Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 397, Marzo 2022

1. 585. The complaint is contained in a communication dated 3 January 2018 from the National Confederation of United Independent Unions (CONUSI).
2. 586. The Government of Panama sent its observations regarding the allegations in communications dated 25 October 2018 and 30 August 2021.
3. 587. 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. 588. In its communication dated 3 January 2018, CONUSI denounced the anti-union dismissal of 79 workers from the company, Copa Airlines (hereinafter the “airline company”), and members of the National Trade Union of Workers in the Aviation, Logistics, Similar and Related Industries (SIELAS) in retaliation for their participation in a strike. The complainant organization specifically states that (i) on 30 August 2017, SIELAS submitted to the labour administration a draft renewal of the collective agreement for its referral to the airline company; (ii) negotiations for a draft collective agreement took place from 21 September to 17 October 2017, with no interest demonstrated by the company in pursuing the discussions beyond the indicated date; (iii) in light of the absence of results and in compliance with the requirements established by section 490 of the Labour Code, on 14 November 2017, SIELAS called a strike for 23 November; (iv) the call for a strike contributed to the resumption of negotiations, which made it possible to reach, on 21 November, agreement on several matters, although no consensus was achieved on the main financial clauses of the collective agreement; (v) at 7 a.m. on 23 November, a strike was initiated, as planned, and shortly after, labour inspectors arrived and stated, without providing any evidence, that the collective dispute had been referred for compulsory arbitration; (vi) in the absence of official notification to the trade union’s general secretary of the ministerial decision ordering compulsory arbitration, the workers did not lift the strike; (vii) on the same day, the president of the company proposed immediately resuming discussions with the trade union, which made it possible to reach an agreement on the unresolved issues; the president indicated that it was not necessary to include a non-retaliation agreement, as no acts of retaliation would be carried out by the company; (viii) as a result of the agreement, the strike was lifted at 8.30 p.m. on the same day (23 November), and the Ministry of Labour and Employment Development (MITRADEL) issued Decision No. 511 DGT 17 annulling the compulsory arbitration which, in reality, had never entered into force for the reasons indicated above; (ix) as the trade union did not trust the statements made by the president of the company regarding non-retaliation, on 26 November, it submitted a statement against the company with regard to Labour Code violations, to ensure the protection of workers against dismissal, provided for by law in such circumstances; (x) on 28 November 2017, the president of the company dismissed 79 workers for their participation in the strike held on 23 November, which was qualified as illegal by the company despite the lack of a court ruling in that regard; and (xi) following the strike and the dismissals, the airline company brought the matter before the courts to request that the strike be declared illegal, which was denied by a court of first instance (ruling of 15 December 2017 of the Second Local Labour Court). On the basis of the above, the complainant organization denounces the anti-union nature of the 79 dismissals and requests the reinstatement of the workers concerned.

B. The Government’s reply

1. 589. In an initial communication dated 25 October 2018, the Government refers to the collective dispute between SIELAS and the airline company. In this regard, the Government states that: (i) the parties submitted their complaint to MITRADEL in order to comply with the conciliation proceedings, established in section 432 et seq. of the Labour Code; (ii) it is correct that the parties complied with the requirements and terms of the law, until the end of the proceedings; (iii) as no consensus was reached on the renewal of the collective agreement, a strike was called for 23 November 2017 at 7 a.m., and (iv) subsequently, MITRADEL ordered compulsory arbitration. The Government adds in this regard that, in the case of enterprises providing public services, it is permissible to order compulsory arbitration, in accordance with sections 452, 486 and 490 of the Labour Code. It also states that such a situation has precedent and has been recognized by the trade unions themselves.
2. 590. Concerning the dismissals following the strike, the Government: (i) states that it is not competent to examine complaints regarding these dismissals, and that such competence lies within the remit of conciliation and decision boards and the courts; (ii) noted the concern expressed by the complainant organization and offered its assistance for the defence of their rights; and (iii) will request the labour courts to provide information on the dismissal cases brought before them.
3. 591. By means of a second communication dated 30 August 2021, the Government indicates that the Directorate General of Conciliation and Decision Boards, attached to MITRADEL, has in its archives only three files on the dismissals following the strike on 23 November 2017, and that it therefore has no information on the status of the other dismissed workers. The Government indicates in this regard that: (i) in the labour proceedings for unjustified dismissal brought on 25 January 2018 by Mr Jesús Abdiel Villarreal del Cid, Board Number 13 recognized the claim in its final ruling, and ordered the airline company to pay 2,676 Panamanian balboas (equivalent to US$2,676); as the parties accepted the arrangement, the file was archived; (ii) in the labour proceedings for unjustified dismissal brought on 26 January 2018 by Mr Abraham Isaac Solís Botacio, Board Number 13 handed down a favourable ruling to the worker and ordered the payment of 6,326.51 balboas in his favour; the airline company appealed the decision before the Higher Labour Court, which annulled the board’s decision and decided to acquit the company; and (iii) during the labour proceedings for unjustified dismissal brought on 26 January 2018 by Mr Eduardo Alberto Guardo Ortega, the board acquitted the company; the worker appealed the decision, which was overturned by the Higher Labour Court, and the payment of 16,669.28 balboas to the worker was ordered by the Higher Labour Court.

