Definitive Report - Report No 309, March 1998

Case No 1913 (Panama) - Complaint date: 04-DEC-96 - Closed

Allegations: Dismissals due to a strike in the air traffic sector

1. 289. The complaint is contained in a communication from the Latin American Central of Workers (CLAT) dated 4 December 1996. The Government sent its observations in communications dated 12 and 25 March and 27 May 1997.
2. 290. In its meeting of May-June 1997, the Committee decided to request additional information from the complainant organization and the Government so that it could give its opinion on the allegations in full possession of the facts. The Government sent additi*onal information in its communication of 7 October 1997 but no information was received from the complainant organization.
3. 291. Panama has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 292. In its communication dated 4 December 1996, the Latin American Central of Workers (CLAT) alleges that, since 1984, Panamanian air traffic controllers have been demanding the promulgation of an Act for the full regulation of the working conditions of air traffic controllers (salary scale, retirement, duties, etc.). The Panamanian Association of Air Traffic Controllers (APACTA) itself submitted a Bill to the Communication and Transport Committee of the Legislative Assembly. However, this did not yield any definite results. After a number of years, the current Panamanian Government decided to take up this issue and set up the Committee to analyse the Bill submitted by the Panamanian air traffic controllers. Having studied the Bill, this tripartite Committee submitted its report together with the revised Bill to the Ministry of the Interior and Justice, which in turn put the new regulation before the Cabinet Council on 8 August 1996. During all stages of the processing of this initiative no government body expressed any objections to the Bill. The Act was however not promulgated, and the problems faced by the controllers continue.
2. 293. CLAT adds that in view of this situation the air traffic controllers in APACTA declared a strike on 14 November 1996. They demanded the following: (1) the Government to pass the above-mentioned Bill; (2) fair treatment and minimum guarantees in keeping with their duties and responsibilities; (3) better working conditions to enable them to provide a safe and efficient air traffic control service (in particular, improvements to combat the stress arising from working in a high responsibility position, extended periods of time spent sitting down, working in a confined space, shortcomings in the workplace and the symptoms of pharyngitis experienced by a number of workers due to their having to speak constantly for long periods of time); (4) the Government to approve the salary scale as outlined in Chapter 3 of the Bill (deadline of 1 January 1997); in this connection, CLAT points out that it is the Panamanian air traffic controllers who earn the least of all workers in this sector in the whole of Latin America, in spite of the intensive pace of their work which involves both considerable responsibility and stress; their salary varies between US$650 and US$810; and (5) the introduction of special retirement clauses for air traffic controllers, as at present no special provisions exist allowing Panamanian air traffic controllers to retire at an age where their physical and mental capacities are still fully intact, or at least at one where there is no danger to the safety and efficiency of the duties they perform; Panamanian air traffic controllers, in their capacity as public officials, must at present conform with the retirement age stipulated in the general regulations of the Social Security Fund (60 years of age for women and 65 for men).
3. 294. CLAT adds that on 20 November 1996, the day following the announcement of their partial suspension of activities, which was undertaken in order to obtain the appropriate legal regulation of air traffic, the air traffic controllers were dismissed from their duties and replaced by 94 foreign air traffic controllers, who obviously had little knowledge of the specific details of Panamanian air traffic control, particularly as far as climatic and geographic conditions are concerned. This situation constitutes a danger to national air traffic safety. According to CLAT, an investigation into developments in the air traffic controllers' dispute since 1984 shows the consistent readiness of these workers to negotiate fairer working conditions more in line with their duties and their level of specialization. The air traffic controllers' struggle is not just a struggle to defend industrial interests but must be taken in the wider context of demands for the safety of the passengers travelling through Panama. In addition, the ILO itself, in a report prepared in 1987, recognizes the existence of serious shortcomings in the employment conditions of Panamanian air traffic controllers. For these reasons, CLAT concludes that the demands made by these workers are entirely legitimate and the Panamanian Government's delay in legislating on the rules governing these workers as well as the dismissal of 94 of them constitute serious actions which directly infringe upon freedom of association.

