff at large are keenly aware of the
ambiguities and uncertainties of the current situation of the OAS with
which, as Acting Secretary General, you are confronted. We nonetheless
suggest that you clarify the concept of "vacant post," and refrain from
filling truly vacant posts.
When we have the Staff Assembly, there will be many other questions, drawn
most likely from the personal experience and employment situation of the
staff members asking those questions. The more accurately the Staff
Committee can respond, the more reliable information we can offer the
members of the staff, the better they will be able to face the
uncertainties of a rather painful process. We appreciate the open and
collegial manner in which you have treated the Staff Committee; we have
been gratified by your support and confidence. We hope you will find it
convenient to address the Staff Assembly.
My sincerest regards,
Clara Estrada
President
***************************************
Your statement that staff with continuing contracts may be only separated
for cause is correct. Your assumption that cause constitutes only the
elements in Staff Rule 110.5 is not. For quick clarification, I refer you
to the Section Analysis of Section E of Article 19 of the General
Standards. See CP/CAAP'2618/02rev.1, at p. 21 it states:
"Prior to expiration as stated above, the
contract may only be terminated for cause. The basic elements of cause are
stated in the present Articles 19, 54, and 60 of the General Standards
(renumbered as Articles 57 and 63)"
One of those causes in Article 57 is "When, with respect to all staff
members other than members of the Career Service, it becomes necessary to
abolish a post as a result of the reduction in staff or of the
reorganization of an office of the General Secretariat after application of
the provisions of Article 18(b)(iv) as the result of a Secretariat-wide
reduction in force or the reorganization of an office;" Also,
Subsection e(iii) of the Section e of Article 19, which follows the
subsection e(i) cited by you Staff, would not make any sense if "cause"
were construed to be limited to only "serious misconduct "by way of
"summary dismissal." That subsection provides that sixty days' notice and a
separation indemnity will be paid to staff with continuing contracts when
separated from service except when separated "under conditions in which an
indemnity is not payable under Article 62." Among those conditions cited in
Article 62 are dismissal for serious misconduct, which is when summary
dismissal is used. Thus, obviously if an indemnity is paid to continuing
contract holders for dismissal for cause and not paid for summary
dismissal, cause must include reasons other than "serious misconduct," and
those reasons are the reasons stated in Article 57.
As
for bumping rights, it is clear from the written legislative history that
continuing contract staff do not have them. The staff fought hard with the
Secretary General and political bodies to retain them but lost on that
score. Nor do they have preferences for the filling of any vacancies or
competitions for reclassified posts. Again, the Section Analysis to Article
19 states (at p. 18):
"In terms of rights, the most significant
difference between the Career Service Appointment and the Continuing
Contract is that the Continuing Contract does not carry with it any
preferences in the selection process to fill other vacancies with
announced, nor does it offer any preferences to remain in service in the
event of a Reduction in Force. Because there are no preferences for filling
vacancies, the Continuing Contract is easier to terminate than a Career
Service Contract; however, as with termination for a Career Service
contract and any other kind of contract other than a Trust appointment,
termination must be for cause in accordance with the provisions in the
present version of Article 54 of the General Standards (renumbered Article
57 in this amended version)."
A
similar explanation was published in the report to the Report of the
President of the Working Group to the Permanent Council on Personnel
Policy, which the Permanent Council received before voting to send the
amendments establishing continuing contracts to the General Assembly for
final approval. See CP/CAAP'2625/02, at p. 4.
As
for the vacancies, we have always maintained that most short-term contracts
would be considered vacancies during the RIF. And since 1996, we have
assured the staff committee that every short term contract long-term
contract issued by way of a competition during a RIF or immediately prior
thereto would have language saying that that the contract would be
considered a vacancy for purposes of the RIF and could be terminated if the
post were needed to comply with the rights of a career staff member
separated from his post as a result of the RIF process.
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