Rapport intérimaire - Rapport No. 278, Juin 1991

1. 422. The complaint of the International Confederation of Free Trade Unions (ICFTU) is contained in communications dated 19 April and 29 August 1990. The Government supplied its observations on the allegations made in this case in communications dated 30 August 1990, 23 January and 5 February 1991.
2. 423. 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. 424. In its communication dated 19 April 1990, the ICFTU alleges the infringement of Conventions Nos. 87 and 98 by the Government of Panama. It points out that in recent months Panama has been experiencing a profound social and economic crisis, the principal victims of which have been the workers, and that for this reason the ICFTU organised, in collaboration with its affiliate for the American region, the Inter-American Regional Organization of Workers (ORIT), a mission to this country to gather on-the-spot information on the acts which have been the subject of repeated denunciations by its affiliate, the Confederation of Workers of the Republic of Panama (CTRP) and other trade union organisations.
2. 425. The ICFTU points out that during this mission the delegation was able to observe the existence of government practices which constantly threaten the stability of employment and the rights of workers and their organisations, with a marked increase in repression against public employees, as can be seen from the following:
   • - Threats and acts of repression against leaders and workers of the National Federation of Associations and Organisations of Public Employees (FENASEP) in violation of the rights enshrined in the laws of the Republic and the Constitution of the country.
   • - Searching and closing of premises of the organisations by administrative order, very often in the presence of armed authorities who have arrested and intimidated officials and workers.
   • - Waging of a systematic campaign against employees' associations through the dismissal of their leaders and the massive dismissals of workers. Campaign of intimidation to pressure workers into relinquishing membership in their organisations.
   • - Dismissal of more than 3,000 workers, in most cases in an arbitrary and unjustified manner, since the new Government came to power. These dismissals have, in general, been made orally, without giving any grounds for dismissal; illegal withholding of workers' wages.
   • - Dismissals in the public sector: the Panamanian trade union movement has been accused of having supported the previous regime and of having formed part of the so-called "dignity batallions". It is on the basis of this abusive accusation that the Government obtained approval of Cabinet Decree No. 1, dated 26 December 1989, which authorises dismissals in the public sector at the simple discretion of the employer. This repressive and retrograde Decree repealed Executive Decree No. 116, dated 10 October 1984, which granted stability of employment to public employees; as a result of these new measures, 150,000 State workers have been left completely unprotected and, irrespective of their seniority, are now considered temporary workers.
   • - House searches and illegal detention of the trade union officials Héctor Alemán, Juan Antonio Samudio and Saúl Quiróz and who have been kept incommunicado simply because they have defended the interests of workers.
   • - Massive arrests of leaders of associations and of FENASEP chapters in the provinces.
   • - Campaign by the Government's communication media to discredit Héctor Alemán, a trade union official and labour adviser who was unable to refute the accusations since the Government provisions prohibit the right of reply.
3. 426. The ICFTU goes on to point out that the trade union movement has been seriously affected by the economic crisis, which has reduced the size of its membership and limited the organisations' resources, leading them to the brink of financial disaster.
4. 427. The ICFTU communicates a list of employees and trade union officials of public bodies and their organisations who have been dismissed recently. The list contains the names of more than 1,700 workers and some 90 trade union officials as well as accusations of wage deductions, delays in the payment of benefits and other allegations.
5. 428. In its communication dated 29 August 1990, the ICFTU points out that in accordance with the information provided by the National Union of Workers of Textile Fibre, Sewing and Leather Products of Panama (SINATRAPROFITECC), two enterprises - Greenbay Overseas International Inc. and Jenny Manufacturing Inc. - apply discriminatory and anti-trade union policies against their employees. In recent months, a number of workers have been dismissed without justification, in violation of Cabinet Decree No. 10, dated 12 January 1990, and the Panamanian Labour Code, as well the principles of freedom of association. Furthermore, these enterprises have tried to prevent the workers from appealing to the Ministry of Labour to ensure respect for their rights.
6. 429. The ICFTU adds that on 27 April 1990, Lourdes Salazar, Secretary General of the Union of Workers in the Greenbay Overseas International Inc. enterprise - situated in the industrial free zone of Colón - was dismissed and removed from her workplace by the security staff, and that she has not been reinstated. In the same way, on 16 May 1990, SINATRAPROFITECC called a general meeting of workers in the Jenny Manufacturing Inc. enterprise at the trade union headquarters, and the undertaking obliged workers to work overtime to prevent them from attending the meeting. The few employees who were able to attend the meeting included the chiefs of production, the chief of personnel and administrative employees who spoke out against the trade union and its officials. Similar attacks have been made through pamphlets, bulletins and other means of communication. The ICFTU concludes by pointing out that the trade union has not been able to make an effective protest because of the constant pressure exercised by the enterprises concerned and because, as the Ministry of Labour pointed out to SINATRAPROFITECC, "things are not the same as before".

