Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

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

The Committee notes the Government’s report and the conclusions and recommendations of the Committee on Freedom of Association in Case No. 1931 [see 318th Report, paras. 493-507].

1. 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 products of basic necessity 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 not 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 (ten) 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. 9 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 notes that the Government emphasizes the difficulties of amending its legislation both in respect of the setting in motion of the procedures for constitutional reform, and the absence of a parliamentary majority. The Government further emphasizes that the technical assistance of the ILO is indispensable. The Committee trusts that the Government will be in a position to amend the above provisions in the near future and requests the Government to keep it informed in this respect.

2. The Committee also referred in its previous observation to the comments on the application of the Convention made by the National Council of Organized Workers (CONATO). The Committee examines below the main points raised by CONATO:

(a)  Requirement of 50 public servants to establish an organization of public servants under the Act respecting administrative careers. The Government recognizes that this is a high number, but section 176 of Act No. 9 allows public servants to organize by class (category) or sector of activity. The Committee requests the Government to take measures to amend the legislation with a view to reducing the minimum number of public servants required to establish organizations.

(b)  Denial of the right to strike for workers engaged at sea and on inland waterways (Act No. 8 of 1998) and in export processing zones (Act No. 25). The Government states that both sectors may conclude collective agreements, but does not refer specifically to the right to strike. The Committee requests the Government to indicate whether this right may be exercised in both sectors, and on what legal basis.

(c)  Prohibition of federations and confederations from calling strikes (the prohibition of strikes protesting against problems relating to economic and social policy and the unlawful nature of strikes not related to a collective agreement in an enterprise). The Government states that it is the trade unions which maintain relations with workers (whether or not they are unionized) at the enterprise level, and that if federations and confederations can call strikes, this would lead to trade union cannibalism and infighting between organizations; with regard to strikes protesting against the Government’s economic and social policies, it states that it is unjustified to submit enterprises to the effects of a strike of this type, since such policies are outside the control of the employer. The Committee emphasizes that federations and confederations should enjoy the right to strike. The Committee recalls that organizations responsible for defending workers’ socio-economic and occupational interests should, in principle, be able to use strike action to support their position to seek solutions to problems posed by major social and economic policy trends which have a direct impact on their members and on workers in general, in particular as regards employment, social protection and the standard of living (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 165). The Committee requests the Government to take measures to amend the legislation with a view to bringing it into line with the above principles.

(d)  Disaffiliation of the FENASEP from the Trade Union Convergence Confederation by the decision of the authorities. The Government states that public servants are governed by the Act respecting administrative careers and considers that they must join homologous organizations of public servants. The Committee points out 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 own choosing, including those which also group together organizations from the private sector (see General Survey, op. cit., paragraph 193). The Committee requests the Government to take measures to amend the legislation with a view to bringing it into line with the above principle. The Committee requests the Government not to prevent the affiliation of FENASEP with the Trade Union Convergence Confederation.

The Committee is examining other matters raised by CONATO in a direct request.