LAW AND COMMON SENSE PREVAIL!
Quote: "The Polling Officers do not feel it is within their mandate to override prior decisions of the United Nations Appeals Tribunal or the deferrals of a decision meant to be made by the General Assembly. As a result, the names of staff members of the Pension Fund shall not be excluded from the ballot in the 2021 election of participants’ representatives on the United Nations Staff Pension Committee."
The Polling Officers' decision, in effect, thwarts efforts by some members of the Fund and Pension Board leadership, who have tried for years to muzzle the UN Participants to the Board, to rig the upcoming election. P.S. Whether or not the petition helped, the fact remains that “sunlight is the best disinfectant”. Thank you, to all who signed!
UNITED NATIONS STAFF PENSION COMMITTEE
POLLING OFFICERS OF THE 2021 ELECTION
Ref.: PO/2021/03 Date: 3 June 2021
To: Members of the Pension Board of the United Nations Joint Staff Pension Fund
From: Polling Officers, 2021 election of participants’ representatives on the United Nations Staff Pension Committee
ELECTION OF PARTICIPANTS’ REPRESENTATIVES ON THE UNITED NATIONS STAFF PENSION COMMITTEE
Memorandum Annex
cc: Martha Helena Lopez, Assistant Secretary-General for Human Resources, Department of Management Strategy, Policy and Compliance
Dulcie Mapondera, Chief, Legal and Compliance Unit of the United Nations Joint Staff Pension Fund
Katia Tabourian, Special Assistant to the Assistant Secretary-General, Office of Human Resources, Department of Management Strategy, Policy and Compliance
Elected leadership of the staff members of the United Nations Secretariat and separately administered associations, staff unions and councils:
o Mark Polane (UNISERV, UNFSU)
o Stephen Towler (UNISERV, UNFSU) o Guy Avognon (CCISUA, UNHCR)
o Joseph Baricako (CCISUA, ECA)
o Philip Migire (CCISUA, UNON)
o Tanya Quinn-Maguire (FICSA)
o Cosimo Melpignano (FICSA)
MEMORANDUM FROM THE POLLING OFFICERS OF THE 2021 ELECTION TO THE MEMBERS OF THE PENSION BOARD OF THE
UNITED NATIONS JOINT STAFF PENSION FUND
On 14 April 2021, the various United Nations staff unions and associations were asked to provide volunteers to act as Polling Officers for a global process to elect participants’ representatives to the United Nations Staff Pension Committee. The request was issued seven (7) days prior to the expiration of the term of the current Committee members on 21 April.
On 16 April, the names of eight volunteers selected by the representatives of the staff of the United Nations Secretariat provided from among the Polling Officers who were currently working, or had recently worked, on other elections were forwarded to the Assistant Secretary-General for Human Resources, Department of Management Strategy, Policy and Compliance, also a member of the Pension Board. The team of Polling Officers was thus considered to have been “nominated by the United Nations Secretariat and separately administered associations/staff unions/councils to independently conduct objective, impartial and neutral elections for the United Nations Staff Pension Committee and publish the results thereof”. The Polling Officers were expected to “find a way to convene a preparatory meeting without any outside intervention, to ensure their full independence” and to “conduct a professional, fair and independent election for the benefit of everyone”.
On 19 April, the Polling Officers were copied on emails requesting their release, “for the necessary time required”, for the purpose of running said election. In attachment was a copy of the current Regulations, Rules and Pension Adjustment System of the United Nations Joint Staff Pension Fund (JSPB/G.4/REV.25, of 2021), while the body of the email contained an overview of the make-up of the Committee, on the basis of articles 5 and 6 of the Regulations. A second email was received by all Polling Officers, containing as attachment a copy of the nomination form used by the Polling Officers of the 2017 election and the name of the Human Resources focal point that would be available to provide any necessary assistance with regard to voters and related data required to enable them to participate.
On 20 April, the Polling Officers met for the first time to discuss the organization of the election. Subsequent to that meeting, one member reached out to the HR focal point to request additional information and guidance. Having been given no additional instructions, the Polling Officers also contacted the previous team of Polling Officers for further advice.
Between 20 April and 12 May, the Polling Officers met regularly and continued to seek information on and organize the details of the running of the election, decided on key dates, worked with Procurement to identify possible polling companies, requested assistance from the Office of Information and Communication Technology with the resolution of a variety of technical issues and drafted a call for nominations to be circulated on 14 May. We were also informed during that time by the HR focal point of the Pension Board’s express desire that the elections be completed prior to its upcoming meeting in July, with sufficient time to advise and train the new members of the Committee beforehand.