B. The Government's reply

1. 430. In its communication dated 30 August 1990, the Government states that following the events which occurred in December 1989, some trade union officials were arrested on suspicion of having been involved in unlawful acts. This was the case of the leaders Héctor Alemán, Juan Antonio Samudio, Saúl Quiróz and other officials of the National Federation of Public Servants (FENASEP) from the country's interior mentioned by the complainant. The Government states that there are no trade union officials under arrest in the country, and that it would subsequently reply to each of the alleged violations of freedom of association of which it is accused.
2. 431. In another communication dated 5 February 1991, concerning the alleged government practices against public employees, the Government states that Cabinet Decree No. 1, dated 26 December 1989 "to stabilise the organisation of State dependencies" authorized the Ministers of State, directors of autonomous bodies, the Attorney-General of the Republic and the Chief of Administration, the Comptroller General of the Republic, governors, mayors and other higher authorities to declare null and void the appointments of certain public servants. The public servants involved were those who, over the last 30 months and under the protection offered by the dictatorship, had carried out acts of persecution, repression, threat, harassment, destruction and stealing of public and private property, introduced arms into the country or engaged in arms traffic, or who in any other notorious manner had violated the dignity and human rights of their fellow workers and any other Panamanian or foreign citizens. The above-mentioned Decree clearly sets forth its objective by pointing out that its adoption is the result of the alarming manner which in recent years public servants, although obliged to observe the fundamental guarantees established by article 17 of the Constitution of the Republic of Panama to protect the lives, good name and property of nationals wherever they may be, and of foreign nationals on the national territory, have clearly taken it upon themselves to disregard these principles. Furthermore, public servants, under the protection offered by the dictatorial power, organised paramilitary groups known as the CODEPADI and "dignity batallions", and other terrorist activities, in an attempt to sabotage the organisation of its institutions, the peace and safety of their fellow workers and even destroyed or withheld archives, documents, equipment and other property belonging to the State. The preamble of Decree No. 1 incorporates the provisions of article 295 of the national Constitution, which make the stability of employment of public officials conditional upon their competence, loyalty and integrity in their service.
3. 432. Furthermore, the communication from the Government points out that it is important to emphasise that public officials are not protected by the Labour Code and have not enjoyed stability of employment for a number of years. This was due to the fact that the dictatorial regime had repealed the provisions respecting administrative careers established by the government based on the rule of law prior to the 1968 coup d'état. At present, public officials may be appointed and freely removed by the executive body, with exception of those covered by special laws. In this connection the Labour Code provides:
   • "Section 2: the provisions of this Code are of a public order and are incumbent upon all persons, whether natural or legal, enterprises, works or establishments which are or may be established on the national territory.
   • Public employees are subject to the regulations governing administrative careers except in cases where express provision has been made for the application of some principle of this Code to such employees."
4. 433. The communication from the Government points out that public officials have not been dismissed in an arbitrary and illegal manner as the ICFTU alleges in its complaint. Furthermore, those officials who believe that their dismissal is unjustified may seek redress through the respective legal procedures, and indeed in some cases such procedures have been initiated.
5. 434. As regards the detention of certain trade union officials, the Government reports that the Attorney-General of the Nation stated, in note DLPG/2151 dated 11 June 1990, that there are no trade union officials under arrest and that the Panamanian authorities have not searched or closed the premises of FENASEP.
6. 435. Furthermore, the Government firmly denies the allegation that the trade union leader Héctor Alemán has been discredited by the government-controlled mass media, and that he has not been able to refute the accusations because governmental provisions prohibit the right of reply. No legal provisions have been issued prohibiting the right of reply; on the contrary, the new Government has given special attention to freedom of expression which was finally restored after more than 20 years of absolute control by the dictatorship. Mr. Alemán, despite his activities as a politician with links to the deposed regime, enjoys the climate of freedom which is guaranteed by the democratic Government.
