Observation (CEACR) - adopted 2022, published 111st ILC session (2023)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Panama (Ratification: 1958)

The Committee notes the observations of the National Confederation of United Independent Unions (CONUSI) received on 31 August 2022 relating to issues addressed in this comment. The Committee notes that the CONUSI’s allegations with regard to compulsory arbitration and the exercise of the right to strike in the air transport sector are being examined by the Committee on Freedom of Association (Case No. 3319). The Committee notes the observations of the National Council of Organized Workers (CONATO), received on 6 September 2022, alleging the intervention of the civil authorities in the decisions of trade union organizations with regard to their administration and obstacles on the part of the Government to the establishment and granting of legal personality to trade union organizations in various sectors. The Committee notes the Government's reply, received on 6 December 2022, to the CONUSI and the CONATO observations and will examine it in the context of the next examination of the application of the Convention.

Tripartite committees. The Committee notes the information provided by the Government with regard to the functioning of the committees which form part of the Panama tripartite agreement of 2012 and benefit from ILO technical support; the Implementation Committee and the Committee for the Rapid Handling of Complaints relating to Freedom of Association and Collective Bargaining. The Committee notes the Government’s comments that during the COVID-19 pandemic, such tripartite committees were used to discuss the various measures to be implemented in order to address the social and labour problems arising from the pandemic with the social partners. In this respect, the Government highlights the establishment of the tripartite dialogue forum on the economy and labour development in Panama (Decision No. 150 of 27 April 2020), which was established in May 2020 and functioned for one month with ILO technical support. The Committee notes the Government’s indication with regard to the adoption of 23 consensus agreements to preserve jobs, businesses and the economic recovery. On the other hand, the Committee notes that the CONUSI alleges that no effective consensus was reached on the measures adopted at the tripartite dialogue forum of May 2020. The Committee regrets the Government’s indication that as of April 2020, the work of the tripartite committees was suspended by the pandemic and that it had not been possible to resume this work despite the attempts of the Ministry of Labour and Labour Development (MINTRADEL), because the required quorum was not reached due to the repeated absence of the CONATO. In this respect, the Committee notes that the CONATO and CONUSI have joint representation on the tripartite committees, as confirmed by the Government Procurator under section 1066 of the Labour Code, and that MINTRADEL will follow the Procurator’s guidance. The Committee notes that the CONUSI states that inter-union conflicts have been engendered by the Government’s policies, which have favoured trade unions other than CONUSI. The Committee recalls the potential of the two committees to play a fundamental role in achieving the implementation of the Convention. The Committee urges the Government, in consultation with the social partners and with the ongoing technical support of the Office, to take the necessary steps to review the applicable policies relating to representation of the different trade union organizations on the tripartite committees with a view to restarting their work in the near future and, the Committee reiterates its invitation to the various State authorities to take due account of the tripartite committees’ decisions. The Committee requests the Government to provide information in this respect.

The Committee notes the Government’s indication concerning follow-up to the Memorandum of Understanding signed in 2016, relating to the Panama tripartite agreement of 2012, which establishes a timetable of activities including the establishment of a national tripartite body (Higher Labour Council), which should have been established in 2016 but which, with ongoing ILO technical support, is the topic of a bill scheduled for discussion at the July 2022 Session of the National Assembly. The Committee requests the Government to provide information on progress made in the establishment of this tripartite body.

Legislative matters. The Committee recalls that for many years it has been commenting on the following matters which raise problems of conformity with the Convention:

Article 2 of the Convention. Right of workers and employers without distinction whatsoever to establish and join organizations:

• –the requirement that there may not be more than one association in a public institution, and that associations may have provincial or regional chapters, but not more than one chapter per province, under the terms of sections 179 and 182 of the Single Text of Act No. 9, as amended by Act No. 43 of 31 July 2009;
• –the requirement of too large a membership (ten) for the establishment of an employers’ organization and an even larger membership (40) for the establishment of a workers’ organization at the enterprise level, under the terms of section 41 of Act No. 44 of 1995 (amending section 344 of the Labour Code), and the requirement of a high number of members (40) to establish an organization of public servants under section 182 of the Single Text of Act No. 9 (which, as indicated by the Government, has been declared unconstitutional by the Supreme Court, in a ruling of 30 December 2015); and
• –the denial to public servants (non-career public servants, as well as those holding appointments governed by the Constitution and those who are elected and serving) of the right to establish unions.

Article 3. Right of organizations to elect their representatives in full freedom:

• –the requirement to be of Panamanian nationality in accordance with the Constitution in order to serve on the executive board of a trade union.

