Rapport définitif - Rapport No. 272, Juin 1990

1. 24. The Committee examined this case at its May 1989 meeting and submitted an interim report (see 265th Report, paras. 457-474, approved by the Governing Body at its 243rd Session (May-June 1989)). The previous Government sent its observations in communications dated 16 August and 26 October 1989, and the present Government in communications dated 7 February and 25 April 1990.
2. 25. Panama has ratified both 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. Previous examination of the case

1. 26. The complainant organisations alleged in their complaint that as a result of strikes held in the electricity sector to obtain wage increases and better working conditions, the authorities had detained four officers and 80 members of the Trade Union of Water and Electricity Board Workers (SITIRHE), searched and closed the trade union premises, confiscated trade union funds and arbitrarily dismissed 50 officers and 350 workers. When the Committee examined the case at its May 1989 meeting, it reached the following conclusions and recommendations (see 265th Report, paras. 471-473):
2. 471. As regards the detention of four trade union officials and 80 trade unionists, the Committee notes that there is a contradiction between the Government's and the complainants' accounts of the grounds for these detentions. According to the Government's reply, the arrests occurred because common law crimes had been committed and mainly because the electricity supply had been cut off without warning throughout the country for 24 hours; furthermore, this action had been accompanied by acts of sabotage and had had political objectives because on the same day there had been an attempted military coup by a colonel who was in permanent contact with the secretary-general of the SITIRHE. On the other hand, the complainant organisations allege that trade union officials and trade unionists in the elctricity sector were arrested because they had taken part in a strike to obtain wage increases and better working conditions. Furthermore, it is not clear whether the strike in the electricity sector was legal on the day the supply of electricity was cut off because, although the Labour Code authorises strikes in the electricity sector - provided that notice is given and that a minimum service is maintained (sections 486 and 487) - the Government pointed out that on 6 and 23 March 1988 the Cabinet had issued Decrees banning strikes in this sector. However, the Government did not send copies of these Decrees; neither did it provide information on the reasons why the general regulations on strikes were amended with respect to the electricity sector.
3. 472. In view of the marked contradictions between the allegations and the Government's reply and the lack of information on several points, the Committee feels that it has not been presented with enough information to reach a conclusion on the allegations concerning the arrests of trade union officials and trade unionists. Consequently, noting that the four trade union officials in question are on bail (one of them is in exile in a foreign country) and that proceedings against them are under way, the Committee requests the Government to send it the text of the judgement handed down in this case. The Committee also requests the Government to provide details on the stage of the proceedings against the other 80 trade unionists who were arrested, to mention whether they have been released and to provide the text of the judgement that might be handed down in their case.
4. 473. Finally, the Committee regrets to note that the Government failed to reply to the other allegations (the searching and closure of the premises of the SITIRHE, the confiscation of its funds and the arbitrary arrest of 50 trade union officials - the Government only referred to the dismissal of the official Isaac Rodríguez - and of 350 workers). The Committee therefore requests the Government to reply to these allegations.
5. 27. In its February 1990 report, the Committee noted that the new Government had sent, in a communication dated 7 February 1990, certain observations concerning the case and had stated that it would send new information, pointing out that, because of the destruction of certain public offices during the fall of the previous regime, it had not been possible to obtain all of the information requested; the Committee stated that it hoped to receive this information shortly (see 270th Report, para. 8).

