Individual Case (CAS) - Discussion: 2000, Publication: 88th ILC session (2000)

A Government representative recalled that the Committee of Experts had indicated in its observation that the conciliation procedure provided for by Legislative Decree No. 3 of January 1997, applicable to export processing zones, could impede the application of Article 4 of the Convention. He explained that the above provision had only sought to strengthen voluntary bargaining through the creation of a special commission to examine disputes. Time periods had been set for the procedures referred to the commission. These consisted of ten days to contest the allegations, 20 days to reach a negotiated solution and, if the parties did not reach an agreement, the commission had five days to present them with a proposed solution. During this period, the parties could continue negotiating directly and, if they considered it appropriate, refer the matter to an arbitration tribunal. Article 4 of the Convention did not prohibit the determination of periods of time which, in the present case and in the view of the Government, were of a reasonable length and did not impede voluntary negotiation. With a view to gaining a better understanding of the observation made by the Committee of Experts, the Government might wish to have recourse to the competent services of the ILO with a view to meeting the concerns of the Committee of Experts, taking into account national circumstances.

With regard to the second matter raised by the Committee of Experts concerning the four amendments which should be made to the Labour Code as a result of a case submitted to the Committee on Freedom of Association by an employers' organization, he referred to the important demonstrations which had occurred in his country when the previous Government had submitted draft reforms to the Labour Code to the Legislative Assembly. On that occasion, Panamanian society had been shaken by violent demonstrations, which had even caused the death of workers. The new Government had taken office in September 1999 and had not yet obtained its own parliamentary majority through which it could adopt legislation reforming the Labour Code. For legislative reforms to be successful, effective consultations and the consent of the social partners was needed. If one of the parties was opposed to the reform, it was of no avail for a government to endeavour to undermine social peace in order to force through amendments to the labour legislation. In view of the above, he requested the Committee to take into account in its conclusions the unstinting will of the Government to continue the dialogue with the ILO's supervisory bodies. He reiterated that in order to achieve the results sought by those bodies, it was indispensable for the social partners in Panama to be in agreement with the objectives in question.

The speaker added that the Government had transmitted the conclusions of the Committee on Freedom of Association to over 100 organizations. In reply, the great majority of workers' organizations had clearly indicated their opposition to the reform. The employers' organizations had not replied to the Government to this date.

He added that there also existed in Panama a bipartite body of workers and employers, the Labour Foundation, which might be an appropriate forum for promoting dialogue with a view to resolving the points at issue. The matter could also be referred to other bodies. Finally, he urged the Committee to take into account the sincere commitment of his Government to make every effort to enable the representative organizations of employers and workers to reach agreement, through dialogue and concerted action, on the basis of which the Government could submit draft legislation which included the points raised in the Committee of Experts' observation.

The Employer members recalled that both Employers and Workers had the right to submit cases to the Committee on Freedom of Association alleging violations of freedom of association. With regard to the case of Panama, they explained that there were two issues to be examined.

The first issue addressed by the Committee of Experts in its comment consisted of the conciliation procedure of 35 working days in export processing zones, in accordance with Decree No. 3 of January 1997, which had been considered by the Committee of Experts as being too long for a conciliation procedure and likely to hinder the application of Article 4 of the Convention. The Employer members pointed out in this connection that the Convention did not contain any provision specifying time periods and that in many countries conciliation procedures were longer than 35 working days.

The interesting part of the case concerned the second issue on which the Committee of Experts had commented. In this respect, they endorsed the observation of the Committee of Experts, which had referred to the opinion expressed in the conclusions of Case No. 1931 of the Committee on Freedom of Association regarding the need to amend some of the provisions of the Labour Code which were contrary to the right to organize and bargain collectively. The provisions which had been criticized permitted the imposition of arbitration at the request of one of the parties to the collective dispute; the section which restricted the composition of the representatives of the parties to the collective bargaining process; the section which provided for disproportionate penalties in the event of the withdrawal of one of the parties from the conciliation procedure; and the section providing for disproportionate penalties in the case of failure to reply to a statement of claims. The Employer members agreed with the Committee of Experts that these provisions of the Labour Code needed to be amended.

The Employer members indicated that the case was particular in another respect. The conclusions reached on the case by the Committee on Freedom of Association contained a point concerning the issue of strike pay which had not been taken up in the comments of the Committee of Experts, even though the latter had referred to the conclusions of the Committee on Freedom of Association in their totality. Considering the reason for such an omission, the Employer members believed that it might have been due to a more formal reason, since the right to strike had always been examined under Convention No. 87, which was not, however, the Convention under examination last year. Nevertheless, the same issue, namely the question of strike pay being a matter of negotiation and not of legislation, had been raised during the morning sitting of the Conference Committee in the context of the case of Australia with regard to Convention No. 98. With regard to the case of Australia, the conclusions reached on the issue by the Committee on Freedom of Association had been favourable to the workers, whereas its conclusions in this respect on the case of Panama had fav been ourable to the employers. The omission of this issue from its observation therefore, in the view of the Employer members, constituted an act of arbitrary judgement by the Committee of Experts and the Employer members therefore could not accept such a procedure. If the Committee of Experts wished to refer to the conclusions of the Committee on Freedom of Association in their entirety, they could not omit part of such conclusions without indicating the reason for doing so. It was not admissible to raise this issue only in certain cases.

