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Article 7, paragraphs 2 and 3, of the Convention. Temporary exceptions – annual limit to the number of additional hours. The Committee notes with regret that, in reply to its previous comments, the Government merely indicates once again that it is currently unable to amend section 36(4) of the Labour Code in order to bring it into conformity with the provisions of the Convention. It notes that the Government refers, as an additional argument, to the elections which took place in the country in May 2009 in order to justify a further postponement of the adoption of the necessary measures in this area. The Committee reiterates that, although social dialogue is of course essential and the ideal is to find solutions on which a tripartite consensus has been reached, the Government bears the ultimate responsibility for the fulfilment of its international obligations, including the implementation of the ILO Conventions ratified by Panama. The Committee therefore urges the Government to amend section 36(4) of the Labour Code in order to fix a reasonable annual limit to the number of additional hours authorized in the context of temporary exceptions and thereby bring the national legislation into conformity with the Convention on this point.

Furthermore, in reply to a point raised by the Committee concerning daily and annual limits on overtime applicable in the public sector, the Government refers to Executive Decree No. 222 of 12 September 1997 implementing Act No. 9 of 20 June 1994 regulating the administrative career service, which authorizes under the sole condition of obtaining the authorization of the responsible chief, the accumulation of 40 additional hours per month and 25 per cent of legal daily working time. However, Article 7(2) of the Convention only authorizes temporary exceptions to the normal limits on hours of work in a number of specific cases and in cases of abnormal pressure of work due to special circumstances, in so far as the employer cannot ordinarily be expected to resort to other measures. The Committee therefore requests the Government to indicate the measures taken or envisaged to limit, in conformity with the Convention, the cases in which public service employees are authorized to work additional hours.

In addition, Article 7(3) of the Convention prescribes the setting of an annual limit on the number of additional hours authorized. The Committee requests the Government to take the necessary steps in order to introduce such a limit and to keep the Office informed of developments in this area.

Finally, the Committee notes that, under the terms of section 122 of Executive Decree No. 222 of 12 September 1997, additional hours are paid only on condition that they have been previously authorized by the responsible chief. It notes that section 217 of Act No. 51 of 11 December 2007 fixing the general State budget for 2008 reaffirms this limitation concerning the remuneration of additional hours and states that the latter may not exceed 50 per cent of the normal monthly salary of the official concerned. The Committee emphasizes that, except for cases of accident and force majeure, additional hours must be paid at not less than one and a quarter times the regular rate, regardless of whether any compensatory rest is granted. The Committee requests the Government to provide information on the rates of pay applicable in cases of additional hours of work in the public service.

[The Government is asked to reply in detail to the present comments in 2010.]

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The Committee notes that the Government’s report has not been received. It must therefore repeat its previous observation which read as follows:

Article 7(2) and (3) of the Convention. Temporary exceptions – annual limits to additional hours. With reference to its previous comments, the Committee notes the conclusions of the technical assistance mission which took place in February 2006. It notes in this respect that, during the mission, the social partners expressed different points of view on the annual limit of additional hours which is required to be set in relation to temporary exceptions in conformity with the provisions of the Convention. The Committee notes that, in the view of the National Council of Organized Workers (CONATO), the number of additional hours should not exceed 200 per year, whilst the National Council of Private Enterprise of Panama (CONEP) considers that the weekly limit of nine additional hours, or 468 per year, should not be changed. Finally, the Government came out in favour of an annual limit of 240 additional hours, while insisting that, in the absence of consensus between employers’ and workers’ organizations, no amendment could be made to the Labour Code for this purpose. The Committee further notes that, according to the conclusions of the technical assistance mission, this issue could be addressed in two seminars which the Government has requested the Office to organize, on the one hand, with CONEP and, on the other, with CONATO. The Committee hopes that these seminars will lead to significant progress with a view to the amendment of section 36(4) of the Labour Code so as to bring it into conformity with Article 7 of the Convention. It wishes, however, to remind the Government, as the technical assistance mission did, of its primary responsibility for compliance with international labour standards and the full application of ratified Conventions, and the proactive and committed attitude that it has to demonstrate in reaching tripartite consensus. The Committee expresses the firm hope that the Government will take all the necessary measures to resolve this issue without further delay and to bring its legislation into conformity with the Convention on this point.

