Demande directe (CEACR) - adoptée 2002, publiée 91ème session CIT (2003)

The Committee notes the Government’s report and the comments made by the National Council of Organized Workers (CONATO), which are examined below:

(a)  Denial of the right to establish trade unions for public servants. The Government indicates that the interpretation made by CONATO is not in accordance with reality. The right of association of public servants is recognized in Act No. 9 of 20 June 1994 and in practice the National Federation of Public Servants’ Associations and Organizations (FENASEP) operates in the same way as any other private sector organization and participates in the CONATO and the International Labour Conference. The Committee emphasizes that, irrespective of the wording used, the decisive factor is that the associations in question enjoy the rights set out in the Convention. The Committee will examine below another issue related to this matter.

(b)  Denial of the right to strike for public servants. The Government states that the Constitution allows special restrictions in cases determined by the law. The Committee recalls that the prohibition of the right to strike in the public service should be limited to public servants exercising authority in the name of the State (see General Survey on freedom of association and collective bargaining of 1994, paragraph 158). The Committee requests the Government to take measures to bring the legislation into line with the above.

(c)  Declaration by the public authorities in practice that strikes are illegal by virtue of the regulations respecting the conciliation period. The Government states that, under the terms of sections 498 et seq. of the Labour Code, it is the responsibility of sectional labour judges to determine whether a strike is legal or illegal. The Supreme Court of Justice has recognized that, during the conciliation period, the administrative authority has to ensure that the enterprise with which the trade union wishes to negotiate is related to the activities and objectives of the trade union, which must have members in the above enterprise. The Committee notes this information.

(d)  Denial of the right to strike in enterprises which have been in existence for less than two years by virtue of Act No. 8 of 1981. CONATO points out that under section 12 of the Act, no employer shall be compelled to conclude collective agreements during the first two years of an enterprise’s operation and the general legislation only permits strikes in the pursuance of collective bargaining or in other limited cases. The Committee requests the Government to provide its comments on this matter.

(e)  Need to have the support of the majority of the workers in the enterprise, shop or establishment to call a strike (section 476(2) of the Labour Code). The Government considers that this restriction is justified by the effects produced by strikes due to the national legislation (closure of the enterprise, prohibition upon the conclusion of new employment contracts, etc.). The Committee considers that if a State deems it appropriate to establish in its legislation provisions which require a vote by workers before a strike can be held, it should ensure that account is taken only of the votes cast, and that the required quorum and majority are fixed at a reasonable level (see General Survey, paragraph 170). The Committee requests the Government to take measures to amend the legislation with a view to bringing it into line with the above principle.

(f)  Suspension by administrative authority of the legal personality of a trade union. The Committee notes the Government’s statement that the Minister of Labour withdrew the above suspension by decision of 18 October 2000.

(g)  Interference by the authorities in the internal activities of trade unions. According to the Government, the call made by the authorities for trade unions to hold elections as from 2001 refers only to those unions whose current trade union rules and whose schedules for the holding of elections are overdue; the point is to guarantee compliance with trade union rules. The authorities therefore requested trade unions to update the list of their members, as envisaged in section 273 of the Labour Code; it also makes it possible to determine the most representative trade union for the purposes of negotiation and to identify the trade union to which trade union dues are to be paid. The Committee notes this information.

(h)  The authorities’ decision not to act upon the document certifying the executive board of the Trade Union of Workers in the Enterprise Compañía Marítima de Panamá. The Government explains that as it is an enterprise trade union, the duties of the new executive board had to be discharged by members of the enterprise, but that the executive board members worked in another enterprise; nevertheless, as of 24 July 2000, the trade union in question became a branch trade union and the problem has been resolved. The Committee notes this information.

(i)  Obstacles preventing representatives of the International Transport Workers’ Federation from discharging trade union functions in vessels flying the Panamanian flag. The Government explains that there is no such prohibition, but that authorization has to be sought from the Panama Maritime Authority and that one of the latter’s officials has to accompany them. The Committee notes this information.