Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 358, Novembre 2010

1. 701. The Committee examined the substance of this case at its November 2008 meeting, when it submitted an interim report to the Governing Body [see 351st Report, paras 1099–1134, approved by the Governing Body at its 303rd Session].
2. 702. The Government sent observations in communications dated 14 May 2009 and 1 March 2010.
3. 703. 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. Previous examination of the case

1. 704. In its previous examination of the case at its November 2008 meeting, the Committee made the following recommendation on the issues that were still pending [see 351st Report, para. 1134]:
   • (a) The Committee requests the Government to ensure that the union officials Mr Cubilla, Mr Adamson and Mr Aguilar have returned to their posts of work under normal conditions and that it keep the Committee informed in that regard.
   • (b) The Committee requests the Government to send it: (1) the judgement of the Supreme Court of Justice in regard to the various measures taken by the Group 4 Securicor company and the question of whether the workers held a “de facto work stoppage”; (2) specific information in regard to the alleged anti-union nature of the dozens of dismissals that occurred during the restructuring of the Group 4 Securicor company with a view, according to the allegations, of weakening the union, as well as any judgement which the courts may have handed down in relation to those dismissals; and (3) information on whether the trade union organizations affected and the dismissed trade union leaders have instituted additional judicial action.
   • (c) The Committee requests the Government to ensure that the relevant legislation in regard to check-off facilities for union members’ dues is complied with by the company.
   • (d) The Committee requests the Government to take the necessary steps to send its specific observations concerning the allegations relating to: (1) the violent assault on and robbery of trade unionists exercising their right to protest in front of the company by individuals allegedly having received orders from the management to get rid of them, resulting in one worker having to be hospitalized; (2) the financial support provided by the company for the creation of a trade union; and (3) the threats of civil and penal sanctions against trade unionists having participated in peaceful demonstrations.
   • (e) The Committee requests the Government to provide clarifications in regard to the alleged certification (recognition) of the trade union elections involving a very small group of dissidents from the union, to whom the company allegedly provided financial support, and to inform it whether the executive committee resulting from those elections has dislodged the one which filed the present case.
   • (f) The Committee invites the Government to provide it with information on any measures taken as from November 2006 to give effect to the union’s request for the implementation of collective bargaining.

