Observation (CEACR) - adoptée 2000, publiée 89ème session CIT (2001)

The Committee notes the Government’s report, and the conclusions and recommendations of the Committee on Freedom of Association in Case No. 1931, concerning the legal obligations on employers and their organizations, contrary to freedom of association principles (see 310th Report, paragraphs 493-507).

The Committee recalls that its previous comments related to the following provisions:

-  the power of the Regional or General Labour Director to submit labour disputes to compulsory arbitration in order to stop a strike in a public enterprise including those which cannot be considered essential services in the strict sense of the term (among those, food and transport under sections 486 and 452(3) of the Labour Code;

-  the requirement of 75 per cent of Panamanian nationals to establish a trade union (article 347 of the Labour Code);

-  sections 174 and 178, final paragraph, of Act No. 9 ("establishing and regulating administrative careers"), of 1994, which lay down respectively that there shall not be more than one association in an institution, and that associations may have provincial or regional chapters, but can have no more than one chapter per province;

-  section 41 of Act No. 44 of 1995 (amending section 344 of the Labour Code) which requires an excessively high number of members to establish an employers’ occupational organization (ten) and an even higher number to establish a workers’ organization (40) at the enterprise level;

-  article 64 of the Constitution, which requires Panamanian nationality to serve on the executive board of a trade union;

-  the obligation to provide minimum services with 50 per cent of the personnel in establishments which provide essential public services, which go beyond essential services in the strict sense of the term and which include transport, and the penalty of the summary dismissal of public servants for calling or participating in strikes which are prohibited or declared illegal, or failing to comply with the requirement respecting minimum service in the event of a strike (articles 152(14) and 185 of Act No. 9 of 1994); and

- legislation interfering in the activities of employers’ and workers’ organizations (articles 493(1) and 497 of the Labour Code).

I. Compulsory arbitration in public service enterprises beyond
  essential services in the strict sense of the term

While the Government does not refer to this point in its report, the Committee recalls that, for food services, it would be possible to establish a minimum service to ensure users’ basic needs (see General Survey on freedom of association and collective bargaining, 1994, paragraph 162). Moreover, transport services are not essential services per se, unless a strike in such services exceeds a certain duration or extent so that the health, safety or life of the population may be endangered (see 1994 General Survey, paragraph 160).

II.  Requirement of 75 per cent of Panamanian
  nationals to establish a trade union

With reference to its previous comments, the Committee notes with satisfaction that section 347 of the Labour Code, by virtue of which "75 per cent of the members of any union shall be of Panamanian nationality" was repealed by section 70 of Act No. 44 of August 1995.

III.  Prohibition of more than one association of public servants
  in an institution, and more than one chapter per province

The Committee notes that the national Government has established a commission to examine this matter and develop feasible solutions. The Committee recalls that any system of trade union unity or monopoly imposed either directly or indirectly by the law is not compatible with the principle of the freedom of workers and employers to establish organizations of their own choosing as set out in Article 2 of the Convention. The Committee requests the Government to provide information on the measures which are adopted to amend the legislation so that all public servants are able, if they so wish, to establish and join trade union organizations of their own choosing. The Committee also requests a copy of the amended legislation.

IV.  The excessively high number of members required by section 41 of
  Act No. 44 for the establishment of occupational organizations
  of employers and workers at the enterprise level

The Committee notes once again the Government’s justification of these requirements on the grounds that they were the result of a tripartite consensus between the social partners, namely employers and workers, with the participation of the Government. In this respect, the Committee once again requests the Government to take the necessary measures to reduce the number of ten members required to establish an organization of employers and to reduce even further the minimum number of 40 workers required to establish a trade union organization at the enterprise level, leaving it at the discretion of the employers’ and workers’ organizations to determine these matters in their respective rules.