C. The Committee’s conclusions

1. 592. The Committee observes that, in this case, the complainant organization denounces the dismissal of 79 workers from an airline company in retaliation for their participation in a strike held by SIELAS on 23 November 2017.
2. 593. The Committee notes that the complainant organization specifically alleges that: (i) after having unsuccessfully negotiated the renewal of the collective agreement with the airline company, SIELAS, in compliance with the requirements established by the Labour Code regarding strikes in public services, announced that it would hold a strike on 23 November 2017; (ii) shortly after the beginning of the strike, officials from the labour inspectorate indicated to the strikers that MITRADEL had referred the dispute for compulsory arbitration and had ordered the end of the strike; (iii) in the absence of official notification of the ministerial decision ordering compulsory arbitration to the trade union general secretary, the strike continued; (iv) on the same day, the president of the airline company proposed that discussions on the collective agreement be resumed, which allowed for an agreement to be reached, and consequently the strike was ended at 8.30 p.m. on 23 November; (v) on 28 November 2017, despite having promised that there would be no retaliation, the airline company dismissed 79 workers for participating in an allegedly illegal strike; (vi) following the dismissals, the airline company filed a request with the courts calling for the strike to be declared illegal; and (vii) by means of a ruling of 15 December 2017, a court of first instance denied the request by the company.
3. 594. The Committee also notes the Government’s statement that: (i) as part of the negotiations for the renewal of the collective agreement, the parties engaged in conciliation proceedings and complied with the requirements established by the Labour Code; (ii) after failing to reach consensus on the renewal of the collective agreement, SIELAS called a strike for 23 November 2017 at 7 a.m.; (iii) once the strike had begun, MITRADEL issued, on 23 November 2017, a compulsory arbitration decision, as permitted under the Labour Code with regard to collective disputes concerning public services, and (iv) on the same day, MITRADEL revoked the aforementioned compulsory arbitration decision, as an agreement had been reached between the parties and the strike had been ended. Regarding the dismissals, the Committee notes that the Government: (i) states that conciliation and decision boards and labour courts are the competent bodies to settle complaints in this respect; (ii) MITRADEL made its advisory services available to the trade union for the protection of the union’s rights, and (iii) provides information on three individual cases of workers who brought action for unjustified dismissal, two of whom obtained favourable rulings in the form of compensation, and one who obtained an unfavourable ruling.
4. 595. The Committee duly notes these elements. The Committee observes that it is apparent from the above, and from the documents submitted as annexes by the parties, that: (i) as indicated by the Government, and as referred to in Decision No. 511-2017 issued by MITRADEL, the strike began on 23 November 2017, after the requirements established by the legislation had been fulfilled; (ii) once the strike had begun, MITRADEL adopted a decision by means of which it decreed compulsory arbitration and ordered the workers to return to their duties; (iii) the strike continued throughout the day and finished on 23 November at 8.30 p.m, after an agreement had been reached between the parties; (iv) in both the first instance (ruling of 15 December 2017 of the Second Local Labour Court, submitted by the complainant organization) and the second instance (ruling of 16 April 2018 of the Higher Labour Court, referred to by the Higher Labour Court in one of the rulings on the dismissal of a worker, which was submitted by the Government), the courts did not formally declare that the strike had been illegal, as they considered that the strike had ended following the decision issued by MITRADEL, which ordered compulsory arbitration. However, the courts did consider that, at that point, the work stoppage became a “de facto suspension of activities”; (v) the (three) dismissals of workers, for which the Committee has the dismissal letters and the corresponding court rulings, were carried out on the grounds of the participation of the workers in the strike held on 23 November 2017 even after the decision issued by MITRADEL, which ordered compulsory arbitration and the end of the strike; (vi) similarly, the rulings submitted by the Government, which validated the dismissals, were based on the fact that the workers in question did not comply, on that day, with the orders to return to work given by the company, following the aforementioned decision issued by MITRADEL, and (vii) the rulings submitted by the Government, which upheld the action brought for unjustified dismissal, were based on a consideration that the participation of the workers concerned in the strike had not been demonstrated.
