Rapport intérimaire - Rapport No. 327, Mars 2002

1. 705. The National Federation of Associations and Organizations of Public Servants (FENASEP) presented the complaint in a communication dated 24 May 2001. The organization sent additional information in a communication dated 11 July 2001. Public Services International (PSI) supported FENASEP’s complaint in a communication dated 25 June 2001. The Government replied in a communication dated 31 October 2001.
2. 706. 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. 707. In its communications dated 24 May and 11 July 2001, the National Federation of Associations and Organizations of Public Servants (FENASEP) alleges that, since 1 September 1999 (when the new President of the Republic came to power), the Government, for partisan political reasons, has dismissed 19,000 public servants and excluded a further 2,000 from permanent appointments. FENASEP adds that it took a number of actions as a trade union and the Government decided to dismiss trade union leaders of associations of public employees (a list of 44 dismissed public servants was annexed).
2. 708. FENASEP challenged the Government’s actions by contesting the constitutionality of resolution No. 122 dated 27 October 1999, but it was not declared unconstitutional because it had been rescinded. No administrative or judicial organ pronounced itself in favour of the trade union leaders.
3. 709. FENASEP criticized the Government’s refusal to negotiate with it at the bipartite level (it has been able to participate in discussions only as a part of the National Council of Unionized Workers (CONATO)) and refers in general terms to measures to prevent union leaders acting freely, limit their actions or prevent protests.
4. 710. FENASEP alleges that acts have been committed against its Secretary-General (threats of dismissal and discussion for the purpose of the continuation of unpaid leave), though the individual concerned withdrew the allegations after experiencing an improvement in the situation and enjoying "full freedom of association", according to a communication signed by him on 4 October 2001.
5. 711. Finally, FENASEP encloses a copy of the ruling against Mr. Alberto Ibarra, a member of the FENASEP executive committee, for offences against honour (slander and insults) committed against representatives of the public administration (INAC) in public statements made by Mr. Ibarra on 4 October 1999, which implied that the INAC, through its representatives, had committed unlawful acts.

B. The Government's reply

1. 712. In its communication dated 31 October 2001, the Government states that not all public servants are part of the permanent appointments system. It does not include those appointed by public election, free nomination and transfer, nomination under the Constitution and selection, as well as those still in the probationary period, those in office and some contingencies.
2. 713. Under Law No. 9, article 2, free nomination and transfer applies to public servants "who provide secretarial, consulting, assistance or other services directly in the service of public servants, who are not part of any permanent appointments system and, by the nature of their functions, are appointed on the basis of the confidence of their superiors, the loss of that confidence entailing the transfer of the post that they occupy".
3. 714. Article 2 adds that public servants in office "are those who, at the entry into force of this Act and its provisions, occupied a public post classified as permanent, until such time as they obtain, through the established procedures, the status of permanently appointed public servants, or are discharged from public service".
4. 715. Moreover, articles 24 and 25 of Executive Decree No. 222 establish the requirements for a public servant to be included in the permanent appointments system (assessment of past achievements demonstrating fulfilment of the minimum post requirements according to the Post Classification Manual, minimum education qualifications and required length of service in the post).
5. 716. In compliance with Executive Decree No. 222, article 24, the Directorate-General of Appointments has produced a Post Classification Manual laying down the minimum requirements for accreditation as a permanently appointed public servant.
6. 717. A permanently appointed public servant is a public servant with security of tenure, who may not be dismissed without just cause and application of the established procedures, as laid down by Executive Decree No. 222, article 118.
7. 718. The Post Classification Manual and the provisions governing access to the permanent appointments system have been applied in a formal and effective manner since Mr. Mireya Moscoso was elected to the post of President on 2 May 1999. For this reason, the outgoing Government took steps during the transition period from May to 31 August 1999 to appoint public servants in indiscriminate, arbitrary and unlawful manner, without fulfilling the necessary procedures.
8. 719. This situation affected in particular the performance of governmental bodies, leading to a loss of confidence and damaging the credibility of the procedure used in the permanent appointments system.
9. 720. Between June 1994 and the general elections on 2 May 1999, a total of 4,512 public servants had been accredited, while a further 5,634 were accredited in the transition period from June to August 1999 before the new Government took over. It is clear from this that in the latter case, the procedures were not properly observed.
10. 721. Consequently, the Government took responsible steps to correct the situation in order to ensure that the newly accredited public servants met the minimum requirements contained in the relevant legal provisions.
11. 722. It thus issued resolution No. 122 dated 27 October 1999, temporarily suspending access to permanent appointments, and ordered an overhaul of the system. It transpired that a large proportion of accreditations had been made wrongfully.
12. 723. Following investigations and measures to clean up the system, the Government issued resolution No. 50 dated 6 July 2001, which rendered null and void the decision adopted in resolution No. 122 to the effect that public servants who met the minimum requirements could be accredited as permanently appointed public servants.
13. 724. The only people excluded from permanent appointments were those who had obtained them unlawfully, thus undermining their colleagues’ credibility and rights. However, the removal of their accreditation does not imply their dismissal (many public servants whose permanent accreditation was removed continued to work in the government departments).
14. 725. Where public servants wish to take action in cases of dismissal, removal of accreditation or disciplinary sanctions, the law grants them access to review and appeal procedures and, where the outcome is unfavourable, they may, as a last resort, appeal to the high court. All government departments have taken care to follow this procedure properly, and there have been many rulings in favour of public servants who have appealed. The Government has provided a long list of the relevant decisions.
15. 726. The Government of Panama has made every effort to allow FENASEP to participate in cooperation and social dialogue, notably in the agreement on public transport in the metropolitan area.
16. 727. As regards FENASEP’s activities, the Government states that, in accordance with the basic guarantees established by the Constitution, including freedom of assembly and freedom of expression and association, it has always allowed protests in the form of marches and pickets in all industries, believing that such activities where conducted with full respect for the law and the rights of third parties and contribute to strengthening national democracy.
17. 728. The Government emphasizes that it has not carried out unlawful dismissals of leaders of public servants’ associations and has complied with Conventions Nos. 87 and 98.
18. 729. In resolution No. 122 dated 27 October 1999, the Cabinet Council granted the Directorate-General of Appointments the powers to revise the records of accredited public servants in order to ensure that they met the current legal criteria of the permanent appointments system, identifying cases that fall short, particularly where the appointment was made in the transition period between Governments.
19. 730. The Government has had ongoing communication with FENASEP, ensuring its involvement in government activities (reports have been sent of meetings of the Secretary-General of FENASEP with the Minister for Labour, the Vice-Minister for Labour and the Vice-President of the Republic). Likewise, the Secretary-General of FENASEP was encouraged to participate in the national tripartite delegation to the 89th Session of the International Labour Conference. FENASEP was also a party to the negotiations on public transport: it has been present at periodic meetings of CONATO and the Ministry of Labour and Development; and it has received very significant State subsidies (US$201,281 for the period 1999-2001) through the educational insurance fund.
20. 731. According to the Government, FENASEP also refers to the communication by the State with teachers’ and other public servants’ organizations, which demonstrates clearly that the Government has striven to uphold social accord and good governance by maintaining open channels of communication with all social organizations and public servants’ associations, as well as with FENASEP, which is not the only public servants’ organization in Panama.