On 14 May 2021, in accordance with article 6 of the Regulations, Rules and Pension Adjustment System of the United Nations Joint Staff Pension Fund, the Polling Officers forwarded a letter (PO/2021/01) to the assigned HR focal point and requested the circulation of said letter, by which staff members who were participants in the Pension Fund were invited to nominate candidates to stand for election as participants’ representatives on the United Nations Staff Pension Committee. Prior to its circulation, the Polling Officers made certain amendments to the terminology used in their invitation, at the request of the HR focal point, to bring the language into line with that used in the Regulations.
On 17 May, that email was circulated by various United Nations system-wide Broadcasts to all relevant staff, and re-circulated by several staff union and federation broadcasts, so as to reach the widest possible audience.
The eligibility requirements listed in that call for nominations were set out in line with the call for nominations from 2017 sent to the Polling Officers as reference material by the assigned HR focal point, and in accordance with the provisions of article 6 (a), as follows:
All candidates for election must:
- (a) Be staff members who are current participants in the United Nations Joint Staff Pension Fund (see also link to Regulations and Rules in annex I);
- (b) Occupy a post, on a fixed-term, permanent or continuing appointment, in any of the organizations in the United Nations family of organizations participating in the Pension Fund (see annex II);
- (c) Have taken the United Nations oath of office.
Annex I to the 2021 call for nominations contained the text of article 6 (a)-(c) of the Regulations, as well as a link to the full text of that document. Annex II contained the list of participating United Nations entities served by the United Nations Staff Pension Committee. The remainder of the call for nominations contained preliminary instructions for prospective applicants and nominees, a calendar of proposed key dates and information on how to contact the Polling officers for further information.
On 17 May, the Polling Officers received an expression of interest from a current staff member of the Pension Fund who was also a current Participant Representative to the Staff Pension Committee. At the Polling Officers’ meeting on 19 May, the issue of the current text of section C.1 was raised and a discussion held on that staff member’s eligibility for election. Given the apparent discord between the 2017 decision by the United Nations Arbitration Tribunal decision allowing such staff members to do so, and declaring that restriction illegal, and the change still seen in the text of section C.1 of successive versions of the Rules of the Procedure of the United Nations Joint Staff Pension Fund since 2018, the Polling Officers could not come to an agreement as to the full meaning and implications of the change. Finding the text of section C.1 to be unclear as to whether “the secretariat of the Fund”, “the Office of Investment Management of the Fund” and “the secretariat of (the United Nations) Staff Pension Committee” represented the entirety of all Pension Fund staff members or a subset thereof, the Polling Officers requested clarification on that matter from both the HR focal point and the legal advisor of the Pension Fund. Organizations charts were provided by the legal advisor, as were the following statements (underline hers):
- - In summary, the entities in the UNJSPF covered by Section C.1 of the UNJSPF Rules of Procedure are the Pension Administration/Fund secretariat, which also serves as the Staff Pension Committee secretariat of the UNSPC following approval by the General Assembly in its resolution 75/246 of an amendment to Article 8 of the Fund’s Regulations, the secretariat of the United Nations Joint Staff Pension Board and the Office of Investment Management.
- - There are similar provisions in the rules governing elections for Participants’ Representatives on the staff pension committees of UNJSPF member organizations – for instance the WHO Staff Pension Committee, which restricts staff of the WHO SPC secretariat from being eligible to serve on the WHO Staff Pension Committee and consequently on the Pension Board.
- - The General Assembly only approves amendments to the Regulations in accordance with article 49 of the Regulation. Amendments to the Rules of Procedure of the Fund are approved by the United Nations Joint Staff Pension Board and submitted to the General Assembly for information in accordance with article 4 (c) of the Regulations, which states that:
Subject to the provisions of these Regulations, the Board shall adopt its own Rules of Procedure, which shall be reported to the General Assembly and the member organizations.
- - The amendment to section C.1 was an amendment of the Rules of Procedure approved by the Board at its 64th session in July 2017 and, in accordance with article 4 (c) of the Regulations, was reported to the General Assembly in annex IX to the Board’s report to the General Assembly (A/72/383). The General Assembly noted the report in its resolution 72/262, section XV, paragraph 1.
In the meantime, the Polling Officers allowed the candidate to proceed with the nomination process, while advising him of the possibility that he may not be eligible to run. He thereupon provided arguments to the contrary, along with documents purporting to support his position, also citing article 4 (c) of the Regulations, set out above, as well as successive resolutions of the General Assembly deferring a decision to amend article 6 (a).