Turning to the statement by the Government representative to the effect that amendments to the legislation under examination were not possible due to the absence of consensus in the tripartite committee established for that purpose, the Employer members recalled that it was the constitutional obligation of the Government to ensure the application of the provisions of ratified Conventions. The absence of consensus in a tripartite committee could not serve as an excuse in this respect. In conclusion, the Employer members expressed the view that, although short, the case contained many interesting aspects.

The Worker members recalled that the observation by the Committee of Experts concerned two specific points. First, they had referred to government interference in the resolution of collective disputes in export processing zones. A Decree of 1997 on dispute resolution in export processing zones provided for the setting up of a tripartite consultative commission and had set out a procedure for labour disputes. This Decree permitted the dismissal of workers who engaged in a strike without following the required procedures. This procedure imposed a 35-day waiting period before workers were entitled to strike. This conciliation procedure could in practice make it impossible to strike. The Worker members therefore asked the Government to amend the Decree in order to reduce the time laid down for conciliation, with a view to bringing it into conformity with the provisions of the Convention.

The Worker members also referred to the other point raised by the Committee of Experts concerning Act No. 44 establishing standards to regulate and modernize labour relations, adopted on 12 August 1995. This point had been examined by the Committee on Freedom of Association in the context of Case No. 1931. With reference to the observations made by the Committee of Experts and the Committee on Freedom of Association, the Worker members noted that it appeared that Act No. 44 was in contradiction with Convention No. 98. The Act therefore had to be amended so that the autonomy of the organizations engaged in collective bargaining could be restored. They insisted on a tripartite solution to this question. It was essential that the Government consulted not only with workers' organizations, but also with employers' organizations in the process of amending this legislation.

The Worker member of Panama noted that the Labour Code in his country established a time limit of 15 days for conciliation during a negotiation process and that this had been extended by a Government Decree to 35 working days in export processing zones. It was important to emphasize that the same Decree prohibited the right to strike and provided that negotiation was not compulsory for employers. He maintained that the Committee of Experts should analyse the relevant legislation in its entirety as it clearly impeded freedom of association and was in violation of Convention No. 98 and Convention No. 87. He expressed disagreement with the second issue raised in the observation made by the Committee of Experts in which it requested the Government to amend its legislation. When drawing up its observation, the Committee of Experts had not taken into account the labour law principle of in dubio pro operario, whereby in the event of doubt the most favourable outcome for workers should always be sought. He stated that the reform proposed by the Committee of Experts would be in addition to the five other reforms which had previously been imposed upon the workers, resulting in a deeper crisis, increasing the unemployment rate and eliminating the rights which they had obtained. He also recalled that on the occasion of the most recent reform of the labour legislation, four deaths had occurred and over 500 persons had been detained, leading to a 12-day strike. A new reform of the labour legislation should be avoided, since it would give rise to a repetition of the same situation. He therefore requested the Conference Committee to take into account the critical situation of his country in its conclusions.

The Government representative welcomed the statement by the Worker members and the Worker member of Panama in support of the Government's request to the Committee to allow it to continue the process of dialogue with a view to achieving consensus. He informed the Employer members that his Government was not endeavouring to justify a failure to take action, but was explaining that problems had to be resolved without provoking a social crisis. The Government had therefore embarked upon consultations with all the organizations of workers and employers in accordance with the ILO principle of tripartite consultation. He reiterated that Decree No. 3 of 1997 promoted voluntary collective bargaining within the meaning of Article 4 of the Convention. The Decree had established a commission responsible for examining the complaints of workers and employers in the event of conflict, but left open the possibility for the parties to engage in direct negotiation or have recourse to arbitration. He therefore could not fully understand the request of the Committee of Experts in this respect. Moreover, he emphasized that all the matters raised would be included in consultations with workers' and employers' organizations so that effect could be given to the request made by the Committee of Experts by means of consensus.

The Employer member of Panama recalled that the Committee on Freedom of Association had recognized the existence of violations of Conventions Nos. 87 and 98 in Panama. While tripartite consultations certainly had to take place, this could not be used as an argument to put off compliance with the commitments which had been assumed. The Government was obliged to respect its international obligations and, in the present case, had to comply with the recommendations of the Committee on Freedom of Association and the Committee of Experts. It would be dangerous for compliance with the recommendations of the supervisory bodies to be made subject to the will of one of the social partners. He also criticized labour legislation in the region which regulated the activities of workers' and employers' organizations in an excessive manner. He insisted that the Government should not postpone the reforms to the legislation requested by the supervisory bodies.

