Report in which the committee requests to be kept informed of development - Report No 313, March 1999

1. 132. The complaint is contained in a communication from the International Confederation of Free Trade Unions (ICFTU), dated 20 May 1998. The Government sent observations in a letter of 29 October 1998.
2. 133. Panama has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 134. In its communication dated 20 May 1998, the International Confederation of Free Trade Unions (ICFTU) alleges that the Government of Panama has refused to recognize, and disregards the affiliation of, the National Federation of Associations and Organizations of Public Servants (FENASEP) to the Joint Trade Union Central; this is in breach of the Labour Code and other national laws as well as of ILO Convention No. 87 which, under no circumstances, empower the administrative authorities to refuse registration of a workers' federation with a central labour organization.
2. 135. The ICFTU seeks the repeal of resolution No. 042-DOS-97 of 29 April 1997, which contains a decision not to register FENASEP's application for affiliation to the Joint Trade Union Central. The text of the resolution reads as follows:
3. The Chief of the Labour Organizations Department, acting on behalf of the Directorate General of Labour,
4. Considering:
5. That, on 18 March 1997, the Joint Trade Union Central requested this Department to register as an affiliate member the National Federation of Associations and Organizations of Public Servants (FENASEP);
6. That private sector workers and their organizations are governed by the Labour Code whereas public servants and their associations are governed by the Administrative Code, with the exception of cases foreseen in specific laws;
7. That, following an examination of the documentation submitted, the fact was noted that it did not meet the requirements of the Labour Code whereas specific standards exist which govern separately associations of public servants and workers' trade union organizations;
8. Resolves:
9. One Article: Not to register the application by the National Federation of Associations and Organizations of Public Servants (FENASEP) for affiliation to the Joint Trade Union Central, given that it does not meet the requirements of the Labour Code.
10. In accordance with: Article 2, 351 and 376 of the Labour Code.
11. David Tejada, Chief of the Labour Organizations Department.
12. B. The Government's reply
13. 136. In its letter of 29 October 1998, the Government recalls that the complaint results from the fact that the Ministry of Labour did not accept the "affiliation of the National Federation of Associations and Organizations of Public Servants (FENASEP) to the Joint Trade Union Central". This ensues from resolution No. 042-DOS-97 of 28 July 1997, issued by the Chief of the Labour Organizations Department of the Ministry and which was endorsed by resolution No. D.M. 27/98 of 14 May 1998, issued by the Senior Authorities. As stated in the latter text, notwithstanding "awareness of public sector employees' interest in being able to establish a trade union ... it is, for the time being, impossible on legal grounds to accede to this request". Article 2 of the existing Labour Code makes it absolutely clear, in explicit and emphatic terms, that "public servants shall be governed by the standards applicable to careers in the public administration, unless provision is explicitly made for them to be included within the scope of application of any rule contained in this Code". In fact, however, the Code contains no provision making explicit reference to an entitlement for public servants to establish a trade union, as would be required by article 2. Hence, it is not possible to accept the establishment by the aforementioned public servants of a trade union, without the rule of law being undermined.
14. 137. The Government states that the above-mentioned has not constituted an obstacle to the exercise of freedom of association by public servants, so much so that FENASEP is a federation and, as such, brings together a large number of associations of public servants working in various ministries and decentralized bodies. In this connection, the term "unionization" is not the subject of detailed definition in ILO Convention No. 87 whereas the concept "organization" is defined, inter alia, in Article 10 as "any organization of workers or of employers for furthering and defending the interests of workers or of employers". Furthermore, Article 6 of Convention No. 98 stipulates that "this Convention does not deal with the position of public servants engaged in the administration of the State, nor shall it be construed as prejudicing their rights or status in any way". It follows from the aforementioned that, although the full right to organize of civil servants or public employees is recognized, there is no obligation to permit them to organize as a trade union on a par with those envisaged by the pertinent labour legislation. Clearly, this does not prevent each State, in exercise of its sovereignty, from granting its public servants the right to establish trade unions, a matter which, as seen above, does not arise in the Republic of Panama.