On 21 May, in view of the conflict that remained apparent to them between the provisions of article 6 (a) and section C.1, and the recourse by both parties to the same article of the Regulations to support the validity of both, the Polling Officers appealed to the same United Nations Secretariat and separately administered associations/staff unions/councils external that had nominated them to request assistance in the form of external legal advice and arbitration. On 26 May, the Polling Officers were advised that the situation had been referred to an external arbitration committee consisting of former United Nations staff members who were all lawyers with extensive and distinguished legal backgrounds. On 30 May they replied, and, on 31 May, they agreed to discuss the matter with the Polling Officers at a meeting to be held on 2 June and facilitated by the staff union leader that had called them together.
After extensive discussion, the external legal experts remained unable to decide in favour of the legality of the change made by the Pension Board to its Rules of Procedure and its applicability to the setting out of election criteria that appeared to be in conflict with those set out in the Regulations. The key point remained the interpretation of the phrase “Subject to the provisions of these Regulations” contained in article 4, by which, in their opinion, the terms of the Regulations superseded those of the Rules of Procedure. The arbitration committee members also remarked on the lack of a formal legal framework for the work and mandate of the Polling Officers. At the end of that meeting, the Polling Officers held a second, private meeting to discuss the opinions expressed by the members of the arbitration committee and endeavour to come to their own decision on the matter. The Polling Officers also found it notable that, at no time following the issuance of the call for nominations on 17 May, or the reminders thereof circulated on 28 May and 1 June, did they receive any request by the pension Board to issue a correction or otherwise amend the eligibility criteria set out therein.
Given the above considerations, the determination of the Polling Officers is therefore as follows:
- - Unlike for many staff union elections, there is no legal framework guiding the work of the Polling Officers for the election of participants’ representatives to the Staff Pension Committee. The Polling Officers are not legal experts and do not consider it to be within their mandate to interpret legal documents, only to organize elections and apply the Regulations in effect.
- - The phrase “Subject to the provisions of these Regulations, the Board shall adopt its own Rules of Procedure” contained in article 4 (c) appeared to be understood by the legal experts consulted to mean that the Regulations, being adopted by a higher hierarchical body, in the present case the General Assembly, should take precedence over and thus supersede any potentially conflicting provision of the Rules of Procedure that may be adopted by the Board.
- - The restriction set out in section C.1 of the Rules of Procedure in annex III appears to conflict with the election criteria set out in article 6 (a) of the Regulations. Although requested to do so by the Board, the General Assembly has not, as yet, adopted any amendment to said article.
- - The Polling Officers do not feel it is within their mandate to override prior decisions of the United Nations Appeals Tribunal or the deferrals of a decision meant to be made by the General Assembly. As a result, the names of staff members of the Pension Fund shall not be excluded from the ballot in the 2021 election of participants’ representatives on the United Nations Staff Pension Committee.
The Polling Officers request that the Pension Board take note of the above decision. The text of the relevant articles and section are set out in the annex hereto.
Annex
REGULATIONS, RULES AND PENSION ADJUSTMENT SYSTEM OF THE UNITED NATIONS JOINT STAFF PENSION FUND (JSPB/G.4/REV.25)
ARTICLE 4 ADMINISTRATION OF THE FUND
(b) The administration of the Fund shall be in accordance with these Regulations and with Administrative Rules, including Financial Rules for the operation of the Fund, consistent therewith which shall be made by the Board and reported to the General Assembly and the member organizations.
(c) Subject to the provisions of these Regulations, the Board shall adopt its own Rules of Procedure, which shall be reported to the General Assembly and to the member organizations.
ARTICLE 6
STAFF PENSION COMMITTEES
(a) The United Nations Staff Pension Committee shall consist of four members and four alternate members elected by the General Assembly, four members and two alternate members appointed by the Secretary-General, and four members and two alternate members, who shall be participants in the Fund and on the staff of the United Nations, elected by the participants in service in the United Nations by secret ballot.
ANNEX III, RULES OF PROCEDURE SECTION C
STAFF PENSION COMMITTEES
C.1 The composition of the staff pension committee of each member organization shall be in accordance with the provisions of article 6 of the Regulations. Staff members of the secretariat of the Fund and of the Office of Investment Management of the Fund, and staff members of the secretariat of each Staff Pension Committee shall not be eligible to be elected or appointed to represent any constituent group in the Staff Pension Committee of any member organization of the Fund, and consequently to serve on the Pension Board. Consistent with Rule A.9 (d), two United Nations Joint Staff Pension Fund (UNJSPF) retiree representatives shall be entitled to attend meetings of the Staff Pension Committee (SPC), but shall not have the right to vote. Each committee shall hold at least one regular meeting each year. Special meetings shall be held either at the decision of the Chair, at the request of the competent authority or at the request in writing of three members.
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