Robert Aguirre^(*)

The Staff Association is moving from the era of legal battles to the era of collective bargaining. But before discussing the latest events about collective bargaining, let us review the journey that has brought us to this point in order to gain perspective.

Over the last 30 years, the Staff Association's chief strategy for defending the rights of staff has been a legal strategy. It has appealed everything for which a willing appellant and sufficient evidence existed. This strategy has been very effective over the years.

During the administrations of Drs. Acuña and Macedo, the Staff Association won a great majority of the appeals it supported. According to an independent study done in Geneva and published in "UN Special," the Staff Association won 75% of its cases at the ILO Tribunal during the six year period from 1988 to 1994. Meanwhile, all other staff associations, none of which has a legal office, were winning about 38% of their cases. ⁽¹⁾ The culmination of this period was the CEPANZO (Centro Panamericano de Zoonosis) case which, according to the external auditor, cost PAHO $6.88 million. ⁽²⁾

This record of success was possible because the administration did not believe in rule of law. It believed in rule of the Director and acted accordingly. As a result, the plain law of the organization was often violated which led to frequent victories at the ILO Tribunal. Following the CEPANZO debacle, the organization finally learned that the Director is as subject to the law as everyone else.

Beginning at the end of Dr. Macedo's administration and continuing under Dr. Alleyne's administration, the organization has figured out how to play the game, so to speak. As a result, the number of appeals has declined dramatically. Whereas at the height of the legal strategy, the Staff Association's legal office was carrying about 15 cases at any one time, at this writing that number is down to three.

This decline in numbers ought to be permanent. To understand this, a little background is necessary. The legal context of all international organizations is their immunity from the laws of any member government. That means the laws of the host government do not apply to your employment relationship with PAHO. The only laws that apply are those created by the organization itself, plus those created by the common system to which it voluntarily belongs, plus a few general principles of law that the ILO Tribunal imposes.

In practice, this means that the organization can legalize just about anything it wants to do. All it has to do to make an action legal is write a law permitting an action before it takes the action. By obeying this simple expedient, the organization can legally do pretty much anything it wants to do. This is the game that the PAHO administration failed to understand for so many years. An example will demonstrate how easily this works.

Since at least 1979, PAHO has required a college degree for all professional posts graded P1 to P3. Higher graded posts require a post-graduate degree. When this policy was created, those persons without a degree who already held a professional post were "grandfathered" into their grades. This means they were allowed to keep the grade they had but could not get a promotion unless they acquired the necessary degree. There are a few exceptions to this rule. For example, a steam engineer's license can substitute for a college degree, thereby permitting the building engineer of the headquarters building to have a professional grade.

There was a time towards the end of Dr. Macedo's administration when the organization wanted to promote, from P1 to P2, a person who had been "grandfathered" into the professional grades and who did not have a college degree. In the past, the Director would have simply given instructions to promote the person regardless of the degree requirement. That would have been illegal. On this occasion, however, the administration took the trouble to add to the Manual an exception to the degree requirement before promoting this person. The exception fit the favoured person's post. Therefore, the promotion through reclassification was legal. Many months later, this exception was removed from the Manual. This episode was one of the first signs that the administration was finally learning how to play the game.

Thus, the formula for doing things legally is very simple: First they write the law, and then they do what they want. With rare exceptions, this formula is appeal proof. Because the administration has learned the lesson, the number of appeals is falling. In all probability, this is a permanent change because once the bureaucracy learns a lesson, it is unlikely to forget it. As a result, the Staff Association's legal office is no longer in constant, furious combat with the administration as it once was. Now, it is more like a deterrent, always ready if the administration slips up.

In a very concrete sense, this change is a great victory for the Staff Association. Its legal strategy, carried out over a period of decades, has succeeded in imposing rule of law on PAHO. Over the last 30 years, the Staff Association has spent around a million dollars on various lawyers, studies and workshops directly related to legal activity. It has also spent around a million dollars over the last 20 years to create and maintain a hemispheric structure which roughly doubled the membership and made it possible to fund a permanent legal office. This enormous effort, carried out by two generations of staff, has borne fruit. Whereas in the old days arbitrary administrative action was almost routine, today the administration makes that mistake infrequently.