5. 596. Regarding the strike initiated by SIELAS and the decision adopted by MITRADEL ordering compulsory arbitration and the end of the aforementioned strike, the Committee recalls that it has considered that compulsory arbitration to end a collective labour dispute and a strike is acceptable if it is at the request of both parties involved in a dispute, or if the strike in question may be restricted, even banned, i.e. in the case of disputes in the public service involving public servants exercising authority in the name of the State or in essential services in the strict sense of the term, namely those services whose interruption would endanger the life, personal safety or health of the whole or part of the population [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 816]. The Committee also considered that in as far as compulsory arbitration prevents strike action, it is contrary to the right of trade unions to organize freely their activities and could only be justified in the public service or in essential services in the strict sense of the term [see Compilation, para. 818].
6. 597. The Committee observes that, in this case, the Government referred to the public service nature of air transport, but did not mention the potential impact of the aforementioned strike on the life, health or safety of the whole or part of the population. The Committee also notes that the three dismissal cases for which it received detailed information from the complainant organization and the Government, concerned workers engaged in the land-based operations of the airline company. The Committee recalls that, in its conclusions adopted in other cases relating to the air transport sectors of other countries, it considered that, based on the specific circumstances of each case, the air transport sector as a whole is not an essential public service in the strict sense. The Committee also highlights that it has considered that the establishment of minimum services in the case of strike action should only be possible in: (1) services the interruption of which would endanger the life, personal safety or health of the whole or part of the population (essential services in the strict sense of the term); (2) services which are not essential in the strict sense of the term but where the extent and duration of a strike might be such as to result in an acute national crisis endangering the normal living conditions of the population; and (3) public services of fundamental importance [see Compilation, para. 866]. In this respect, the Committee also considered that transportation of passengers and commercial goods is not an essential service in the strict sense of the term; however, this is a public service of primary importance where the requirement of a minimum service in the event of a strike can be justified [see Compilation, para. 893].
7. 598. In light of the above, the Committee requests the Government to take, in consultation with the most representative employers’ and workers’ organizations, the necessary measures, including legislative measures, to ensure that the rules on compulsory arbitration meet the criteria indicated above, in such a way that they do not unduly limit the exercise of the right to strike and collective bargaining in the air transport sector.
8. 599. Concerning the alleged dismissal of 79 workers who participated in the strike action, the Committee recalls that no one should be penalized for carrying out or attempting to carry out a legitimate strike, and when trade unionists or union leaders are dismissed because of a strike, the Committee can only conclude that they have been punished for their trade union activities and have been discriminated against [see Compilation, paras 953 and 958]. Observing that it only received specific information on the dismissal of three workers, the Committee: (i) requests the complainant organization to contact the Government in order to provide it with the full list of the workers who were allegedly dismissed for their participation in the strike; and (ii) requests the Government to, in light of the conclusions of this case, take the necessary measures to ensure that the workers dismissed for having participated in the aforementioned strike, are not punished for the legitimate exercise of freedom of association.