Effect given to the recommendations of the committee and the Governing Body - Report No 368, June 2013

Case No 2751 (Panama) - Complaint date: 24-NOV-09 - Follow-up

Effect given to the recommendations of the Committee and the Governing Body

1. 74. The Committee last examined the substance of this case at its March 2012 meeting, when it made the following recommendations [see 363rd Report, para. 950]:
   • (a) The Committee firmly expects that the future reform of the Act governing administrative careers will reduce the minimum number of public servants needed to establish a trade union association.
   • (b) The Committee reiterates once again the importance of recognizing FENASEP for all purposes (this includes it being represented on the Technical Committee and the Appeal and Conciliation Committee in the light of Act No. 43 of 2009) in connection with its representativeness and requests the Government to keep it informed of developments and to take the necessary measures to ensure that its legislation recognizes the right to establish federations and confederations in the public sector. Furthermore, the Committee notes that, as regards the refusal to allocate education insurance funds to FENASEP for training, the Government is waiting for the Third Administrative Division of the Supreme Court of Justice to provide clarification on the matter. The Committee requests the Government to keep it informed in this respect.
   • (c) As regards the alleged freezing of 30 requests for trade union registration, bearing in mind the number of denied requests for legal personality, the Committee requests the Government to examine the grounds for denial with the organizations so that the functioning of the system in practice can be evaluated, including the means of resolving the issue of securing legal personality for the 30 trade union organizations in question. The Committee requests the Government to keep it informed in this respect.
   • (d) The Committee notes that the Government is awaiting the decision of the Supreme Court of Justice concerning the dismissal of the leader of ASEMITRABS, Mr Víctor C. Castillo Díaz (the Government disputes his appointment as leader of the association and underlines the fact that the association in question has not been operational for years). The Committee requests the Government to keep it informed in this respect.
   • (e) The Committee takes note of the information provided by the Government, and in particular the fact that the legal proceedings instituted by the Ministry of Labour against trade union leaders for mismanagement of funds (illicit diversion of public education insurance funds earmarked for trade union training) are ongoing. The Committee requests the Government to inform it of the judicial decision taken in this regard.
   • (f) Finally, the Committee notes the Government’s observations dated 27 February 2012 sent in response to the information transmitted by FENASEP on 31 May 2011 concerning dismissals of trade union leaders and other matters, which will be examined at the next examination of the case.
2. 75. In a communication dated 24 August 2012, the National Federation of Public Employees and Public Service Enterprise Workers (FENASEP) alleges that: (1) the freedom of association situation has deteriorated; (2) the cases where new trade unions have been denied legal personality by the Government have not been reviewed; (3) the payment of the State subsidy for training was recently re-established, although the legal proceedings brought in this regard before the Supreme Court in 2009 by the Ministry of Labour have not been formally withdrawn; (4) the trade union leaders in the public sector who were unfairly dismissed have not been reinstated but, on the contrary, Ms Jennyfer Malca, FENASEP Executive Board Secretary for youth issues, Ms Melanie Guittens, FENASEP executive board member, Mr Ismael Ruiz, FENASEP Executive Board Secretary for education and Mr Andrés Rodríguez, education official, were further dismissed; (5) no inquiry has been made into the murder of the trade unionists in Changuinola, who were killed by the police in 2010; (6) the management of the Social Security Fund continues to deny freedom of association; (7) through the assistance of the ILO, two tripartite dialogue forums were established in February 2012 to bring legislation into line with Convention Nos 87 and 98 as far as possible, and another forum was established to seek to provide rapid solutions to disputes arising in relation to freedom of association (a number of agreements have been reached which have not yet been enforced or have only been enforced in part); and (8) a subcommittee made up of government and FENASEP members was created to bring the text of Act No. 9 governing administrative careers into line as regards freedom of association. The subcommittee has been operating since May 2012 but has yet to produce results.
3. 76. In its communication of 27 February 2012, in relation to the allegations concerning anti union dismissals submitted by FENASEP in May 2011, the Government reports that: (1) Mr Alba did not have trade union immunity; (2) Mr Alba and Mr Eduardo Baltazar Lan were dismissed on the grounds that they were not in good standing with the Social Security Fund (non-compliance with requirements as members of the executive board of the Fund); (3) Mr Andrés Góndola was absent from duty, without permission, from 6 to 16 May 2011, and thus a decision was issued requesting his dismissal on the grounds of dereliction of duty. Mr Góndola lodged an appeal before the administrative courts that is currently being processed; (4) Mr Abdiel Zapateiro was dismissed under Staff Decree No. 408 of 18 December 2009, and his appeal for review was rejected, indicating that he was not a union leader; (5) Mr Reynaldo Núñez Castillo was dismissed from the Banco Hipotecario Nacional under Decision No. 293-2011 of 18 February 2011, as a result of the functional and structural reorganization carried out throughout the institution. Mr Núñez Castillo lodged administrative appeals, which were rejected, and may bring his case before the judicial authorities; and (6) Ms Ana Bolena Ayarza, journalist for the Public Relations Office of the National Police of Colón was not unfairly dismissed, but was a temporary employee; she was not a union leader of any public sector trade union.
4. 77. In its communication of 17 October 2012, the Government indicates the following with regard to the recommendations made by the Committee:
   • – Recommendation (a): (i) In the framework of the social dialogue conducted in the committees on the Panama tripartite agreement of 1 February 2012, the labour subcommittee on administrative careers of the Committee on the Implementation of the Tripartite Agreement is in operation; and (ii) the subcommittee has been addressing all matters relating to administrative careers in search of legal measures to align the legislation in force with Conventions Nos 87 and 98.
