Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

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

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 100th Session, June 2011)

The Committee notes the Government’s reply to the comments from the International Trade Union Confederation (ITUC) dated 24 August 2010 (concerning allegations in the context of Cases Nos 2677 and 2706 examined by the Committee on Freedom of Association (CFA), and the comments from the National Council of Private Enterprise (CONEP) dated 29 May 2009 (concerning allegations made in the context of Case No. 1931 examined by the CFA).

Moreover, the Committee notes the comments from the General and Autonomous Confederation of Workers of Panama (CGTP) and the National Federation of Public Employees and Public Service Enterprise Workers (FENASEP) dated 17 August 2011, concerning issues which are already the subject of examination by the Committee and by the CFA, as well as the detailed response of the Government in this respect. The Committee also notes the comments from the National Confederation of United Independent Unions (CONUSI) dated 14 October 2011, in connection with the Government’s report.

The Committee notes the discussion that took place within the Committee on the Application of Standards of the International Labour Conference in June 2011, and also the fact that in its conclusions it urged the Government to draw up, as a matter of urgency and with ILO technical assistance and stepping up social dialogue in this regard, a draft of specific provisions to amend the legislation and bring it into conformity with the Convention. The Committee notes that the Government accepted the visit of a technical assistance mission and hopes that this will go ahead in the near future.

The Committee recalls that it has been making comments for many years on the following issues:

Article 2 of the Convention. Right of workers and employers without distinction whatsoever to establish and join organizations.

• – Sections 179 and 182 of the Single Text of Act No. 9, as amended by Act No. 43 of 31 July 2009, establishing, respectively, that there may 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. The Committee notes the Government’s indication in its report that the Directorate for Administrative Careers, attached to the Ministry of the Presidency, has established a commission for reform of the Act governing administrative careers, with a view to aligning the latter to the ratified Conventions and that these amendments will be submitted to the executive body for examination and consideration. The Committee notes that CONUSI states that the trade union movement is not certain that a bill is being drawn up to bring the legislation into conformity with the Convention. The Committee hopes that any draft reform of the legislation will be the subject of consultations with the social partners and requests the Government to provide information in its next report on any developments in this respect.
• – The requirement of too large a membership (ten) for the establishment of an employers’ organization and an even larger membership (40) for the establishment of a workers’ organization at the enterprise level, by virtue of section 41 of Act No. 44 of 1995 (amending section 344 of the Labour Code), and the requirement of a large number (40) of public servants to establish an organization of public servants under section 182 of the Single Text of Act No. 9. The Committee notes the Government’s statement that: (1) the figures mentioned are accepted by the principal workers’ confederations and federations in the country, which have considered that any reduction thereof would result in the creation of parallel trade unions, which goes against the principle of trade union representativeness; (2) the number of ten members for establishing a professional employers’ organization is a figure favoured by representatives of the employers; (3) in order to modify these figures there must be tripartite consensus and to date no interest has been shown in reducing these figures but it will be a subject for discussion in the context of the tripartite social dialogue to be launched by the Government with the Labour Foundation (FUNTRAB); and (4) as regards public servants, the commission for reform of the Act governing administrative careers is also tasked with amending section 182 of the Single Text of Act No. 9 and the proposed amendments will be submitted to the executive body for study and consideration. The Committee hopes that, in the context of the announced tripartite dialogue, the Government will take every possible measure to reduce the minimum number of members required so that workers, employers and public servants are able to establish their organizations, and requests the Government to keep it informed of any further developments in this respect.
• – The denial to public servants (non-career public servants, as well as those holding appointments governed by the Constitution and those who are elected and serving) of the right to establish unions. The Committee notes the Government’s indication that the commission on reform of the Act governing administrative careers also intends to amend section 179 of the Single Text of Act No. 9 and that the amendments will be submitted to the executive body for examination and consideration. The Committee requests the Government to provide information on any further developments in this respect.

Article 3. Right of organizations to elect their representatives in full freedom.

