Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 363, Mars 2012

Cas no 2868 (Panama) - Date de la plainte: 06-JUIN -11 - Clos

Allegations: refusal to register or denial of legal personality to six trade unions in formation in breach of legislation and in violation of Convention No. 87; dismissal of members of two of those trade unions

1. 951. The complaint is contained in a communication dated 6 June 2011 from the Autonomous Trade Union Confederation of Panamanian Workers (CGTP).
2. 952. The Government sent its observations in a communication dated 12 September 2011.
3. 953. 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. 954. In its communication dated 6 June 2011, the CGTP alleges that the authorities refused to register or grant legal personality to the following trade union organizations in formation: (1) the Agricultural Workers’ Union of Corregimiento de Tortí; (2) the “Gaming Properties of Panama Inc.” Workers’ Trade Union (SINETEGPPI); (3) a workers’ trade union in “Panama Gaming and Services of Panamá SA” and/or “Cirsa Panamá SA”; (4) the Dockworkers, Checkers and Operators of Balboa and Cristóbal Ports Workers’ Trade Union (SITEVOP-BALCRIS); (5) the Health Committee Workers’ Trade Union; and (6) the Industrial Trade Union of Panamanian Waterway Workers and Related Industries. According to the allegations, the workers who signed the intention to form the “Gaming Properties of Panama Inc.” Workers’ Union and those who signed the intention to form a workers’ union in “Panama Gaming and Services of Panamá SA” and/or “Cirsa Panamá SA” were dismissed.
2. 955. The complainant organization sent a copy of the administrative rulings and decisions adopted based on the appeals lodged and emphasizes that the decisions of the Ministry of Labour and Social Development have violated the provisions of the Labour Code (whose section 354, for example, stipulates that objections to the application for registration of a trade union may only be made if the intended purpose is not laid down in legislation, if it was not formed with the minimum legal number of members or if the legally-required documentation is not submitted in the correct form) and of ILO Convention No. 87.
3. 956. The complainant organization also alleges that the Ministry of Labour rejected the list of dispute grievances submitted for the purposes of collective bargaining by the Hotel, Gastronomy and Tourism Workers’ Trade Union against: (1) Comidas y Bebidas Especializadas Int. SA; and (2) “Cirsa Panamá SA” and/or “Gaming and Services”, even though in both cases the companies’ workers were present at the conciliation hearings convened by the Ministry.

B. The Government’s reply

1. 957. In its communication dated 12 September 2011, the Government states that the complaint of the CGTP is completely unfounded. The Government recognizes and values the principle of freedom of association as a fundamental right of labour relations and the important role that it plays in democratic consolidation, governance and social peace. In this regard, its provisions are incorporated in national legislation and practice, through which it complies with its stipulations to ensure that freedom of association and collective bargaining are developed effectively throughout the country.
2. 958. With regard to the denial of legal personality to the Agricultural Workers’ Union of Corregimiento de Tortí, the Government states that, in fact, on 16 November 2009, the application for registration of legal personality was filed with the General Labour Directorate of the Department of Social Organizations of the Ministry of Employment and Labour Development (MITRADEL), by the trade union in formation in question, submitted by Mr Carlos Guerra Nieto, in his capacity as interim Secretary General. The aforementioned application was not approved because, on examining the documents, it was observed that it contained some irregularities which prevent the normal approval procedure for legal personality. The irregularities include the following:
   • (1) Article 2 of the trade union in formation’s constitution specifically states that the trade union is a trade organization, and it should be pointed out that agricultural activity encompasses a variety of tasks undertaken, ranging from ploughing, sowing, operating spraying and harvesting machinery to the work of agricultural engineers, hence various activities or specialist skills that are essential to the agricultural field of activity.