15. 138. The National Constitution of Panama, in article 300, establishes several "occupations in the public service in accordance with the principles of a system of merit; these include the Career in Public Administration; the structure and organization of these occupations shall be established by law in conformity with the exigencies of the Public Administration". By virtue of this text, Act No. 9 was adopted on 20 June 1994, entitled: "The establishment and regulation of Careers in the Public Administration"; article 174 stipulates:
16. Public servants pursuing a career in the public administration shall be entitled to establish or join public servants' associations of a socio-cultural and economic nature; these are set up within their respective institutions and strive to promote the education, training, improvement of conditions and protection of their members as well as to advise them regarding matters before the Appeals and Conciliation Board of Servants of the Public Administration and before the General Management of the relevant body. There shall be no more than one association in each institution.
17. The title of each public servants' association shall identify the institution that it represents or to which it pertains.
18. Membership of, or disaffiliation from, the above-mentioned associations shall be regulated by the Directorate General of the Public Administration for the purpose of ensuring that they take place on a voluntary and verifiable basis.
19. 139. Other provisions make reference to the establishment of associations, their recognition as well as the right to join together in federations and confederations. A chapter also exists regarding "the Settlement of Collective Disputes" which gives implicit recognition of the right to strike. Consequently, freedom of association, the right to bargain (art. 180) and even to strike (art. 185) are recognized.
20. 140. The Government adds that Act No. 12, 10 February 1998, "structures the Career in Parliamentary Service". It contains a specific section on "Collective Relations" which authorizes public servants pursuing a Career in Parliamentary Service "to establish and join a public servants' association of a socio-cultural and economic nature, which strives to promote the education, training, improvement of conditions, protection and defence of the common economic and social interests of its members ..." (article 80); two members of its management, together with their alternates, are granted "special protection (amparo) for a period of up to one year after they have ceased to exercise their functions. Consequently, they shall not be dismissed without the prior authorization of the Parliamentary Service Careers Board, on justifiable grounds as provided for by law. Any dismissal ordered in non-conformity with this article constitutes a breach of the special protection and shall result in an entitlement to immediate reinstatement of the public servant dismissed in violation of this provision ... A breach of the special protection is also constituted by unilateral measures to modify working conditions or to transfer the career official to another administrative unit unrelated to his/her functions; or by situations in which a transfer impedes or complicates the exercise of his/her trade union duties and the prior authorization of the Parliamentary Service Careers Board would also be necessary for such transfer" (article 181). Is it not appropriate to consider this as trade union privilege (fuero)? Moreover, "Parliamentary Service officials are recognized the right to bargain collectively regarding disputes as well as aspects of the public service regulations, with the exception of aspects explicitly excluded by law" (article 82). This clearly refers to the right to bargain collectively.
21. 141. These rights were incorporated into resolution No. 31 of 11 June 1998, passed by the Legislative Assembly and by which that body "approves the entirety of the Regulations governing Human Resource Administration of the Legislative Assembly" but, furthermore, it was established that the "institution shall grant facilities in the form of premises, equipment, materials and supplies for the smooth running of the Association ..." (article 121); special protection is extended "to the principal representatives, and their alternates, of public servants before the Parliamentary Service Careers Board" (article 122); "under normal conditions, no restrictions shall be placed upon the freedom of association of Parliamentary Service officials or upon officials enjoying the special protection (amparo) provided for by these Regulations" (article 128); public servants are granted the right to "protection, consideration, defence and advance of their common economic and social interests" and "to bargain collectively regarding disputes as well as aspects of the public service regulations, except aspects explicitly excluded by law" (article 240, Nos. 6 and 7).