The Employer members, with reference to their initial statement, recalled that the Committee of Experts, which was always praised for being infallible, had referred in totality to the conclusions of the Committee on Freedom of Association and could not therefore differ from those conclusions. This should also be reflected in the conclusions of the Conference Committee. They emphasized in this respect that the question of strike pay was a matter for negotiation and should not be regulated directly by the Government. Moreover, the absence of consensus in a tripartite committee could not be used as an excuse by the Government for failing to comply with its constitutional obligation to amend legislation which violated the provisions of the Convention.

The Worker members emphasized that the 1997 Decree should be amended with a view to shortening the compulsory conciliation procedure. They also noted that, while Act No. 44 raised a particular problem regarding the right to strike, the Worker member of Panama had explained the background to this legislation and his intervention should be taken into account. The Worker members once again emphasized that a solution should be found through tripartite dialogue with the full participation of the trade unions. With reference to the comments made by the Employer members, who had noted a possible contradiction in the report of the Committee of Experts, the Worker members considered it appropriate to request further explanations on this point.

The Committee noted the statement made by the Government representative and the discussion which took place thereafter. The Committee stressed that this case was of particular significance since it concerned the autonomy of the parties to bargain collectively. The Committee noted the explanation provided by the Government representative. The Committee expressed the firm hope that the next report to the Committee of Experts would contain details on the concrete measures taken or envisaged in law and practice, after consultations with employers' and workers' organizations, to encourage and promote the full development and utilization of voluntary negotiation with a view to the regulation of terms and conditions of employment by free collective agreements. The Committee firmly hoped to be in a position to note concrete and definite progress in the situation at an early date as requested by the Committee of Experts and the Committee on Freedom of Association. The Committee recalled that the technical assistance of the Office was available to the Government. The Committee took note of a possible contradiction in the observation of the Committee of Experts regarding pay for strike days and asked for more information on this matter.

Individual Case (CAS) - Discussion: 1991, Publication: 78th ILC session (1991)

The Government has supplied the following information:

As for the comments of the Committee of Experts concerning the recognition of the right to bargain collectively of public servants not engaged in the administration of the State, the Government states again that the constitutional provisions on the right to organise of workers in the private sector and the negotiation of collective agreements apply to workers in the public sector covered by Act No. 80 of 25 February 1975 and by IRHE and INTEL and Act No. 34 of 26 September 1979 for workers of the Port Authority and Act No. 40 of 28 September 1979 on national railways, as well as other laws on enlistment and careers authorised by section 300 of the National Constitution.

As for the Committee's observation on Act No. 13 of 11 October 1990, containing restrictions on collective bargaining and imposing obligatory arbitration, the Government notes that given the serious economic situation of the country due to economic sanctions imposed by the United States Government against the dictatorial regime imposed by force since February 1987, which ended in military action on 20 December 1989 following widespread acts of vandalism and looting of more than 250 business and industries by groups supporting the ex-dictator called the Dignity Brigade, transitional legislation was necessary. Act No. 13 of 1990 was clothed in the concept of "stabilisation policies" applicable in exceptional and temporary conditions to enable economic recovery and new employment generation. The Act recognises, however, agreed pay increases and its application is based on their anual mean, thus guaranteeing protection of the workers; such increases would not be possible through negotiation because of the economy's precarious state. It also recognises temporary accords within collective agreements and permits new agreements to be negotiated directly, so that it does not prohibit or limit the right to negotiate collective labour agreements if the parties agree.

The Government states that the report on Convention No. 122 in the part entitled "employment policy" indicates that the promotion of national production calls for new investment and the creation of enterprises so that the economy and production and employment may grow, and this is the reason for Act No. 13. Previously Act No. 95 of 1976 had a similar objective. This provision was in force until the Act was repealed by Act No 80 of 30 April 1981. Panama's economic crisis calls for transitional measures and the Committee's comments are complied with.

Section 4 of Act No. 13 of 1990, which adds section 452 to the Labour Code, is temporary for a period of three years.

In addition, see under Convention No. 87 the discussion which took place in the Committee on the application of Conventions Nos. 87 and 98, as follows:

The Government suplied the following information:

1. On the alleged high number of members required for the creation of a union (50 workers or ten employers under section 344 of the Labour Code), this requirement does not limit the right to unionise which is universally recognised because the Convention does not lay down minimum or maximum levels for the formation of a union and since there is no recommendation by the Committee of Experts on this point. In article 64 of the National Constitution, the number or amount that is set out in section 344 of the Labour Code is aimed only at strengthening union organisations so that they can effectively use the right to bargain as a basis for the collective right centred on the principle of the majority.

