Observation (CEACR) - adopted 2001, published 90th ILC session (2002)

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

The Committee notes the Government’s report, the discussion in the Conference Committee on the application of the Convention and the conclusions and recommendations of the Committee on Freedom of Association in Case No. 1931 (see 318th Report, paragraphs 353-371).

The Committee recalls that its previous comments referred to the following provisions:

-  the power of the Regional or General Labour Directorate to submit labour disputes to compulsory arbitration in order to stop a strike in a public enterprise, including those which cannot be considered essential services in the strict sense of the term (including food and transportation, under sections 486 and 452(3) of the Labour Code);

-  sections 174 and 178, final paragraph, of Act No. 9 ("establishing and regulating administrative careers"), of 1994, which lay down respectively that there shall not be more than one association in an institution, and that associations may have provincial or regional chapters, but can have no more than one chapter per province;

-  section 41 of Act No. 44 of 1995 (amending section 344 of the Labour Code), which requires an excessively high number of members to establish an employers’ occupational organization (10) and an even higher number to establish a workers’ organization (40) at the enterprise level;

-  article 64 of the Constitution, which requires Panamanian nationality to serve on the executive board of a trade union;

-  the obligation to provide minimum services with 50 per cent of the personnel in establishments which provide essential public services, which go beyond essential services in the strict sense of the term and which include transport, and the penalty of the summary dismissal of public servants for failing to comply with the requirement respecting minimum services in the event of a strike (sections 185 and 152(14) of Act No. 99 of 1994); and

-  legislation interfering in the activities of employers’ and workers’ organizations (sections 452(2), 493(1) and 497 of the Labour Code) (closure of the enterprise in the event of a strike and compulsory arbitration at the request of one of the parties).

The Committee also notes the comments of the National Council of Organized Workers (CONATO) concerning the application of the Convention, which refer to the numerical requirements to establish trade union organizations in the public and private sectors and the type of organizations which can be established, the many restrictions in law and practice on the right to strike (the administrative classification of its legality in practice; the use of conciliation to prevent lawful strikes; denial of the right to strike to federations and confederations; the imposition of minimum services which are too high in the event of a strike; restrictions on strikes in the maritime sector, in export processing zones and in enterprises which have been established for less than two years; the imposition of compulsory arbitration in certain cases; the requirement of a majority of workers in the enterprise for a lawful strike; the illegality of strikes not related to a collective dispute with an enterprise, etc.); cases of interference by the authorities in the internal affairs of trade unions; cases of the denial of access by trade union leaders to their jobs in ports; and, administrative refusal of the affiliation of a federation to a confederation; etc.

The Committee notes the Government’s comments denying or commenting on CONATO’s allegations from the point of view of law and practice, and even recognizing that the minimum number of public servants required to establish a trade union association in the public administration is high.

In view of the high number of specific issues and the complexity of the questions raised concerning the application of the Convention, the Committee suggests that the Government should promote tripartite discussions on these matters. The Committee further recommends that, after consultations with the employers’ and workers’ organizations, the Government consider the possibility of jointly requesting the technical assistance of the ILO. The Committee would then be able to evaluate the application of the Convention in full knowledge of all the facts and of possible solutions to the problems raised.