Definitive Report - Report No 371, March 2014

Case No 3031 (Panama) - Complaint date: 05-JUN-13 - Closed

Allegations: The complainant alleges that the administrative authority rejected its application for legal personality on the grounds that the provisions of the Labour Code do not apply to public servants

1. 627. The complaint is contained in a communication from the National Union of Education Workers (SINTE) dated 5 June 2013.
2. 628. The Government sent its observations in a communication dated 9 September 2013.
3. 629. 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. 630. In its communication of 5 June 2013, the National Union of Education Workers (SINTE) states that it is a teachers’ union in the process of becoming established, with nationwide coverage in public and private schools. SINTE alleges that, on 23 June 2011, it submitted an application for legal personality – along with all the documentation required under the labour law – to the Labour Ministry’s Department of Social Organizations of the Directorate-General of Labour and Workforce Development, and that the application was declared unfounded by the department in question on 20 July 2011. SINTE adds that, on 22 September 2011, the Directorate-General of Labour and Workforce Development issued decision No. 9 DGT dismissing the appeal lodged against the decision of the Department of Social Organizations on the grounds of inadmissibility.
2. 631. The complainant indicates that the administrative authority rejected its application on the grounds that the provisions set out in the Labour Code do not apply to the public sector. In this regard, SINTE points out that its members include not only public servants but also teachers in the private sector, and that all members work in the same branch – education. Lastly, the complainant asserts that its intention is not to establish an association under ordinary law pursuant to the general right of association enshrined in article 39 of the Constitution, but to exercise its right to organize under article 68 of the Constitution and international conventions.

B. The Government’s reply

1. 632. In its communication of 9 September 2013, the Government states that it is in compliance with the ratified conventions, including those concerning freedom of association. Furthermore, it recalls that it maintains a policy of tripartite dialogue and that, with the ILO’s support, it is promoting the implementation of Conventions Nos 87 and 98 via the committees set up within the framework of the Panama Tripartite Agreement, which was signed by the social partners on 1 February 2012.
2. 633. The Government adds that, in the instant case, the Department of Social Organizations of the Directorate-General of Labour rejected SINTE’s application for trade union status via Note No. 317 DOS.2011 of 20 June 2011 when it became aware of the fact that the founding members of the union were public servants and hence not governed by the Labour Code. In the aforementioned note, it cited the 8 June 1998 decision of the First High Labour Court, which was subsequently upheld by the Supreme Court of Justice, ruling that the provisions established in the Labour Code did not apply to workers in the public sector. The Government states that the Constitution differentiates between the right of association and the right to organize, both of which are governed by the Constitution, and that that does not restrict public sector workers’ right of association, since they are able to form an organization by registering with the Government Ministry. The Government indicates that the Ministry of Labour and Workforce Development is unable to take action and grant legal personality to a group of public sector workers, as doing so would contravene the law.
3. 634. Finally, the Government declares that, under the provisions of the Panama Tripartite Agreement, it is for the committee responsible for the compliance of national legislation with ILO Conventions, in particular the Subcommittee on Administrative Careers, to decide on amendments to the law by common agreement.

C. The Committee’s conclusions

1. 635. The Committee observes that in this case the complainant alleges that the labour administration authority rejected its application for legal personality in 2011 on the grounds that the provisions of the Labour Code did not apply to the public sector. (SINTE states that its membership includes teachers in the private sector as well as public servants, and that they all work in the same branch – education.)
2. 636. In this regard, the Committee notes that the Government reports that: (1) the Department of Social Organizations of the Directorate-General of Labour rejected SINTE’s application for trade union status via Note No. 317 DOS.2011 of 20 June 2011 when it noted that the founding members of the union were public servants and that they were not governed by the Labour Code; (2) in that note, it cited the 8 June 1998 decision of the First High Labour Court, subsequently upheld by the Supreme Court of Justice, which ruled that the provisions established in the Labour Code did not apply to workers in the public sector; (3) the Constitution differentiates between the right of association and the right to organize, both of which are governed by the Constitution, and that that does not restrict public sector workers’ right of association, since they are able to form an organization by registering with the Government Ministry; (4) the Ministry of Labour and Workforce Development is unable to take action and grant legal personality to a group of public sector workers, as doing so would contravene the law, and (5) under the provisions of the Panama Tripartite Agreement, it is for the committee responsible for the compliance of national legislation with ILO Conventions, in particular the Subcommittee on Administrative Careers, to decide on amendments to the law by common agreement.
3. 637. The Committee takes note of this information and recalls that in the past it has had occasion to examine allegations of an administrative authority having declined to grant legal personality to a union of public servants whose employment relationship is governed not by the Labour Code but by the Public Administration Careers Act [see Case No. 2677, Reports 354, 357, 360 and 367]. The Committee recalls that on that occasion (1) it considered 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”, and (2) requested the Government to take steps to ensure that national legislation guarantees the public servants who do not work in the administration of the State (which is the case for teachers in the public sector) adequate protection against anti-union discrimination and interference, as well as the right to collective bargaining.
4. 638. The Committee reiterates the recommendations made at that time, and trusts that the committee responsible for the compliance of national legislation with ILO Conventions, in particular the Subcommittee on Administrative Careers, will take the necessary steps to draw up, as a matter of urgency, specific draft provisions to bring the Public Administration Careers Act into conformity with the principles of freedom of association and collective bargaining laid down in the relevant Conventions and to guarantee the rights and guarantees mentioned in the previous paragraph so as to ensure that the complainant may obtain legal personality and be registered as a trade union in the near future.

The Committee’s recommendation

1. 639. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • The Committee trusts that the committee responsible for the compliance of national legislation with ILO Conventions, in particular the Subcommittee on Administrative Careers, will take the necessary steps to draw up, as a matter of urgency, specific draft provisions to bring the Public Administration Careers Act into full conformity with the principles of freedom of association and collective bargaining laid down in the relevant Conventions so as to guarantee public servants who do not work in the administration of the State (which is the case for teachers in the public sector) adequate protection against anti-union discrimination and interference, as well as the right to collective bargaining, and to ensure that the complainant may obtain legal personality and be registered as a trade union in the near future.