The recent controversy regarding UNOPS consultants in Geneva has triggered a much larger and long-overdue debate on the use of ´non-staff personnel´ in the UN system and the asymmetries in their working conditions with respect to UN staff.
On 2012, the United Nations’ Joint Inspection Unit (JIU) published a report on a survey aimed at assessing the practices of individual consultancies and other non-staff personnel in the UN System, including various specialized agencies. The investigation revealed that use of non-staff personnel in the UN amounts to approximately 40 percent of its total workforce. One of the key reasons for the use of non-staff personnel, according to the report, is the lack of sufficient resources to pay for a staff position in conjunction with the strain of having to deliver with scarce funding. A further 2014 report specified another reason to hire non-staff personnel: greater flexibility in the recruitment process in comparison to staff recruitment. In spite of numerous recommendations made by the JIU to UN agencies, regarding contracting practices, no real progress has been made to address the aforementioned issues and solve them.
Consultants in the UN, generally maintain a contractual relationship with a UN Agency but are not considered formal ’employees’. While the use of consultants does not appear prima facie to be a breach of human rights standards on labour, I argue in this post, that the manner in which consultancy contracts are being implemented by the UN is inconsistent with the ‘equal pay for equal work’ principle.
UN Consultancy Schemes and the ‘Equal Pay for Equal Work’ Principle
Article 7 of the ICESCR stipulates that members of the Convention should guarantee fair wages and equal remuneration for work of equal value “without distinction of any kind”. As for the scope of the term “remuneration”, in the ICESCR drafting sessions there was a general consensus that the term comprises other benefits “beyond monetary wages” such as social security, family and child benefits, as was later established in the ILO Convention 100. Therefore the ‘equal pay for equal work’ principle not only involves a monthly salary but it also includes other social benefits.
The JIU 2012 report revealed that there is no specific framework regulating the remuneration of non-staff personnel and the final decision over which salary level applies to each contractor is on the hiring manager of each UN agency. This derives in lower remuneration for contractors carrying out the same functions as those established for staff members, or even in acute disparities among different contractors performing identical tasks within the same organization. Furthermore, individual contractors are not entitled to any of the social benefits enjoyed by staff members including the UN Joint Staff Pension Fund (See template of terms and conditions of the UNOPS’ ‘Individual Contractor Agreement’ here).
In addition, although non-staff contract modalities are allegedly aimed to be short term, the fact is that it is a recurrent practice of UN agencies to use these contract schemes successively during long periods of time. In the words of the JIU:
[T]he existing policies allow the organizations to use consultants on successive contracts for long periods of time (sometimes two, three or four years) or indefinitely, with or without breaks. It is fair to say that the maximum duration of these contracts is not in line with the nature of a consultancy and other non-staff contractual modalities.
So, what are the avenues of legal redress for aggrieved UN non-staff personnel?
The UN Justice System
Forasmuch as the UN enjoys immunity from suit, the observance of UN’s obligations is not compatible with an absence of remedies for aggrieved staff. On account of this legal lacuna in the UN internal order, in 2009, the Organization established an internal administration of justice system. The UN justice system consists of two tiers, competent to hear complaints from UN staff or former staff (the UN justice system explicitly excludes non-staff personnel from its competence ratione personae), encompassing also the UN specialized agencies. The first level tribunal is the United Nations Dispute Tribunal (UNDT) and the second level tribunal is the United Nations Appeals Tribunal (UNAT). The decisions of both tribunals are binding to the parties. The judgments of both courts could include rescission of the administrative decision that appointed, promoted or terminated a post and/or monetary compensation when found applicable.
The UN tribunals have specifically referred to the ‘equal pay for equal work’ principle. In Chen, for instance, the UNDT concluded that “the right to equal pay for work of equal value” is implicitly included in every UN contract subscribed with staff and is not restricted to gender non-discrimination but it also covers any employee carrying out “a particular defined job.” It finally argued that budgetary restraints could not be an argument that justifies the non-compliance with this principle. Yet, in Chen, the UNDT also clarified that non-staff personnel are outside the jurisdiction of the UN justice system.
In Roberts, the applicant worked for the United Nations University (UNU) in Bonn, Germany Under a “Personnel Service Agreement” (PSA) which was renewed several times for over a 5-year period. In her claim, Roberts argued that “out of 104 UNU employees, only seven were staff members” and that most PSA holders performed “core functions” including supervising staff and managing entire units. Additionally, she argued that “PSA holders lacked basic rights, such as maternity leave, health insurance and other social benefits.” According to Roberts, the contractual relationship she enjoyed was not consistent with her actual functions. She claimed that “UNU abused the PSA in order to avoid paying benefits on a large scale.”
