UN Pension Fund - UNPR Note - Article 6: impact of proposed amendment, 2019

Note by United Nations Participants’ Representatives 

to the Pension Board

Amendment to Rule of Procedure C.1 and

Impact of 2018 proposed amendment to Article 6

2019

Summary The  General Assembly emphasized its existing prerogative on matters pertaining to the Fund in paragraph 5 of resolution 73/274, and in paragraph 21 recalled that it has sole and ultimate authority to approve amendments to the Regulations governing the Fund; Furthermore the GA requested in paragraph 20 that the Board to consider the impact of an amendment of Article 6. We find that the amendment to exclude certain participants of the Fund, would result in a double standard and violation of Article 8 of the United Nations Charter. Rules of the Fund annexed to its regulations, cannot violate the same regulations, as reiterated by the Assembly when it decided to amend Article 4 (c) to read that the Board could adopt its own rules of procedure subject to the provision of regulations it had approved. Therefore the Board may wish to correct Rule C.1 to make it consistent with Article 6 adopted by the General Assembly and which provides for members of Staff Pension Committees to be [democratically] elected by participants in service to member organizations, without exclusion.

  Background

1.     The United Nations Participants’ Representatives requests the Pension Board to review and amend changes to Board’s Rule of Procedure C.1 in order to align the rule with the regulations of the UNJSPF.

2.     In June 2017, at its 199^th meeting, the Standing Committee of the Pension Board convened a meeting and decided that there was a conflict of interest for two staff members of the Fund who had been elected to the UNSPC and therefore could not be board members.

3.     Based on that opinion the Pension Board at its 64^th session in July 2017 approved an amendment to Rule of Procedure C.1 that expressly excluded participation on Staff Pension Committees by staff of the Fund and Pension Secretariats.

4.     The affected representatives who had been elected by the UN participants took the matter to the United Nations Appeals Tribunal (UNAT) which disagreed with the Standing Committee’s view in its entirety and ordered that the UNSPC Participants’ Representatives receive all documents and take part in all workings of the Board [1]

5.     In its order 2019-UNAT-908[2] the Tribunal provided an opinion expressly opining on the Conflict of Interest claim that the Fund had made to object to members of its staff running for elected office.

6.     Furthermore, the General Assembly in resolution 73/274 of December 2018 has reiterated the authoritative nature of the Regulations when it amended the Board’s request for the approval of a new Article 4 (c) that would allow the Board to adopt its own rules. The General Assembly amendment of the article is as follows; “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”;[Emphasis added]

Impact of an exclusionary amendment to Article 6[3]

7.     The following points describe the impact that the amendment proposed in 2018 would have:

a.     the resolution of the General Assembly reiterates the authority of regulations over rules

b.     The opinion to deny board membership on the basis of conflict of interest has been vacated by the UNAT on two occasions, since mitigation of conflicts of interest is by recusal from specific decisions in the case of actual conflict of interest, and not exclusion from participation on the Board.

c.     A request to the GA for a change to Article 6 to exclude certain members of staff would result in reversal of 75 years of institutional precedent and violation of Article 8 of the UN Charter, which provides that, “The United Nations shall place no restrictions on the eligibility of men and women to participate in any capacity and under conditions of equality in its principal and subsidiary organs.”

d.     Can lead to even more disenfranchisement depending on the interpretation of the rule to exclude more prospective candidates who are involved with the pension process. This is evidenced by recent elections in some member organizations

Conclusion

8.     Based on the foregoing considerations, the Pension Board is requested to amend Rule C.1 as follows:

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 the Office of Investments Management of the Fund, and staff members of the secretariat of any Staff Pension Committee shall be eligible to be elected to represent active participants 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 (e), two UNJSPF retiree representatives shall be entitled to attend meetings of the 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 chairman, at the request of the competent authority or at the request in writing of three members.

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[1] 2017-UNAT-801; 2017-UNAT-807

[2] 2019-UNAT-908

[3] A/RES/73/274 – paragraph  20 requests analysis on the impact of proposals made in 2018 to amend Article 6