Observation (CEACR) - adopted 2018, published 108th ILC session (2019)

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

The Committee notes the observations of the National Confederation of United Independent Unions (CONUSI), received on 9 March 2017 and 31 August 2018 as well as the general reply of the Government thereon. The Committee also notes the observations of the International Transport Workers’ Federation (ITF), received on 4 September and 21 November 2018, which mainly refer to matters addressed by the Committee in the present observation. The Committee notes that the observations of the CONUSI and the ITF refer to the effectiveness of procedures for dealing with disputes relating to the Panama Canal, a subject which was examined by the Committee on Freedom of Association in Case No. 3106, in which the Committee on Freedom of Association concluded its examination of the case and trusted that the Government would continue to follow up the matters raised by the trade unions concerned with a view to considering any relevant improvement. The Committee requests the Government to provide its comments on this subject.

The Committee notes with interest that both the CONUSI and the Government indicate that, in a ruling of 30 December 2015 which found unconstitutional various provisions of the Act on administrative careers (including the provision increasing from 40 to 50 the minimum number of workers required to establish an organization of public servants), the Supreme Court of Justice ruled that the Convention is part of the “constitutional block” of the country.

Tripartite committees. In its previous comments, the Committee noted the progress achieved by the committees which form part of the Panama tripartite agreement of 2012 and which benefit from ILO technical support: the Committee for the Rapid Handling of Complaints relating to Freedom of Association and Collective Bargaining and the Implementation Committee; the latter is seeking forms of consensus to bring the national legislation into harmony with the provisions of the Convention on the basis of the comments of the ILO supervisory bodies. The Committee notes with interest the role played by the Complaints Committee in relation to the granting of legal personality to the National Union of Education Workers (SINTE) and the contribution of the Implementation Committee in the preparation of draft legislation on freedom of association in the public sector with tripartite agreement. The Committee also notes that, in accordance with the Roadmap prepared in June 2018 by the moderator of the committees of the tripartite agreement, it is planned to establish a national tripartite consultative socio-labour body, with the possibility that the two current tripartite committees could be transformed into standing subcommittees of that body.

The Committee emphasizes the substantive role that the two committees can play in achieving the full application of the Convention, as they are not only contributing to the resolution of ad hoc disputes, but are also making it possible to develop tripartite agreement on substantive issues relating to freedom of association and collective bargaining. The Committee encourages the Government, with the ongoing technical support of the Office, to continue strengthening the tripartite committees and invites the various authorities of the State to take duly into account their decisions. The Committee requests the Government to continue providing information on this subject.

Legislative matters. The Committee recalls that for many years it has been commenting on the following matters which raise problems of conformity with the Convention:

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

• -the requirement that there may not be more than one association in a public institution, and that associations may have provincial or regional chapters, but not more than one chapter per province, under the terms, respectively, of sections 179 and 182 of the Single Text of Act No. 9, as amended by Act No. 43 of 31 July 2009;
• -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, under the terms of section 41 of Act No. 44 of 1995 (amending section 344 of the Labour Code), and the requirement of a high number of public servants (40) to establish an organization of public servants under section 182 of the Single Text of Act No. 9 (which, as indicated by the Government, has been declared unconstitutional by the Supreme Court, in a ruling of 30 December 2015); and
• -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 accordance with the Constitution 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); and the automatic intervention of the police in the event of a strike (section 493(1) of the Labour Code); and
• -the prohibition on federations and confederations from calling strikes, the prohibition on strikes against the Government’s economic and social policies, and the unlawfulness of strikes that are not related 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, as well as 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).

With reference to the provisions referred to above respecting the public sector, the Committee notes that, according to the Government, the Bill on collective labour relations in the public sector is receiving its first reading by the National Assembly and it is the outcome of tripartite agreement in the Implementation Committee. The Committee notes that, both the Government and the CONUSI emphasize that the Bill represents historical progress on claims for the recognition of the right to freedom of association and that up to now there has been no positive explicit recognition in law of the right to freedom of association of public sector workers. The Committee notes that, in accordance with section 1 of the Bill, its purpose is to guarantee the recognition and full compliance with the rights of freedom of association, strike and collective bargaining, as well as an appropriate and effective system of dispute resolution. The Committee notes with interest that, according to the Government’s indication and the text attached by the Government, the Bill: (i) does not establish limits on the existence of one or more trade unions per institution; (ii) provides that all public servants shall be able to establish trade union organizations, without the requirement for previous authorization, and to join them, irrespective of their position, occupation or sector, with the exception of those public servants principally exercising authority or jurisdiction on behalf of the State; and (iii) guarantees of the right of trade union organizations of public servants to conclude collective agreements, and to exercise the right to strike. While noting that, in accordance with section 9 of the Bill, it maintains the requirement of a high number of members to establish an organization of public servants (40), the Committee notes with interest the progress achieved by the Implementation Committee in the preparation of the Bill based on agreement, which is a very important step in bringing the legislation applicable to the public sector into conformity with the Convention. Taking due note that the Bill on the regulation of collective labour relations in the public sector is under examination by the National Assembly, the Committee expresses the firm hope that it will be adopted in the near future. The Committee requests the Government to provide information on this subject.

With reference to the pending legislative issues relating to the private sector, the Committee notes the Government’s indication that the Roadmap prepared in June 2018 by the moderator of the committees of the tripartite agreement indicates that, firstly, the legislation respecting the public sector and, secondly, labour legislation governing the private sector will be brought into conformity with the criteria of the supervisory bodies in relation to freedom of association and collective bargaining. The Committee hopes that the Implementation Committee will address in the very near future the other pending legislative issues, including those relating to the Labour Code, with a view to bringing it into full conformity with the Convention. It also requests the Government to provide information on this subject.

Application of the Convention in practice. Granting of legal personality by the administrative authority. In its previous comments, and in relation to the observations of various trade unions, including the CONUSI, that the administrative authority refused to grant legal personality, the Committee noted with interest that, according to the Government’s indications, as from 2014 the granting of legal personality to trade unions had been normalized. In this regard, the Committee notes that the Government emphasizes that: (i) in comparison with the nine legal personalities granted between June 2009 and June 2014, during the period between June 2014 and June 2018 a total of 46 legal personalities were granted; and (ii) giving effect to a ruling of the Supreme Court of Justice of 27 November 2014, the Ministry of Labour and Employment Development granted legal personality to the SINTE on 15 April 2016. However, the Committee notes the indication by the CONUSI that: (i) the statistics provided by the Government do not indicate how many of the 46 legal personalities granted were to unions in the public or private sectors; (ii) nor does the Government indicate in how many cases legal personality was denied to unions in the public sector, how many are awaiting decision and how many applications there were; and (iii) up to now, legal personality has been granted to five unions in the public sector, and the approval of legal personality for nine unions in the public sector is still pending, despite the fact that the applications were made over six months ago. While taking due note of the general increase in the number of legal personalities granted, the Committee requests the Government to reply to the observations of the CONUSI and to ensure that the normalization of the process of granting legal personality fully applies to public sector as well as private sector organizations.