Rapport définitif - Rapport No. 401, Mars 2023

1. 596. The complaint is contained in a communication from the National Confederation of United Independent Unions of Panama (CONUSI) and the Panamanian Union of Commercial Aviators (UNPAC), dated 31 January 2020.
2. 597. The Government sent its observations in communications dated 22 September 2021 and 19 January 2023.
3. 598. 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. 599. In their communication of 31 January 2020, the complainant organizations allege that the Government is not complying with the recommendations of the Committee by not adapting its legislation to eliminate compulsory arbitration in collective bargaining negotiations, which is interfering in and limiting the exercise of the right to strike in violation of Conventions Nos 87 and 98.
2. 600. The complainant organizations indicate that Act No. 45 of 1998 amended section 452 of the Labour Code and introduced a paragraph 3 which establishes that, if a collective dispute arises in a public service enterprise, according to the definition set out in section 486 of the Code, the regional or general labour directorate shall decide to submit the strike to arbitration, after it has begun. The complainant organizations consider that section 452(3) of the Labour Code violates Article 3 of Convention No. 87 as it restricts, limits, inhibits and curtails the right to strike of workers in public services by imposing compulsory arbitration as a dissuasive measure to diminish the rights and interests of trade union organizations. They also state that, although UNPAC filed a claim of unconstitutionality against section 452(3) of the Labour Code on 16 April 2019, it was declared constitutional res judicata by a Supreme Court of Justice judgment of 17 October 2019 (a copy of the judgment is attached to the complaint). According to the complainant organizations, this judgment runs counter to the jurisprudence of the Court, which in 2015 indicated that, “international labour conventions that contain regulations concerning the recognition of human rights that are enjoyed in relation to work must form part of the body of constitutional law”.
3. 601. The complainant organizations state that compulsory arbitration is not being applied in a consensual manner between the parties and cite the example of the National Trade Union of Workers in the Aviation, Logistics, Similar and Related Industries of Panama (SIELAS), a trade union organization to which, according to the complaint, the Ministry of Labour and Workforce Development (MITRADEL) applied compulsory arbitration through Resolution No. 511-DGT-17 in order to lift a strike declaration, a measure that the trade union had taken after failing to reach a satisfactory agreement with Copa Airlines (hereafter referred to as “the airline”) in the negotiation of a collective labour agreement. The complainant organizations allege that the workers of SIELAS were persecuted, intimidated and threatened by MITRADEL authorities and the security forces so that they would decline to declare a strike and thus compulsory arbitration was imposed.
4. 602. The complainant organizations understand that, while the right to strike may be restricted or prohibited in essential services in the strict sense of the term, that is, services the interruption of which would endanger the life, personal safety or health of the whole or part of the population, the transport of passengers and goods is not an essential service in the strict sense of the term. The complainant organizations state that, while the transport of passengers and goods is a public service of primary importance in the country for which the requirement of a minimum service in the event of a strike could be justified, the imposition of arbitration as provided for in section 452(3) of the Labour Code could not.

B. The Government’s reply

1. 603. In its communications of 22 September 2021 and 19 January 2023, the Government states that on 30 August 2017, SIELAS filed an application with the general labour directorate for a list of demands to negotiate a new collective agreement with the airline and given that an agreement could not be reached, the union proceeded in accordance with section 490 of the Labour Code to declare an indefinite strike as of 23 November 2017. In response, the general labour directorate decided on the same day, through Resolution No. 511-DGT-17, to submit the strike to arbitration and ordered its immediate suspension and the opening of the various work centres.
2. 604. The Government indicates that, although the complainant organizations submitted an application requesting that section 452(3) of the Labour Code be declared unconstitutional, the Supreme Court of Justice, in its judgment of 17 October 2019, declared the provision in question to be constitutional res judicata and ordered that the case be shelved because the Court had previously ruled on the matter.
3. 605. The Government reports that, between 2017 and the present day, SIELAS and the airline have concluded two collective agreements: one was in force from 1 December 2017 until 1 December 2021 and the other was concluded on 1 April 2022 and is in force until 2026. The Government highlights that the priority task of MITRADEL is to pursue industrial peace through respect for fundamental and labour rights, especially in its role as a mediator, which has allowed it to achieve a good understanding between the parties without affecting the decisions that the respective parties might take, since the provisions of the Labour Code are being applied correctly in order to achieve a favourable result that benefits the key actors in the labour relationship.