B. The Government's reply

1. 295. In communications dated 12 and 25 March and 27 May 1997, the Government states that the Civil Aeronautics Directorate (DAC) has its own legal rules, its own capital resources and full autonomy in its administration, and that it is subject to national constitutional and legal provisions. In keeping with prevailing legal provisions, the highest authority in the Civil Aeronautics Directorate is the board of directors which is made up of the Minister of the Interior and Justice, who chairs it, the Minister of Finance and Treasury, the Minister of Commerce and Industry, the Comptroller General of the Republic and the Director-General of the Civil Aeronautics Directorate. Its geographic position makes Panama a major international centre for air traffic control, radar signal control, control towers, information services using a variety of radio frequencies as well as domestic operations. Following a decision by the national authorities and in compliance with the international regulations contained in the treaties signed by Panama, air traffic control is deemed an essential service, meaning that in prevailing penal legislation (Penal Code) obstructing the control of air traffic is defined, classified and punished as an offence. Within the framework of the legal powers regulating its operation, on 6 July 1981 the board of directors of the Civil Aeronautics Directorate approved the internal staff rules establishing the rights, duties, prohibitions and disciplinary measures applicable to the administrative and technical personnel in all sections of the institution and establishing the guidelines for the procedure relative to various types of staff action, which was set to come into force on 1 September 1981.
2. 296. Referring specifically to the allegations, the Government explains that from 1984 onwards, Panamanian public officials working as air traffic controllers expressed their desire, in their capacity as public officials, for legislation to establish special working conditions for them including an automatic salary scale, special retirement provisions and the regulation of their responsibilities. In October 1993, Mr. Claudio Dutary, a member of the body of air traffic controllers in the service of the Civil Aeronautics Directorate, who at that time was the chairman of an organization called the Air Traffic Controllers' Commission, on his own initiative, submitted a Bill comprised of 40 sections and an explanatory preamble for the consideration of the Communication and Transport Committee of the Legislative Assembly. This Bill was not favourably received by the legislative body, and was therefore not passed. It should be pointed out that as an independent state body the Legislative Assembly has full authority under the Constitution to decide either for or against Bills submitted for its consideration. The two other state bodies are the Government and the judiciary.
3. 297. The Government adds that one year after having taken up office as President of the Republic, Dr. Ernesto Pérez Balladares, the current Panamanian President and Head of Government, in response to a request submitted by the Panamanian Association of Air Traffic Controllers (APACTA) -- a civil association comprised of the above-mentioned public officials -- in October 1995 instructed the Ministry of the Interior and Justice and the Civil Aeronautics Directorate to set up a tripartite committee to examine a proposal for the preparation of a draft Bill to govern the employment of such officials. The air traffic controllers were represented in this committee through their association, APACTA, a civil association which was founded with the aim of improving air traffic. This tripartite committee held eight meetings over a period of several months (April-June 1996) during which matters pertaining to the technical board, the duties, requirements, suitability and civil responsibility of air traffic controllers, and their administrative and penal responsibility were revised, discussed and approved. It also examined other aspects of a more general nature in this sphere, as well as regulations relating to salary scales, retirement provisions, licence cancellations and other issues; written reports were made of each meeting. The subjects of salary scales and special retirement provisions, to which they aspired as public officials, remained pending for further consultation. At the meetings, notes were exchanged, opinions heard and observations made on the draft Bill to be submitted to the Legislative Assembly, and conversations were held among representatives of APACTA, the Civil Aeronautics Directorate, the Ministry of the Interior and Justice, the Comptroller General of the Republic and the Ministry of Planning and Economic Policy. Nevertheless, despite the exchanges taking place among the principal actors involved and the express desire of the President of the Republic, Dr. Ernesto Pérez Balladares, to find a final solution to the request to finalize the draft Bill on air traffic controllers, on 14 November 1996, with no valid reason or justified cause, the air traffic controllers announced their intention, in their capacity as a group of public servants, to suspend their work.