B. Additional observations sent by the Government

1. 705. In its communication dated 14 May 2009, the Government states that it has replied to each of the questions raised by the Committee. It recalls that the allegations refer to: (1) the transfer of workers under the guise of corporate restructuring, with the intention and effect of weakening the trade union and undermining collective bargaining; (2) the dismissal and sanctioning of trade unionists who took part in demonstrations to assert their legal rights; (3) the company’s financial, material and legal assistance to criminals who violently attacked and robbed union leaders; (4) the instigation by the company of an internal dispute within the union and its material support for the emergence of a pro-company faction; and (5) the use of threats, penal sanctions and civil lawsuits against union members who took part in demonstrations. The Government states that Panama has established trade union rights backed by protective measures and that it actively protects and promotes the trade union movement, without any state interference in its internal affairs, by providing for technical and economic assistance, trade union immunity and penalties for unfair practices.
2. 706. Regarding the question of unfair practices, the Government adds that the union is entitled by law to appeal to a criminal court or special labour court to investigate the said measures. The Ministry of Labour and Labour Relations (MITRADEL) is not competent to hear the case and has accordingly followed the procedure laid down in the country’s labour legislation and in the ratified international standards. It has complied fully with the law, and there is at present no outstanding dispute between the parties.
3. 707. In its communication dated 1 March 2010 the Government states that UNTAS called a strike at the Group 4 Securicor company. In ruling No. 65 of 24 October 2006, the Third Labour Court decided not to ban the strike, which had halted the company’s activities. The Government adds that this ruling was declared null and void, pursuant to article 498 of the Labour Code which states:
   • A strike may be declared illegal only in one of the following circumstances:
4. (1) if it does not meet the requirements of articles 476, 477, 484, 487 and 489 (preliminary conciliation, advance notice, etc.);
5. (2) if any acts of physical violence are perpetrated against people or property in the course of the strike;
6. (3) strike may not be declared illegal for any reason other than the above. A ruling on a request for a strike to be declared illegal shall not enter into the substance of the dispute and shall not consider whether or not grounds exists for any requests, complaints, demands or protests submitted by the workers.
   • The Government points out that the head of Labour relations certified that no request to hold a strike had been presented and that the Higher Labour Tribunal therefore ruled on 26 October 2006 that the strike called by UNTAS was unlawful.
7. 708. Regarding the alleged anti-union nature of the dozens of dismissals that followed the protest marches that UNTAS organized from 6 September 2006 onwards, the Government attaches decision No. 22 PJCD-2007 handed down by Conciliation and Decision Board No. 14 on 5 September 2007, which settled the labour dispute between an employee, Mr Ojier Hernán Serracin, and the company by declaring that his dismissal was unjustified. However, the Higher Labour Tribunal issued a ruling on 5 September 2007 revoking this decision and acquitting the company of the charge. The Government also attaches decision No. 32-PJCD-16-2007 of 29 September 2007, confirmed by the court of second instance on 29 May 2008, to the effect that Mr Luis Velásquez had failed to prove to the competent tribunal that his dismissal was unjustified. In so far as the proper channels were respected, the decision was taken in full jurisdictional independence; in other words, there was no interference by any public institution other that the competent bodies. The Government concludes from the above that the complaint lodged with the Assistant Public Prosecutor shows that it was the workers who used force to take over the company’s premises and that there was never any question of trade union persecution but rather of a group of workers acting in violation of established labour standards.
8. 709. The Government adds that, according to an investigation conducted by the General Labour Directorate, the union leaders who were dismissed (Mr Cubillas, Mr Adamson and Mr Aguilar) were involved in acts of violence that caused damage to the installations of Union International Network G4SW, and that it was because of this that the police responsible for maintaining law and order intervened. The acts of violence were certified by senior police officers (not attached to the Ministry of Labour and Labour Relations) who are responsible only for investigating labour disputes and helping the parties reach a friendly settlement. Under existing legal arrangements, the Ministry is not competent to take action in situations involving violence.
9. 710. Regarding the financial support that the company allegedly provided to set up a new trade union, the Government states that it is unaware of any such occurrence. Trade unions have full access to the machinery provided for in article 338 of the Labour Code to denounce situations such as that described which, if there is sufficient evidence, can be deemed an unfair practice. It must be borne in mind that, in the case of legitimate activities that are carried out in countries governed by laws and regulations, each sphere of activity has a set of established rules and control mechanisms that must not be allowed to disrupt public order, failing which the injured parties are entitled to place the matter before the civil or criminal authorities without any implication that they are opposed to the trade union movement.
10. 711. Regarding the deduction of union dues, the Government states that, in Panama, employers are required by law to deduct the ordinary and extraordinary union dues of all members of trade unions, with the sole condition that each worker be duly accredited (article 373 of the Labour Code). Article 405 further requires companies to deduct the union dues of all their workers who are covered by a collective agreement.
11. 712. The Government adds that it is the police authorities and the Public Prosecutor who are responsible for preventing violence and theft and that the Government is not competent to take action in this area. The Government’s mission is to serve as a body that can oversee unions’ actions and it does not interfere in their functioning or activities, in accordance with the principle of freedom of association.
12. 713. Lastly, the Government states that the National Assembly has, in third hearing, approved draft Act No. 94 “which incorporates new provisions concerning the duties of employers into the Labour Code which are designed to promote protective measures for security agents”.