Right of organizations to organize their activities and to formulate their programmes in full freedom:

• –legislation interfering with the activities of employers’ and workers’ organizations (sections 452(2), 493(4) and 494 of the Labour Code); the obligation for non-members to pay a solidarity contribution in recognition of the benefits derived from collective bargaining (section 405 of the Labour Code); and the automatic intervention of the police in the event of a strike (section 493(1) of the Labour Code); and
• –the prohibition on federations and confederations from calling strikes, the prohibition on strikes against the Government’s economic and social policies and on strikes not related to an enterprise collective agreement; the authority of the Regional or General Labour Directorate to refer labour disputes to compulsory arbitration in private transport enterprises (sections 452 and 486 of the Labour Code); and the obligation to provide minimum services with 50 per cent of the staff in the transport sector, as well as the penalty of summary dismissal of public servants for failure to maintain minimum services (sections 155 and 192 of the Single Text of 29 August 2008, as amended by Act No. 43 of 31 July 2009).

The Committee notes the information provided by the Government that it has not been possible to reform the constitutional provision on the requirement to be of Panamanian nationality in order to serve on an executive board due to the political situation in the country and the fact that the Constitution is rigid, although the Government emphasizes its interest in eliminating this constitutional provision. The Committee requests the Government to provide information on the measures envisaged or taken to amend this provision in the Constitution and to ensure that it is in conformity with the Convention.

With regard to the aforementioned provisions relating to the public sector, the Committee notes with concern that, according to the information provided by the Government, it has not been possible to make progress in the National Assembly with regard to the Bill on collective labour relations in the public sector due to the opposition of some organizations, and that a new bill must be drafted and submitted for discussion. The Committee recalls that in its previous comment it had welcomed the Bill with interest and had noted the Government’s representation that the Bill was based on tripartite agreement. With regard to the pending legislative matters relating to the private sector, the Committee notes the Government’s indication that progress has been limited due to the existing conflict in the Implementation Committee with respect to trade union representation. The Committee also notes the Government’s confidence that once the Higher Labour Council has been established and is operational, more favourable conditions in which to make progress with the adoption of the legislation and the necessary reforms will be created such that the pending legislative matters will be resolved. The Committee also notes that the Committee on Freedom of Association expressed confidence that the Government would adopt legislation to regulate the establishment, registration and functioning of public sector trade unions at the earliest opportunity in accordance with the principles of freedom of association and collective bargaining (389th Report, June 2019, Case No. 3317, paragraph 527). The Committee urges the Government, without delay and in consultation with the social partners, to take the necessary steps to bring its legislation on collective labour relations in the public sector, as well as those outstanding legislative matters relating to the private sector into conformity with the Convention. The Committee requests the Government to provide information on the progress achieved in this respect and reminds the Government that it may avail itself of the technical assistance of the Office.

Application of the Convention in practice. Granting of legal personality by the administrative authority. With regard to the normalization of granting legal personality to trade unions, the Committee notes that the Government highlights that during the period from March 2014 to March 2022, MINTRADEL granted legal personality to 16 public servants’ unions and 72 trade unions in the private sector. The foregoing stands in contrast with the period from July 2009 to June 2014, during which the legal personality of only 9 private sector trade unions was approved. The Committee notes the Government’s indication that from May 2018 to May 2022, 22 applications for legal personality were denied due to the fact that, in general terms, they were not in accordance with the relevant legal provisions, and that three applications remained to be approved. The Government indicates that in 2022, no applications for legal personality in the public sector were denied. The Committee notes that the three applications pending approval were submitted between April, May and June 2021. The Committee recalls that under Article 7 of the Convention, the recognition of legal personality cannot be denied to organizations that comply with the requirements established by the legislation. While taking due note of the overall increase in the number of legal personalities granted, the Committee requests the Government to ensure that the normalization of the process of granting legal personality applies fully to public sector as well as private sector organizations. Observing that the period of time required for decisions on the granting of legal personality is excessive in some cases, the Committee requests the Government to take the necessary steps to expedite these procedures and to provide information in this respect.

Compensatory guarantees. The Committee notes the Government’s reply to the observations of the CONUSI and the International Transport Workers’ Federation (ITF) of 2017 and 2018, with respect to the effectiveness of dispute settlement procedures, particularly as compensatory guarantees, in the Panama Canal. The Government indicates that the CONUSI and the ITF lack representativeness in the Panama Canal labour regime, since they are not trade union organizations or bargaining units recognized by the Labour Relations Board of the Panama Canal Authority, and that the Committee on Freedom of Association (Case No. 3106) examined this matter and closed the case. The Committee notes the CONUSI’s indication in its observations that it is a confederation to which several trade unions representing workers in the Panama Canal belong, together with the ITF. The Committee recalls that workers deprived of the right to strike should, in practice, be afforded impartial and rapid compensatory guarantees, such as conciliation and mediation procedures leading, in the event of deadlock in negotiations, to an arbitration mechanism seen to be reliable by the parties concerned. The Committee also recalls that the Committee on Freedom of Association closed Case No. 3106 in 2018, trusting that the Government would continue to follow up the issues raised with the unions concerned to consider any relevant improvements (387th Report, October 2018, Case No. 3106, paragraph 47). Noting that the Government does not provide further details with regard to the effectiveness of the dispute settlement procedures established as compensatory guarantees in the Panama Canal, the Committee requests the Government to provide detailed information in this respect including the number of procedures initiated and resolved and their duration.