Report in which the committee requests to be kept informed of development - Report No 389, June 2019

Case No 3317 (Panama) - Complaint date: 24-JAN-18 - Follow-up

Allegations: The complainant organizations allege the violation of freedom of association following the refusal to grant legal personality to a series of trade union organizations, mainly from the public sector

1. 510. The complaint is contained in communications from the National Confederation of United Independent Unions (CONUSI) dated 24 January and 21 May 2018 and communications from the National Confederation of Workers of Panama (CNTP) dated 10 May 2018 and 25 March 2019.
2. 511. The Government sent its reply in communications dated 22 October 2018 and 21 May 2019.
3. 512. 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 complainants’ allegations

1. 513. In its communications dated 24 January and 21 May 2018, CONUSI reports that a series of trade unions, mainly from the public sector, were unjustifiably refused the granting of legal personality. CONUSI states, firstly, that in May 2016, the National Union of Garbage Collection Workers (SINTAURDO) sent the President of the Republic the decision of the Ministry of Labour and Workforce Development (MITRADEL) granting it legal personality, in order for the President to sign it, but up until the date of the submission of the complaint, he had not yet done so. CONUSI goes on to indicate that, in September 2016, the Union of Workers of the Social Insurance Fund (SINTRACSS) submitted corrected documentation for its request for registration, as ordered by MITRADEL; however, up until the date of the submission of the complaint the executive body had not yet issued a decision to grant it legal personality. The complainant organization also states that on 3 October 2017 the Union of Workers of the Ministry of Public Works (SINTRAMOP) presented a request for legal personality. On 14 November 2017 it presented the documents containing the corrections ordered in MITRADEL’s decision of October 2017. On 18 April 2018, MITRADEL issued a decision not to accept the request to grant legal personality to the trade union organization, indicating that while it had submitted the statute reform document, it had not submitted the list of the trade union members who had attended the general assembly. On 27 April 2018, SINTRAMOP filed an application for reconsideration against the above-mentioned decision, alleging primarily that the refusal to grant legal personality had been issued six months and 15 days after the request for registration was made, while, on the one hand, article 68 of the Political Constitution stipulates a non-extendable period of 30 days within which to allow or reject the registration of a trade union, and, on the other, article 356 of the Labour Code indicates that if more time passes than is established for MITRADEL to object to the request for registration, the trade union organization shall consider itself to be registered for all legal purposes and the Ministry will be obliged to issue the respective documents and certifications. The organization adds that the Labour Code does not demand as a requirement for registration the submission of an attendance list; consequently MITRADEL is not authorized to demand a requirement that is not established by law.
2. 514. The complainant organization also adds that despite the non-extendable deadlines established in article 68 of the Political Constitution and article 356 of the Labour Code, the executive body did not issue any decision despite more than 30 days having passed since the submission of the request for registration of the following trade unions: the Trade Union of the Ministry of Economy and Finance (SITRAMEF), the Trade Union of the Ministry of Labour and Workforce Development (SITRAMITRADEL), the Trade Union of the Ministry of Health, and the Trade Union of the Instructors of the National Institute of Vocational Training and Human Development. The complainant organization also states that the same situation holds true for requests for legal personality made by private-sector trade unions and federations.
3. 515. In a communication dated 10 May 2018, the CNTP associates itself with the complaint, alleging the failure to grant legal personality to a series of public sector trade unions. Further to those organizations already indicated by CONUSI, the CNTP also refers to the Trade Union of the Panama Maritime Authority and the Trade Union of the Office of the Comptroller-General of the Republic. CONUSI states that the failure to register the above-mentioned trade union organizations, following the granting of legal personality to a couple of state trade unions, would appear to demonstrate the Government's intention to start denying freedom of association in the public sector again, thus violating Convention No. 87, despite the constitutional status that the plenary session of the Supreme Court of Justice accorded this Convention in its ruling of 30 December 2015.
4. 516. In a communication dated 25 March 2019, the CNTP submitted new allegations and additional information, alleging the violation of Convention No. 87 on the grounds of the failure to grant legal personality and the certification of a series of trade unions, from both the public and private sectors. In addition to the trade unions indicated in the three previous communications, the CNTP also refers to the following trade unions: the Trade Union of the Fire Service of the Republic of Panama (SINBORPA), the Industrial Trade Union of Dockworkers and Allied Workers of Panama (UNISITRAPOPAS), the Union of Environmental Workers (UTRAM), the Trade Union of Professionals, Salaried Employees and Similar Workers (SIPAS), the Trade Union of National Education Workers (SITEN), the Trade Union of Dance Artistes of Panama (SADANPA), and the Union of Christian Construction Industry and Allied Workers (UTRACICS). The CNTP states that a number of these trade unions submitted requests for legal personality over a year ago and that the corresponding decisions granting them that personality have not yet been issued; others have been informed that their requests are being processed; and further trade unions have had their requests for legal personality rejected, despite complying with all requirements. In other cases, MITRADEL has indicated to the trade unions that the decisions granting them legal personality have been with the Office of the President of the Republic since 2018 pending signature.