   • (2) Furthermore, the applicants (signatories) do not give details of the specialist skills of individuals, limiting themselves merely to noting that they are self-employed, non salaried agricultural workers, residents of Corregimiento de Tortí. This fact fails to comply with the requirements for forming social organizations, specifically section 342(1) of the Labour Code, which provides that trade unions are: “1. Trade associations, when they are composed of persons from the same profession, trade or specialist skill area; …”.
3. 959. Decision No. DM 306 of 31 December 2009 ruled that the Agricultural Workers’ Union of Corregimiento de Tortí should be denied legal personality, which was appealed by the complainant in an application for reconsideration.
4. 960. The outcome of the appeal was Decision No. 123 of 13 April 2010, which ruled that the contested ministerial decision should be upheld in its entirety, as the characteristics of these workers are not in line with the definition contained in section 82 of the Labour Code, which reads as follows: “Workers are any natural persons who have the obligation by means of a verbal or written employment contract, individually or as part of a group, explicit or presumed, to provide a service or perform a task while subordinate to or dependent on a person.”.
5. 961. It is clear that the petitioners sought to register a trade union composed of workers whose characteristics do not correspond to labour-management relations in accordance with the section invoked. It was therefore deemed appropriate to uphold Decision No. DM 306 of 31 December 2009.
6. 962. With regard to the denial of legal personality to the SINTEGPPI, the Government states that it was rejected in Decision No. DM 78 of 5 March 2010 due to non-compliance with the minimum percentage of initial membership required pursuant to section 344 of the Labour Code. The decision in question was appealed by the legal representative in an application for reconsideration, alleging that: the MITRADEL has implemented a measure that contravenes section 352 of the Labour Code; the trade union was already formed, since the request was submitted on 18 January 2010 and Decision No. DM 78 of 2010 was handed down on 11 May 2010; the MITRADEL has violated the freedom of association, as it accepted resignation letters from some members of the aforementioned organization, and they state that this situation is a direct interference by the ministry’s authorities in the exercise of freedom of association; and that the MITRADEL has ignored the fact that the workers provided a membership list of nine workers on 2 February 2010, disregarding section 386 of the Labour Code.
7. 963. Concerning the arguments put forward by the complainant, the Ministry intends to settle the dispute as follows:
   • (1) The plenary session of the Supreme Court of Justice, ruling on an application for constitutional review brought by Mr Sergio González, declares that the terms “fifteen calendar days” and “fifteen days” set forth in article 42 of Act No. 44 (1995) for the formation of trade unions, which replaces section 352 of the Labour Code, are unconstitutional.
   • (2) Ms Eloísa Miller, interim Secretary-General of the trade in formation known as SINTEGPPI, aware of the period allowed in law for applying for legal personality, decides to go to the MITRADEL on 11 May 2010 and is notified of Decision No. DM 78 of 5 March 2010 handed down by the ministry in accordance with the time limits laid down in law.
   • (3) Concerning the arguments claiming that the MITRADEL violated the freedom of association, with reference to the resignations tendered by some members of the organization in formation, the Government indicates that there are essentially two converging aspects within the principle of freedom of association: the positive singular aspect, establishing that a person is free to choose to belong to a social organization; and the negative singular aspect, referring to the power of an individual not to join a union, or to resign from an organization when he/she deems it appropriate to do so. On this basis, the MITRADEL accepted the resignations of the workers not wishing to join the organization in formation, respecting the freedom of choice; it is thus not a case of interference, as the legal representative maintained in his allegations of non compliance.
   • (4) With regard to the objection stating that the MITRADEL has ignored the fact that the workers provided a membership list of nine workers, the Government considers that such a declaration is illogical, as it was included in the file containing the application for registration of legal personality, as found on page 76 of the file. The list was provided after the request for legal personality; the persons concerned enjoyed the protection of trade union immunity, a privilege also enjoyed by the founding members, and not as the appellants state in their appeal.
