Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

The Committee notes the Government’s reply to the previous comments of the International Trade Union Confederation (ITUC) concerning murders and acts of violence against trade unionists. The Committee also notes the conclusions and recommendations of the Committee on Freedom of Association in Case No. 2706. The Committee further notes the comments of the ITUC dated 24 August 2010, which refer to the refusal of the Government to grant trade union status to the National Union of Workers of the University of Panama (SINTUP), and in general report that workers are victims of persecution and murders. The Committee requests the Government to provide its observations in this respect. The Committee recalls that freedom of association can only be exercised in a climate that is free of violence and in which fundamental human rights are respected and fully guaranteed. The Committee also requests the Government to provide its observations in relation to the comments made by the National Council of Private Enterprise (CONEP) in 2009.

The Committee recalls that for many years it has been commenting on the following matters, which raise problems of consistency with the Convention:

Article 2 of the Convention. Right of workers and employers without distinction whatsoever to establish and join organizations.

–      sections 174 and 178 of Act No. 9 on administrative careers establishing, respectively, that there may 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. The Committee notes the Government’s indication in its report that Act No. 9 of 1994 was amended by Act No. 43 of 30 July 2009, but that sections 174 and 178 have not been amended. The Committee recalls that, in accordance with Article 2 of the Convention, the legislation should envisage the possibility of workers being allowed to establish more than one organization if they so wish. The Committee once again requests the Government to take the necessary measures to amend sections 174 and 178 of the Act on administrative careers as indicated above;

–      the requirement of too large a membership (ten) for the establishment of an employers’ organization and an even larger membership (40) for the establishment of a workers’ organization at the enterprise level, by virtue of section 41 of Act No. 44 of 1995 (amending section 344 of the Labour Code), and the requirement of a large number (40) of public servants to establish an organization of public servants under section 177 of Act No. 9 on administrative careers (now section 182 of the Single Text of Act No. 9). The Committee notes the Government’s indication that Act No. 43 of 30 July 2009 amends section 182 referred to above, raising the required number of members for the establishment of an organization of public servants from 40 to 50. The Committee requests the Government to take the necessary measures to reduce the minimum number of members required so that workers, employers and public servants are able to establish their organizations. The Committee requests the Government to provide information in its next report on any developments in this respect;

–      the denial to public servants (non-career public servants, as well as those holding appointments governed by the Constitution and those who are elected and serving) of the right to establish unions. The Committee notes the Government’s indication that to bring the legislation into conformity with the Convention it would be necessary to amend article 64 of the Political Constitution, which is a matter for the highest authorities of the country. The Committee recalls that it has always considered that the exclusion of public servants from the right to organize is contrary to the Convention (see the General Survey of 1994 on freedom of association and collective bargaining, paragraph 48). The Committee observes that the legislation grants public servants the right to establish associations for the defence of their interests. The Committee once again requests the Government to take the necessary measures to ensure that all public servants, including non-career public servants, as well as those holding appointments governed by the Constitution and those who are elected and serving, are able to establish and join the organizations or associations of their own choosing in full freedom (and not only one organization for each institution), thereby guaranteeing such organizations the rights set out in the Convention.

Article 3. Right of organizations to elect their representatives in full freedom.

–      the requirement to be of Panamanian nationality in order to serve on the executive board of a trade union (article 64 of the Constitution). The Committee notes the Government’s indication that to bring the legislation into conformity with the Convention, it would be necessary to amend article 64 of the Political Constitution, which is a matter for the highest authorities of the country. The Committee recalls once again that provisions on nationality that are too stringent could deprive some workers of the right to elect their representatives in full freedom; for example, migrant workers could be adversely affected in sectors in which they account for a significant share of the membership. In the Committee’s view, the national legislation should allow foreign workers to take up trade union office at least after a reasonable period of residence in the host country (see the General Survey, op. cit., paragraph 118). In this respect, the Committee once again requests the Government to take the necessary measures to make the required amendments taking into account the principle referred to above;

–      the right of organizations to organize their administration. In its previous comments, the Committee requested the Government to take the necessary measures to amend section 180-A of Act No. 24 of 2 July 2007, amending Act No. 9 on administrative careers, so as to abolish the requirement for public servants who are not affiliated to associations to pay ordinary trade union dues, with the possibility of providing instead for the payment of a lesser amount than the ordinary trade union contribution for the benefits derived from collective bargaining. In this respect, the Committee notes the Government’s indication that, on the occasion of the most recent amendment of Act No. 9 of 1994, section 180-A was not amended. The Committee recalls once again that the requirement by law that non-affiliated public servants shall pay ordinary dues to the association which obtained improvements in labour conditions raises problems of consistency with the Convention as such a requirement may influence the right of public servants to choose freely the association that they wish to join. Under these conditions, the Committee once again requests the Government to take the necessary measures for the amendment of section 180-A of Act No. 24 of 2 July 2007 as indicated above.