7. 436. As regards the statement that the trade union movement has been affected by the economic crisis, which has reduced the number of its members and limited organisations' resources and led them almost to the brink of financial disaster, this is a situation regretted by the national Government. The Government is making every effort to find effective ways of resolving the economic crisis which is affecting not only the trade union movement, but all sectors of the country, and which is the result of the many errors committed by the dictatorship during its mismanagement of the country, a mismanagement characterised by corruption and the misuse of public funds.
8. 437. The Government explains that after the pillaging and vandalism committed by the CODEPADI and "dignity batallions" following the fall of the dictatorship in the country, more than 250 commercial establishments lost all or part of their assets, with thousands of workers being left without their jobs, an unprecedented event in the life of the country. Obviously, for the new Government, urgent attention had to be given to the dramatic situation affecting thousands of workers in the streets, near the Ministry of Labour and Social Welfare, where work centres had been pillaged and destroyed and whose owners were faced with the loss of their businesses. Labour legislation establishes as a justified cause for terminating an employment relationship - without giving rise to any legal liability on the part of the employer - force majeure or a fortuitous event, the necessary, immediate and direct consequence of which is the complete paralysis of the employers' activities. In these circumstances, the Ministry of Labour immediately tried to bring the parties together to find solutions which would help the employers concerned to manage their financial resources, to restart their businesses and to reopen their establishments and thus avoid the massive dismissal of workers. To this end Decrees Nos. 5 and 10, dated 4 and 12 January 1990, respectively, were presented to the Cabinet Council for consideration and approval; they extended the time periods for the suspension of the effects of contracts of employment, made dismissal on the above-mentioned ground subject to the prior authorisation of the Ministry of Labour and urged the parties to negotiate temporary agreements on working conditions, subject to the approval of the Ministry, to overcome the critical situation without placing further burdens on the parties concerned.
9. 438. The Ministry of Labour and Social Welfare, whose installations, equipment and furniture was also affected by the pillaging and vandalism and whose structure was modified by the necessary changes in Government, made every effort to reconcile the interests of the parties, with satisfactory results, since at present most of the establishments concerned have reopened and employ more than 80 per cent of their workforce, whereas others will shortly be reopening. The situation, however, remains uncertain as regards one or two establishments where the Ministry is studying the situation as regards the benefits and rights of the workers.
10. 439. The ICFTU also alleges that the Directorate General of Labour is obstructing trade union activities by establishing a series of requirements which are not included in section 376 of the Labour Code. In this respect the Government believes it is important to point out that the Directorate General of Labour has merely requested trade unions and other social organisations to update the list of their members, since most of these lists cover more than the one-year period stipulated by section 376(30), mentioned above. The information required for the identification of members is as follows: name, number of identity card, affiliation, name of workplace and social security number. The sole purpose of this requirement is to update efficiently the lists of members of social organisations and there has never been any attempt to obstruct trade union activities.
11. 440. In subsequent allegations, the ICFTU provided information from the National Union of Workers of Textile Fibre, Sewing and Leather Products of Panama (SINATRAPROFITECC), alleging discriminatory and anti-trade union policies in the Greenbay Overseas International Inc. and Jenny Manufacturing Inc. enterprises. As regards Greenbay Overseas International Inc., the Government states that the workers made a request to the Department of Social Organisation of the Ministry, dated 2 March 1990, to establish a trade union, but since they did not meet the formal requirements established by law, their documentation was returned to them on 2 April of the same year, at which time they ceased to benefit from trade union immunity (fuero sindical). At the end of April, seven workers were dismissed who were members of the provisional executive committee but who at that time did not enjoy trade union protection. Subsequently, and following the respective appeals, six were reinstated. On 23 May 1990 another request was made for the establishment of a trade union, and observations were made which had to be implemented within 30 days. On 22 June, the documentation was returned, within the time-limit established by the law, and once again on 9 July another request was made. It is important to note that following the reception of the request, the following were appended to the file:
12. - 21 resignations by members of the incipient trade union with a photocopy of the identity card of each member, some of which were presented personally by the workers;
    • - three resignations by members of the executive committee;
    • - one resignation by mutual consent;
    • - two authorisations for dismissal issued by the Second Labour Court, II Section;
    • - signatures of workers who expressed their disagreement with the trade union and their willingness to establish a cooperative in the undertaking;
    • - request from a group of workers for the holding of a ballot.
