Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

The Committee notes that the Government’s report has not been received.

The Committee takes note of the comments of 29 August 2008 by the International Trade Union Confederation (ITUC) on the application of the Convention. The Committee notes that the ITUC alleges very serious acts of violence against officials of the Construction and Allied Workers’ Union (SUNTRAC) and the arrest of one official of the same union. The Committee requests the Government to send its observations on this matter. The Committee further notes the comments of the National Federation of Public Employees and Public Service Enterprise Workers (FENASEP), on issues raised by the Committee.

The Committee recalls that its comments refer to the following matters which raised problems of compliance with the Convention:

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

–      Sections 174 and 178, last paragraph, of Act No. 9 (“establishing and regulating administrative careers”) of 1994, which laid down respectively that there shall not be more than one association in an institution and that associations may have provincial or regional branches, but not more than one branch per province. The Committee observes that Act No. 24 of 2 July 2007 amending and supplementing Act No. 9 on Administrative Careers has not abolished the trade union monopoly imposed by the latter. FENASEP is of the view that these provisions should not be amended because to allow more than one single association or branch would fragment the trade union movement. The Committee points out that although it may be in the workers’ interest to avoid a proliferation of trade unions, the unity of the trade union movement should not be imposed by the State through legislative measures, because intervention of this kind is contrary to the principle laid down in Articles 2 and 11 of the Convention. The Committee requests the Government to take the necessary steps to amend the legislation to this effect.

–      Section 41 of Act No. 44 of 1995 (amending section 344 of the Labour Code) which requires 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; and the requirement of a large number (50) of public servants to establish an organization of public servants under the Act on Administrative Careers. The Committee observes that Act No. 24 of 2 July 2007 amends Act No. 9 on Administrative Careers and provides (section 9) that in an institution where no association exists, 40 public servants are needed in order to constitute an organization of public servants. This number is acceptable to FENASEP. The Committee recalls in this connection that a minimum membership of 40 workers to establish a union would be permissible in the case of industrial unions, but the minimum should be lower in the case of an enterprise union or a base-level union in an establishment so as not to obstruct the creation of such organizations. The Committee also reiterates that a membership of ten for the establishment of an employers’ organization is too large and may be an obstacle to the creation of such organizations. The Committee requests the Government to take the necessary steps to amend the legislation accordingly.

–      Denial to public servants of the right to establish unions. The Government indicated previously that the interpretation by the National Council of Organized Workers (CONATO) was inconsistent with reality; the right of association of public servants is established in Act No. 9 of 20 June 1994 and in practice, FENASEP operates in the same way as any other private sector organization and participates in CONATO and the International Labour Conference. The Committee notes that in its comments, FENASEP states under the Act of Administrative Careers, that non-career public servants, public servants in appointive posts governed by the Constitution, public servants in elective posts and those in service may not organize. The Committee requests the Government to send its comments on this point.

Article 3. Right of organizations to elect their representatives in full freedom. Article 64 of the Constitution stipulates that the members of the executive body of a trade union must be of Panamanian nationality. As the Committee has already pointed out, provisions on nationality which are too strict could deprive some workers of the right to elect their representatives in full freedom, for example migrant workers in sectors in which they account for a significant share of the membership. In the Committee’s view, the national legislation should allow foreign workers to take up trade union office at least after a reasonable period of residence in the host country (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 118). The Committee accordingly asks the Government to take the necessary steps to have the legislation amended so as to ensure compliance with the abovementioned principle.

Right of organizations to organize their administration. The Committee observes that section 180A of Act No. 24 of July 2007, amending the Administrative Careers Act No. 9, provides that public servants who are not affiliated to the association of public servants and enjoy the improvements obtained in conditions of work will have the ordinary and extraordinary trade union dues deducted from their salaries and paid to the association during the duration of the agreement. In this respect, the Committee considers that imposing by legislative means the payment of an ordinary contribution to the association which obtained improvements in the labour conditions by public servants who are not members raises problems of conformity with the Convention to the extent that it may influence the right of public servants to freely choose the association to which they wish to be affiliated. In these conditions, the Committee requests the Government to modify section 180A of Act No. 24 of July 2007 so as to eliminate the requirement to pay ordinary trade union dues imposed on public servants who are not affiliated to associations, with the possibility of providing, in turn, for the payment of a smaller amount than the ordinary trade union contribution for the benefits derived from collective bargaining.