The Committee further notes that, during the technical assistance mission in February 2006, CONATO called for the rules on additional hours that are in force in the private sector to be transposed to the public sector. In this respect, the Committee requests the Government to indicate the limits (both daily and annual) for additional hours that are applicable in the public sector.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

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Article 7, paragraphs 2 and 3, of the Convention. Temporary exceptions – annual limits to additional hours. With reference to its previous comments, the Committee notes the Government’s report and the conclusions of the technical assistance mission which took place in February 2006. It notes in this respect that, during the mission, the social partners expressed different points of view on the annual limit of additional hours which is required to be set in relation to temporary exceptions in conformity with the provisions of the Convention. The Committee notes that, in the view of the National Council of Organized Workers (CONATO), the number of additional hours should not exceed 200 per year, whilst the National Council of Private Enterprise of Panama (CONEP) considers that the weekly limit of nine additional hours, or 468 per year, should not be changed. Finally, the Government came out in favour of an annual limit of 240 additional hours, while insisting that, in the absence of consensus between employers’ and workers’ organizations, no amendment could be made to the Labour Code for this purpose. The Committee further notes that, according to the conclusions of the technical assistance mission, this issue could be addressed in two seminars which the Government has requested the Office to organize, on the one hand, with CONEP and, on the other, with CONATO. The Committee hopes that these seminars will lead to significant progress with a view to the amendment of section 36(4) of the Labour Code so as to bring it into conformity with Article 7 of the Convention. It wishes, however, to remind the Government, as the technical assistance mission did, of its primary responsibility for compliance with international labour standards and the full application of ratified Conventions, and the proactive and committed attitude that it has to demonstrate in reaching tripartite consensus. The Committee expresses the firm hope that the Government will take all the necessary measures to resolve this issue without further delay and to bring its legislation into conformity with the Convention on this point.

The Committee further notes that, during the technical assistance mission in February 2006, CONATO called for the rules on additional hours that are in force in the private sector to be transposed to the public sector. In this respect, the Committee requests the Government to indicate the limits (both daily and annual) for additional hours that are applicable in the public sector.

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Article 7, paragraphs 2 and 3, of the Convention. Temporary exceptions - annual limits to additional hours. The Committee notes with regret that in its report, the Government merely repeats that it maintains its decision not to amend the Labour Code for the time being and that there is no consensus among the social partners on this matter. The Committee is therefore bound to point out once again that since the adoption of the Labour Code in 1971, i.e., for more than 30 years, it has been stressing the need to amend section 36(4) of the Code which sets only daily and weekly limits for overtime, whereas the Convention requires also an annual limit to be set with respect to the temporary exceptions. The Committee notes that the Government has stated that it is aware of its obligations under the Convention and has asked the Office to have the matter of its application dealt with in the course of a technical assistance mission on freedom of association that is scheduled for February 2006. The Committee recalls that a bill to bring the legislation into line with the Convention was drafted as long ago as 1977 in the context of a direct contacts mission. It trusts that, following the technical assistance mission that has been scheduled, the Government will do its utmost to ensure without further delay that its legislation is brought into line with the Convention on this point.

The Committee also notes from the information supplied by the Government in its report that the labour courts are responsible for the procedures pertaining to overtime. It requests the Government to provide more detailed information on this aspect.

Part V of the report form. The Committee notes the information sent by the Government and asks it to continue to provide general information on the manner in which the Convention is applied in practice.

[The Government is asked to reply in detail to the present comments in 2006.]