22. 142. Above and beyond this, the Government reports that when, pursuant to the Torrijos-Carter Treaties, the Balboa and Cristóbal railway and ports reverted to the Republic of Panama, laws were adopted which granted the relevant workers the right to join trade unions, independently of their status as public employees (Acts Nos. 38 and 39, 27 September 1979). Similarly, a special Act (No. 8, 25 February 1975) was adopted authorizing workers in the energy and telephone services, who are also public employees, to join trade unions. In a globalization policy context, such services are today being privatized and the State has engaged in collective bargaining with each of the relevant trade unions, it being stipulated that the collective agreement shall extend to the purchaser of these utilities (Act No. 5, 9 February 1995, regarding the telephone services, and Act No. 6, 3 February 1997, in respect of electricity utilities).
23. 143. Hence, the Government continues, whereas it has not been possible to legislate to extend unionization standards to all public servants, the State has, nevertheless, endeavoured to grant such rights to certain categories of public officials, despite the fact that Convention No. 98 "does not deal with the position of public servants engaged in the administration of the State".
24. 144. The Government concludes that it has not been, nor shall it be, government policy to disregard its obligations pursuant to Conventions Nos. 87 and 98 and, on the contrary, it has gone beyond the requirements of the latter instruments.

C. The Committee's conclusions

1. 145. The Committee observes that, in the present complaint, the complainant organization alleges that the authorities refuse to recognize the affiliation of the National Federation of Associations and Organizations of Public Servants (FENASEP) to the Joint Trade Union Central, pursuant to Ministry of Labour resolution No. 042-DOS-97 of 28 July (endorsed by the resolution issued by the Senior Authorities on 14 May 1998).
2. 146. The Committee also notes the Government's statement that public servants and employees may organize themselves in associations for the protection and defence of their members' interests (though not as trade unions, other than in certain cases explicitly provided for by legislation). According to the Government, public servants' associations enjoy the basic rights established by ILO Conventions Nos. 87 and 98, including the right to bargain collectively and to take strike action. Nevertheless, the Government indicates that public servants are governed by the law applicable to careers in the public administration and not by the Labour Code; on legal grounds, it is impossible for FENASEP to become affiliated to the Joint Trade Union Central. Moreover, in the Government's opinion, Article 6 of Convention No. 98 ("this Convention does not deal with the position of public servants engaged in the administration of the State, nor shall it be construed as prejudicing their rights or status in any way") permits States to grant or not to grant to their public employees the right to join trade unions.
3. 147. In this respect, the Committee wishes to recall that the establishment of federations and confederations falls within the scope of Convention No. 87 and not Convention No. 98; Convention No. 87 (which applies to all workers with the sole possible exception of the armed forces and the police (Article 9(1) and consequently, applies to public servants) states explicitly in Article 5 that "workers' and employers' organizations shall have the right to establish and join federations and confederations ...". Furthermore, Article 6 of Convention No. 87 reads: "The provisions of Articles 2, 3 and 4 hereof apply to federations and confederations of workers' and employers' organizations" and Article 2 of Convention No. 87 specifically provides for the right without previous authorization, freely to join organizations, subject only to the rules of the organizations concerned. Consequently, organizations of public servants should be able to affiliate, if they so choose, to federations or confederations of workers in the private sector if the rules of such organizations so permit.
4. 148. In this regard, the Committee has made reference on previous occasions to the opinion of the Committee of Experts on the Application of Conventions and Recommendations, according to which it seems difficult to reconcile with Article 5 of Convention No. 87 a provision of law prohibiting organizations of public officials from adhering to federations or confederations of industrial or agricultural organizations (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 615). In addition, at its November 1997 meeting and in connection with its examination of the application of Convention No. 87, the Committee of Experts addressed a direct request to the Government of Panama, calling upon it to take measures to amend its legislation if the texts did not permit public servants' organizations to adhere to other federation-level organizations which had not been set up for public servants.
5. 149. In these circumstances, the Committee requests the Government to recognize and register, without delay, the affiliation of FENASEP to the Joint Trade Union Central and to keep the Committee informed of developments; it also brings the legislative aspects of this case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.