B. The previous Government's reply

1. 28. The Government repeats that the reasons underlying the arrest of trade union officials and members had nothing to do with trade union organisation and related to actions defined as offences against collective security and against the internal and juridical integrity of the State, such as abuse of authority and usurpation of public office. None of the actions committed by the officers of the trade union of the Water and Electricity Board (IRHE) were aimed at obtaining an increase in wages or satisfaction of labour demands.
2. 29. The Government adds that before the events occurred, in view of the serious situation in the country, it had declared a state of emergency throughout the national territory by Decree No. 11 of 18 March 1988. In this context, the activities of certain government institutions were declared essential to national security in order to avert serious disruption of public order endangering the health and safety of most of the population (Decree No. 23 of March 1988); these activities included those carried out by the Water and Electricity Board (IRHE). Under Decree No. 6 of March 1988, workers employed in such services shall be liable to suspension and even dismissal if they discontinue work without just cause and without declaring a strike, endangering the provision of the service to the community. This does not, however, constitute a prohibition of the exercise of the right to strike.
3. 30. Regarding the alleged search and closure of the trade union premises and the confiscation of its funds, the Government states that a group of trade union members lodged a complaint with the Ministry of Labour and Social Welfare concerning misuse of trade union funds and infringement of the trade union by-laws and electoral regulations. For this reason, the General Labour Directorate appointed an official to carry out an audit, which confirmed irregularities such as considerable disbursements without the necessary receipts, and cheques paid without the due authorisation of the trade union's general assembly. There had been no confiscation of the funds, contrary to the complainant organisations' allegations, but only supervision carried out by an official who authorised withdrawal of the funds until the investigation was completed and responsibilities determined, in order to ensure the correct management of the funds in the interests of all of the members.
4. 31. As regards the search and closure referred to in the complainants' allegations, the Government states that due to lack of information as to the whereabouts of the officers of the SITIRHE, and of its General Secretary, Mr. Isaac Rodríguez, and since it was impossible to carry out an audit as the organisation's premises were locked, Order No. 085-DGT was issued granting access to the SITIRHE premises to the trade union auditors of the Ministry of Labour and to labour inspectors, accompanied by a notary, for the sole purpose of obtaining from the trade union's accounts the information necessary for the audit, the conduct of which can be attested to by the notary. Once the examination had been carried out in accordance with the resolution ordering the supervision of the trade union funds, the premises were closed and the keys handed over to the Director-General of the IRHE. In view of the above, the Government feels it must be made clear that it is not true that the premises containing the headquarters of the executive committee of the SITIRHE were searched, much less sealed, because it had been necessary to carry out an inspection and an audit of the accounts, which were in the trade union premises and these premises had been abandoned by the trade union officers and summonses had been issued by the authorities for infringements denounced by a group of members of that trade union and for embezzlement of trade union funds.
5. 32. As regards the situation of the detained trade union officers and members, the Government states that none of the four trade union officers was detained, although there were sufficient grounds to place them in preventive detention despite the fact that the preliminary investigation had not been completed. Work has not been completed on the investigation into how the legal representatives of the trade unions used the resources provided for by law for the better defence of the workers they represent. Once the preliminary investigation has been completed, it will be referred to the competent judicial authority.
6. 33. As regards the alleged detention of 80 members of the Trade Union of Water and Electricity Board Workers (SITIRHE), the Government states that these persons had been required to deposit a statement as part of the current preliminary inquiries into the offences under investigation with a view to ascertaining whether they had participated in them. They had been released after making their statements. In the case of employees of the IRHE who committed offences in carrying out their functions, their situation will be determined in the judicial decisions which will be handed down by the competent courts.
7. 34. As regards the allegations of arbitrary dismissal of 50 trade union officers and 350 workers, the Government states that at the beginning of September 1988, the trade union officers, without carrying out the necessary legal formalities, called for a stoppage of work. The stoppage was referred to as "permanent session", and was intended from that time on, despite the state of emergency, to discontinue the service, and hence the supply of electricity to the entire country until they obtained the payment of the second part of the benefit known as the 13th month, and the revocation of the dismissals of some workers whose employment relationship had been terminated on disciplinary grounds. Despite the management's efforts to get them to desist and although an agreement had been reached on payment of the 13th month, which was the main issue of the dispute, many of the workers refused to go back to their posts, and legal action was accordingly taken against them for absence without just cause.
8. 35. As regards the trade union officials referred to in the complainants' allegations, although they were protected by trade union immunity, the procedure laid down in labour law was resorted to, according to which authorisation of dismissal is requested from the divisional labour courts which are competent to assess the conduct of each of the workers concerned. It must be pointed out that each of the workers was afforded the procedural guarantees applicable. On the other hand, it is obvious that the outcome of such proceedings directly depends on how the workers' representatives exercise their right to legal appeal in the defence and in the interests of the workers they represent. The Government encloses a copy of the judgement of the Supreme Court upholding the ruling of the High Labour Court authorising the dismissal for just cause of trade union officer Isaac Rodríguez ("deliberately causing material damage to objects directly related to work", just cause for dismissal as laid down in section 116 of Act No. 8 of 25 February 1975).

C. The present Government's reply

1. 36. In its communications dated 7 February and 25 April 1990, the Government states that, as is well known, 20 December 1989 marked the inauguration in Panama of the Democratic Government of National Reconstruction and Reconciliation, presided over by His Excellency President Guillermo Endara Galimany, elected by the Panamanian people in elections held on 7 May 1989. The present national Government has committed itself publicly before this country and before the international community to respect the fundamental guarantees laid down in the Constitution of the Republic of Panama which, in Chapter 1 of Title III, guarantees the full exercise of the individual and social rights and duties of Panamanians. This commitment is reflected in the major efforts undertaken by the national Government to remedy the errors committed by the previous regime. Therefore the reasons for the complaints contained in the cases before the Committee on Freedom of Association ceased to exist with the establishment of the present lawful regime.
2. 37. The Government states further that as of 11 January 1990 the orders to close down the premises of the Trade Union of Water and Electricity Board Workers (SITIRHE) and those for the detention and suspension of the persons referred to by the complainants have been rescinded, so that the latter were able to resume their duties. The Goverment adds that pending the trade union elections to take place on 26 April 1990 the management of the SITIRHE funds has been entrusted to its former executive committee (whose term of office had expired in November 1989), subject to verification by an official of the Ministry of Labour. The Government states further that the auditing of the trade union's funds has been completed and that all the documents have been returned to its executive committee.

D. The Committee's conclusions

1. 38. The Committee notes the inauguration of a new Government in Panama on 20 December 1989. It notes with satisfaction the measures adopted subsequently by the authorities rescinding the orders for detention and dismissal against the trade union officers and members of the SITIRHE and returning their premises and property to them, thus settling all of the issues pending.