What does this mean? Well, it does NOT mean that staff are much happier. Just because something is legal does not mean it is just or wise. The example given above of the promotion from P1 to P2 is a perfect illustration. That promotion was legal, but it was not just. It represented giving favoured treatment to a favoured person. Unfortunately, unwise and unjust decisions remain a part of life in PAHO and damage morale. Nevertheless, establishing rule of law was a fundamental first step to permanently improving the quality of life in PAHO.

What comes next? Since rule of law is now largely accepted in PAHO, the next step is to influence the policies of the organization to make its actions more wise and just. The Staff Association has already had important successes in this area. The creation of an ombudsman's office a year and a half ago, after years of urging by the Staff Association, was a great advance. Not only does it give staff an additional resource for resolving disputes but it also provides statistical data which can be very useful in proving the existence of a problem.

For example, information provided by the ombudsman shows that harassment is a widespread problem in PAHO. ⁽³⁾ Over the years, PAHO's leadership has been extremely reluctant to accept this fact. Now, however, the facts are unmistakable. The ombudsman's information coupled with WHO's acceptance of harassment as a legitimate issue have led the administration to accept an initiative of the Washington Local Organization (WLO) for a healthy work environment that is free of harassment. WLO and the administration are splitting the cost of a consultant proposed by WLO who will evaluate the situation in PAHO headquarters and propose actions to confront the harassment problem as well as other health issues. Meanwhile, the Joint Advisory Committee (JAC) is already drafting a harassment policy with some real teeth in it. All this follows the lead of the Executive Committee of the Staff Association which two years ago highlighted the issue of harassment with an article in VOZ. ⁽⁴⁾

The ombudsman and harassment issues are the sort of policy initiatives to which the Staff Association can devote more of its energy now that legal battles are taking less of its time. The legal office too can devote more energy to these issues as it did with research on the ombudsman issue and on the harassment article in VOZ which was cited by the ombudsman in his report to the Director. In short, the establishment of rule of law means we have moved into a new era in staff management relations, one that is more collaborative than confrontational.

It has taken three decades to reach the point where collaboration is the larger part of our activities, but our timing has been perfect because on 27 March 2000, something happened that will change the face of the UN common system forever. On that date, the International Labour Organization signed a recognition agreement with its staff union. A recognition agreement that provides collective bargaining rights on all employment issues over which the ILO has control. Obviously, the ILO cannot control common system issues which are decided by the ICSC and the UN General Assembly, but it does control the implementation of common system decisions. If a similar agreement existed in PAHO, it would mean, for example, that parts of the Staff Rules and most things in the Manual could be the subject of collective bargaining.

The ILO agreement eliminates one of the great hypocrisies the earth has seen. The ILO is responsible for setting workers' rights around the globe. The two most fundamental rights of workers are the right to form trade unions, which is found in the Universal Declaration of Human Rights, ⁽⁵⁾ and the right to bargain collectively, which is an ILO Convention. ⁽⁶⁾ Yet, the ILO denied the right of collective bargaining to its own employees. Nor did the organization react quickly to fix the situation when ILO staff called it to the attention of the administration. ILO staff have been pressuring for collective bargaining since 1982. Nevertheless, their persistence has paid off. Now that a recognition agreement exists at ILO, it is only a matter of time before it spreads to all the agencies in the UN system.

The importance of this breakthrough cannot be overestimated. Collective bargaining is the universal, proven method of formalizing collaboration between staff and management in the operation and evolution of any enterprise. Contrary to the opinion of many people, collective bargaining stabilizes staff-management relations. Many people think the opposite because strikes are usually the only thing that gets in the news about staff-management relations. In fact, they are rare events when you consider that in the US, for example, there are thousands of recognition agreements and only a handful of strikes each year.

The personal experience of the counsel to the PAHO Staff Association is more typical than what you see on the news. Twenty-six years ago, the counsel was a member of the union at Arnold Bakers, a large manufacturer of several kinds of bread. At the time he worked there, that union had never been on strike. Even when a contract expired, the members of the union preferred to keep working during negotiations rather than strike because they did not want to lose income by not working. This happens far more often than a strike, but it rarely makes the news because it is routine rather than exceptional. People who think collective bargaining causes more problems than it resolves literally do not know what they are talking about.

Now that the era of great legal battles is over and we have entered the era of collaboration, the Staff Association's next big goal should be to formalize collaboration through a recognition agreement.

