Effect given to the recommendations of the committee and the Governing Body - Report No 357, June 2010

Effect given to the recommendations of the Committee and the Governing Body

1. 74. The Committee last examined this case at its June 2009 meeting [see 354th Report, paras 1019–1036]. On that occasion, on examining allegations regarding the refusal to recognize the legal personality of the National Union of Workers of the University of Panama (SINTUP) it made the following recommendations:
   • (a) The Committee expects that the Government will send it the ruling issued by the Supreme Court of Justice with respect to the authorities’ refusal to recognize that the complainant trade union has legal personality and expects that the Court will issue its ruling in this regard in the near future.
   • (b) The Committee requests the complainant organization to indicate the reasons why it chose not to establish itself in accordance with the regulations governing the right to organize in the public sector.
2. 75. In its communication dated 27 January 2010, SINTUP refers to the Government’s reply concerning the case and specifically to the claims that the union’s request was not accepted on the grounds that it was “against the Political Constitution of the Republic and against the law” and that the “documentation submitted in support of the application contains flaws that need to be rectified”. SINTUP states that the flaws are not in the documentation submitted, but in outdated regulations contained in the Constitution and the Labour Code, which serve only to deprive public service workers of fundamental human rights, the same rights that both legal instruments clearly recognize for private sector workers, including workers at private universities. According to the complainant organization, this represents a clear violation of the Constitution on the grounds of non-compliance with article 19 which establishes that “there shall be no exemptions or privileges, nor discrimination on the basis of race, birth, disability, social class, sex, religion or political ideas”. The regulations cited to deny the legal existence of SINTUP point to the tendentious refusal to recognize as workers all those who work for the State, placing them in a category called “public servants” (Title XI of the Political Constitution) and to the biased and narrow interpretation of what an enterprise is and what it represents. However, the much cited Title XI blatantly contradicts the Constitution itself, where none of the 16 articles of Title III, Chapter 3, referring to work, make reference to so-called public servants, but instead to “any worker in the service of the State or of a public enterprise” (article 65).
3. 76. SINTUP adds the following in respect of the Committee’s recommendations: as regards recommendation (a) the Supreme Court of Justice of Panama responded to the amparo (protection of constitutional rights) request for constitutional guarantees lodged by the trade union on 2 October 2008 with a statement by the full court bench dated 9 March 2009. In its judgement, as can be seen, it resorts to a technicality, finding a “flaw” in the amparo action and questioning a note and a signature. It is clear to SINTUP that there was no intention of considering the substance of the matter.
4. 77. With regard to the Committee’s recommendation (b), SINTUP states that it is entirely wrong to conclude that the union should be refused legal recognition as a union because it requests legal personality under the Labour Code and not under provisions contained in the Administrative Career Act. There is no provision in either the single text of the Administrative Career Act of 29 August 2008, nor in Act No. 43 of 30 July 2009 that amends it, that governs “the trade union rights of public servants in autonomous institutions, such as the University of Panama”, let alone for all other so-called public servants. Likewise, none of this legislation makes provision for an administrative authority where public service workers can request the registration of a trade union. Consequently, it is impossible to seek to legalize a trade union in Panamanian public institutions through administrative career regulations. The Administrative Career Act grants the right of association, but completely denies the right of public sector workers to establish trade unions. Furthermore, associations of public servants that can be established, can only do so with serious and unfair limitations, including the following: (i) not all workers can belong to them; only permanently appointed public servants, who make up a tiny portion of the government labour force; (ii) the associations’ officials are not entitled to immunity from dismissal. This was eliminated in the amendments introduced in Act No. 43 of 30 July 2009; (iii) the number of so-called permanently appointed public servants necessary to form an association was raised from 40 to 50 or more, a figure significantly higher than that required under the Labour Code to establish a trade union; (iv) although the right to strike is established, it is subject to a regulation that has not been established; (v) the right to the collective negotiation of conflicts exists, but not of working conditions. Since the entry into force of Act No. 9 of 20 June 1994 no state institution has negotiated a collective agreement; and (vi) the stability of public servants is extremely precarious and is undermined with every change of Government. Thus, article 21 of Act No. 43 of 30 July 2009 “set aside all the acts of incorporation of permanently appointed public servants issued as from the implementation of Act No. 24 of 2007”. This turned several thousand workers who thought they were achieving permanent status in their positions into casual workers.
5. 78. In its communication of 3 March 2010, the Government states that the Supreme Court of Justice ruled on the refusal to grant the complainant trade union legal personality in a decision dated 9 March 2009 in which the amparo appeal for protection of constitutional rights lodged by Mr Eliecer Chacón Arias was declared not receivable, on the grounds of procedural irregularity of the appeal. The Government indicates that in this regard the national Government has no direct responsibility for the decision because any request by a workers’ social organization must comply with the requirements of the Political Constitution; consequently, public servants are governed by the principle of legality whereby they can only do what they are permitted to do by law. Evidence of this is the fact that in private universities, trade union organizations have been allowed with no qualms as they are private entities, but the same is not true in the public service universities, as is the case of the University of Panama. Lastly, the Government states that it has recently received a copy of a communication dated 27 January 2010 from SINTUP containing additional information in respect of the follow-up to the Committee’s recommendations concerning the complaint, and that it will send its observations in due course.
6. 79. The Committee notes this information. In particular, the Committee notes the complainant organization’s explanations as to why it chose not to establish itself in accordance with the regulations governing the right to organize in the public sector. In this respect, while it recalls that workers in public or private universities shall have the right to establish organizations of their own choosing and to join them, and the right to collective bargaining, the Committee requests the Government to communicate its observations with regard to the complainant’s allegations and, in particular, with regard to the difficulties and restrictions that are damaging associations of public servants. The Committee emphasizes that whatever the legislation covering the right of association of workers in public universities may be, it must fully recognize the rights enshrined in Conventions Nos 87 and 98, and it requests the Government to specify in its reply whether the legislation guarantees those rights, including protection against anti-union discrimination and the right to collective bargaining of workers’ organizations in public universities.