B. The Government’s reply

1. 517. In its communication of 22 October 2018, the Government sent its observations indicating that: (i) it respects the provisions of ratified ILO Conventions relating to freedom of association; (ii) with ILO support the country has a policy of tripartite dialogue aimed at promoting the effective implementation of Conventions Nos 87 and 98 through the committees set up in the framework of the Panama Tripartite Agreement; (iii) the current Government administration has to date granted legal personality to 42 trade union organizations; (iv) the right to organize of public sector workers has been recognized; (v) SINTAURDO was granted legal personality by way of decision No. 9 of 2017 and SITRAMITRADEL by way of decision No. 6 of 2017; (vi) with respect to the requests for legal personality made by SINTRACSS, the Trade Union of Workers of the Ministry of Health (SITRAMINSA), SINTRAMOP and SITRAMEF, the Government indicates that these requests are pending before the Office of the President of the Republic at the admissibility stage; (vii) with respect to the alleged request for legal personality made by the Trade Union of the Instructors of the Institute of Vocational Training and Human Development, the Government states that there is no request for registration filed under that name in the archives of the Department of Social Organizations, however, another trade union organization exists under the name of the National Trade Union of Administrative, Technical and Teaching Workers of the National Institute of Vocational Training and Training for Human Development (SINTRAINADEH), the legal personality of which was recognized by way of decision No. 4 of 2018; and (viii) the Government, as well as issuing the decisions granting legal personality to the above-mentioned trade unions, also issues the respective certifications.
2. 518. By a communication dated 21 May 2019, the Government states that through the adoption of four resolutions on 9 May 2019, the following trade unions were granted legal personality: the Union of Workers of the Social Insurance Fund (SINTRACSS); (ii) the Union of Workers of the Ministry of Health (SITRAMINSA); (iii) the Union of the Fire Service of the Republic of Panama (SINBORPA); and (iv) the Union of Workers of the Ministry of Public Works (SINTRAMOP). The Government states that the foregoing confirms that the provisions of ILO Conventions ratified by Panama are respected, especially with regard to freedom of association, and expressly requests that the case be closed.