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Article 7, paragraphs 2 and 3, of the Convention. Temporary exceptions - annual limits to additional hours. In the comments that it has been making since the adoption of the Labour Code in 1971, the Committee has requested the Government to bring section 36(4) of the Labour Code in line with the provisions of Article 7, paragraph 3, of the Convention, which require the determination of the number of additional hours of work allowed in the year.

Under section 35(2) of the Labour Code, a collective agreement may set forth the obligation for workers to perform additional hours, within the statutory limits and on the condition that the worker has agreed to this obligation in the employment contract. Section 36(4) of the Labour Code sets the maximum number of additional hours allowed at three in the day and nine in the week. However, as indicated above, Article 7, paragraph 3, of the Convention provides that regulations allowing the performance of additional hours as a temporary exception have to determine the number of additional hours of work which may be allowed in the day and in the year. This rule applies whether or not an agreement has been made with the worker to perform additional hours.

In its report, the Government maintains the position that it adopted in its previous report. It indicates that the situation of the country is not sufficiently favourable to amend the Labour Code and that there is no consensus among the social partners on this subject. It adds that the Government has entered a pre-electoral period and hopes that a solution can be sought when the new administration is in office.

The Committee wishes to emphasize that the provisions of the Convention constitute a minimum threshold and that nothing prevents States from setting out more favourable provisions in their legislation. The flexibility clauses contained in the Convention merely allow member States, under certain conditions, to adapt the rules respecting working time so as to take into account the national situation. If the Government considers that the application of these flexibility clauses would be contrary to the national legislation, this does not raise specific problems for the application of the Convention. For example, in its report in 2002, the Government expressed concern at the possibility provided by Article 6 of the Convention, in exceptional cases, to distribute hours of work over a period longer than the week. The Government’s attention is drawn to the fact that this is merely a possibility, and in no case an obligation upon States.

In any event, the Government has made use of the flexibility clause contained in Article 7, paragraph 2, of the Convention by authorizing the performance of additional hours. As a consequence, the conditions set out in this provision, including the determination of the maximum number of additional hours which may be allowed in the year, have to be complied with.

The Committee regrets that the Government has not so far followed up the Bill formulated in the context of the direct contacts mission in 1977, which set at 250 the maximum number of additional hours which may be allowed in the year. It urges the Government take the necessary measures to bring the legislation into conformity with the Convention on this point and notes that, if it so wishes, it may call upon the ILO for technical assistance.

[The Government is asked to reply in detail to the present comments in 2005.]

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Annual limits to additional hours worked in case of temporary exemptions. The Committee notes with interest the detailed report provided by the Government for the period ending on 30 June 2002. It notes that the Government insists on its view that the Constitution and the actual provisions of the Labour Code do not permit harmonizing the Labour Code with Article 7, paragraph 3, of the Convention by setting an annual limit on the number of additional hours of work provided for under section 36(4) of the Labour Code. The Government again refers to objections alleged to have been raised in the study commissioned by the Ministry of Labour on a bill, which was drawn up following direct contacts with the ILO in 1977. The Committee reiterates that it does not find substantial objections in the study. It further notes the Government’s indication that an amendment to bring the Labour Code in line with this provision of the Convention would not find the necessary majority in Parliament nor the consent of the social partners, in particular of the workers’ organizations concerned.

From the indications supplied by the Government, the Committee cannot conclude any legal reasons that could prevent the competent national bodies from bringing the Labour Code into conformity with the Convention. The legal limits of additional hours of work, as provided for under sections 35(2) and last paragraph, and section 36(3) of the Labour Code, apparently are those set in section 36(4) of the Code. The Committee requests the Government to reconsider, if it desires with ILO assistance, the modification of the Labour Code in the light of Article 7, paragraphs 2 and 3, of the Convention by setting annual limits to additional hours worked in case of temporary exemptions, except in case of accident, force majeure or urgent work.

The Committee also urges the Government to include in any considerations concerning the revision of section 36(4) of the Labour Code that in its actual version this section does not respect the limits to be set on the number of overtime hours, according to Articles 4, 5, paragraph 1(a), (b) and (c), and 6 of the Convention.