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(*)Robert Aguirre is the legal counsel of the PAHO-WHO/AMRO Staff Association. This article is reproduced from VOZ, No. 1/2000.

⁽¹⁾ "UN Special," January 1995, pp. 18-20

⁽²⁾ "Financial Report of the Director and Report of the External Auditor," 1 January 1994 - 31 December 1995, p. 14, paras. 12, 13

⁽³⁾ Ombudsman Annual Report, September 1998 - October 1999, Washington, DC, pp. 4-7

⁽⁴⁾ "Job Harassment, i.e. Bullying," "VOZ," Number 1, January-April 1998

⁽⁵⁾ Article 23(4) of the Universal Declaration of Human Rights of the United Nations

⁽⁶⁾ ILO Convention No. 98 of 1949

On 26 July 2000, United Nations Secretary-General Kofi Annan brought together leaders from global business, international labour and civil society organizations to pledge their commitment to universally accepted human rights, labour and environmental principles.

Nearly 50 companies attended the meeting at United Nations Headquarters in New York. All say that they are committed to implementing the principles of "The Global Compact" in their own corporate management practices. "The Global Compact" was announced by the Secretary-General at Davos, Switzerland, in January 1999, when he first warned the business community against the mounting backlash against globalization.

"The Global Compact" is intended to promote the implementation of nine principles in the areas of human rights, labour and the environment. These principles are derived from the Universal Declaration of Human Rights, the International Labour Organization's Declaration on Fundamental Principles and Rights at Work, and the Rio Principles on environment and development, all of which enjoy broad recognition among the world's governments.

In a press conference held on 26 July, the Secretary-General said that "The Global Compact" was about identifying and disseminating good practices at the corporate level, learning what works in areas of human rights, labour standards and the environment, promoting it and sharing the experience with others.

When asked to respond to criticism that the United Nations was being either naive or misguided in allowing big corporations to wrap themselves in the United Nations flag, and that this was essentially doing a deal with the devil, Mr. Annan said,

"Yes, I think it's unfortunate, but also not surprising that some would have that attitude. I think what we are trying to do here is to encourage corporations, corporations that have considerable influence and reach and power, to work with us in giving meaning to some of these values that their own governments have signed on to, and basically, telling them, we have to work together to make this world a better place. I'm not going to use the famous word, 'give globalization a human face', but basically we are telling the corporations that deal with us, if you accept these values, plug them into your global operations -- let it become part of your corporate structure and culture. You don't need to wait for a government to pass laws before you ensure that your operations do not pollute the lake or water that produces fish for the people. You don't need to wait for government to pass laws before you pay a decent wage. You don't need to wait for governments to pass laws before you refuse to employ children. We are asking them to tell us what they are doing. And this will be posted on the Web. People can check. The trade unions are involved, civil society is involved. Nobody is creating a sham operation here. I think it will be very transparent and there will be accountability, because it will be visible and transparent and people will question it. This is why I think other NGOs and the trade unions feel comfortable enough in sharing this experience. I think time will tell whether we've just allowed people to cloak themselves in the United Nations flag and not do what they've agreed to do. This morning there were very clear suggestions of why we should monitor -- we should be able to point out good practices as well as bad practices, and encourage people to move in the right direction. This came from all the stakeholders -- from business, from labour and from civil society organizations."

According to world union leaders at the ICFTU - International Confederation of Free Trade Unions - who participated in July's High-Level Meeting, "The Global Compact" offers a further opportunity for global dialogue between enterprises, trade unions and NGOs. In so doing, it fulfils a critical need, but it must not usurp the role of binding rules to regulate the behaviour of multinational companies.

The international trade union movement has long fought for binding rules at the global level to protect fundamental rights of workers.

In commenting on "The Global Compact", ICFTU General Secretary Bill Jordan indicated that social dialogue around the Compact could make an important contribution. He added that "moral authority from international institutions and voluntary initiatives from companies to protect the rights of the poor and the weak do not balance out binding rules being established at the global level to protect the rights of the rich and the powerful."

Union leaders stressed the importance of public scrutiny of company compliance with the principles, and said that the rules of accountability and transparency should be applied to make them effective.

John Evans, General Secretary of TUAC - Trade Union Advisory Committee - referred to the recently concluded revision of the OECD Guidelines on Multinational Enterprises (MNEs) after a process of extensive consultations, including with business and labour, which now embody the core labour standards, set out more explicit responsibilities for MNEs with respect to compliance with their supply chains, and specified institutional mechanisms for their implementation.

