Direct Request (CEACR) - adopted 1997, published 86th ILC session (1998)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Panama (Ratification: 1958)

The Committee notes the observations made by the Latin American Central of Workers (CLAT) on the application of the Convention and the Government's responses to them. The Committee confirms that the Government's report does not contain any responses to the questions raised in its previous direct request, and it is therefore obliged to reiterate its previous comments which referred to the following points:

-- the right of the labour authorities at the regional or national levels to submit collective disputes to compulsory arbitration when they occur in a public service enterprise, as determined in section 486 of the Labour Code (section 452(3) of the Code).

In this respect, the Committee again stresses that the transport and food services included under section 486 are not per se essential services in the strict sense of the term.

Furthermore, the Committee notes that Act No. 9 ("establishing and regulating administrative careers"), approved on 20 June 1994, contains some provisions which may cause problems in the application of the Convention.

Section 185 of Act No. 9 lays down the obligation to provide minimum services with 50 per cent of the staff which normally work in them when this relates to bodies which provide essential public services including some which are not essential in the strict sense, especially those relating to transport; and section 152(14), which provides that calling or taking part in strikes which are prohibited or declared illegal, or failing to comply with the requirement for minimum services during lawful strikes, is a reason for direct dismissal.

Recalling once again that the sanctions, such as direct dismissal, provided for in section 152(14) of Act No. 9 should be proportionate to the type and seriousness of the violation committed by the worker, the Committee draws the Government's attention to the fact that workers and their organizations should be able, if they so wish, to participate in defining such a service, along with employers and the public authorities. In addition, the minimum services should be limited to the operations which are strictly necessary to meet the basic needs of the population or the minimum requirements of the services, while maintaining the effectiveness of the pressure brought to bear (see General Survey on freedom of association and collective bargaining, 1994, paragraph 161).

Section 176 of Act No. 9 lays down that public servants' associations may establish federations of public servants' associations by class or sector of activity; and that they may in turn establish confederations.

On this matter, the Committee recalls that although first-level organizations of public servants may be restricted to this category of workers, such organizations should, however, be free to join federations and confederations of their choosing, including those which also group together organizations from the private sector (see op. cit., paragraph 193). The Committee again requests the Government to inform it whether they can, if they so wish, join with other organizations in federations which are not public servants' federations. If not, the Committee requests the Government to adopt appropriate measures to amend legislation to that effect.

The Committee again requests the Government to take the necessary measures to ensure that its law and practice comply with the principles of freedom of association.

In its observations, CLAT indicates that Executive Legislative Decrees Nos. 1 and 2 of 1996 (which accelerate the procedure for the establishment of enterprises in export processing zones) contain provisions restricting the exercise of the right to strike by establishing that only after a period of 20 working days, once the conciliation and arbitration procedure has been exhausted (sections 23, 25 and 27), may workers in free zones declare strikes. Similarly, they indicate that in accordance with section 30 of the same Decrees, stopping work without fulfilling the above provisions gives an employer the right to terminate the employment contracts of those responsible.

The Committee notes the Government's comments, in particular that the Decrees in question were amended by Legislative Decree No. 3 of 7 January 1997, the provisions of which (sections 12-15) provide only for a preliminary conciliation procedure lasting for 36 working days which must be completed before a strike can be declared legally. The Committee observes with interest that Legislative Decree No. 3 does not refer to arbitration. However, it notes that under section 15 of the same Decree a work stoppage without the fulfilment of the above-mentioned formalities gives an employer the right to request, from the labour administration authorities, the termination of the employment contracts of the worker or workers responsible for the unlawful stoppage, or the imposition by the administrative authorities, at the employer's request, of a fine of 50 to 500 balboas.

In this respect, the Committee requests the Government to indicate whether workers have the possibility to appeal against such decisions.

The Committee observes that section 92 of Act No. 19 of 11 June 1997 establishing the Panama Canal Authority prohibits strikes, go-slows and any other unjustified work stoppage so as to ensure that such action does not affect the international public service for which the Canal was created.

In this respect, the Committee reminds the Government that if the right to strike is subject to restrictions or a prohibition, workers who are thus deprived of an essential means of defending their socio-economic and occupational interests should be afforded impartial and speedy compensatory guarantees, for example conciliation and mediation procedures leading, in the event of deadlock, to arbitration machinery seen to be reliable by the parties concerned (see op. cit., paragraph 164). The Committee requests the Government to adopt measures in accordance with the above.

The Committee expresses the hope that a report will be sent so that it may be examined at its next meeting and that the report will contain complete information regarding the matters raised.