   • (5) However, to clarify section 352 of the Labour Code, it refers to the personal identity cards recorded in the organization’s constitution, and not to the membership lists that may arrive after the application has been formalized. The personal identity cards recorded in the constitution were therefore checked against the copies of the personal identity cards provided in this application, from which it was determined that, given all the inconsistencies found during the checking process, in addition to the resignations of five of the founding members of the organization in question, only 29 of the members who had signed the constitution met the requirements stipulated in the provision on labour, a figure that contravenes section 352 of the Labour Code, which demands that “the personal identity cards recorded in the constitution shall be checked to ensure at least the minimum number of members required under section 344”.
8. 964. In view of the above, the MITRADEL, in Decision No. DM 181-2010 of 15 June 2010, deemed it appropriate to uphold Decision No. DM 78 of 5 March 2010, as there are no grounds for amending it.
9. 965. With regard to the rejection of the communication of intent to form a workers’ union in “Panama Gaming and Services of Panamá SA” and/or “Cirsa Panamá SA”, the Government states that, at 9.54 a.m. on 27 April 2011, the letter signed by a group of 31 workers of “Panama Gaming and Services of Panamá SA” and/or “Cirsa Panamá SA” was sent to the Department of Social Organizations of the MITRADEL’s General Labour Directorate, in which they state their wish to form an enterprise trade union, in accordance with section 385 of the Labour Code. They subsequently forwarded membership lists dated 31 April and 4 May 2011 for insertion into the first communication.
10. 966. After the technical staff of the Department of Social Organizations had examined the communication, it was deemed not to have met the minimum requirements set forth in section 385 of the Labour Code, as the provision states as follows:
    • Section 385. Workers, or their representatives, who are forming a trade union shall, to obtain the protection of trade union immunity, notify the Regional or General Labour Directorate in writing of the group’s wish to form the trade union, along with a statement of the names and general information of each person, and the company, establishment or business where they work …
11. 967. Although trade union rules do not prescribe a particular formality to follow in forming a union, the Labour Code sets out certain minimum parameters for its submission, and these are basic guidelines that were followed when registering or accepting the feasibility of applications filed by workers.
12. 968. The provision is therefore clear and needs no interpretation, as it stipulates that this notification must come with a statement of the names and general information of each person; it being understood that individuals’ general information, apart from their full name, includes personal identity card, address, telephone number, occupation, age, marital status, etc. Moreover, legislation also stipulates that the company, establishment or business where the person works must be described. It is thus clear from the documentation provided by the workers that the signatures are accompanied by the description of only some of the information required under the specific provision, i.e. that the general information (general details) of each person must be completed. The CGTP was therefore informed, in note No. DOS.2011 of 10 May 2011, addressed to Mr Abelardo Herrera, that the notification submitted to the Department of Social Organizations could not be registered, due to the aforementioned omissions.
13. 969. However, another communication was issued, note No. 186 DOS.2011 of 12 May 2011, to notify Mr Eric A Batista Ríos that the documentation was being returned because it failed to meet the requirements stipulated in section 385 of the Labour Code.
14. 970. It should be noted that on 12 May 2011, a meeting was convened at the request of the Secretary-General of the CGTP, Mr Mariano Mena, to discuss the issue in question. The meeting was attended by Mr Hernán García, Secretary-General, Ms Ada Romero, Director-General of Labour, Mr Rodrigo A Gómez Rodríguez, Head of the Department of Social Organizations, on behalf of the MITRADEL, and a group of workers accompanying Mr Mena. At this meeting, the MITRADEL’s position with respect to section 385 of the Labour Code was put forward, and it was explained that the issue could be resolved quickly if the information required were provided to the Ministry, so as to be able to grant the trade union the immunity mentioned in the provision. However, they did not accept the recommendations and chose to lodge an appeal for protection of constitutional rights in the Supreme Court of Justice against the administrative decision contained in note No. 186 DOS.2011 of 12 May 2011, issued by the Head of the Department of Social Organizations.