C. The Committee’s conclusions

1. 714. The Committee observes that the complaint concerns: (1) allegations relating to the dismissal of dozens of workers at the Group 4 Securicor company following peaceful protests in October 2006, even before the judicial authority had ruled on the lawfulness or otherwise of the action (the judicial authority considered there to have been a “de facto work stoppage”, but the Supreme Court of Justice currently has before it an appeal against that decision); (2)(a) allegations relating to the year 2007 to the effect that the company had ordered two of its workers to attack demonstrating trade unionists who were occupying its premises in the early morning of 16 February 2007, with the aim of forcing them to leave the company’s property; according to the complainant union, eight assailants (two of whom were arrested and subsequently released) seized money and belongings from the trade unionists; one of the assailants threatened them with a firearm, while one of the trade unionists was beaten and had to be hospitalized; (b) financial support provided by the company to a very small group of dissidents within the union who organized so-called elections that were certified by the Government; and (c) the failure (on the part of the company) to hand over trade union dues to the union. The Committee takes note of the Government’s broad observation that the country’s legislation guarantees trade union rights, including trade union immunity, and provides for sanctions in respect of unfair practices.
2. 715. The Committee notes the Government’s statement that: (1) the Higher Labour Tribunal ruled on 26 October 2006 that the strike called by UNTAS was unlawful; (2) according to the complaint lodged with the Assistant Public Prosecutor, it was the workers who used force to take over the company’s premises, and there was never any question of trade union persecution; (3) according to an investigation conducted by the General Labour Directorate, the union leaders who were dismissed (Mr Cubillas, Mr Adamson and Mr Aguilar) took part in violent activities that damaged the enterprise installations and it was because of this that the police responsible for maintaining law and order intervened; (4) it is not aware of any element relating to the company’s alleged financial support for setting up a new trade union; and (5) in Panama employers are required by law to deduct the ordinary and extraordinary union dues of all members of trade unions, with the sole condition that each worker be duly accredited.
3. 716. Regarding the alleged anti-union dismissal of union leaders Mr Cubilla, Mr Adamson and Mr Aguilar, the Committee notes that, according to the Government, these workers were involved in acts of violence that caused damage to the enterprise installations, which was why the police responsible for maintaining law and order intervened. The acts of violence were certified by senior police officers and by the labour administration (which is responsible only for investigating labour disputes and helping the parties reach a friendly settlement). The Committee recalls that, in its previous examination of the case, it observed that according to the allegations the judicial authority did not accede to the company’s request for a suspension of the trade union immunity of union officials Cubilla, Adamson and Aguilar, and that the Committee therefore requested the Government to ensure that they had been able to return to their posts of work under normal conditions. Noting the Government’s assertion that the situation has changed inasmuch as the demonstration was an act of violence and not a peaceful protest, the Committee requests the Government to inform it without delay of the current status of these workers and, specifically, whether their trade union immunity has since been suspended and whether any proceedings have been initiated in connection with what the Government describes as an act of violence against the enterprise installations. In the case that it is found that the dismissal was illegal, the Committee reiterates its earlier recommendation that the Government ensure that they have been able to return to their posts of work under normal conditions and that it keep it informed of developments.
4. 717. Regarding the alleged dismissal (as part of a corporate restructuring) of dozens of other trade unionists said to have been involved in the October 2006 protest march, the Committee takes note of Decision No. 22 PJCD-2007 of 5 September 2007 and Decision No. 32-PJCD-16-2007 of 29 September 2007, confirmed in second instance on 29 May 2008, to the effect that two of the plaintiffs had failed to prove to the competent tribunal that their dismissal was unjustified. However, the Committee notes that the Government does not provide any information as to whether the trade unions concerned or the union members themselves have initiated any further court action, and it can therefore not determine whether or not all the remaining dismissals were considered to have been justified. The Committee requests the Government to provide it with information on the subject without delay, together with copies of the court decisions handed down.
5. 718. Regarding the alleged unlawfulness of the strike called by UNTAS and the anti-union nature of the dismissals that occurred during the corporate restructuring, supposedly to weaken the trade union, the Committee takes note of the Higher Labour Tribunal’s ruling of 26 October 2006 that the strike called by UNTAS was unlawful notably because the union had not followed the legal procedures in force, i.e. the requirements stipulated in article 476 of the Labour Code, notably the completion of the proceedings engaged and the advance notification of the regional or general labour inspectorate or directorate.
6. 719. Regarding the company’s alleged failure to pass on union dues due to the union and to comply with the legislative provisions on the subject, the Committee notes the Government’s statement that employers in Panama are required by law to deduct the ordinary and extraordinary union dues of all members of trade unions, with the sole condition that each worker be duly accredited. The Committee requests that the Government inform it whether the company has deducted any union dues that have not been credited to the trade union concerned and, if so, to ensure without delay that this is done.
7. 720. Regarding the alleged violent attack on trade unionists and the theft of their belongings by individuals who had received orders from the management to remove them from the premises, where they were exercising their right to protest against the company, the Committee notes that it is the police authorities and the Public Prosecutor who are responsible for preventing violence and theft and that the union is entitled by law to lodge an appeal with a criminal court. The Committee requests the Government and the complainant organizations to indicate whether there has been any investigation into the matter or if the victims have lodged any judicial appeals and to keep it informed of developments.
8. 721. Regarding the alleged financial support provided by the company for setting up a new trade union, the Committee notes the Government’s statement that it is unaware of any such occurrence and its reliance on the country’s laws and regulations. The Committee requests the Government to institute an inquiry into the allegations and to keep it informed accordingly.
9. 722. Regarding the other allegations – threatened civil or criminal sanctions against trade unionists who took part in the demonstrations, certification (recognition) of trade union elections involving a very small group of dissidents from the union and the union’s request for collective negotiations (the list of demands that had been settled by an agreement concluded in September 2006 was resubmitted in October 2006), the Committee regrets to note that the Government has not provided any information on the subject. The Committee requests the Government to institute an inquiry without delay into the alleged threats of civil and criminal sanctions against trade unionists who took part in the demonstrations and to keep it informed of developments. It requests further that the Government send its observations without delay on the alleged certification (recognition) of trade union elections involving a very small group of dissidents from the union and indicate whether the executive committee elected on that occasion has dislodged the committee that filed the case under examination; it requests the Government to provide information on any steps taken since November 2006 to follow up the union’s request for collective negotiations.