C. The Committee’s conclusions

1. 519. The Committee notes that the complainant organizations denounce the failure to grant legal personality and certification of registration to a series of trade unions, mostly from the public sector, that were in one of the following situations: (i) trade unions that had allegedly submitted, in some cases over a year previously, requests for legal personality, for which MITRADEL had not yet handed down a decision, irrespective of the provisions of the Constitution and the Labour Code, which stipulate a deadline of 30 days for the public authorities to hand down a decision on requests for legal personality; (ii) trade unions that had had their requests for legal personality rejected, despite complying with all requirements; and (iii) trade unions for which the decisions granting them legal personality were allegedly pending signature in the Office of the President of the Republic. The Committee notes that, according to the complainant organizations, the alleged facts demonstrate the Government’s intention to start denying freedom of association in the public sector again.
2. 520. The Committee notes that, in its first communication of 22 October 2018, the Government states that: (i) it respects the provisions of ratified ILO Conventions relating to freedom of association and, with ILO support, it has a policy of tripartite dialogue aimed at promoting the effective implementation of Conventions Nos 87 and 98 through the committees set up in the framework of the Panama Tripartite Agreement; (ii) since taking up its functions it has granted legal personality to 42 trade union organizations; (iii) the right to organize of public sector workers has been recognized; (iv) it has already granted legal personality to a number of trade unions cited in the complaint; and (v) other requests for legal personality mentioned in the complaint are pending before the Office of the President of the Republic at the admissibility stage. The Committee also notes that, in its communication of 21 May 2019, the Government states that on 9 May 2019, four public sector trade union organizations were granted legal personality.
3. 521. The Committee notes these various elements and observes that the trade union organizations mentioned in CONUSI’s allegations and in the initial allegations from the CNTP are public sector trade unions. The Committee recalls that on a number of occasions in the past it has already examined allegations relating to Panama and the refusal by the administrative authority to grant legal personality to trade unions of public servants [see Case No. 2677, 354th (2009), 357th (2010), 360th (2011) and 367th (2013) Reports; Case No. 2751, 368th Report, 2013; and Case No. 3031, 371st (2014) and 378th (2016) Reports]. In line with the Government’s statement and in reference to the previous paragraph, the Committee recalls that in the most recent case, after having asked the Government to amend the Public Administration Careers Act to ensure that the National Union of Education Workers (SINTE) may obtain legal personality and be registered as a trade union [see 371st Report, 2014, paras 627 639], it had: (i) noted with satisfaction that SINTE had obtained legal personality in April 2016; and (ii) noted with interest the preparation of a draft bill on collective relations in the public sector to address the observations of the ILO supervisory bodies in relation to the implementation of Conventions Nos 87 and 98. In the present case, the Committee takes due note that the Government: (i) states that it recognizes the right to organize of public sector workers; (ii) on 26 December 2017 granted legal personality to SINTAURDO and SITRAMITRADEL, two public sector workers’ organizations; the certifications of legal personality of both organizations were issued on 25 October 2018; and (iii) on 9 May 2019 granted legal personality to the trade unions SINTRACSS, SITRAMINSA, SINBORPA and SINTRAMOP.
4. 522. The Committee takes note with satisfaction the above-mentioned granting of legal personality to six public sector trade union organizations. The Committee welcomes the fact that these decisions confirm and strengthen the dynamic of the recognition of the public sector trade union organizations mentioned in the previous paragraph. At the same time, the Committee observes that the above-mentioned processes of granting legal personality and of certifying were drawn out over several months. In this respect, recalling that a one-year period for treating a union’s application for registration is excessive and not conducive to harmonious industrial relations [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 467], the Committee requests the Government to take the necessary measures, particularly in the public sector, to ensure that in future the process for registering trade union organizations occurs expeditiously.
5. 523. With respect to the remaining requests for legal personality made by public sector trade union organizations mentioned in the complaint, the Committee observes that, for some of them, the Government’s reply does not provide any information (the Trade Union of the Panama Maritime Authority and the Trade Union of the Office of the Comptroller-General of the Republic), while for the SITRAMEF the Government states that the request is pending before the Office of the President of the Republic at the admissibility stage. The Committee recalls that although the registration procedure very often consists of a mere formality, there are a number of countries in which the law confers on the competent authorities more or less discretionary powers in deciding whether or not an organization meets all the conditions required for registration, thus creating a situation which is similar to that in which previous authorization is required. Similar situations can arise where a complicated and lengthy registration procedure exists, or where the competent administrative authorities may exercise their powers with great latitude; these factors are such as to create a serious obstacle for the establishment of a trade union and lead to a denial of the right to organize without previous authorization [see Compilation, op. cit., para. 450]. In the light of the foregoing and encouraged by the recent granting of legal personality to four public sector trade union organizations, the Committee trusts that the Government, in consultation with the organizations concerned and in full respect of the right of trade unions to establish themselves without previous authorization, will take the measures necessary for the recognition and certification of the legal personality of the organizations concerned to occur at the earliest possible opportunity. The Committee requests the Government to keep it informed in this respect.
6. 524. Recalling once again the conclusions it adopted regarding Case No. 3031 concerning the necessary alignment of the Public Administration Careers Act with the principles of freedom of association and collective bargaining, the Committee also emphasizes that, as referred to by the Committee of Experts on the Application of Conventions and Recommendations in its observation published in 2019 on the implementation of Convention No. 87 by Panama, the Committee on the alignment of national legislation with ILO Conventions prepared, in a tripartite manner, the bill on collective labour relations in the public sector. The Committee observes that this bill establishes, among other measures, that all public servants may establish trade union organizations, without the need for previous authorization. Noting that the bill was submitted in the second half of 2018 for debate before the National Assembly, the Committee trusts that legislation to regulate the establishment, registration and functioning of public sector trade unions in accordance with the principles of freedom of association and collective bargaining will be adopted at the earliest opportunity. The Committee refers the legislative aspects of this case to the Committee of Experts on the Application of Conventions and Recommendations.
7. 525. With respect to the alleged lack of response from the executive body to the request for legal personality made by the Trade Union of the Instructors of the National Institute of Vocational Training and Human Development, the Committee notes the Government’s statement that there is no request for registration filed under that name in the archives of the Department of Social Organizations, although it does report that another trade union organization exists under the name of the National Trade Union of Administrative, Technical and Teaching Workers of the National Institute of Vocational Training and Training for Human Development (SINTRAINADEH), the legal personality of which was recognized by way of decision No. 4 of 7 February 2018. Observing that the name of the trade union organization to which the Government refers differs from the name mentioned by the complainant organizations in their complaint, the Committee invites the complainant organization to indicate whether the trade union to which legal personality has been granted is the same as the one to which it refers in its allegations and, if it is not, to provide the Government with more details on the request for legal personality referred to in the complaint.
8. 526. Observing, finally, that in a communication dated 25 March 2019, the CNTP submitted, in addition to the complaint regarding the non-registration of the SINBORPA, with respect to which the Government has informed of the granting of its legal personality, allegations relating to the failure to register another six trade union organizations, from both the public and the private sectors, the Committee requests the Government to promptly send its comments in this respect.