In this case, the UNDT concluded that since the applicant was never a staff member, it lacked jurisdiction to hear her case. But, was Roberts duly categorized as a “non-staff personnel” or was she a de facto employee? On this subject, it is appropriate to address the issue of the employment relationship.
The Employment Relationship
The International Labour Organization (ILO) has recognized the difficulty in determining “whether or not an employment relationship exists” and the use of contract figures aimed to conceal such relationship. It, consequently, provided pertinent criteria to determine the existence of an employment relationship in its Recommendation 198. The ILO concluded that the determination of such relationship:
should be guided primarily by the facts relating to the performance of work and the remuneration of the worker, notwithstanding how the relationship is characterized in any contrary arrangement, contractual or otherwise, that may have been agreed between the parties. (Recommendation 198)
Indicators of an employment relationship include, inter alia: a) working in the premises of the organization; b) complying with specific working hours; c) continuity of the work; d) demand of the worker’s availability; e) providing the worker with tools and materials needed for the task; f) periodic payment of remuneration; g) recognition of entitlements such as weekly rest and annual holidays.
The JIU’s inspection mentioned supra discovered that most non-staff personnel “work on the premises of the contracting organization, and comply with the working hours applicable to regular staff. They are provided with offices, telephones, email addresses and ground passes.” This leads to a contractual scheme that “is tantamount to a fixed-term staff contract, without the social security and other benefits.” All of these elements denote an employment relationship as defined by the ILO, which entails that these people are staff by a de facto employment relationship.
This means that the UNDT’s decision of rejecting the Roberts’ claim is wrongful and that it had the competence ratione personae to hear her case. According to ILO standards, the employment relationship is not configured by its insertion in a contractual agreement but from the verifiable evidence of the nature of the work performed. The fact that a consultancy contract stipulates the existence of a contractual relationship rather than an employment one, doesn’t rule out the possibility for the contractor to enjoy a “de facto” employment relationship during the implementation of the contract, as was the case of Roberts’ alleged facts .
Dispute Settlement Mechanisms
The UN justice system decisions with regards to whom it categorizes as non-employees, exposes the absence of reasonable means for UN non-staff personnel to effectively protect their rights.
Article 29 of the General Convention on Privileges and Immunities clearly establishes that the UN shall establish appropriate modes of settlement of disputes arising out of contracts or other disputes of a private law character to which the UN is a party. However, until now no formal procedure has been adopted by the UN to observe this obligation in the case of non-staff personnel.
Given that there are no recourse mechanisms available to non-staff UN personnel, domestic courts could be a useful avenue to settle disputes between the UN and its non-staff workforce.
In the 2006 case Babé v. ILO, a spanish court lifted ILO’s immunity and declared an employment relationship between the international organization and the plaintiff, who had signed several contracts to “collaborate externally” with the organization but worked full-time in the premises of ILO, in Madrid. In its ruling, the Court cited article 5 of the European Convention of State Immunity which affirms that no contracting State could claim immunity from the jurisdiction of a tribunal of another Contracting State “if the proceedings relate to a contract of employment between the State and an individual where the work has to be performed on the territory of the State of the forum”. According to the Spanish court, this article is applicable in “evident analogy” to international organizations.
Similar considerations have applied to gig economy personnel, meaning those working for companies that operate using online and/or smartphone apps such as Uber, Cabify and Deliveroo. These companies use freelancers and on-demand workers that they classify as independent contractors, raising serious concerns around their employment relationship and workers’ rights.
In 2016, the UK Employment Tribunal ruled that Uber drivers were “workers” within the definition of the Employment Rights Act 1996, and were accordingly entitled to the minimum wage and paid holidays. According to the UK tribunal, “the drivers provide the skilled labour through which [Uber] delivers its services and earns its profits”.
In 2018, a São Paulo appellate court ruled in favor of a Uber driver, ordering the company to issue a formal employment contract and comply with the domestic labor law. According to the Brazilian court, Uber drivers are employees on account of their lack of autonomy to fix rates, the rating system which amounts to rules of conduct and the use of indirect methods to obtain “maximum availability” of drivers.
Similarly, the Paris’ Court of Appeals determined, in a 2019 ruling, that Uber drivers are not “independent workers” as Uber had claimed but there is rather a ‘subordination relationship’ between drivers and Uber that amounts to a “work contract”. The court based its decision in the fact that Uber drivers do not have the freedom to choose their own clients or charge their own rates.
What is clear from these rulings is that an increasing number of ‘unconventional’ workers are succeeding in establishing a de facto employment relationship and asserting their labour rights in domestic courtrooms. This is a clear indicator that the UNDT/UNAT’s threshold of access to the tribunals should be revisited. Until then, domestic courts might be the only legal recourse left for aggrieved UN non-staff personnel to improve their working conditions.