• – The requirement to be of Panamanian nationality in order to serve on the executive board of a trade union. The Committee notes that the Government repeats its indication that to bring the legislation into conformity with the Convention, it would be necessary to amend the Political Constitution, and that foreign workers enjoy all benefits resulting from the collective agreements of the enterprises where they work and may participate as members in unions respecting the rights which may derive from their employment relationship. In the Committee’s view, the national legislation should allow foreign workers to take up trade union office at least after a reasonable period of residence in the host country (see the 1994 General Survey on freedom of association and collective bargaining, paragraph 118). Since this is a case of unjustifiable discrimination, the Committee again requests the Government to take the necessary measures to make the required amendments taking into account the principle referred to above.
• – The right of organizations to organize their administration. In its previous comments the Committee asked the Government to take the necessary measures to amend section 180-A of Act No. 24 of 2 July 2007 amending Act No. 9 on administrative careers, so as to abolish the requirement for public servants who are not affiliated to associations to pay ordinary trade union dues for the benefits derived from the collective agreement, with the possibility of providing instead for the payment of a lesser amount than the ordinary trade union contribution for the benefits derived from collective bargaining. In this regard, the Committee notes with satisfaction that section 180-A became section 187 of the Single Text of 29 August 2008, which was, in turn, repealed by Act No. 43 of 31 July 2009.

Right of organizations to organize their activities and to formulate their programmes in full freedom.