C. The Committee's conclusions

1. 732. The Committee notes that in this case the complainant organization alleges that 44 trade union leaders have been dismissed in the context of the mass dismissal of thousands of public servants for partisan political reasons following the change of government in September 1999.
2. 733. The Committee takes note of the Government’s statements to the effect that: (1) the outgoing Government had improperly granted permanent appointments to 5,634 public servants during the transition period; (2) it had therefore issued resolution No. 122 dated 27 October 1999, temporarily suspending access to permanent appointments, and ordered an overhaul of the system; once that had been attained, it then issued resolution No. 50 dated 6 July 2001, which rendered null and void the decision adopted in resolution No. 122 to the effect that public servants who met the minimum requirements could be accredited as permanently appointed public servants; (3) those subjected to dismissal or "removal of accreditation" (i.e. whose permanent appointment was cancelled even though they remained in their posts) had remedies at their disposal and many had obtained rulings in their favour; and (4) the Government had needed to take corrective action in order to ensure that those who were accredited met the minimum legal requirements (length of service, educational qualifications, etc.) and in fact it had transpired that a large number of accreditations had been made improperly.
3. 734. Although it has taken note of the Government’s statements, the Committee must draw attention to the danger of unfairness inherent in mass dismissals of public servants and regrets that 44 trade union leaders have been dismissed without any preliminary procedures being followed, which is contrary to the provisions of section 118 of Decree No. 222 which requires that a dismissal be done on fair motives, that a preliminary procedure is respected and that a rapid investigation be undertaken with the possibility for the dismissed worker to defend himself. Given the serious impact of these decisions on the exercise of trade union rights, the Committee requests the Government to promote the reinstatement of the trade union leaders in their posts inasmuch as they meet the legal requirements for permanent appointment and inform it of procedures undertaken since the dismissals.
4. 735. The Committee also notes that the Government denies having refused to enter into dialogue, negotiate or take steps to prevent trade union activities, or measures against FENASEP. The Committee notes that the allegations were made in very general terms and therefore it is not in a position to examine them more thoroughly.
5. 736. Lastly, the Committee requests the Government to send its observations on the allegations relating to the criminal charges against the trade union leader, Mr. Alberto Ibarra.