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The Committee notes the Government’s last report on the application of the Convention and the information it contains in reply to its previous comments. It notes with regret that no measures have been taken by the Government to harmonize the Labour Code with the provisions of Article 7 of the Convention. The Committee recalls that since 1975 it has been commenting on the need to set an annual limit on the number of hours’ overtime provided for in section 36(4) of the Labour Code. Deeming the 468 hours’ overtime per year allowed by this provision to be too high, the Committee expressed the hope that the Government would take account of the maximum of 250 hours per year proposed in the Bill drawn up following the direct contacts made in 1977 by a representative of the Director-General of the ILO. In the Committee’s view, the study commissioned by the Ministry of Labour on the above Bill, a copy of which was sent with the report, raises no real objections to the adoption of this annual limit on overtime, and the difficulties raised concerning the compatibility of some Articles of the Convention with the provisions of the national Constitution and legislation arise from too rigid an interpretation of minimum or optional standards.

The Committee is bound once again to ask the Government to take all necessary steps at the earliest possible date to bring its legislation into line with the prescriptions of Article 7 of the Convention and reminds it that it may seek technical assistance from the ILO.

[The Government is asked to report in detail in 2002.]

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The Committee notes that the Government's report has not been received. It must therefore repeat its previous observation which read as follows:

The Committee notes the information supplied by the Government in answer to its previous comments. It notes the official establishment, on 21 January 1992, of the Tripartite Committee for Cooperation in Social and Labour Matters, whose functions include harmonizing the Labour Code with the provisions of Article 7, paragraphs 2 and 3, of the Convention. The Committee recalls in this connection that a Bill was drafted during the direct contacts held in November 1977 with a representative of the Director-General of the ILO to set a maximum of 250 hours' overtime per year in commerce and offices, since the possibility of doing three hours' overtime per day and nine per week, without any reasonable annual limit (the 468 hours per year calculated by the Government were deemed excessive) was not considered to be fully in conformity with the above Article of the Convention. The Committee again expresses the hope that the Government will shortly be in a position to fix an annual limit for temporary exceptions, in the light of the work of the Tripartite Committee and the above comments. It asks the Government to keep the Office informed of any developments in this respect.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

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The Committee notes the information supplied by the Government in answer to its previous comments. It notes the official establishment, on 21 January 1992, of the Tripartite Committee for Cooperation in Social and Labour Matters, whose functions include harmonizing the Labour Code with the provisions of Article 7, paragraphs 2 and 3, of the Convention.

The Committee recalls in this connection that a Bill was drafted during the direct contacts held in November 1977 with a representative of the Director-General of the ILO to set a maximum of 250 hours' overtime per year in commerce and offices, since the possibility of doing three hours' overtime per day and nine per week, without any reasonable annual limit (the 468 hours per year calculated by the Government were deemed excessive) was not considered to be fully in conformity with the above Article of the Convention.

The Committee again expresses the hope that the Government will shortly be in a position to fix an annual limit for temporary exceptions, in the light of the work of the Tripartite Committee and the above comments. It asks the Government to keep the Office informed of any developments in this respect.

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The Committee notes the information supplied by the Government in its last report.

With reference to its previous comments, the Committee notes, in particular, that the technical team of the Ministry of Labour and Social Welfare, to which the Government referred in its previous report, is continuing to seek ways of bringing the legislation into harmony with the requirements of Article 7, paragraphs 2 and 3, of the Convention. It recalls that the Bill fixing the number of overtime hours in commerce and offices at a maximum of 250 per year was drawn up during direct contacts made in November 1977 by a representative of the Director-General of the ILO, because the possibility of working three overtime hours per day and nine per week, without any reasonable annual limitation (the 468 hours per year calculated by the Government being considered too high) was not considered as being in full conformity with Article 7, paragraphs 2 and 3.

The Committee once again hopes that the Government will be able to fix an annual limit for cases of temporary exceptions in the light of the above, and requests the Government to keep the Office informed of any developments in this connection.