Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

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

The Committee notes that the Government’s report has not been received. It also notes the comments by the National Federation of Public Employees and Public Service Enterprise Workers (FENASEP) referring to issues raised by the Committee, and the comments by the International Trade Union Confederation (ITUC) stating that there are no collective agreements in the export processing zones and that employers interfere in the establishment of trade unions in the building sector. The Committee requests the Government to send its comments on these matters.

Articles 1 and 4 of the Convention. The Committee notes with satisfaction that Act No. 24 of 2 July 2007 to amend the Administrative Careers Act contains provisions to protect public servants against acts of anti-union discrimination, and establishes the right of associations of public servants to collective bargaining. The Committee notes, however, that according to FENASEP, the right to collective bargaining has not been regulated. The Committee requests the Government to provide information in this regard and to indicate whether municipal workers and workers in decentralized institutions enjoy the right to collective bargaining.

Article 4. In its previous observation, the Committee requested the Government to fulfil the commitments it made to the technical assistance mission carried out in February 2006 to hold meetings with the social partners in the form of seminars or workshops with ILO support and to promote actively tripartite dialogue on the following issues which are pending:

(a)   section 12 of Act No. 8 of 1981 provides that no enterprises (other than building enterprises) shall be required to conclude a collective labour agreement in the first two years of operations, which in practice could involve denial of the right to collective bargaining;

(b)   the need to amend the legislation so that in the case of strikes attributable to the employer, the payment of wages for strike days is not imposed by the legislation (section 514 of the Labour Code) but is a matter for collective bargaining between the parties involved;

(c)   the requirement that the number of representatives of the parties in negotiations shall be from two to five (section 427 of the Labour Code).

In its previous comments the Committee took the view that such restrictions were inconsistent with the Convention and noted that the Government was ready to harmonize national law and practice with the Convention in respect of these provisions if it had the agreement of the employers’ and workers’ organizations, particularly the National Council of Organized Workers (CONATO) and the National Council of Private Enterprise of Panama (CONEP). Since CONATO and CONEP hold different views, on which it commented in its last observation, the Committee requests the Government to continue to promote tripartite dialogue and to provide information on the activities (seminars and workshops) carried out and on developments on these issues.

The Committee also asked for a tripartite discussion to be held on collective bargaining in the private sector with groups of non-unionized workers (section 431 of the Labour Code), a matter on which the views of the Government, CONATO and CONEP differed. The Committee reminds the Government that collective bargaining with groups of non-unionized workers should be possible only in the absence of a union, and asks the Government to examine this matter in the context of the abovementioned tripartite dialogue so as to ensure that there is no collective bargaining with groups of workers when there is a trade union in the bargaining unit.

Lastly, the Committee took note of restrictions on collective bargaining in the maritime sector pursuant to section 75 of Legislative Decree No. 8 of 1998, which establishes the conclusion of collective agreements as an option, which in practice leads to the denial of workers’ claims by employers and about which an application had been lodged for this legislation to be found unconstitutional. The Committee also noted the Government’s statement that a draft of a new Maritime Code was to be submitted to the Legislative Assembly. The Committee asks the Government to report on this matter.