Report in which the committee requests to be kept informed of development - Report No 354, June 2009

Case No 2677 (Panama) - Complaint date: 24-NOV-08 - Closed

Allegations: Refusal to recognize that the complainant trade union has legal personality

1. 1019. The complaint is contained in a communication from the National Union of Workers of the University of Panama (SINTUP) dated 24 November 2008. The Government sent its observations in a communication dated 29 February 2009.
2. 1020. 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. 1021. In its communication dated 24 November 2008, the SINTUP presented a complaint against the Government of Panama for refusing to grant it legal personality, in blatant violation of the National Constitution, the Labour Code and the ILO Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).
2. 1022. SINTUP states that it is an organization mainly composed of administrative workers of the University of Panama. On 11 September 2007 it held its constituent assembly, which was attended by 41 persons and it approved its union statutes the same day. The union’s executive committee comprises 22 members (11 titular and 11 substitute) and its fundamental purpose is to improve economic, labour, social, educational and cultural standards for university administrative workers.
3. 1023. On 13 September 2007, in strict compliance with the Labour Code (section 352), the trade union presented the necessary documents for requesting legal personality to the Department of Social Organizations of the Directorate-General of Labour of the Ministry of Labour and Labour Development (Ministry of Labour). The documents comprised of: the founding instrument of the constituent assembly held on 11 September 2007 with the signatures of the 41 participants; the record of the meeting of 11 September 2007 at which the statutes of the organization were approved; the approved statutes; and the list of members of the first executive committee of SINTUP. The complainant organization adds that on 18 September 2007 the Director-General of Labour issued a decision not to accept the request to grant legal personality to SINTUP on the grounds that it was against the Constitution and the law. The union’s lawyers filed an appeal against this decision on 13 November 2007 with the Ministry of Labour, and this was also rejected by Decision No. D.M. 174/2007 of 26 December 2007.
4. 1024. The complainant organization states that since the University of Panama, an autonomous institution of the Panamanian State according to the National Constitution, decided further to the unanimous approval of its highest decision-making body (the university general council) to incorporate in its statutes the right to organize and collective bargaining of its workers and, furthermore, since the union recently made a number of amendments to the composition of its executive committee and its statutes, SINTUP decided to apply for legal personality a second time (23 July 2008). Once again the request was rejected, this time not by means of a reasoned decision but through note No. 225.DOS.2008 of 28 July 2008 from the head of the Department of Social Organizations. This violation of legal standards led the union to file an appeal for amparo (protection of constitutional rights) with the Supreme Court of Justice for errors of form, and this has not yet been settled. The complainant attaches the texts of the various decisions issued by the authorities in relation to the case.
5. B. The Government’s reply
6. 1025. In its communication dated 29 February 2009, the Government declares that it respects the international instruments which it has ratified, including the ILO Conventions and in particular the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and that it has been applying them in full in national law and practice.
7. 1026. In the specific case presented by the complainant union, its representatives initially submitted an application to the Directorate-General of Labour of the Ministry of Labour for legal personality in respect of the organization seeking to call itself the National Union of Workers of the University of Panama (SINTUP). The Directorate-General of Labour, by means of Decision No. 1208.DOS.2007 of 18 September 2007, decided not to grant legal personality to SINTUP on the grounds that the organization was against the Political Constitution of the Republic and against the law. The decision states that the documentation submitted in support of the application contains flaws which need to be rectified and indicates the reasons for refusal of the request, including the following:
8. The founding instrument enclosed as one of the documents supporting the application states in its heading that “… meet at the Ciudad Universitaria Octavio Méndez Pereira for the purpose of founding an enterprise workers’ union at the University of Panama …”
9. From the above it can be deduced that the union comprising public servants employed at the University of Panama which is applying for registration is an enterprise union. However, the law does not permit this type of organization for the fundamental reasons set out below:
10. 1. It is not composed of “workers” as defined according to the provisions of section 82 of the Labour Code.
11. 2. The persons applying to register an enterprise trade union are employed at the University of Panama, an entity which, in accordance with article 103 of the Political Constitution, is an Official University of the Republic with autonomous status. Hence all persons employed there are public servants, as defined by article 299 of the Constitution: “Public servants are persons who are temporarily or permanently appointed to posts in the executive, legislature or judiciary, municipalities, or autonomous or semi-autonomous entities; and in general persons who are remunerated by the State.”
12. 3. This trade union calls itself an enterprise trade union and it is therefore necessary to clarify this term in accordance with section 97 of the Labour Code, which states: “For the purpose of labour standards, enterprise means the structure encompassing activities and means which constitute an economic unit for the extraction, production or distribution of goods or services, for profit or otherwise …” Clearly, in view of the provisions of the Constitution, the University of Panama does not meet this definition.
13. 1027. Hence registration of a trade union composed of public servants of the University of Panama is not feasible, since this violates clear, specific standards of the Labour Code. Section 1 of the Labour Code governs the relationship between capital and labour, i.e. it refers to the employment relationship between a private investor and an employee. Such a private investor, as opposed to a public or official investor, has the legal title of “employer” and is defined as “the natural or legal person for whom/which the worker provides services or performs work” (section 87). An employee, as opposed to a public servant, is given the title of “worker” and is defined by law as the natural person who has the obligation “by means of a verbal or written employment contract, explicit or presumed, individually or as part of a group, to provide a service or perform a task while subordinate to or dependent on a person” (section 82).
14. 1028. The Government emphasizes that the Labour Code does not govern employment relationships between public servants and state/public institutions, as provided for in section 2: “Public employees shall be governed by the administrative career regulations, except where specific provision is made for the application of any rules of the present Code”.
15. 1029. In the light of the above, the court resolves in the aforementioned decision “not to accept the application requesting legal personality for the National Union of Workers of the University of Panama on the grounds of being against the Constitution and against the law”.
16. 1030. Since the ruling was unfavourable, the complainants filed an appeal with the court of second instance, which, by means of Decision No. D.M. 174/2007 of 26 December 2007, upheld in its entirety Decision No. 1208.DOS.2007 of 18 September 2007, including the following points:
17. Section 1 of Act No. 11 of 8 June 1981 concerning the restructuring of the University of Panama states: “The Official University of the Republic of Panama is called the University of Panama and is composed of authorities, lecturers, researchers, students and other public servants who comprise the teaching, research, administrative, regional and extension units which exist at the same or will be established in the future.” The same provision is laid down by article 103 of the Constitution of Panama.
18. Accordingly, and as previously indicated, article 103 of the Constitution states that public servants are persons appointed within, inter alia, autonomous or semi-autonomous entities, and in general those who receive remuneration from the State.
19. Hence it is clear that it is not the provisions of the Labour Code but the administrative career regulations which are applicable, as laid down by section 2 of the Labour Code.
20. Furthermore, section 1 of the Labour Code governs the link between capital and labour, i.e. the employment relationship between the employer, who is the recipient of the services provided or the task performed (section 87), and the worker, who is the person who provides the service (section 82).
21. As the present case shows, the applicants wish to register an “enterprise trade union”, even though they are public servants employed by the University of Panama, an autonomous entity, and not by an enterprise as they indicate in the founding instrument.
22. In the light of the above and weighing the evidence, this higher court considers that the conclusion reached by the Directorate-General of Labour, by means of Decision No. 1208.DOS.2007 of 18 September 2007, remains valid, inasmuch as there are no grounds for amending it.
23. 1031. Hence, the above court having upheld Decision No. 1208.DOS.2007 of 18 September 2007 in its entirety, the application for registration of SINTUP was not accepted. Since both decisions were unfavourable, the complainants filed an appeal for amparo (protection of constitutional rights) with the Supreme Court of Justice in October 2008 on grounds of errors of form in the decision refusing legal personality and no ruling has yet been issued with regard to the appeal. The final decision from the court is currently pending and once the ruling has been issued it will be forwarded to the ILO for information.