The current tendency of occupational organisations is to move towards the creation of industry-type unions so as to be able to pursue their activities throughout the national territory; this aim requires the grouping together of labour forces in numbers superior to those laid down by law. The union organisations themselves are against a reduction in the number of members required for the creation of a union, because this involves a splintering of the working class and a serious weakening of the workers' movement.

2. As regards the comment that 75 per cent of union members must be Panamanian (contained in s. 347 of the Labour Code), this is not a discriminatory requirement but rather one which belongs to the aspirations of organisations of workers because economic activity had been in the hands of foreigners, a domain that was extending into commercial activities where the workers involved were not Panamanian. In an effort to help nationals, standards were adopted setting percentages to enable Panamanians to work and to guarantee the right to organise. Apart from this criterion, there is no restriction or ban on unions, in their own organisations, to allow foreigners to become members, provided that their statutes permit this. This situation is viable since the legislation does not consider persons to be foreigners if their spouses are Panamanian or if they have resided in the country for ten years or more. The Government considers that none of the Articles in the Convention contains provisions on the inclusion or exclusion of, or ban restrictions on the membership of trade unions of foreigners. It adds, however, that none of the current trade union legislation in Panama (Labour Code) contains any prohibition or obstacle affecting the right to unionise of foreigners because of their nationality, so long as the level of 25 per cent of members of the union in question is not exceeded, as is provided in articles 17 and 20 of the National Constitution which reserve certain activities for Panamanian nationals and article 39 of the Magna Carta which guarantees freedom of association.

3. Regarding the observation on the automatic removal from office of a dismissed trade union official (s. 359 of the Labour Code), the Government considers it normal that the mandate of an officer of a works union ends when he is no longer a member because he has ceased to be employed by the enterprise. The Government admits that it is not clear in the Labour Code what happens to leaders of an industry level or mixed union and that is why section 359 of the Code is not applied to them. According to the Government, in addition, works unions could be led and/or dominated by former employees of the enterprise, which would be illogical and impractical.

4. Regarding the wide powers of supervision by the authorities over the records and accounts of trade unions (s. 376 (4) of the Labour Code), the Government indicates that the State does not control trade union activities merely by undertaking accounting checks and by registering minutes, as is laid down in the section referred to, since the unions are of public interest and, consequently, the Ministry of Labour and Social Welfare, being a state body, is obliged to promote the creation of these organisations and to certify their existence, validity and guarantee their protection. According to the Government, it is not clear that such powers of supervision over this union documentation exist since the "minutes registers" are limited to those minutes recording changes in or the election of executive committees, amendments to the statutes and authorisations to exercise rights vis-à-vis third persons, as a basic principle for the publicity of and authentication of the legal personality and the legal representatives of the organisation in question.

According to the Government, the Ministry only intervenes when challenges are made by the members themselves to the election of an executive committee, using ordinary procedures and with the knowledge of the labour judges. There is no control over union accounts since the examination of the books is only aimed at verifying complaints of mismanagement of union funds or of abuse of office so as to establish the level of accounting standards and honesty in the management of these accounts. The Ministry cannot suspend any union leader "for mismanagement of union funds" or "undue appropriation" of them. Protection of the integrity of union "management" prevents the Ministry from being able to make court challenges of any kind, a situation that has been the principal reason for corruption and the unions' loss of prestige.

In addition, the formality of lodging registration requests for new unions is aimed at giving them protection or immunity (fuero sindical) to all their members, as set out in sections 381 and 385 of the Labour Code. Without this requirement, that unions being formed lodge registration applications with the Ministry, such protection would not be effective.

5. With regard to the exclusion of public servants from the scope of the Labour Code and consequently from the right to organise and to bargain collectively (s. 2 (2) of the Labour Code), the Government states that Chapters 2 and 3 of Title XI of the 1946 National Constitution lay down the basic principles of personnel administration and the functioning of that administration, respectively. These constitutional provisions were the basis for the adoption of the Act on Administrative Careers in 1963 which was amended by Cabinet Decree in 1968 so as to repeal the sections concerning the stability of employment of public employees. The Labour Code could not be applied to public servants except for those exceptions allowing unionisation contained in Act No. 8 of 25 February 1975 and Acts Nos. 34 and 40 of February 1979 which apply, respectively, to state enterprises such as IRHE, INTEL and the National Port and Railways Authority of Panama. There are other administrative careers permitted by article 300 of the National Constitution, such as the judiciary (covered by the Judicial Code), teaching in the national education system, the diplomatic service, the health service, the act on nurses and auxiliary hospital staff, the act on laboratory assistants, the act on firefighters, post and telegraph employees, employees of the National Bank of Panama, etc. These are special laws which are not amended by the act on administrative careers. In addition, Panama has not ratified Convention No. 151 on the right to organise of public employees, and is thus not bound by that Convention. Nor is there a violation of Conventions Nos. 87 and 98 which have nothing to do with the right to organise of public employees, but rather regulate union relations between workers in private undertakings and employers, relations which are fully covered by the Labour Code.