15. 971. With regard to the denial of legal personality to the SITEVOP-BALCRIS, the Government states that Messrs Ulises Colina and Manuel Arosemena, representing a group of workers of “Port Outsourcing Services SA”, indicated their intention to form a trade union organization in a letter dated 14 May 2009. They subsequently submitted a formal application for registration of legal personality on 18 May 2009.
16. 972. However, the Head of the Department of Social Organizations informed them, in note No. 124 DOS.2009 of 19 May 2009, that an application for an enterprise trade union had already been filed previously; hence there were legal barriers to continuing with the process and encouraged them to make a new application as an industrial trade organization.
17. 973. As is clear from the above, it is not that this group of workers are being prevented from continuing with the process of forming a trade union but that, for the reasons already given in the aforementioned note, they are being informed that under the national legislation two enterprise trade unions cannot exist in the same company.
18. 974. Despite this communication and legal barrier, the group of workers proceeded to submit member lists to the Department of Social Organizations, which were received. Subsequently, and in accordance with the procedure laid down in the Labour Code, the General Labour Directorate issued Decision No. 44 DOS.2009 of 1 June 2009, the operative part of which provides that:
    • Article 1: To instruct interested parties in the application for legal personality for the Port Outsourcing Service SA Workers’ Union to correct the omissions identified, primarily its name and envisaged activity, to ensure it does not conflict with the organization filing the previous request.
19. 975. On 9 June 2009, Mr Ulises Colina filed an application for reconsideration of the 1 June 2009 decision. This group of workers continued submitting member lists. However, on 8 July 2009, Messrs Ulises Colina and Manuel Arosemena, sent the letter dated 3 July 2009 to the Department of Social Organizations, addressed to Mr Gavino Omar Rodríguez, stating the following:
    • I enclose herewith the corrections requested in accordance with Decision No. 44 DOS.2009 regarding the formation of our trade union organization, which was intended to be called Port Outsourcing Services SA.
20. 976. As is clear in this letter dated 3 July 2009, the parties concerned corrected the documentation in line with Decision No. 44 DOS.2009 of 1 June 2009, confirming that it is not a new application, as evidenced in their extraordinary appeal for the protection of constitutional rights. The MITRADEL therefore, throughout this case, ensured the constitutional and legal rights of the workers and the due process of law called for in this type of process.
21. 977. It should be noted that these petitioners continued to pursue legal personality as an enterprise trade union, despite having been informed that it was more appropriate to seek legal personality as an industrial trade union, not least because in April 2009 a previous application had already been made by workers of the “Port Outsourcing Services SA”. This group of workers also simultaneously instigated an application for constitutional review against the “Port Outsourcing Service SA” Workers’ Union, file No. 562-09, which halted the process pending a ruling by the plenary session of the Supreme Court.
22. 978. This is corroborated in note No. 183 DOS.2010 of 18 May 2010, issued by Mr Edgar D Ángelo R, Head of the Department of Social Organizations, addressed to HE Alma L Cortés Aguilar, Minister of Employment and Labour Development. In the light of this application for constitutional review, the Department of Social Organizations halted the procedure pending the outcome or ruling of the Supreme Court of Justice.
23. 979. After some time had elapsed, Mr Ulises Colina submitted the letter dated 21 March 2011, stating the following:
    • The purpose of this letter is to request you to comply with the provisions of section 356 of the Labour Code, given that the periods stipulated in sections 351 and 352 of the Labour Code have elapsed without comment, as required under section 353 of the Labour Code. We are therefore requesting you to kindly issue the respective certificate attesting to the existence of the Dock Workers, Checkers and Operators of Balboa and Cristóbal Ports Industrial Trade Union (SITEVOP-VALCRIS) and to record the entry and registration of that trade union on the registers of organizations.
24. 980. This request, submitted on 21 March 2011, reflects the ruling of the Supreme Court of Justice dismissing the application for constitutional review filed by this group of workers of the trade union currently in formation.