   • – Recommendation (b): (i) FENASEP is an organization that is recognized in the public sector; and (ii) the subsidy for trade union training has been re-established with FENASEP and with the General Union of Workers (UGT), and the month of July 2012 has already been paid.
   • – Recommendation (c): (i) All the requests for legal personality were answered via reasoned decisions and the Department for Trade Union Organizations is not in default in this respect; (ii) the requests for registration in question were rejected and were not corrected by the applicants; and (iii) the Supreme Court confirmed the ruling denying the requests for legal personality.
   • – Recommendation (d): The Government is awaiting the decision of the Supreme Court in relation to the dismissal of the ASEMITRABS union official, Mr Victor Castillo.
   • – Recommendation (e): (i) On 6 June 2012 the First Anti-corruption Prosecutor’s Office ordered that statements be taken from a number of unionists; (ii) under the instructions issued by the Prosecutor’s Office the use of funds allocated to trade union training was examined and it was found that the list of course participants provided by some trade unions included deceased persons and new born children, as well as the use of funds to pay for alcohol, telephone bills, cable television in private residences, etc.; (iii) to date, the case continues before the Public Prosecutor’s Office, which is carrying out investigations in order to submit its report to the judiciary; and (iv) as a result of tripartite dialogue between sectors, the Minister submitted a request before the Prosecutor’s Office for the withdrawal of the proceedings, which was not accepted by the Public Prosecutor’s Office.
5. 78. Lastly, in its communication of 2 November 2012, the Government refers to the new allegations presented by FENASEP and reports the following: (1) tripartite dialogue is operating in the committees on the Panama tripartite agreement (Committee on the Implementation of the Tripartite Agreement and the Committee for the Rapid Handling of Complaints) as well as the subcommittee on administrative careers to address matters related to freedom of association; (2) under the dialogue process, with the assistance of the ILO, three agreements were signed in the tripartite dialogue committees and Dr Rolando Murgas Torraza was elected by consensus as moderator; (3) the subcommittee in charge of bringing the Act governing administrative careers into line with Conventions Nos 87 and 98 has been meeting since May 2012 and to date has produced a progress report, establishing the list of matters to be addressed, with a view to reaching consensus as regards the amendment of the Act; (4) the new unions were denied legal personality because they did not meet the requirements established in the Labour Code. The applicants have not submitted the required corrections; (5) Ms Melanie Yvette Guittens de Salazar was dismissed in accordance with the administrative authority’s power of free discretional appointment and dismissal. She was not an administrative career employee, and she was not a member of the FENASEP executive board or of the Association of Employees of the Administration of the Colón Free Trade Zone, and she did not have trade union immunity, which would have prevented the action adopted; (6) Mr Andrés Rodríguez Olmos, Secretary-General of the Association of Teachers of the Republic of Panama has not been dismissed from his position. The sanction that was issued for his dismissal (following a disciplinary inquiry which followed due process) is formally suspended as a result of an appeal lodged by the sanctioned party and which is currently pending; (7) the case of Mr Ismael Ruiz is currently before the Committee for the Rapid Handling of Complaints relating to freedom of association and collective bargaining, for its tripartite consideration; (8) in the case of Ms Jennifer Malca, information has been requested from the Sports Institute of Panama; (9) as regards the acts of violence in the city of Changuinola, the trade unions SITRAIBANA, SITRAPBI, Comité Ocho de Julio (Committee of the Eighth of July), SITRAEMBA, SUNTRACS and the National Government signed a settlement on 29 August 2010 concluding the negotiations and agreeing not to submit any complaints in respect of the events of 8 July 2010. Likewise, 82 people affected during the events were accorded monthly financial support on humanitarian grounds until their retirement; and (10) as regards the claim that the Social Security Fund continues to deny freedom of association, the Government reports that the institution respects freedom of association, engaging in dialogue with more than 38 existing trade union organizations in the Fund and in May 2012 agreements were signed to bring a strike to an end.
6. 79. The Committee takes note of all this information. The Committee firmly expects that the committees and subcommittees that were established through the tripartite agreement signed in February 2012 will produce tangible results in the very near future and requests the Government to keep it informed in this respect. It also requests the Government to keep it informed of: (1) the result of the legal proceedings concerning the dismissals of the unionists Mr Andrés Góndola, Mr Victor Castillo and Mr Andrés Rodríguez Olmos; (2) the result of the handling of the case in the committee on complaints related to freedom of association concerning the dismissal of the unionist Mr Ismael Ruiz; (3) the employment situation of the unionist Ms Jennifer Malca; and (4) the result of the investigation being carried out by the First Anti-corruption Prosecutor’s Office on the use of funds for trade union training.
7. 80. More generally, the Committee has observed in different cases related to Panama that the legal provisions governing trade union rights in the public sector are subject to significant restrictions. For example, in a case examined in its meeting of March 2013 [see 367th Report, Case No. 2677, paras 70–73] indication is made that provisions are needed that protect public servants against acts of anti-union discrimination or interference, and clearly recognize the right to collective bargaining of public servants who are not engaged in the administration of the State. The Committee observes that this case also illustrates that the creation of trade unions in the public sector encounters obstacles in practice. The Committee requests the Government to submit these matters to tripartite dialogue and to keep it informed in this regard.