Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

The Committee notes the Government's report and the Committee on Freedom of Association's conclusions and recommendations in Case No. 1931 (Panama), which was approved by the Governing Body at its 272nd Session in June 1998, and which refers to the restrictions on the right of employers and their organizations provided for in the law (210th Report, paragraphs 493-507).

A. The Committee recalls that its previous comments referred to the following provisions:

-- section 174 and the final paragraph of section 178 of Act No. 9 ("establishing and regulating administrative careers"), of 1994, which lays down respectively that there shall not be more than one association in an institution, and that associations may have provincial or regional chapters, but can have no more than one chapter per province;

-- section 41 of Act No. 44 of 1995 (amending section 344 of the Labour Code) which requires an excessively high number of members to establish an employers' occupational organization (10) and an equally high number to establish a workers' organization (40) at the enterprise level;

-- section 64 of the Constitution which requires Panamanian nationality to serve on the Executive Board of a trade union.

In regard to the prohibition of more than one public servants' association in an institution and more than one chapter per province, the Committee notes the Government's statement in its report setting out the reasons for such provisions, including the reduction of the number of public servants. Nevertheless, the Committee emphasizes again that any system of trade union unity or monopoly, implicitly or explicitly imposed by law, is contrary to the principle that workers and employers shall have the right to establish organizations of their choosing as laid down in Article 2 of the Convention. On this point, the Committee again requests the Government to take the necessary measures to amend its legislation so that workers have the right to establish and join trade union organizations of their own choosing, should they so wish.

As regards the number of members required to establish an employers' or a workers' organization, the Committee notes the Government's statement to the effect that Act No. 44 of 1995 issuing this provision, was the result of a tripartite consensus between the Government and social partners. Notwithstanding the latter, the Government has noted the Committee's observations.

In this respect, the Committee again requests the Government to take the necessary measures to reduce the number of members required to establish an organization of employers to fewer than ten and to further reduce the minimum number of 40 workers required to establish an occupational organization at the enterprise level, particularly if this requirement prevents collective bargaining in smaller enterprises.

With regard to the requirement of Panamanian nationality to serve on the Executive Board of a trade union, the Committee notes the Government's statement, despite the fact that constitutional reforms require a special procedure, the Government has noted the Committee's comments on this point. The Committee again hopes that the Government will adopt the necessary measures to repeal this provision in the Political Constitution.

B. Case No. 1931. As regards lockouts in enterprises, establishments and businesses in the event of a strike, as provided in sections 493(1) and 497 of the Labour Code (Case No. 1931), the Committee considers that in the case of a legal strike such provisions go beyond the protection of the right to strike and may restrict the freedom to work of non-striking workers, ignoring the basic needs of the enterprise (maintenance of premises, accident prevention and the right of entrepreneurs and managers to enter the premises and to exercise their activities). In such conditions, the Committee of Experts, in the same way as the Committee on Freedom of Association, requests the Government to take measures to repeal the above provisions set out in sections 493(1) and 497 of the Labour Code.

As regards the possibility of workers unilaterally submitting collective disputes to arbitration (section 452(2) of the Labour Code), whose findings shall be legally binding on the parties (section 470 of the Labour Code), the Committee recalls that arbitration imposed at the request of one party is generally contrary to the principle of the voluntary negotiation of collective agreements and thus, the autonomy of bargaining partners. Nevertheless, an exception could be made in the cases in which provisions exist, for instance, allowing workers' organizations to initiate such a procedure for the conclusion of a first collective agreement (see General Survey on freedom of association and collective bargaining, 1994, paragraph 257).

In this respect, the Committee requests the Government to take the necessary measures to amend section 452(2) of the Labour Code to reflect the above-noted principle.

The Committee again hopes that the Government will continue to take measures to bring the legislation into full conformity with the provisions of the Convention and requests the Government to inform it in its next report of any progress made in this respect.

The Committee is addressing a request directly to the Government on other points.