25. 981. Decision No. DM 75-2011 was subsequently handed down on 14 April 2011, the operative part of which rules not to allow the registration of the request for legal personality of the social organization known as the Dockworkers, Checkers and Operators of Balboa and Cristóbal Ports Industrial Trade Union (SITEVOP-VALCRIS). An application for reconsideration was filed against Decision No. DM 75-2011 of 14 April 2011, which was settled in Decision No. DM 88-2011 of 26 April 2011, upholding, in its entirety, the contested decision.
26. 982. With regard to the administrative silence resulting in denial of legal personality to the Health Committee Workers’ Trade Union, the Government states that a group of workers of the Health Committee of the San Isidro Health Centre submitted a communication in writing to the MITRADEL, in a letter dated 14 June 2006, concerning the intention to form an industrial trade union, in accordance with section 385 of the Labour Code. This communication was submitted to, and received on 19 June 2006 by the Department of Social Organizations. The Director-General of Labour subsequently decided, in Decision No. 55 DOS.2006 of 18 July 2006, to return the Health Committee Workers’ Trade Union’s application for legal personality to the parties concerned to enable them to make the corrections identified within 15 days of the notification.
27. 983. The Department of Social Organizations subsequently received back the corrected documentation from the aforementioned organization, which was duly examined, but it transpired that not all of the omissions identified had been corrected. Consequently, in accordance with section 355(1) of the Labour Code, on 11 August 2006 the Director General of Labour, in Decision No. 67 DOS.2006, rejected the application for legal personality of the organization in formation.
28. 984. In this regard, the operative part of the last paragraph of Decision No. 67 DOS.2006 stipulates as follows:
    • In accordance with the order contained in the decision in question (Decision No. 55 DOS.2006), 40 of the identity cards of the founding members of this organization were checked. However, it should be noted that, in addition to all the omissions identified not having been corrected, the petitioners at no time confirmed that they were health sector workers, which was an essential and compulsory requirement of section 342 of the Labour Code to avoid a possible challenge on the grounds of admitting members not meeting the legal requirements.
29. 985. Concerning the refusal of the MITRADEL to grant legal personality to the Industrial Trade Union of Panamanian Waterway Workers and Related Industries, the Government states that on 13 April and on 5, 8, 11, 13 and 18 May 2009, communications were submitted to the Department of Social Organizations to notify it of the wish of a group of workers of the “Panama Ports Company SA” to form a trade union in that company, which were accompanied by members’ signatures and their respective identity card numbers. Thereafter, on 25 May 2009 documentation containing the formal application and registration material were received by the Department of Social Organizations from the social organization in formation called the Industrial Trade Union of Panamanian Waterway Workers and Related Industries, whose interim Secretary-General was Mr Luis Alberto Zárate.
30. 986. After examining the documentation, the MITRADEL forwarded the file to the Ministry of the Presidency, in note No. DM 490-2009 of 12 June 2009, for its consideration and signature of the respective decision, but it failed to reach the highest authority of the Executive Body.
31. 987. Clearly, the measure was not wholly legal because the application for legal personality was not endorsed by the highest competent authority. In this regard, the MITRADEL issued Decision No. DM 256-2010 of 11 August 2010, ordering the file of the aforementioned organization to be closed. Mr Luis Alberto Zárate Salazar through his legal representative Mr Martin González, filed an application for reconsideration of the decision on the simple grounds that the decision in question was improperly notified, thus rendering it illegal.
32. 988. In response to that appeal, the MITRADEL issued Decision No. DM 296-2010 of 14 September 2010, ruling that Decision No. DM 256-2010 should be upheld in its entirety, which states:
    • After several attempts to locate the Secretary-General of the aforementioned social organization, this authority duly complied with the provisions of section 888 of the Labour Code, the first paragraph of which states:
    • If the proxy of an existing party in the case who had to be notified in person could not be traced for that purpose, the bearer shall note that on the file, indicating the day and time on which he/she was to hand over the personal notification.