6. With regard to the comments of the Committee of Experts on Act No. 13 of 11 October 1990 which supposedly "sets out restrictions on the right to strike" and to bargain collectively, the Government states that the possibility of resorting to arbitration, using the labour authorities in cases of a prolonged strike which could produce serious economic disruption in an undertaking, is a discretionary option. It can be used following a summary verification of this disruption, with the workers being given a hearing; this is provided for in the Act as a transitional provision lasting three years. To date it has not been used. This discretion is not new to Panamanian legislation. Previously, Act No. 95 of 1976 introduced a similar option.

7. Regarding the comments on Act No. 25 of 14 December 1990, the Government states that this is an Act concerned with law and order against subversive acts by public servants; that it is a temporary enactment in force until 31 December 1991; that it does not involve dismissal or sanctioning of trade union leaders because of their office, but the sanctioning of public servants who participated in a military plot to overthrow the Government in the following ways: the organisers of the movement exhorted the population to undertake a permanent general work stoppage until the Government fell, and communications and dialogue took place between public servants organising the illegal stoppage and a mutineer after the police central headquarters had been taken. Only those public servants who engaged in physical violence against other officials by impeding their access to workplaces or who damaged state property have been sanctioned. The Government states that irregular "civil associations" are involved, set up under the provisions of the civil code as civic bodies and charities which have illegally tried to operate as ministerial unions and as the National Federation of Public Servants. It was not a labour "strike" since there was no indication that a labour dispute existed, but it was an illegal "general work stoppage".

At the end of March, the State Prosecutor of the Supreme Court considered unconstitutional only the subsection of article 2 of the Constitution which tried to establish that "The Executive, through the Cabinet Council, shall determine whether actions or events are to be considered as attacks on democracy and the constitutional order of the State", on the grounds that this power is a matter of law. On 23 May 1991, the full Supreme Court delivered a judgement concerning the petition claiming unconstitutionality lodged against Act No. 25 of 1990 by several trade union leaders and ex-employees of IRHE and INTEL; the judgement upheld the constitutionality of all provisions of Act No. 25 except as regards the above-mentioned subsection of article 2 of the Constitution.

In addition, a Government representative reiterated all of the written information communicated by his Government. He further referred to the difficulties encountered by his Government in complying with its obligations of sending the reports due in 1990 and indicated that 21 reports on the Conventions have been sent since March. With respect to the observations of the Committee of Experts concerning Act No. 13 of 11 October 1990 and Act No. 25 of 14 December 1990, he considered that these fall outside the reporting period and should be excluded from the present examination until such time as the Committee of Experts can examine the very significant documentation submitted with the reports of 1990 and 1991. Nevertheless, he took the opportunity to inform the Committee that Act No. 25 mentioned above does not involve any penal matters, nor provide for the detention of any person or create any type of discrimination. The detailed analysis of this Act made by the Attorney-General in April 1991 and the Supreme Court decision (May 1991) confirm that the Act does not violate constitutional principles or any human rights. It provides for administrative appeal, as well as for appeal before the Supreme Court. It also clearly defines the constitutionality of the retroactive nature of the Act, since it is a public order Act which normally can be applied retroactively without any time-limit. It was applied retroactively at the time of an unlimited general strike, about which a series of information was communicated for the Case No. 1569 examined by the Freedom of Association Committee.

As regards provisions of the Labour Code referred to by the Committee of Experts, the speaker indicated that the requirement of high number of members for the creation of a union (50 workers or ten employers under section 344 of the Labour Code) does not limit the right to unionise which if universally recognised because the Convention does not lay down minimum or maximum levels for the formation of a union and since there is no recommendation by the Committee of Experts on this point.

As regards the comment that 75 per cent of union members must be Panamanian (contained in section 347 of the Labour Code), this is not a discriminatory requirement but rather one which belongs to the aspirations of organisations of workers because economic activity had been in the hands of foreigners, a domain that was extending into commercial activities. Apart from this criterion, there is no restriction or ban on unions, in their own organisations, to allow foreigners to become members, provided that their statutes permit this.

Regarding the observation on the automatic removal from office of a dismissed trade union official (section 359 of the Labour Code), the Government considers it normal that the mandate of an officer of a works union ends when he is no longer a member because he has ceased to be employed by the enterprise. The Government admits that it is not clear in the Labour Code what happens to leaders of an industry-level or mixed union that this is why section 359 of the Code is not applied to them.

Regarding the wide powers of supervision by the authorities over the records and accounts of trade unions (section 376(4) of the Labour Code), the speaker indicated that the Ministry only intervenes when challenges are made by the members themselves to the election of an executive committee, and that there is no control over union accounts since the examination of the books is only aimed at verifying complaints of mismanagement of union funds or of abuse of office so as to establish the level of accounting standards and honesty in the management of these accounts. His Government is studying the elaboration of a Decree concerning section 376 of the Labour Code to determine the documents and acts which should be communicated to the Minister of Labour for keeping in the archives in order to avoid the powers of the authorities being considered to be too wide.

