Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee notes the Government’s report, the discussion in the Conference Committee in June 2003, the comments on the application of the Convention made by the National Council of Private Enterprise of Panama (CONEP) and the conclusions and recommendations of the Committee on Freedom of Association in Case No. 1931 (see 318th Report, paragraphs 493 to 507).

1. The Committee recalls that its previous comments related to the following provisions:

-  the power of the Regional or General Labour Directorate to submit labour disputes to compulsory arbitration in order to stop a strike in a public service enterprise, including those which cannot be considered essential services in the strict sense of the term, such as transportation (sections 486 and 452(3) of the Labour Code);

-  sections 174 and 178, final paragraph, of Act No. 9 ("establishing and regulating administrative careers"), of 1994, which lay down respectively that there shall not be more than one association in an institution, and that associations may have provincial or regional chapters, but not more than one chapter per province;

-  section 41 of Act No. 44 of 1995 (amending section 344 of the Labour Code), which requires an excessively high number of members to establish an employers’ organization (ten) and an even higher number to establish a workers’ organization (40) at the enterprise level;

-  article 64 of the Constitution, which requires Panamanian nationality to serve on the executive board of a trade union;

-  the obligation to provide minimum services with 50 per cent of the personnel in establishments which provide essential public services, which go beyond essential services in the strict sense of the term and include transport, and the penalty of summary dismissal of public servants for failure to comply with the requirement respecting minimum services in the event of a strike (sections 185 and 152(14) of Act No. 9 of 1994); and

-  legislation interfering in the activities of employers’ and workers’ organizations (sections 452(2), 493(1) and 497 of the Labour Code) (closure of the enterprise in the event of a strike and compulsory arbitration at the request of one of the parties).

2. The Committee also referred in its previous observation to the comments made by the National Council of Organized Workers (CONATO) on the application of the Convention.

(a)  Requirement of 50 public servants to establish an organization of public servants under the Act respecting administrative careers. In its previous report, the Government acknowledged that this is a high number, but pointed out that section 176 of Act No. 9 allows public servants to organize by class (category) or sector of activity. The Committee requests the Government to take measures to amend the legislation with a view to reducing the minimum number of public servants required to establish organizations.

(b)  Denial of the right to strike of workers engaged at sea and on inland waterways (Act No. 8 of 1998), and in export processing zones (Act No. 25). The Government stated that both sectors may conclude collective agreements, but did not refer specifically to the right to strike. The Committee had requested the Government to indicate whether this right may be exercised in both sectors, and on what legal basis.

(c)  Prohibition of federations and confederations from calling strikes (the prohibition of strikes protesting against problems relating to economic and social policy and the unlawful nature of strikes not related to a collective agreement in an enterprise). The Government stated that it is the trade unions which maintain relations with the workers (whether or not they are unionized) at the enterprise level, and that if federations and confederations could call strikes, this would lead to trade union cannibalism and infighting between organizations. With regard to strikes protesting against the Government’s economic and social policies, it states that it is unjustified to submit enterprises to the effects of a strike of this type, since such policies are outside the control of the employer. The Committee emphasizes that federations and confederations should enjoy the right to strike. The Committee pointed out that organizations responsible for defending workers’ socio-economic and occupational interests should, in principle, be able to use strike action to support their positions to seek solutions to problems posed by major social and economic policy trends which have a direct impact on their members and on workers in general, in particular as regards employment, social protection and the standard of living (see General Survey on freedom of association and collective bargaining, 1994, paragraph 165). The Committee requests the Government to take measures to amend the legislation with a view to bringing it into line with the above principles.

(d)  Disaffiliation of the FENASEP from the Trade Union Convergence Confederation by decision of the authorities. The Government indicated previously that public servants are governed by the Act respecting administrative careers and considered that they must join homologous organizations of public servants. The Committee points out that, although first-level organizations of public servants may be restricted to this category of workers, such organizations should, however, be free to join federations and confederations of their own choosing, including those which also group together organizations from the private sector (see General Survey, op. cit., paragraph 193). The Committee requests the Government to take measures to amend the legislation with a view to bringing it into line with the above principles. The Committee requests the Government not to prevent the affiliation of FENASEP with the Trade Union Convergence Confederation.

3. In its recent comments, the National Council of Private Enterprise of Panama (CONEP) indicates that the Government has not carried out the reforms requested by the Committee of Experts and the Conference Committee since 2000. CONEP adds that a number of these reforms were also requested by the Committee on Freedom of Association. CONEP emphasizes the need to amend: (1) sections 493(1) and 497 of the Labour Code, the provisions of which respecting strike action jeopardize the basic needs of the enterprise, especially with regard to the maintenance of equipment, the prevention of accidents and the right of employers and managerial staff to enter the premises of the enterprise and carry on their activities; and (2) section 452(2), which allows the imposition of compulsory arbitration at the request of only one of the parties to the collective dispute.

The Committee notes the Government’s statements in its report, according to which: (1) it requested the technical advice of the ILO Subregional Office to improve the application of the Convention within a framework of dialogue and concerted action with the social partners and to achieve general agreement on all the points raised with regard to the requested reforms of the Labour Code; (2) as it was a pre-electoral period, it was not possible to seek this technical advice and the decision to postpone it was taken by the new Government, which took office on 1 September 2004; (3) section 49-A(B)(15) of Act No. 25 of 1992 grants the right to strike to workers in export processing zones; (4) with regard to the right to strike of workers engaged at sea, governed by Decree No. 8 of 1998, a petition to find the provision unconstitutional is currently before the Supreme Court of Justice; and (5) with regard to the amendments to the legislation requested in relation to public servants, despite the efforts made by the Government to give effect to the comments of the Committee, it has not been possible to achieve consensus on this subject.

The Committee hopes that the ILO technical assistance requested by the Government will be provided in the very near future and that it will make it possible to overcome all the problems raised. The Committee requests the Government to provide information in this regard.

Finally, the Committee requests the Government to provide a copy of the Bill to guarantee the rights set out in the Convention in export processing zones, to which the Government representative referred in the Conference Committee in 2003, to inform it of the decision of the Supreme Court of Justice on whether Decree No. 8 of 1998 is unconstitutional and to provide a copy of Act No. 25 respecting export processing zones.

The Committee is examining other matters in a request addressed directly to the Government.