33. 989. In this regard, the notification was handed over as per the requirement, contrary to the allegations of the appellant.
34. 990. With regard to the alleged illegality of the contested decision, Decision No. DM 296-2010 states that “the flawed administrative decision occurred because of a failure to implement the provisions of the decision in the application process for legal personality, as upheld in Decision No. DM 256-2010 of 11 August 2010”.
35. 991. Following these events, Mr Roberto Mendoza, signatory to the application for legal personality, lodged an appeal for protection of constitutional rights through his legal representative on 4 June 2010, with the Supreme Court of Justice on the grounds that those rights were not provided for in note No. 0087-2010 of 4 March 2010, issued by the Department of Social Organizations of the MITRADEL’s General Labour Directorate.
36. 992. This appeal was acknowledged in a decision of 22 July 2010, informing the General Labour Directorate and ordering it to report on action taken, as the notification in question was not the responsibility of the General Labour Directorate, but the public official mandated to take the action described above, i.e. the incumbent Head of the Department of Social Organizations, which is why it is deemed to be a violation of the due process of law.
37. 993. In this regard, article 2615 of the Judicial Code clearly stipulates as follows:
    • Any person against whom an order to do or not to do is issued or enforced by any public official which violates the rights and guarantees enshrined in the Constitution shall have the right for the order to be revoked upon his/her request or that of any other person … The appeal for protection of constitutional rights to which this article refers shall be processed by way of a summary proceeding and shall fall under the jurisdiction of the judicial courts.
38. 994. The foregoing stipulates that the responsibility for issuing a ruling on an appeal for protection of constitutional rights does not fall to the plenary session of the Supreme Court because the official respondent does not have the authority and jurisdiction throughout the Republic of Panama or in two or more provinces in accordance with article 2616(1) of the Judicial Code.
39. 995. Without distinction, the plenary session of the Supreme Court of Justice, in the operative part of the decision of 26 October 2010, granted the appeal lodged and ordered the list of new members to be accepted and the existence of the organization in question to be certified. The Department of Social Organizations complied with the order to accept the list of new members.
40. 996. However, Mr Luis Alberto Zárate Salazar, through his legal representative Mr Martin González, filed a motion of contempt against the MITRADEL on the grounds of non compliance with the order of the decision of 26 October 2010, handed down by the Supreme Court of Justice, on certifying the existence of the aforementioned organization (case file No. 549-10, which remains unresolved in the highest judicial authority).
41. 997. In this regard, the Government states that is clearly important to draw attention to the fact that the aforementioned order is inconsistent and clearly confusing, in that the MITRADEL cannot certify the existence of the aforementioned organization (a task carried out by the Department of Social Organizations) if the existence of this organization has still not been established in law (this occurs when a trade union organization in formation has been certified (for the purpose of registering its legal personality) by the President of the Republic), which was not done in this particular case.
42. 998. The Ministry of Employment and Labour Development is therefore not in contempt, as the applicant claims in the aforementioned case, since the Ministry accepted a list of the organization’s new members, as ordered by the plenary session of the Supreme Court, and in no way did the latter order that registration of legal personality should be granted to the social organization in question.
43. 999. The Government points out that the denial of legal personality to the aforementioned trade unions in formation has nothing to do with Government policy, but is due to non compliance with the procedural requirements for obtaining legal personality.
44. 1000. Lastly, with regard to the allegation concerning the rejection of two lists of dispute grievances, submitted for the purpose of collective bargaining by the Hotel, Gastronomy and Tourism Workers’ Trade Union, made against two companies, the Government states that in one case seven of the eight workers who supported the list ceased supporting it and, in the other case, the trade union in question addressed the list of dispute grievances to a slot machine company whose activity is at odds with that of the trade union.