In addition, the formality of lodging registration requests for new unions is aimed at giving them protection or immunity (fuero sindical) to all their members, as set out in sections 381 and 385 of the Labour Code.

With regard to the observation concerning the exclusion of public servants from the scope of the Labour Code and consequently from the right to organise and to bargain collectively, the speaker stated that the 1946 Constitution lay down the basic principles of personnel administration and the functioning of that administration. These constitutional provisions were the basis for the adoption of the Act on Administrative Careers in 1963. There are other administrative careers permitted by article 300 of the National Constitution, such as the judiciary and teaching in the national education system.

With regard to Convention No. 98 the speaker stated that Act No. 13 of 1990 was clothed in the concept of "stabilisation policies" applicable in exceptional and temporary conditions to enable economic recovery and new employment generation. The Act recognises agreed pay increases and its application is based on their annual mean, thus guaranteeing protection of the workers; such increases would not be possible through negotiation because of the economy's precarious state. It also recognises temporary accords within collective agreements and permits new agreements to be negotiated directly, so that it does not prohibit or limit the right to negotiate collective labour agreements if the parties agree.

The Workers' members noted that the Committee of Experts' comments date back to 1967 without any positive reply from the Government and recalled that the Committee expressed its hope in 1989 that the legislation would be brought soon in conformity with the Convention. They observed that the information communicated by the Government verbally and in writing does not contain a reply and does not allow to note the progress made. On the contrary, acts setting out restrictions on the freedom of association and the collective bargaining were adopted in 1990. Thus, Act No. 25 of 14 December 1990 greatly prejudices the exercise of the right of associations of public employees to organise their activities, including through strikes. Noting that in its replies the Government stated that Conventions Nos. 87 and 98 have nothing to do with the right to organise with respect to public administration employees, the Workers' members asked how such arguments can be put forward after so many years and after the Committee expressed the hope in 1989 that the Government would take into consideration the Committee of experts' comments. Noting the lack of progress, as well as the information supplied by the Government, the Workers' members proposed to mention this case in a special paragraph of the Committee's report.

The Employers' members expressed their concern about this case, which has been dealt with on many occasions already. In fact, very little has changed. As can be seen from the information provided by the Government verbally and in writing, there is obviously no intention to undertake any changes at all. The Employers' members referred to the points which the Committee of Experts made in the beginning of its comments and considered them to be very clearly violations against the principles of freedom of association set out in Convention No. 87. They expressed the opinion that there is no reason why the public servant should be deprived of the right of freedom of association; there is no reason either in the requirement that 75 per cent of union members shall be Panamanian, even when the Government representative says that this can be traced back to the fact that in Panama there are many foreigners who are employed. It is not logical to exclude foreigners from participation in professional organisations, and the automatic removal from office of a trade union officer in the event of his dismissal is also a very clear violation of the Convention.

The Employers' members considered that it was not possible to determine whether the right to strike had been subjected to excessive restrictions, since the Experts had used the wrong yardstick. With regard to the only restrictions it held acceptable for essential services in the strict sense, the Committee of Experts had rightly referred to "its" principles; these were, in any case, not the principles of Convention No. 87. In this regard, the Employers' members referred to their opinion expressed in the course of the general discussion on the question of interpretation of ILO Conventions. But as regards the other points, they pointed out that the limitations imposed on freedom of association are very clear violations of Convention No. 87. With regard to the promotion of collective bargaining there also remains quite a lot to be done, taking into account the restrictions from carrying out collective bargaining for the public servants and legislative attacks on existing collective bargaining.

So, as far as Convention No. 98 is concerned, there is not any improvement either. This case has been dealt with for decades, and there is absolutely no evidence that in the foreseeable future anything is going to change. The Employers' members proposed to mention this case in a special paragraph of the Committee's report.

The Workers' member of Panama stated that Act No. 13 of 1990 violates the freedom of association by providing for the extension of current collective agreements and that the application of Act No. 25 has resulted in the dismissal of a large number of workers in the public sector. He emphasised that workers suffer from the consequences of the disorder which was due to the events which took place in his country. The speaker confirmed his devotion to tripartism and expressed the hope that the Committee of Experts' comments can be taken into account by the Government to ensure compliance with the Conventions. He expressed the opinion that a direct contacts mission should visit the country in order to find out what is actually going on there.

The Workers' member of Germany referred to the comments made by the Employers' members concerning the interpretation of the right to strike by the Committee of Experts and expressed the opinion that it should have been part of the general discussion, otherwise the work of the Committee on individual cases might be held up by constantly repeated reservations. He pointed out that discussions cannot be undertaken unless the principles which apply to a particular Convention are accepted.