C. The Committee’s conclusions

1. 606. The Committee observes that in the present case the complainant organizations allege that section 452(3) of the Labour Code restricts, limits, inhibits and curtails the right to strike by imposing compulsory arbitration in public services that are not essential in the strict sense of the term, such as the transport of passengers and goods in general and aviation in particular. The Committee observes that the complainant organizations specifically refer to a MITRADEL resolution that submits to compulsory arbitration the strike called by SIELAS at the end of 2017.
2. 607. The Committee notes that the complainant organizations and the Government indicate that in 2019 UNPAC filed a claim of unconstitutionality against section 452(3) of the Labour Code. The Committee observes that, in its judgment, the Supreme Court of Justice indicated that this provision had already been the subject of a legal ruling of the Court in 1999, and therefore declared paragraph 3 of the above-mentioned section to be constitutional res judicata and ordered that the case be shelved. The Committee observes that, in its 2019 judgment, the Court recalled that article 65 of the Political Constitution established the recognition of the right to strike and that the law may subject it to special restrictions in the public services it determines. The Committee notes in this regard that the 1999 and 2019 rulings do not contain a specific review of the list of public services contained in the Labour Code for which the legislation provides for recourse to compulsory arbitration.
3. 608. The Committee also observes that the specific example cited by the complainant organizations, that is, the MITRADEL resolution that submitted to compulsory arbitration the strike called by SIELAS at the end of 2017, is a matter that the Committee examined in a previous case on Panama [Case No. 3319, Report No. 397]. On that occasion, the Committee formulated the following conclusions and recommendations:
   • 596. Regarding the strike initiated by SIELAS and the decision adopted by MITRADEL ordering compulsory arbitration and the end of the aforementioned strike, the Committee recalls that it has considered that compulsory arbitration to end a collective labour dispute and a strike is acceptable if it is at the request of both parties involved in a dispute, or if the strike in question may be restricted, even banned, i.e. in the case of disputes in the public service involving public servants exercising authority in the name of the State or in essential services in the strict sense of the term, namely those services whose interruption would endanger the life, personal safety or health of the whole or part of the population [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 816]. The Committee also considered that in as far as compulsory arbitration prevents strike action, it is contrary to the right of trade unions to organize freely their activities and could only be justified in the public service or in essential services in the strict sense of the term [see Compilation, para. 818].
   • 597. […] The Committee recalls that, in its conclusions adopted in other cases relating to the air transport sectors of other countries, it considered that, based on the specific circumstances of each case, the air transport sector as a whole is not an essential public service in the strict sense. The Committee also highlights that it has considered that the establishment of minimum services in the case of strike action should only be possible in: (1) services the interruption of which would endanger the life, personal safety or health of the whole or part of the population (essential services in the strict sense of the term); (2) services which are not essential in the strict sense of the term but where the extent and duration of a strike might be such as to result in an acute national crisis endangering the normal living conditions of the population; and (3) public services of fundamental importance [see Compilation, para. 866]. In this respect, the Committee also considered that transportation of passengers and commercial goods is not an essential service in the strict sense of the term; however, this is a public service of primary importance where the requirement of a minimum service in the event of a strike can be justified [see Compilation, para. 893].
   • 598. In light of the above, the Committee requests the Government to take, in consultation with the most representative employers’ and workers’ organizations, the necessary measures, including legislative measures, to ensure that the rules on compulsory arbitration meet the criteria indicated above, in such a way that they do not unduly limit the exercise of the right to strike and collective bargaining in the air transport sector.
4. 609. The Committee notes that, according to the Government, SIELAS and the airline have concluded two collective agreements (2017–21 and 2022–26). While duly noting this information, the Committee reaffirms the importance and the full applicability of the conclusions and recommendations adopted in relation to Case No. 3319, in particular those related to the need to take measures, including legislative measures, to ensure that the rules on compulsory arbitration do not unduly limit the exercise of the right to strike and collective bargaining in the air transport sector. Taking into account that the Committee will once again examine these matters as part of the follow up given to that case, the Committee considers that the present case is closed and does not call for further examination.

The Committee’s recommendation

1. 610. In the light of its foregoing conclusions that reiterate the importance and full applicability of the recommendations made in Case No. 3319, which remains a case in follow-up, the Committee invites the Governing Body to decide that this case does not require any further examination.