Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

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)

Comments from workers’ and employers’ organizations. The Committee notes the Government’s reply to the observations dated 17 August 2011 from the General and Autonomous Confederation of Workers of Panama (CGTP) and the National Federation of Public Employees and Public Service Enterprise Workers (FENASEP); and to the observations of the National Confederation of United Independent Unions (CONUSI) dated 14 October 2011. The Committee also notes the observations from the International Trade Union Confederation (ITUC) dated 31 July 2012 and from FENASEP dated 24 August 2012 referring to matters already examined by the Committee, and also the refusal of the administrative authority to grant legal personality to various trade unions. The Committee notes the comments made by the International Organisation of Employers (IOE) on the right to strike, in a communication dated 29 August 2012, which are dealt with in the General Report of the Committee.

Technical assistance. In its previous observation the Committee noted that further to the discussion that took place within the Conference Committee on the Application of Standards in June 2011, the Government accepted the visit of a technical assistance mission with a view to drawing up, as a matter of urgency, a draft of specific provisions to amend the legislation and bring it into conformity with the Convention. The Committee notes that the mission took place from 29 January to 2 February 2012 and in particular it observes with interest that, through the good offices of the mission, the representatives of the Government, the National Council of Organized Workers (CONATO), the National Confederation of United Independent Unions (CONUSI) and the National Council of Private Enterprise (CONEP) signed an agreement to: (1) launch dialogue on the Committee’s comments on the application of Convention No. 87 and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98); (2) carry out training and awareness-raising activities on freedom of association, collective bargaining and social dialogue, in the context of which the comments of the ILO supervisory bodies will be examined in depth; and (3) establish with ILO assistance a tripartite commission for the rapid handling of complaints which will examine, as a matter of urgency and with the aim of finding solutions and reaching agreements, any reports of violations of freedom of association and collective bargaining.

The Committee further notes the Government’s statements that under the abovementioned tripartite agreement: (1) the Committee on the Implementation of the Tripartite Agreement, whose objective is to seek forms of consensus based on compromise to enable national law to be aligned to the provisions of Conventions Nos 87 and 98, and the Committee for the Rapid Handling of Complaints relating to freedom of association and collective bargaining, have become operational; (2) as a result of the meetings of the two aforementioned committees, with ILO technical assistance, a number of agreements have been signed and the tripartite members of the committees elected their moderator by consensus; (3) with a view to strengthening and giving legal formality to tripartite dialogue which has been occurring in the country on the basis of the tripartite agreement, Executive Decree No. 156 of 13 September 2012 was promulgated, creating the Committee on the Implementation of the Tripartite Agreement and the Committee for the Rapid Handling of Complaints relating to freedom of association and collective bargaining, and appointing a moderator; (4) in July 2012 the President of the Republic convened a meeting with the country’s trade union leaders with a view to achieving a rapprochement with the union leadership and launching a positive dialogue with the sector; (5) the education subsidy to FENASEP and the General Workers’ Union of Panama (UGT) was restored, demonstrating the Government’s wish to settle this matter as one of the pending issues relating to freedom of association which was highlighted by the public sector workers; and (6) with the Labour Foundation of Panama and ILO technical assistance, a workshop on Conventions Nos 87 and 98 was held in May 2012 for the members of the Committee on the Implementation of the Tripartite Agreement and was attended by representatives of workers and employers and independent consultants, as well as officials from the Ministries of Labour, Education and Health, the Administrative Careers Directorate, the University of Panama, the Social Security Fund, private universities and trustees of the Labour Foundation. The Committee further notes that during the 2012 session of the International Labour Conference, the International Labour Standards Department facilitated a meeting between the tripartite delegations of Switzerland and Panama in order to share experiences in the field of social dialogue.

The Committee welcomes the initiatives in the field of social dialogue and trusts that the allegations made by the ITUC and FENASEP concerning the refusal of the administrative authority to grant legal personality to a number of trade unions will be dealt with in the context of the Committee for the Rapid Handling of Complaints.

Pending legislative issues

The Committee recalls that for a number of years it has been making comments on the following matters:

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 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 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.

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.

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

• – 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 obligation for non-members to pay a solidarity contribution in recognition of the benefits derived from collective bargaining (section 405 of the Labour Code); the automatic intervention of the police in the event of a strike (section 493(1) of the Labour Code);
• – 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 authority of the Regional or General Labour Directorate to refer labour disputes to compulsory arbitration in private transport enterprises (sections 452 and 486 of the Labour Code); and 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, as amended by Act No. 43 of 31 July 2009).

The Committee notes with interest that: (1) as regards the alignment of national standards relating to administrative careers with the provisions of Conventions Nos 87 and 98, the Committee on the Implementation of the Tripartite Agreement has the specific mandate to deal with this subject and a tripartite subcommittee was established to examine subjects relating to administrative careers; (2) the subcommittee (Working Subcommittee on Administrative Careers) is tasked with examining all matters relating to freedom of association and collective bargaining for public officials; (3) it held meetings on 11 May 2012 with representatives of the Government, the Administrative Careers Directorate and, for the workers, representatives of FENASEP, which chairs the subcommittee; and (4) in the context of the subcommittee, consensus has been reached on a number of points relating to freedom of association and the modalities of representation of public servants, and it is hoped that once consensus has been reached between the parties regarding the Committee’s various observations, it will be possible to adopt appropriate measures aligning the Act concerning administrative careers with the provisions of the ILO Conventions.

As regards the other pending legislative issues, the Committee notes the Government’s statements that: (1) these subjects are included in the list of pending issues which the Implementation Committee has been preparing and the order of priority will be determined in order to harmonize the legislation in force with Conventions Nos 87 and 98; (2) it is hoped that the dynamics will soon be established to deal with all non-administrative career matters; and (3) many of these subjects are issues that cannot be resolved overnight, since they go back more than ten years, but through the social dialogue fostered by the tripartite agreement every effort will be made in the Implementation Committee to arrive at compromises enabling the national legislation to be aligned to the Convention. The Committee trusts that in the context of the process of tripartite dialogue which has been initiated the national legislation will be brought fully into conformity with the Convention. The Committee requests the Government to provide information in its next report on any developments in this regard.