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

The Committee takes note of the information supplied by the Government relating to the comments of 2009 by the International Trade Union Confederation (ITUC) and the National Federation of Public Employees and Public Service Enterprise Workers (FENASEP). It takes note that the Government’s report makes no mention of the comments of 29 May 2009 by the National Council of Private Enterprise (CONEP). The Committee also notes the ITUC’s comments of 24 August 2010 concerning: (1) obstacles to collective bargaining and to the right to organize in the public sector; (2) threats, harassment and mass dismissals of trade unionists. The Committee requests the Government to send its observations thereon as well as on the CONEP’s observations of 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 4 of the Convention. Promotion of collective bargaining.

(a)   Section 12 of Act No. 8 of 1981 provided that in the first two years of operation, enterprises (other than building enterprises) were not bound to conclude a collective labour agreement, which could in practice imply denial of the right to collective bargaining. The Committee notes the Government’s statement in response that the Ministry of Labour and Workforce Development (MITRADEL), together with the Ministry of Commerce and Industry (MICI), have been working on the requested amendments, preparing a preliminary draft that would repeal section 12 of Act No. 8 of 1981 thus allowing collective agreements to be concluded at any time. The Committee notes the Government’s statement that the preliminary draft is now in its final phase. The Committee notes, however, that section 7 of Act No. 29 of 29 June 2010 provides that “societies (personas naturales) or legal persons established in the Special Economic Area of Barú shall not be required to conclude collective labour agreements in the first six years of operation”, which again could imply in practice a denial of the right to collective bargaining. The Committee requests the Government to keep it informed of any developments in the preliminary draft that would repeal section 12 of Act. No. 8 of 1981 and to send a copy of the final text once it has been adopted. The Committee also asks the Government to repeal section 7 of Act. No. 29 of 29 June 2010 and to safeguard fully the right to collective bargaining of the workers in question.

(b)   The need to amend the legislation so that in the event of a strike attributable to the employer, the payment of wages for strike days is not imposed by law (section 514 of the Labour Code) but is a matter for collective bargaining between the parties concerned. CONEP pointed out in this connection that the legislation does not require any proof, prior to the strike, that a collective agreement was breached or legal provisions repeatedly violated. The Committee notes that the Government provides no information on this matter. Consequently, it reiterates its previous recommendation and again asks the Government to send information and to ensure that the payment of wages in the event of a strike may be settled by collective bargaining.

(c)   The requirement that the number of representatives of the parties in negotiations shall be from two to five (section 427 of the Labour Code). The Committee notes that the Government supplies no information in response. The Committee therefore once again requests the Government to amend this provision (for example by providing that the parties shall decide on their representation) and to provide information on the matter.

Restrictions on collective bargaining in the maritime sector. In earlier comments, the Committee took note of restrictions on collective bargaining in the maritime sector pursuant to section 75 of Legislative Decree No. 8 of 1998, establishing the conclusion of collective agreements as an option, which in practice leads to the denial of workers’ claims by employers and about which an application had been filed for this legislation to be found unconstitutional. The Committee also took note of the Government’s information that a draft of a new Maritime Code would be submitted to the Legislative Assembly. The Committee notes that according to the Government, MITRADEL, the MICI and the Maritime Authority of Panama (AMP) are preparing the first draft of a resolution providing for measures to fulfil the collective rights of seafarers in the interest of ensuring observance of the right to organize, bargain collectively and declare strikes. The Committee also notes the information that the AMP and MITRADEL are currently meeting in order to seek a consensus on the measures to be taken in this regard. Pointing out that seafarers must be covered by all the guarantees laid down in the Convention, the Committee requests the Government to report on all developments regarding the first draft of the resolution, the complaint asking that the employers’ denial of workers’ claims be ruled unconstitutional, and the draft new Maritime Code.

Article 6. Public servants’ right to collective bargaining. In its previous comments the Committee noted that Act No. 24 of 2 July 2007 amending the Administrative Careers Act contains provisions that afford protection from acts of anti-union discrimination against public servants and recognizes the right to collective bargaining of associations of public servants. In view of FENASEP’s assertion that the right to collective bargaining has not been regulated, the Committee asked the Government to indicate whether municipal workers and workers of decentralized institutions enjoy the right to collective bargaining.

The Committee notes in this connection the Government’s indication that public servants, including municipal workers and workers in decentralized institutions, do not have this right because organizations of public servants are not considered to be trade unions and so may not negotiate collective agreements. The Government adds that in practice, public servants do form associations and make labour gains though not under the name of “collective bargaining”, but they do negotiate and the agreements benefit the membership collectively. The Committee is aware of the foregoing but is bound to point out that the Convention allows exclusion from the rights and safeguards (including the right to collective bargaining) it establishes only for persons engaged in the administration of the State and for the police and armed forces, and that consequently all other public officials and employees must have the right to bargain collectively. The Committee requests the Government to take steps to ensure that the law establishes this right for public servants who are not engaged in the administration of the State.

Issues raised by employers’ organizations. In its previous comments the Committee observed that CONEP was asking for regulations on legal disputes and that employers be allowed to submit claims and initiate conciliation proceedings. The Committee invited the Government to address these matters through tripartite dialogue. The Committee notes that the Government makes no reference to the matter in its report. In these circumstances, the Committee asks the Government to indicate in its next report whether a tripartite dialogue process has been set in motion and, if so, to provide the results of the discussions.

With regard to the legislative amendments requested, the Committee notes that according to its report, the Government has made known its intention of aligning the national legislation with the provisions of the Convention. Unfortunately, no consensus having been reached thus far, the National Government, in the interests of meeting this international commitment and in keeping with the conclusions of the Committee on the Application of Standards at the 98th Session of the International Labour Conference (June 2009), and pursuant to the offer made by the Office, has requested, in document No. DM.1400.2009, technical assistance from the Office in dealing with freedom of association issues, in order to seek compromise solutions allowing national law and practice to be brought into line with the provisions of the Convention. Observing that there has been divergence between law and practice for many years, and bearing in mind the seriousness of some of the restrictions mentioned, the Committee hopes that the technical assistance requested will be forthcoming in the very near future and will allow the legislation to be aligned with the Convention, and asks the Government to provide information on all progress in this matter in its next report.