C. The Committee’s conclusions

1. 1032. The Committee observes that in the present complaint, the complainant organization alleges that the Ministry of Labour refused to recognize its legal personality despite the fact that the union complied with all the legal formalities, and also that the first-instance decision of 18 September 2007 refusing registration was upheld on appeal by the Ministry of Labour and Labour Development (Ministry of Labour). The complainant further states that it submitted a second application for recognition of its legal personality on 23 July 2008 and this was also refused, this time by the head of the Department of Social Organizations. This led the union to file an appeal with the Supreme Court of Justice (for errors of form in the last refusal to recognize its legal personality) and no ruling has yet been issued in this regard.
2. 1033. The Committee notes the Government’s statement that the grounds for non-recognition of legal personality are as follows: although the complainant trade union (SINTUP) wished to be operational at the University of Panama, it applied for registration as an “enterprise trade union”, whereas the University of Panama is an autonomous institution with public servants (and not an enterprise with workers within the meaning of the Labour Code);and the Labour Code is not applicable at the University of Panama since public employees are governed specifically by the administrative career regulations (as recognized by another part of the Labour Code) and receive remuneration from the State. The Committee notes the Government’s emphasis that the judicial authority upheld the administrative decision refusing to recognize the legal personality of the trade union. Finally, the Committee notes the Government’s confirmation that the Supreme Court of Justice has not yet issued a ruling on the amparo appeal filed by the complainant because of a second refusal to recognize the union’s legal personality.
3. 1034. The Committee concludes that the Ministry of Labour’s refusal to recognize the legal personality of the complainant trade union is because the complainant sought to be subject, as an enterprise union, to the provisions of the Labour Code instead of being covered by the provisions of the Administrative Career Act, which govern the trade union rights of public servants in autonomous institutions, as in the case of the University of Panama. Although the Committee considers that there are no grounds for challenging the validity of special legal regulations which govern public servants’ right to organize in so far as such regulations comply with the provisions of Convention No. 87 (a point not mentioned by the complainant), it observes that the complainant has filed an appeal with the Supreme Court of Justice citing errors of form in the decision refusing to recognize its legal personality. The Committee expects that the Government will send it the ruling issued by the Supreme Court of Justice and expects that the Court will issue its ruling in this regard in the near future.
4. 1035. The Committee requests the complainant organization to indicate the reasons why it chose not to establish itself in accordance with the regulations governing the right to organize in the public sector.

The Committee's recommendations

1. 1036. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee expects that the Government will send it the ruling issued by the Supreme Court of Justice with respect to the authorities’ refusal to recognize that the complainant trade union has legal personality and expects that the Court will issue its ruling in this regard in the near future.
   • (b) The Committee requests the complainant organization to indicate the reasons why it chose not to establish itself in accordance with the regulations governing the right to organize in the public sector.