V.  Constitutional requirement to be of Panamanian nationality
  to serve on the executive board of a trade union

The Committee notes the Government’s statement to the effect that it can be difficult to amend the political Constitution, since special procedures have to be followed which require majorities which are not currently available to the Government. The Committee emphasizes that 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 (General Survey, op. cit., paragraph 118). The Committee once again hopes that the Government will take the relevant measures to eliminate this requirement from the political Constitution and will keep it informed of any progress made in this respect.

VI.  Obligation to provide minimum services with 50 per cent of the personnel in establishments which provide essential public services (section 185 of Act No. 9 of 1994, "establishing and regulating administrative careers"), including transport services (section 486 of the Labour Code)

  Sanctions: Summary dismissal of public servants for calling or participating in strikes which are prohibited or declared illegal, or failure to comply with minimum service requirements in legal strikes (section 152(14) of Act No. 9)

The Committee recalls that it is excessive to require the presence of 50 per cent of the personnel to provide minimum services in the case of essential services in the strict sense of the term. However, in services which are not essential in the strict sense of the term (such as transport), a negotiated minimum service could be established which is limited to the basic needs of the population or to satisfying the minimum requirements of the service, while maintaining the effectiveness of the pressure brought to bear (see General Survey, op. cit., paragraph 161). The Committee considers that the requirement of 50 per cent of the personnel to provide these minimum services in the event of a strike in the transport sector is not compatible with the principles of freedom of association. Furthermore, the Committee once again recalls that "sanctions for strike action should be possible only where the prohibitions in question are in conformity with the principles of freedom of association" (see General Survey, op. cit., paragraph 177).

VII.  Legislation restricting the activities of employers’ and workers’ organizations

  Closure of enterprises, establishments or businesses affected by a strike, in accordance with sections 493(1) and 497 of the Labour Code

The Committee notes the information provided by the Government in its report to the effect that a process of tripartite consultation has been initiated with all the organizations of employers and workers concerning the recommendations of the Committee on Freedom of Association. The Committee of Experts recalls that, in the event of a lawful strike, these provisions go beyond the protection of the exercise of the right to strike and may infringe the freedom to work of strikers, while disregarding the basic needs of the enterprise (maintenance of equipment, prevention of accidents and the right of employers and managerial staff to enter the installations of the enterprise and to exercise their activities). In these conditions, in the same way as the Committee on Freedom of Association, the Committee of Experts expresses the firm hope that the Government will take the necessary measures to repeal sections 493(1) and 497 of the Labour Code.

VIII.  Possibility for workers to submit collective disputes unilaterally to arbitration (section 452(2) of the Labour Code)

The Committee recalls that recourse to compulsory arbitration at the request of one of the parties would only be admissible as a compensatory guarantee in essential services in the strict sense of the term. The Committee recalls that arbitration imposed at the request of one party is generally contrary to the principle of voluntary bargaining and thus the autonomy of bargaining partners. An exception might, however, be made in the case of provisions which, for instance, allow workers’ organizations to initiate such a procedure on their own, for the conclusion of a first collective agreement (see General Survey, op. cit., paragraph 257).

In this regard, the Committee requests the Government to take appropriate measures to amend the second paragraph of section 452 of the Labour Code within the meaning of the principle expressed above.

IX.  Payment of wages due in respect of strike days and
  penalization for withdrawal from conciliation by one
  of the parties and failure to reply to a statement of claims

In this regard, the Committee notes the conclusions and recommendations in which the Committee on Freedom of Association in November 1999 (Case No. 1931) requested the Government to envisage amending the legislation in such a way that: (1) the payment of wages in respect of strike days is not mandatory but a matter for resolution by the parties; (2) the withdrawal by one of the parties from the conciliation procedure does not give rise to disproportionate penalties; and (3) that failure to reply to a statement of claims does not entail disproportionate penalties.

The Committee reminds the Government that, if it so wishes, it may have recourse to the technical assistance of the ILO to bring its legislation into conformity with the Convention. It also requests the Government to provide information in its next report of any progress achieved in this respect.