• – Denial of the right to strike in export processing zones (section 49B of Act No. 25 of 1992) and denial of the right to strike in enterprises of less than two years’ standing (section 12 of Act No. 8 of 1981). In its previous observation the Committee noted that the Ministry of Labour and Employment Development (MITRADEL), together with the Ministry of Trade and Industry (MICI), had been working to formulate amendments on this subject, resulting in the formulation of a preliminary draft bill to amend section 49 of Act No. 25 of 1992 and to repeal section 12 of Act No. 8 of 1981. The Committee notes with satisfaction the Government’s reference to the adoption of Act No. 32 of 5 April 2011, which repeals section 12 of Act No. 8 of 1981 and amends section 49B of Act No. 25 of 1992 in such a way that workers or their respective organization in export processing zones are permitted to exercise the right to strike once the conciliation process has been completed (section 55 of Act No. 32 of 5 April 2011).
• – Denial of the right to strike for public servants not exercising authority in the name of the State. In its previous observation the Committee asked the Government to take the necessary measures to ensure the right to strike of public servants who do not exercise authority in the name of the State. The Committee notes the Government’s indication that both the Constitution (article 69) and the Single Text of 29 August 2009 (section 137) guarantee the right to strike of public servants.
• – The ban on federations and confederations from calling strikes and on strikes against the Government’s economic and social policy, and the unlawfulness of strikes that are unrelated to an enterprise collective agreement. The Committee notes the Government’s statement that: (1) federations and confederations participate in public demonstrations relating to economic and social policies of the Government and it is common practice for the workers to exert means of pressure, such as strikes, when they are opposed to any measures affecting their sector; and (2) the workers and the employers have not raised the possibility of amending the legislation on these subjects, nor is there any consensus between the social partners. The Committee recalls that federations and confederations should have the right to strike and that organizations responsible for defending workers’ socio-economic and occupational interests should, as a rule, be able to use strike action to support their position in the search for solutions to problems posed by major social and economic 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 the General Survey, op cit., paragraph 165). The Committee underlines the importance of the legislation being clearly aligned to the practice which, according to the Government, exists in the country and requests the Government to provide information on any further developments in this matter.
• – The authority of the Regional or General Labour Directorate to refer labour disputes to compulsory arbitration in order to stop a strike in private transport enterprises (sections 452 and 486 of the Labour Code). The Committee notes the Government’s indication that: (1) forced or compulsory arbitration in the transport sector is a measure to which the State may have recourse in urgent situations of possible disruption to public order as the only alternative for serving and mediating in the resolution of a collective labour dispute; and (2) the intention of section 452 is to prevent the interruption, as a result of the negotiations held by the parties to the dispute, of the State’s constitutional right to provide citizens with the most important public services which must be guaranteed by law, and so arbitration to avoid strike action is a mechanism for dialogue which prevents the public from suffering economic losses. However, the Committee observes that the legislation provides for the maintenance of a minimum service in the event of a transport strike. The Committee recalls that compulsory arbitration to end a collective labour dispute or a strike is acceptable if it is at the request of both the parties involved in the dispute or in cases where the strike in question may be restricted or even prohibited, i.e. in the case of disputes in the public service involving public servants exercising authority in the name of the State or in essential services in the strict sense of the term, namely those services whose interruption would endanger the life, personal safety or health of the whole or part of the population. The Committee therefore once again requests the Government to take the necessary steps to amend the legislation so as to provide that compulsory arbitration in collective disputes in the transport sector is only possible at the request of both parties or under the abovementioned circumstances.
• – The obligation to provide minimum services with 50 per cent of the staff in the transport sector, and the penalty of summary dismissal of public servants for failure to comply with minimum services in the event of a strike (sections 155 and 192 of the Single Text of 29 August 2008, amended by Act No. 43 of 31 July 2009). The Committee notes the Government’s statement that the abovementioned provisions do not, in principle, affect the exercise of the right to strike since: (1) summary dismissal is possible in the event of banned or illegal strikes; and (2) the obligation to provide minimum services with 50 per cent of the staff applies to “essential public services”, such as food provision, water and electricity, transport, etc. The Committee recalls that transport is not an essential service in the strict sense of the term; nevertheless, it is a public service of fundamental importance and in the event of a strike the imposition of a minimum service could be justified. However, given that the 50 per cent figure provided for in the legislation might be excessive, the Committee recalls that minimum services should be limited to activities that are strictly necessary to cover the basic needs of the population or to satisfy the minimum requirements of the service, while maintaining the effectiveness of the pressure brought to bear, and that since this system restricts one of the essential means of pressure available to workers to defend their economic and social interests, their organizations should be able, if they so wish, to participate in defining such a service; in the event of any disagreement as to the number and duties in relation to the minimum service, such disagreement should be settled by an independent body enjoying the confidence of the parties. Observing that a number of the abovementioned services cannot be defined as essential services in the strict sense of the term, the Committee again requests the Government, taking into account the principles described above, to take the necessary steps to ensure the respective legislative amendments and to provide information in its next report on any further developments in this respect.
• – Legislation interfering with the activities of employers’ and workers’ organizations (sections 452.2, 493.4 and 494 of the Labour Code) (closure of the enterprise in the event of a strike and prohibition of entry to non-striking workers). The Committee observes that section 493.4 of the Labour Code, as amended by Act No. 68 of 26 October 2010, does not provide in the event of a strike for free entry for non-striking workers. The Committee notes the Government’s indication of its intention to examine the standard with a view to analysing the points raised and to consider in what manner the abovementioned provisions may be amended. The Committee requests the Government to provide information in its next report on any further developments in this respect.
• – The obligation for non-members to pay a solidarity contribution in recognition of the benefits derived from collective bargaining. In its previous observation the Committee noted that section 2 of Act No. 68, amending section 405 of the Labour Code, provides that “the collective agreement shall apply to all persons who work in the categories covered by the agreement, in the enterprise, commerce or establishment, even though they are not members of the union. Non-unionized workers who benefit from the collective agreement shall be obliged, during the period covered by the collective agreement, to pay the ordinary and extraordinary dues agreed by the union, and the employer shall be obliged to check such dues off from wages and forward them to the union.” The Committee considered that “solidarity” dues in view of the benefits derived from collective bargaining by workers who are not members of the unions concluding a collective agreement are not contrary to the provisions of the Convention; nevertheless, such dues should be set at an amount which does not prejudice the right of workers to join the trade union organization of their choosing. The Committee notes the Government’s statement that it shares the opinion that legislation should be adopted establishing that these dues should be set at an amount which enables workers to join the trade union organization of their choosing and the reform resulting from section 2 of Act No. 68 should be subject to tripartite revision. The Committee emphasizes that in a previous paragraph it noted with satisfaction the legislative changes in the public sector relating to solidarity dues and considers that the same system should apply to the private sector. The Committee requests the Government to provide information on any further developments in this matter.
• – The automatic intervention of the police in the event of a strike. In its previous observation the Committee noted that section 3 of Act No. 68 amends section 493(1) of the Labour Code, which provides, in its amended form, that “once the strike has commenced, the Regional or General Labour Inspectorate or Directorate shall immediately give orders for the police authorities to duly guarantee or protect persons and property”. The Committee considered, in cases of strike movements, that the authorities should resort to the use of the public forces only in grave situations or those in which public order is seriously threatened. The Committee notes the Government’s statement that in reality the public forces are used or the police units are ordered to appear only in cases where strikes assume a non-peaceful appearance in which the integrity of persons, property of the enterprise or public order are affected, and not with the aim of suspending the strike or in cases where strikes assume a peaceful form. The Committee therefore requests the Government to consider the possibility of amending the legislation in such a way that, in conformity with the practice indicated by the Government, the public forces may only intervene in cases where strikes lose their peaceful character. The Committee requests the Government to provide information in its next report on any further developments in this respect.