The Committee’s recommendations

1. 527. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) Encouraged by the recent granting of legal personality to four public sector trade union organizations, the Committee trusts that the Government, in consultation with the organizations concerned and in full respect of the right of trade unions to establish themselves without previous authorization, will take the measures necessary for the recognition and certification of the legal personality of the following organizations to occur at the earliest possible opportunity: the Trade Union of the Panama Maritime Authority, the Trade Union of the Office of the Comptroller-General of the Republic, and the Trade Union of the Ministry of Economy and Finance (SITRAMEF). The Committee requests the Government to keep it informed in this respect.
   • (b) The Committee trusts that legislation to regulate the establishment, registration and functioning of public sector trade unions will be adopted at the earliest opportunity in accordance with the principles of freedom of association and collective bargaining. The Committee refers the legislative aspects of this case to the Committee of Experts on the Application of Conventions and Recommendations.
   • (c) With respect to the request for legal personality made by the Trade Union of the Instructors of the National Institute of Vocational Training and Human Development, observing that the name of the trade union organization to which the Government refers differs from the name mentioned by the complainant organizations in their complaint, the Committee invites the complainant organization to indicate whether the trade union to which legal personality has been granted is the same as the one to which it refers in its complaint and, if it is not, to provide the Government with more details on the request for legal personality referred to in the complaint.
   • (d) The Committee requests the Government to promptly send its comments regarding the allegations relating to the failure to register six trade union organizations contained in the communication from the National Confederation of Workers of Panama (CNTP) dated 25 March 2019.