C. The Committee’s conclusions

1. 1001. The Committee observes that in this case the complainant alleges that the Ministry of Employment and Labour Development prevented the formation of six trade union organizations in different sectors in violation of Convention No. 87 and the Labour Code. The complainant sent a copy of the administrative decisions and the outcome of the appeals lodged and points out that section 354 of the Labour Code provides that objections to the application for registration of a trade union may only be made if the intended purpose is not laid down in legislation, if it was not formed with the minimum legal number of members or if the legally required documentation is not submitted in the correct form. The complainant also alleges that the workers who signed the intention to form two of the six trade unions in question were dismissed.
2. 1002. The Committee notes that the Government states that these refusals to register or grant legal personality to trade union organizations in formation are due to non-compliance with legislation or irregularities and that they are not due to any State policy, as the State recognizes and values the principle of freedom of association as a fundamental right. The Government adds that the trade unions in formation lodged legal appeals, which were processed in accordance with the law.
3. 1003. The Committee observes that the substantive grounds for denial of legal personality are as follows:
   • – with regard to the Agricultural Workers’ Union of Corregimiento de Tortí, the main grounds for denying legal personality are that its members are self-employed, non salaried workers, while the concept of a worker under the Labour Code refers to natural persons who have the obligation to provide a service or perform a task “while subordinate to or dependent on a person”;
   • – with regard to the SINTEGPPI, the grounds for denying legal recognition are that the trade union in formation did not meet the legal requirement for minimum membership and that workers who subsequently join do not count, and in particular, that five founding members resigned, leaving only 29 workers who were founding members of the trade union, which did not comply with the legal requirements;
   • – with regard to the workers of “Panama Gaming and Services of Panamá SA” and/or “Cirsa Panamá SA”, the grounds for rejecting the communication of intent to form a trade union were that the communication should, according to legislation, have contained the following general information: full name; personal identity card; address; telephone number; occupation; age; marital status; etc., and a description of the company or business where the person works. The Committee notes that the Ministry of Labour invited those concerned to complete this information, but they chose to lodge an appeal for protection of constitutional rights in the Supreme Court of Justice;
   • – with regard to the denial of legal personality to the SITEVOP-BALCRIS, the grounds for denial were the existence of a previous application (by other workers) to form an enterprise trade union, as according to legislation there cannot be two enterprise trade unions in the same company (although it could form an industrial trade union);
   • – with regard to the denial of legal personality (by way of administrative silence) to the Health Committee Workers’ Trade Union, the grounds for denial are that they could not form an industrial trade union because the applicants failed to prove that they are health sector workers;
   • – with regard to the denial of legal personality to the Industrial Trade Union of Panamanian Waterway Workers and Related Industries, the grounds for denial were that the application for legal personality was not endorsed by the highest competent authority (the President of the Republic); the applicants lodged an appeal for protection of constitutional rights before the Supreme Court of Justice, an appeal that was granted, and on the basis of which the Ministry of Labour accepted the list of new members of the trade union, but it failed to certify the existence of the trade union because the Ministry of Labour cannot, according to the Government, certify the existence of the organization in question as it still has not been established in law because the registration of the organization has not been endorsed by the President of the Republic.
4. 1004. The Committee takes note with deep concern a number of the reasons given by the Government for refusing to register or grant legal personality to the six trade union organizations in formation mentioned in the complaint.
5. 1005. The Committee considers that the different legal requirements or their interpretation in practice in this case appear to have contravened Article 2 of Convention No. 87 under which workers without distinction whatsoever and without previous authorization have the right to establish organizations of their own choosing. Article 3 of Convention No. 87 enshrines the principle of non-interference by the authorities. In that regard, the Committee emphasizes that, although the requirement for simple formalities for the formation of trade union organizations is compatible with Convention No. 87, it is contrary to Convention No. 87 to prevent trade unions of self-employed workers who are not subordinate to, or dependent on, a person, to prevent two enterprise trade unions coexisting, to make the granting of legal personality subject to the approval of the President of the Republic, to demand information from the founders of an organization such as their telephone number, marital status or home address (this indirectly excludes from membership workers with no fixed abode or those who cannot afford to pay for a telephone), to allow unexpected resignations by member workers (in the documents attached to the complaint, the complainant implies that they had been induced) resulting in the trade union in formation failing to have the minimum legal number of members. The Committee also observes that in Case No. 2751 the complainant (including CONATO – which is the most important trade union organization in the country) alleged that 30 applications for trade union registration were “frozen” by the authorities.