Philip Jennings, General Secretary of UNI - Union Network International - called upon Kofi Annan to use his good offices to encourage companies to respect freedom of association, thereby allowing unions to organize. Union leaders reminded the meeting that partnership and engagement were ineffective in situations where unions were weak, or not allowed to organize. Promoting freedom of association was therefore central to realizing the aims of the Compact. Framework agreements between global companies and global labour provided an effective

FICSA calls upon Kofi Annan and Juan Somavia to use their good offices to ensure that the United Nations and its sister organizations uphold Principle 3 of the Global Compact: freedom of association and the effective recognition of the right to collective bargaining.

instrument for promoting good corporate behaviour.

Juan Somavia of the ILO flagged some critical areas for dialogue, including the need for business to comply with and support freedom of association, and harness capital resources for employment growth. He reminded the meeting of the ILO's considerable expertise in promoting tripartite dialogue, including sectoral consultations between the ITS and employers in the corresponding sectors, and pledged to place this expertise at the disposal of the process.

And international civil servants?

• Will the authority of universal ideals also apply to international public sector workers?

• Will the United Nations abide by its own international instruments?

• Will the UN system be able to post its own progress in the area of labour rights on the Web?

The most recent instalment in the continuing saga of revising the 1954 Standards of Conduct in the International Civil Service has just been released. And, unlike Steven King's new novel which can be downloaded from the internet, chapter-by-chapter for a fee, FICSA is offering the information for free!

Preface - ICSC got involved in revising the 1954 Standards of Conduct in 1998, after the United Nations in New York adopted a so-called "Code of Conduct", which was in fact a revision of Article 1 of the Staff Rules - Duties, Privileges and Obligations. The revision emphasized duties and obligations, and ignored privileges and rights. Some of the Member States thought it would be a good idea if the other organizations adopted a similar "code".

First Chapter - The ICSC secretariat established a draft for the 49^th (April 1999) session that was so bad that the Commission had to decide to form a two-tier working group to undertake consensus-building and produce a fresh draft. The first working group met (with FICSA participation) in October 1999 and February 2000. The second working group was never convened.

Second Chapter - The text prepared by the working group was submitted to the 51^st (April 2000) session of ICSC, but in a misleading tabular form that led the Commissioners to work on the basis of the first proposal (from the ICSC secretariat). The open-ended working group that had been planned at the 49^th session was refused by those Commissioners who wanted to conclude work despite the many objections put by administration and staff representatives alike. They adopted a final text for submission to the United Nations General Assembly and the organizations of the common system.

The representatives of CCAQ, however, succeeded in getting chance for the legal advisers of the organizations to comment on the text's compatibility with the constitutional instruments of their respective organizations. The text was thus adopted "pending any final comments" from them.

Third Chapter - Very few legal advisers responded to the specific request. But a number of organizations submitted their comments on the substance, sometimes reiterating an earlier comment, and aired their grievances. UNICEF, for instance found that the draft "reflected 'more of a government report or a further set of staff rules'. It found this regrettable, as the inspirational tone of the document had, in its view been lost." UNOPS dared the comment that "a few members of the Commission had made a mockery of the transparency of the process". ILO announced that it was working on the development of standards of its own, based upon the draft of the working group.

Fourth Chapter - FICSA, which did not attend the 52^nd (July-August 2000) ICSC session, learned that the debate became very acrimonious. One of the Commissioners allegedly said that the Commission should just go ahead and impose the new standards. One representative of an organization was allegedly called "impudent and disrespectful" for defending a well-elaborated article on non-discrimination.

CCAQ asked the Commission to consider constituting a new tripartite working group with as many of the former "players" as possible, including members of the Commission. The task of the working group would have been to re-visit and reconsider the texts which had, to date, been put forward with a view to achieving consensus. Above all, the tone and style of the final product had to reflect the unique ideals and goals of service in the UN system organizations.

The proposal was defeated. It is rumoured that the true reason was that the Commissioners could not agree on who from among them would be sitting on the group. In other words, the hard-liners refused to give up. The Commission thus decided to "postpone the matter" to its next session and to "call again upon the organizations to present their complete views and, to the extent possible, reach consensus on the draft".

Fifth Chapter - To come, but since history tends to repeat itself, see above...