Right of organizations to organize their activities and to formulate their programmes in full freedom. The Committee recalls that in its previous comments it commented on various aspects related to the exercise of the right to strike. In this respect, the Committee notes the Government’s general comments relating to the exercise of the right to strike to the effect that: (1) strikes in Panama, as a constitutionally recognized right, take place within legally established limits set out in the Labour Code; (2) the right to strike per se does not give entitlement to the payment of wages for the days of stoppage, even where it is declared legal; (3) conciliation as a procedure for the resolution of collective labour disputes occurs in accordance with specific rules initiated by the presentation of a list of claims; (4) the abandonment of conciliation does not give rise to “disproportionate penalties”, although it brings an end to the procedures; if this step is taken by the employer, it not only precludes the conciliation stage, but sets in motion the period of twenty days for the workers to call a strike; if it is taken by the workers, the latter have to recommence their action; (5) procedures have been established for the settlement of disputes of right involving the interpretation of the law, and primarily through mediation; (6) there are no formalities governing requests for mediation, although where the dispute is such as to admit the exercise of the right to strike, the parties may also request it through the submission of a list of claims; (7) the provision referred to above gives rise to another settlement mechanism, as in the case of the list of claims and the National Labour Act, under the terms of Act No. 53 of 1975, which provides for a jurisdictional body; and (8) although machinery is established in labour law for the settlement of collective disputes, it is not adequate.

The Committee recalls that the following matters raise problems of conformity with the Convention:

–      denial of the right to strike in export processing zones (section 49B of Act No. 25 of 1992) and the denial of the right to strike in enterprises of less than two years’ standing (section 12 of Act No. 8 of 1981). The Committee notes the Government’s indication that the Ministry of Labour and Employment Development (MITRADEL), together with the Ministry of Trade and Industry (MICI), have been working to formulate amendments on this subject, resulting in the formulation of a preliminary draft Bill to amend, among other provisions, section 49 of Act No. 25 of 1992 and to repeal section 12 of Act No. 8 of 1981. The Committee requests the Government to keep it informed of any developments in this respect and to provide a copy of the final text when it has been adopted;

–      the denial of the right to strike for public servants. The Committee recalls that the banning of strikes in the public service should be restricted to public servants exercising authority in the name of the State (see General Survey, op. cit., paragraph 158) or to essential services in the strict sense of the term (those the interruption of which would endanger the life, personal safety or health of the whole or part of the population). The Committee once again requests the Government to take the necessary measures to ensure the right to strike of public servants who do not exercise authority in the name of the State;

–      the ban on federations and confederations from calling strikes and on strikes against the Government’s economic and social policy, and the unlawfulness of strikes that are unrelated to an enterprise collective agreement. The Committee recalls once again that federations and confederations should have the right to strike and that organizations responsible for defending workers’ socio-economic and occupational interests should, as a rule, be able to use strike action to support their position in the search for solutions to problems posed by major social and economic 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 the General Survey, op. cit., paragraph 165). The Committee once again requests the Government to take steps for the amendment of the legislation so as to align it with the principles described above and so that the right to strike is not restricted to strikes related to a collective agreement;

–      the authority of the Regional or General Labour Directorate to refer labour disputes to compulsory arbitration in order to stop a strike in private transport enterprises (sections 452 and 486 of the Labour Code) which do not provide a service that is essential in the strict sense of the term. The Committee notes the indication that the right to strike as a constitutionally recognized right, is exercised within the legally established limits set out in the Labour Code, and its comment that mediation and conciliation procedures are available. The Committee recalls that compulsory arbitration to end a collective labour dispute is acceptable if it is in all cases at the request of both of the parties involved in the dispute. The Committee therefore once again requests the Government to take the necessary steps to amend the legislation so as to provide that compulsory arbitration is possible in the transport sector only at the request of both parties;

–      the obligation to provide minimum services with 50 per cent of the staff in the transport sector, and the penalty of summary dismissal of public servants for failure to comply with minimum services in the event of a strike (sections 152.14 and 185 of Act No. 9 of 1994 on administrative careers). In this respect, the Committee notes the adoption of Executive Decree No. 25 of June 2009, which provides in section 2 that the provisions of the Labour Code respecting strikes in public services shall be applicable to the public air and maritime passenger transport services (sections 485–488 respecting strikes in public services) and of Executive Decree No. 26 of June 2009, which provides that in cases in which striking workers in a public service have designated an insufficient number of workers to provide or cover emergency services through shifts, the Ministry, in taking action to increase the percentage of workers up to the 30 per cent allowed by the law (section 487(2) of the Labour Code), shall justify the decision using criteria such as: (a) it is a situation in which the life, safety and health of the population are placed at risk; (b) if the original conditions for the provision of services determined by the workers were maintained, the normal living conditions of citizens could be seriously affected and/or an economic, social or political crisis created with serious consequences; and (c) the existence of the source of employment for workers and the enterprise would be imperilled. The decision adopted by the authority is immediately enforceable. The Committee finally notes that the legislation does not refer to the possible participation of the organizations of workers concerned in the determination of the minimum services envisaged in those public services, which go beyond essential services in the strict sense of the term. The Committee emphasizes that minimum services should be limited to activities that are strictly necessary to cover the basic needs of the population or to satisfy the minimum requirements of the service, while maintaining the effectiveness of the pressure brought to bear, and that since this system restricts one of the essential means of pressure available to workers to defend their economic and social interests, their organizations should be able, if they so wish, to participate in defining such a service. Moreover, in the case of any disagreement as to the number and duties in relation to the minimum service, such disagreement should be settled by an independent body enjoying the confidence of the parties. The Committee once again requests the Government, taking into account the principles described above, to take the necessary steps to ensure the respective legislative amendments;