The Employers' members stated that, as they said during the general discussion, it is unavoidable, while examining a case in order to find out whether a government has fulfilled its obligations or not, to look at the legal questions.

The Government representative stated that the Labour Code now in force was adopted in 1972 and consequently comments made since 1967 have nothing to do with this Code which tried to include provisions of various international instruments. He also indicated that the documentation, with respect to Act No. 25 has been sent for the Case No. 1569 under examination by the Committee on Freedom of Association, including a lot of evidence and documents which have not yet been analysed. The speaker considered it unfair to talk about a direct contacts mission to deal with Acts which have not yet been appropriately analysed by the Committee of Experts, nor should this case be mentioned in a "special paragraph" of the report of the present Committee because in only eighteen months of democratic rule there has not been enough time to rectify mistakes or legislations which were not in compliance with Conventions for over 20 years. He pointed out that his Government is not unwilling to bring the legislation into conformity with the Convention, but the fact that the labour sector is very distrustful of the Government does not allow any revision of the Labour Code. The speaker informed the Committee that his Government appealed for a national tripartite agreement with a view to amend some parts of the Labour Code in order to bring about the necessary economic recovery. He considered that a direct contacts mission is not justified at this stage.

The Committee took note of the information, both verbal and in writing, provided by the Government representative, as well as the discussion which took place in the Committee. It regretted that this information does not contain any new element which would make it possible to ensure a better application of the Convention. The Committee recalled that most of the comments made by the Committee of Experts date back to 1967. Bearing in mind the importance of the points raised in the comments which concern trade union rights as such, as well as the right to free collective bargaining, the Committee expressed its deep concern faced with the continuing number of serious divergencies between law and pratice, on the one hand, and Convention, on the other. The Committee urged the Government to adopt the necessary measures in the very near future in order to ensure full implementation of Conventions Nos. 87 and 98. While recalling the substance of its conclusions of 1989, the Committee trusts that specific measures in line with the observations made by the Committee of Experts can be observed next year.

The Committee decided to mention these conclusions in a special paragraph of its report.

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Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

The Committee takes note of the information supplied by the Government relating to the comments of 2009 by the International Trade Union Confederation (ITUC) and the National Federation of Public Employees and Public Service Enterprise Workers (FENASEP). It takes note that the Government’s report makes no mention of the comments of 29 May 2009 by the National Council of Private Enterprise (CONEP). The Committee also notes the ITUC’s comments of 24 August 2010 concerning: (1) obstacles to collective bargaining and to the right to organize in the public sector; (2) threats, harassment and mass dismissals of trade unionists. The Committee requests the Government to send its observations thereon as well as on the CONEP’s observations of 2009.

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

Article 4 of the Convention. Promotion of collective bargaining.

(a)   Section 12 of Act No. 8 of 1981 provided that in the first two years of operation, enterprises (other than building enterprises) were not bound to conclude a collective labour agreement, which could in practice imply denial of the right to collective bargaining. The Committee notes the Government’s statement in response that the Ministry of Labour and Workforce Development (MITRADEL), together with the Ministry of Commerce and Industry (MICI), have been working on the requested amendments, preparing a preliminary draft that would repeal section 12 of Act No. 8 of 1981 thus allowing collective agreements to be concluded at any time. The Committee notes the Government’s statement that the preliminary draft is now in its final phase. The Committee notes, however, that section 7 of Act No. 29 of 29 June 2010 provides that “societies (personas naturales) or legal persons established in the Special Economic Area of Barú shall not be required to conclude collective labour agreements in the first six years of operation”, which again could imply in practice a denial of the right to collective bargaining. The Committee requests the Government to keep it informed of any developments in the preliminary draft that would repeal section 12 of Act. No. 8 of 1981 and to send a copy of the final text once it has been adopted. The Committee also asks the Government to repeal section 7 of Act. No. 29 of 29 June 2010 and to safeguard fully the right to collective bargaining of the workers in question.

(b)   The need to amend the legislation so that in the event of a strike attributable to the employer, the payment of wages for strike days is not imposed by law (section 514 of the Labour Code) but is a matter for collective bargaining between the parties concerned. CONEP pointed out in this connection that the legislation does not require any proof, prior to the strike, that a collective agreement was breached or legal provisions repeatedly violated. The Committee notes that the Government provides no information on this matter. Consequently, it reiterates its previous recommendation and again asks the Government to send information and to ensure that the payment of wages in the event of a strike may be settled by collective bargaining.

(c)   The requirement that the number of representatives of the parties in negotiations shall be from two to five (section 427 of the Labour Code). The Committee notes that the Government supplies no information in response. The Committee therefore once again requests the Government to amend this provision (for example by providing that the parties shall decide on their representation) and to provide information on the matter.