4. 298. The Government states that following the communiqué issued by APACTA, the Civil Aeronautics Directorate convened a meeting on 18 November 1996, which was the day on which it found out about APACTA's decision, and it was at that meeting that the representative of the Ministry of Planning and Economic Policy informed them of the need to modify the draft Bill, promising a reply within a week. On the afternoon of 18 November the air traffic controllers presented an ultimatum which was subsequently carried out, the grounds given being the fact that the draft Bill had not been passed by the Government. The complete suspension of the air traffic control service meant that all air links with the country were cut, entailing massive financial losses for both the State and private individuals estimated in terms of millions per day for the sectors concerned. It should be pointed out that the Ministry of Labour had no involvement in the air traffic controllers abandoning their duties as that ministry only has authority in labour matters and the provisions of the prevailing Labour Code are not generally applied to the public services. APACTA is an association of public officials (APACTA's by-laws and regulations correspond to the provisions of the Civil Code); it is seeking to have a Bill passed which, if it became a law of the Republic, would institute the principles and standards aspired to by its members.
5. 299. The Government explains that the serious offence committed by the air traffic controllers (only 22 out of 94 air traffic controllers came to work) in the only national institution to provide essential services and facilities for the safety of civil aviation at the domestic and international levels, caused the Director-General of the Civil Aeronautics Directorate, in application of the powers vested in him by the institution's organizational law, and the internal staff regulations of the Civil Aeronautics Directorate in force since 1981, to dismiss from their posts the 72 officials who promoted, encouraged, supported and participated in the ill-timed and injurious massive abandonment of their duties; subsequently paying them the employment benefits they were owed. In accordance with section 65 of the Constitution the State can apply special restrictions to strikes in the public services, and the Labour Code also requires that the provision of such services be guaranteed in the event of legally declared strikes. The air traffic controllers' abandonment of their duties on 19 November 1996 endangered the safety of aircraft and the lives of their passengers, as well as of the general population, and also involved huge financial losses. The strike meant that the Civil Aeronautics Directorate could not offer its usual services in the areas of air communication, radar, radio and air traffic control for the domestic and international airlines that use them daily with the required levels of safety, efficiency, quality and speed. Furthermore, Panamanian legislation governing public servants stipulates (section 152 (clauses 6, 13 and 14 of Act No. 9 of 1994) which applies to all state servants in accordance with section 135 of the Act), that the following constitute grounds for the "immediate dismissal" of a public servant: unjustifiably to alter, delay or refuse ... the provision of the service he usually performs, in keeping with the responsibilities of his position; "not to be present at or not to remain at the workplace providing the service until the arrival of his replacement; to carry out or participate in strikes that are prohibited or declared illegal, or to fail to observe the requirement for essential services during legal strikes". Moreover, the prevailing Penal Code stipulates in sections 238, 241 and 341 that the following constitute offences punishable by imprisonment: "any act which endangers the safety of air transport" and any act which impedes or interferes with the usual operation of public services which is carried out while the official is still legally bound to perform such services. The air traffic controllers' actions were extremely detrimental to the airlines, the users and the national economy and the abandonment of their duties was entirely contrary to prevailing legislation. The Attorney-General's office is carrying out the appropriate investigation into the alleged commission of these offences (acts against means of transport and communication, conspiracy to commit an offence and abuse of authority and infringement of public servants) on the part of the air traffic controllers.
6. 300. The Government recalls also that the Committee on Freedom of Association has, in similar cases, declared that strikes may be restricted or prohibited in essential services in the strict sense of the term (that is, services the interruption of which would endanger the life, personal safety or health of the whole or part of the population) and more specifically has considered air traffic control to be an essential service. The Government concludes by pointing out that Panama has honoured and continues to honour its commitments vis-à-vis the Conventions it has ratified, including Conventions Nos. 87 and 98, and that in addition it is a signatory of the Convention on International Civil Aviation, adopted by way of Act No. 52 of 30 November 1959, which imposes on the contracting States a high degree of responsibility with respect to air traffic safety, and it was this that was put under threat by the actions of the air traffic controllers.
7. 301. The Government also refers to acts which it qualifies as serious that took place in the radar control centre in Balboa on the day of the strike and which are attributable to the strikers. Specifically, they removed all instructions and information material (documents, forms, telephone books, etc.) and changed the passwords for the radar system which meant that this could not be used during the 24 hours following this act, endangering human lives and goods. Because of this it was not possible to carry out an air traffic control service and only basic flight information was available. The strikers' attitude gave rise to situations where there was conflict of movement in the air traffic. Moreover, from 20 to 22 November 1996 the strikers' representatives (the leadership of APACTA) were offered a new work timetable which would allow air traffic controllers to return to work but the latter decided to continue the strike. These representatives, however, told their membership that they had no reason to go to work as they had been dismissed.