6. 1006. Therefore the Committee, on the one hand, urges the Government to adopt measures to amend legislation to bring it in line with Convention No. 87 and, as it has already done with regard to Case No. 2751, the Committee requests the Government, including the administrative authorities, to examine, with the complainants in a proactive and constructive manner, the reasons for this situation so as to assess how the system is working in practice and how to resolve the issue of registration or access to legal personality for trade union organizations whose registration has been denied. The Committee requests the Government to keep it informed in that regard.
7. 1007. The Committee also understands that some of the cases of denial of legal personality have been submitted to the judicial authority and requests the Government to inform it of the decisions handed down.
8. 1008. With regard to the allegations that the workers who signed the intention to form the SINTEGPPI and those who signed the intention to form a workers’ trade union in “Panama Gaming and Services of Panamá” and/or “Cirsa Panamá SA” were dismissed, the Committee regrets that the Government has not sent detailed comments on these serious allegations and, recalling that pursuant to Article 1 of Convention No. 98, it is expressly prohibited to “cause the dismissal of, or otherwise prejudice, a worker by reason of union membership”, the Committee urges the Government, should the allegations be verified, to take steps to reinstate the workers of both trade unions immediately and compensate them for their losses (salaries and benefits) and to keep it informed thereof.
9. 1009. Lastly, with regard to the allegation concerning the rejection of two lists of dispute grievances, submitted for the purpose of collective bargaining by the Hotel, Gastronomy and Tourism Workers’ Trade Union made against two companies, the Committee notes that the Government states that, in one case, seven of the eight workers who supported the list ceased supporting it, and, in the other case, the trade union in question addressed the list of dispute grievances to a slot machine company whose activity does not correspond to the scope of the trade union.

The Committee’s recommendations

1. 1010. In view of the foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee takes note with deep concern a number of the reasons given by the Government for refusing to register or grant legal personality to the six trade union organizations in formation mentioned in the complaint. The Committee considers that the different legal requirements or their interpretation in practice in this case appear to have contravened Article 2 of Convention No. 87 under which workers without distinction whatsoever and without previous authorization have the right to establish organizations of their own choosing.
   • (b) The Committee, on the one hand, urges the Government to adopt measures to amend legislation to bring it in line with Convention No. 87 and, as it has already done with regard to Case No. 2751, the Committee requests the Government, including the administrative authorities, to examine with the complainants in a proactive and constructive manner the reasons for this situation so as to assess how the system is working in practice and how to resolve the issue of registration or access to legal personality for trade union organizations whose registration has been denied. The Committee requests the Government to keep it informed in that regard.
   • (c) The Committee also understands that some of the cases of denial of legal personality have been submitted to the judicial authority and requests the Government to inform it of the decisions handed down.
   • (d) Lastly, with regard to the allegations that the workers who signed the intention to form the SINTEGPPI and those who signed the intention to form a workers’ trade union in “Panama Gaming and Services of Panamá” and/or “Cirsa Panamá SA” were dismissed, the Committee regrets that the Government has not sent detailed comments on these serious allegations and, recalling that pursuant to Article 1 of Convention No. 98 it is expressly prohibited to “cause the dismissal of, or otherwise prejudice, a worker by reason of union membership”, the Committee urges the Government, should the allegations be verified, to take steps to reinstate the workers of both trade unions immediately and compensate them for their losses (salaries and benefits) and to keep it informed thereof.