Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Panama (Ratification: 1966)

The Committee notes the Government’s report and the comments submitted by the National Council of Organized Workers (CONATO) and the National Council of Private Enterprise (CONEP). The Committee recalls that in 2000 the Conference Committee examined the application of the Convention in Panama.

1. The Committee noted in previous comments the 310th and 318th Reports of the Committee on Freedom of Association (June 1998 and November 1999), in which the latter examined Case No. 1931, brought by two employers’ organizations. The Committee shared the view of the Committee on Freedom of Association and emphasized the need to amend: (1) section 427(3) of the Labour Code, which restricts the composition of the representatives of the parties (delegates and advisors) to the collective bargaining process, so that the parties themselves may determine this issue; (2) section 510(2) of the Code, which imposes disproportionate penalties for withdrawal from the conciliation procedures and failure to reply to statements of claims; and (3) limited possibilities for the collective negotiation of payment of wages in the event of a strike (section 514 of the Code).

2. In its previous observation the Committee noted that CONATO’s comments on the application of the Convention addressed in particular: the restrictions on the right to collective bargaining in the public sector, the maritime sector, enterprises in export processing zones and enterprises that have been established for less than two years; collective bargaining with groups of non-unionized workers in the private sector, even where a trade union exists, in the context of acts of interference by the employer; the rejection by the employer of statements of claims in certain cases, such as where trade unions threaten collective action or where agreements concluded by representatives of non-unionized workers already exist; and certain specific acts of anti-union discrimination. The Committee noted the Government’s comments on these matters in which it denied CONATO’s allegations either outright or in part on the basis of the legislation. The Committee suggested that the Government should promote tripartite discussion of these issues with a view to resolving them. The Committee notes the Government’s statements in its report that: (1) it has requested technical assistance from the ILO sub-regional office with a view to better application of the Convention through dialogue and cooperation with the social partners and to reaching a general agreement on the issues pertaining to the requested reforms of the Labour Code; (2) the technical assistance could not be implemented in the run-up period to the elections and it was therefore decided to postpone it and to leave the matter up to the new Government that takes office on 1 September 2004.

The Committee notes that in its recent comments CONEP states that the Government has not carried out the reforms requested by the Committee of Experts and the Conference Committee since 2000; that in dealing with Case No. 1931, the Committee on Freedom of Association observed that the legislation in Panama lacks clarity in some respects, particularly in relation to the excessively detailed regulation of labour relations which allows wholesale interference, and that some of its provisions are inconsistent with the principles of freedom of association and collective bargaining. CONEP adds that for this reason, the Committee on Freedom of Association accordingly asked the Government to take the necessary steps, without delay and in consultation with the social partners, to amend the provisions referred to in point 1 of this observation, and to amend the legislation in such a way that the payment of wages in respect of strike days is not statutory but a matter to be negotiated collectively by the parties. CONEP adds that the abovementioned Committee likewise recommended that in developing existing standards and procedures concerning conflicts of rights or interpretation, the Government should establish a clear, expeditious procedure, which would involve workers’ and employers’ organizations, for verifying non-compliance with legal provisions and clauses of collective agreements, making it possible to avoid collective disputes on the grounds under consideration.

The Committee stresses the need to amend the legal provisions in question. It hopes that the ILO technical assistance requested by the Government will take place very shortly and enable all these problems to be resolved. The Committee requests the Government to keep it informed on these matters.