–      legislation interfering with the activities of employers’ and workers’ organizations (sections 452.2, 493.1 and 494 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). The Committee previously requested the Government to take the necessary steps to ensure that: (1) in the event of a strike, management staff and non-striking workers are guaranteed the right to enter the facilities; and (2) compulsory arbitration is possible only at the request of both parties to the dispute, in essential services in the strict sense of the term or in the case of public servants exercising authority in the name of the State. The Committee notes the adoption of Act No. 68 of 26 October 2010 amending, among other provisions, sections 493–494 of the Labour Code. The Committee notes with satisfaction new section 493(3) which, in accordance with the comments made by the Committee for several years, provides that “the owners, directors, managing director, the staff closely involved in these functions and workers in positions of trust shall be able to enter the enterprise during the strike, provided that their purpose is not to recommence productive activities”. The Committee nevertheless notes that the free access of non-striking workers is not provided for in the event of a strike. The Committee once again requests the Government to take steps to ensure that in the event of a strike the right of entry of non-striking workers to the facilities is guaranteed;

–      the obligation for non-members to pay a solidarity contribution in recognition of the benefits derived from collective bargaining. The Committee notes that section 2 of Act No. 68, amending section 405 of the Labour Code, provides that “the collective agreement shall apply to all persons who work in the categories covered by the agreement, in the enterprise, commerce or establishment, even though they are not members of the union. Non‑unionized workers who benefit from the collective agreement shall be obliged, during the period covered by the collective agreement, to pay the ordinary and extraordinary dues agreed by the union, and the employer shall be obliged to check such dues off from wages and forward them to the union”. In this respect, the Committee considers that “solidarity” dues in view of the benefits derived from collective bargaining by workers who are not members of the unions concluding a collective agreement are not contrary to the provisions of the Convention; nevertheless, such dues should be set at an amount which does not prejudice the right of workers to join the trade union organization of their choosing. The Committee requests the Government to take the necessary steps for the amendment of the legislation as indicated above, and to provide information in its next report on any measure adopted or envisaged in this respect;

–      the automatic intervention of the police in the event of a strike. The Committee notes section 3 of Act No. 68, amending section 493(1) of the Labour Code, which provides, as amended, that “once the strike has commenced, the Regional or General Labour Inspectorate or Directorate shall immediately give orders for the police authorities to duly guarantee or protect persons and property.” The Committee considers, in cases of strike movements, that the authorities should resort to the use of the public forces only in grave situations or those in which public order is seriously threatened. The Committee therefore requests the Government to take steps for the amendment of the legislation as indicated above.

The Committee notes the Government’s indication in its report, with regard to the requested legislative amendments, that on various occasions it has shown its will to adapt the national legislation to the provisions of the Convention. However, as this involves the amendment of the Labour Code, as well as of other legal provisions, it is very difficult to engage in a process of the amendment of this legal instrument, as it necessarily involves the will, dialogue and consensus between workers and employers, in accordance with the practice in Panama. The Government adds that regrettably up to now no consensus has been achieved in this respect, for which reason the National Government, with a view to complying with this international commitment and reflecting the conclusions of the Committee on the Application of Standards at the 98th Session of the International Labour Conference (June 2009) and the comments of the Office, has requested the technical assistance of the ILO with a view to addressing the issues relating to freedom of association, in order to seek ways forward to allow the harmonization of national law and practice with the provisions of the Convention. Observing that the discrepancies between the law and practice and the Convention have existed for many years, and taking into account the gravity of some of the restrictions referred to above, the Committee hopes that the Government will take the necessary measures to bring the legislation into conformity with the provisions of the Convention and that the requested technical assistance will be provided in the very near future. The Committee requests the Government to provide information in its next report on any progress achieved in this respect.

Legislative initiatives. The Committee notes the adoption of Legislative Decree No. 27 of 5 June 2009 adopting measures intended to preserve the independence and autonomy of workers’ trade union organizations.