13. 441. The Government points out that given all these irregularities it was decided to carry out a ballot to determine the number of workers who wanted to establish a trade union. The count was held on 7 August 1990, following the presentation of resignations and documents, and was carried out in an objective manner. Ballot papers were distributed individually, explanations were given to workers concerning the writing of their names and the number of their identity card and whether they wanted a trade union or not. The vote was carried out in an orderly fashion, without pressure, intimidation or incidents. Workers were not subjected to any harassment or coercion. The result of the count was as follows:
14. 361 against the establishment of a trade union;
15. 48 undecided votes;
16. 67 in favour of the establishment of a cooperative although it was explained to them that this was not part of the count.
    • Of the 69 who voted in favour of having a trade union, only eight were members of the UNTRAPROFITECC incipient trade union. Some of the other persons who voted "yes" were listed as members of other trade unions, but not of UNTRAPROFITECC.
17. 442. As regards the dismissals in the Jenny Manufacturing Inc. enterprise, the Government states that by resolution 194 DT 90, the Directorate General of Labour ordered the enterprise to reinstate the workers and pay them their wages. However, the employer filed a complaint on the ground of the unconstitutional nature of this resolution and the file was passed on to the Supreme Court of Justice on 4 September 1990.

C. The Committee's conclusions

1. 443. The Committee notes that the allegations made in this case concern events which followed a change of regime in exceptional circumstances in December 1989. The allegations refer to alleged harassment and pressure by the Government against public employees by means of threats, arrests, repressions, the searching and closing of trade union premises and the unjustified dismissal of trade union leaders in the public sector on the basis of a Cabinet Decree. In addition, other allegations refer to the discriminatory anti-trade union policies of two enterprises situated in the free zone of Colón.
2. 444. The Committee takes note of the detailed information provided by the Government on the allegations made in this case.
3. 445. As regards the allegation that government practices infringe the trade union rights of workers in the public sector by means of massive dismissals of workers and union officials in the sector, based on Cabinet Decree No. 1, the Committee requests the Government to supply precise information so as to enable the Committee to determine whether or not these dismissals were based on the trade union membership or activities of those involved.
4. 446. As regards the allegations concerning threats against trade union leaders, the searching and closing down of trade union premises and the supposed campaigns of intimidation against employees' associations, the Committee recalls that trade union rights can only be exercised in a climate that is free from violence, pressure or threats of any kind against trade unionists, and that it is for governments to ensure that this principle is respected. (See 234th Report, Case No. 1237 (Brazil), para. 213.) Furthermore, as regards the searching of trade union premises, it recalls that the resolution concerning trade union rights and their relation to civil liberties adopted by the International Labour Conference at its 54th Session (1970) stipulates that the right to the protection of trade union property is one of the civil liberties essential for the normal exercise of trade union rights.
5. 447. As regards the detention of the trade union leaders Héctor Alemán, Juan Antonio Samudio and Saúl Quiróz and other officials of FENASEP in the interior of the country, the Committee takes note of the information provided by the Government that as a result of the events which occurred in December 1989, several trade union leaders were arrested on suspicion of having been involved in unlawful acts, but that at present no trade union leaders are under arrest. In this respect, the Committee would like to point out that the detention of trade union leaders without specific criminal charges against them involves restrictions on trade union rights (see in this respect, for example, 217th Report, Case No. 1031 (Nicaragua), para. 120).
6. 448. As regards the allegation that two enterprises of the industrial free zone of Colón - Greenbay Overseas International Inc. and Jenny Manufacturing Inc. - are carrying out acts of anti-union discrimination by preventing the holding of trade union meetings and organising a campaign against the trade unions of the undertakings, as well as ordering the dismissal and forced removal from her workplace of the trade union leader Lourdes Salazar, the Committee notes the explanation provided by the Government in this respect, in particular concerning the ballot carried out in one of these undertakings. The Committee considers that this ballot system was not in itself contrary to the principles of freedom of association. It recalls, nevertheless, that the formalities prescribed by legislation regarding the establishment of trade unions should not be applied in such a way that they delay or impede the formation of organisations, as apparently was the case with the request made by the incipient trade union at Greenbay Overseas International Inc., which resulted in the dismissal of the seven members of the provisional executive committee of the trade union without their being able to benefit from trade union immunity (fuero sindical).
7. 449. Although the Committee notes that six of the seven trade union officials dismissed have been reinstated, it requests the Government to inform it of the events which led to the dismissal of the trade union leader Lourdes Salazar, and whether she has been reinstated or whether she initiated any kind of judicial proceedings to this end. Likewise, it requests the Government to inform it of the results of the judicial proceedings for reinstatement initiated by workers dismissed from Jenny Manufacturing Inc. and the appeal regarding unconstitutionality lodged by this enterprise on 4 September 1990.