C. Additional information from the Government

1. 302. In its communication of 7 October 1997 the Government provided the following information:
   • -- the decision not to work by public servants of the Civil Aeronautics Directorate who carry out air traffic control duties and other duties which are part of their job description in the various airports in Panama was aimed at achieving the following benefits for them as civil servants in the State's service: the passing of legislation which would regulate their career, better salaries and special retirement terms. At no time could it be considered that they were claiming union rights as, according to the national legal system, they do not fall under the standards laid down in the Labour Code. Their work and conduct falls under the standards of the Administrative Code and the law for administrative careers;
   • -- the reason for their decision not to work was, according to their press release, to make the executive body present a Bill to achieve regulation of the career of air traffic controller, approval for a salary scale and special terms for retirement, among other things;
   • -- the former air traffic controllers were not "deprived" of the right to strike because their job took place within the regulations for public servants. The Government notes that there is no conciliation and arbitration procedure to resolve conflict situations between public servants and the national Government (in this case the Civil Aeronautics Directorate as an autonomous entity of the State) in current legislation in force;
   • -- the fact that these civil servants who were air traffic controllers decided not to carry out their duties gave rise to incidents which affected public safety (the Government refers back to information that it has already provided to the Committee);
   • -- the former air traffic controllers ceased to carry out their duties on 19 November 1996 at 6 a.m. and this was to continue until the Government complied with their requests.

D. The Committee's conclusions

1. 303. The Committee observes that in this case the complainant is objecting to the dismissal of numerous air traffic controllers who had declared a strike in order to achieve appropriate legal regulation of the working conditions of air traffic controllers following the non-promulgation of a Bill drawn up by a tripartite committee in response to claims for improved working conditions that APACTA had been trying to establish for a number of years.
2. 304. The Committee observes that the Government stresses the following points: (1) that the issue related to a draft Bill; (2) that the tripartite committee left certain questions (salary scales and retirement provisions) pending; (3) that communication was still under way between the parties concerning the draft Bill; (4) that on 18 November 1996 the Civil Aeronautics Directorate promised to reply to APACTA within one week but on the following day the air traffic controllers entirely suspended their work throughout the country; (5) that adoption of laws is the responsibility of the Legislative Assembly, which acts autonomously and independently to the Government; (6) that, given the severity of the offence committed (which is entirely contrary to prevailing legislation; which endangered the lives of the passengers and the safety of aircraft; which caused enormous damage and led to losses amounting to millions, in particular the changing of the passwords on the radar system), the sanction applied, in accordance with legislation, was the immediate dismissal of the 72 officials who abandoned their duties in such an untimely manner; (7) that air traffic control is an essential activity under national legislation wherein strikes are forbidden and that international treaties signed by Panama impose extensive obligations as far as air safety is concerned.
3. 305. The Committee has considered that the right to strike may be restricted or prohibited in essential services in the strict sense of the term (that is, services which, if interrupted, would endanger the life, personal safety or health of the whole or part of the population) and that air traffic control is an essential service (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 526 and 544). In this situation, as the complainant has not sent the additional information requested; as air traffic control is considered an essential service; taking into account that, according to the Government, during the strike the passwords to the radar system were changed; and as the air traffic controllers were offered a chance to return to work which they declined, the Committee considers that since public safety was endangered it cannot ask the Government to allow the request for a return to work of those who were fired, which was claimed by the complainant.
4. 306. The Committee notes that according to the Government there are no compensatory procedures in national legislation (for example, conciliation or arbitration) that public servants deprived of the right to strike may have recourse to should a conflict arise with their employers (in this case air traffic controllers). In this respect, the Committee recalls that "employees deprived of the right to strike because they perform essential services must have appropriate guarantees to safeguard their interests; a corresponding denial of the right of lockout, provision of joint conciliation procedures and where, and only where, conciliation fails, the provision of joint arbitration machinery" (see Digest, op. cit., para. 551). The Committee requests the Government to take the necessary measures to introduce provisions into legislation to provide this.

The Committee's recommendations

1. 307. In the light of the foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • Recalling that "employees deprived of the right to strike because they perform essential services must have appropriate guarantees to safeguard their interests; a corresponding denial of the right of lockout, provision of joint conciliation procedures and where, and only where, conciliation fails, the provision of joint arbitration machinery", the Committee requests the Government to take the necessary measures to introduce provisions into legislation to provide this.