Right of organizations to organize their activities and formulate their programmes without interference.

–      Denial of the right to strike in export processing zones (Act No. 25). The Committee recalls that the right to strike may be restricted or banned only in the event of an acute national crisis and in respect of public servants exercising authority in the name of the State or in services which are essential in the strict sense. In the Committee’s view, to deny the right to strike in export processing zones is inconsistent with this principle. It therefore asks the Government to take the necessary steps to ensure that workers’ organizations in these zones may exercise the right to strike.

–      Denial of the right to strike in enterprises which have been in existence for less than two years pursuant to Act No. 8 of 1981. CONATO previously pointed out that section 12 of the Act provides that no enterprise shall be compelled to conclude collective agreements during its first two years of operation and that the general legislation allows strikes only in pursuance of collective bargaining or in other limited cases. The Committee requests the Government to take the necessary steps to guarantee the right to strike of the workers and their organizations in these enterprises.

–      Denial of the right to strike of public servants. The Government indicated previously that the Constitution allows special restrictions in cases determined by law. The Committee recalls that the banning of strikes in the public service should be restricted to public servants exercising authority in the name of the State (see General Survey, op. cit., paragraph 158). The Committee asks the Government to take the necessary steps to guarantee the right to strike for public servants who do not exercise authority in the name of the State.

–      Ban on federations and confederations from calling strikes and on strikes against the Government’s economic and social policy, and unlawfulness of strikes that are unrelated to an enterprise’s collective agreement. The Committee points out that federations and confederations should have the right to strike and that organizations responsible for defending workers’ socio-economic and occupational interests should, in principle, be able to use strike action to support their position in the search for solutions to problems posed by major social and economic policy trends which have a direct impact on their members and on workers in general, in particular as regards employment, social protection and the standard of living (see General Survey, op. cit., paragraph 165). The Committee requests the Government to take steps to amend the legislation so as to bring it in conformity with these principles and so as not to restrict the right to strike related to a collective agreement.

–      Authority of the Regional or General Labour Directorate to refer labour disputes to compulsory arbitration in order to stop a strike in a public service enterprise, including when the service is not essential in the strict sense of the term, such as transport (sections 452 and 486 of the Labour Code). The Committee requests the Government to take the necessary steps to amend the legislation to provide that compulsory arbitration is possible in the transport sector only at the request of both parties.

–      Obligation to provide minimum services with 50 per cent of the staff in establishments which provide “essential public services” but which go beyond essential services in the strict sense of the term and include transport, and the penalty of summary dismissal of public servants for failure to comply with the requirement concerning minimum services in the event of a strike (sections 152.14 and 185 of Act No. 9 of 1994). The Committee requests the Government to take the necessary steps to amend the legislation to ensure that: (1) the organizations of the workers concerned may participate in determining minimum services and the number of workers who are to provide them, and that in the event of disagreement, the matter shall be resolved by an independent body; and (2) the penalty of summary dismissal is abolished.

–      Legislation interfering with the activities of employers’ and workers’ organizations (sections 452.2, 493.1 and 497 of the Labour Code) (closure of the enterprise in the event of a strike and compulsory arbitration at the request of one party). The Committee asks the Government to indicate any amendments envisaged to ensure that compulsory arbitration is allowed only at the request of both parties to the dispute in the case of public servants exercising authority in the name of the State or in essential services in the strict sense of the term, and to ensure that in the event of a strike, the management staff may have access to the enterprise if they so wish.

The Committee notes with regret that the abovementioned discrepancies between Panama’s law and practice and the Convention have existed for many years and that some of the restrictions mentioned are serious. The Committee recalls that in its previous observation it took note of the Government’s statement that it intended to harmonize national law and practice with Conventions Nos 87 and 98, that this would require a tripartite consensus but that there were glaring differences in the views of the social partners. The Committee asks the Government to take the necessary steps, in consultation with the social partners, to bring the legislation into line with the Convention and with the principles of freedom of association. It requests the Government to report on any measures taken to this end.