Restrictions on collective bargaining in the maritime sector. In earlier comments, the Committee took note of restrictions on collective bargaining in the maritime sector pursuant to section 75 of Legislative Decree No. 8 of 1998, establishing the conclusion of collective agreements as an option, which in practice leads to the denial of workers’ claims by employers and about which an application had been filed for this legislation to be found unconstitutional. The Committee also took note of the Government’s information that a draft of a new Maritime Code would be submitted to the Legislative Assembly. The Committee notes that according to the Government, MITRADEL, the MICI and the Maritime Authority of Panama (AMP) are preparing the first draft of a resolution providing for measures to fulfil the collective rights of seafarers in the interest of ensuring observance of the right to organize, bargain collectively and declare strikes. The Committee also notes the information that the AMP and MITRADEL are currently meeting in order to seek a consensus on the measures to be taken in this regard. Pointing out that seafarers must be covered by all the guarantees laid down in the Convention, the Committee requests the Government to report on all developments regarding the first draft of the resolution, the complaint asking that the employers’ denial of workers’ claims be ruled unconstitutional, and the draft new Maritime Code.

Article 6. Public servants’ right to collective bargaining. In its previous comments the Committee noted that Act No. 24 of 2 July 2007 amending the Administrative Careers Act contains provisions that afford protection from acts of anti-union discrimination against public servants and recognizes the right to collective bargaining of associations of public servants. In view of FENASEP’s assertion that the right to collective bargaining has not been regulated, the Committee asked the Government to indicate whether municipal workers and workers of decentralized institutions enjoy the right to collective bargaining.

The Committee notes in this connection the Government’s indication that public servants, including municipal workers and workers in decentralized institutions, do not have this right because organizations of public servants are not considered to be trade unions and so may not negotiate collective agreements. The Government adds that in practice, public servants do form associations and make labour gains though not under the name of “collective bargaining”, but they do negotiate and the agreements benefit the membership collectively. The Committee is aware of the foregoing but is bound to point out that the Convention allows exclusion from the rights and safeguards (including the right to collective bargaining) it establishes only for persons engaged in the administration of the State and for the police and armed forces, and that consequently all other public officials and employees must have the right to bargain collectively. The Committee requests the Government to take steps to ensure that the law establishes this right for public servants who are not engaged in the administration of the State.

Issues raised by employers’ organizations. In its previous comments the Committee observed that CONEP was asking for regulations on legal disputes and that employers be allowed to submit claims and initiate conciliation proceedings. The Committee invited the Government to address these matters through tripartite dialogue. The Committee notes that the Government makes no reference to the matter in its report. In these circumstances, the Committee asks the Government to indicate in its next report whether a tripartite dialogue process has been set in motion and, if so, to provide the results of the discussions.

With regard to the legislative amendments requested, the Committee notes that according to its report, the Government has made known its intention of aligning the national legislation with the provisions of the Convention. Unfortunately, no consensus having been reached thus far, the National Government, in the interests of meeting this international commitment and in keeping with the conclusions of the Committee on the Application of Standards at the 98th Session of the International Labour Conference (June 2009), and pursuant to the offer made by the Office, has requested, in document No. DM.1400.2009, technical assistance from the Office in dealing with freedom of association issues, in order to seek compromise solutions allowing national law and practice to be brought into line with the provisions of the Convention. Observing that there has been divergence between law and practice for many years, and bearing in mind the seriousness of some of the restrictions mentioned, the Committee hopes that the technical assistance requested will be forthcoming in the very near future and will allow the legislation to be aligned with the Convention, and asks the Government to provide information on all progress in this matter in its next report.

Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes the comments of 23 July 2009 by the National Federation of Public Employees and Public Service Enterprise Workers (FENASEP) referring to matters examined by the Committee, and the comments of 26 August 2009 by the International Trade Union Confederation (ITUC) referring to acts of anti-union discrimination and interference, and indicating that labour disputes in export processing zones are subject to compulsory arbitration (on this point, the Government informed the Conference Committee on the Application of Standards that a Bill has been submitted to resolve the matter). The Committee requests the Government to send comments in response.

The Committee also notes the comments of 29 May 2009 by the National Council of Private Enterprise of Panama (CONEP). The Committee asks the Government to send its observations in response.

Articles 1, 4 and 6 of the Convention. In its previous comments, the Committee noted that Act No. 24 of 2 July 2007 to amend the Administrative Careers Act contains provisions to protect public servants against acts of anti-union discrimination, and establishes the right of associations of public servants to collective bargaining. In view of FENASEP’s assertion that the right to collective bargaining has been regulated, the Committee requests the Government to indicate whether municipal workers and workers in decentralized institutions enjoy the right to collective bargaining.

The Committee recalls that for many years it has been commenting on the following provisions:

Article 4

(a)   section 12 of Act No. 8 of 1981 provides that no enterprises (other than building enterprises) shall be required to conclude a collective labour agreement in the first two years of operations, which could in practice imply denial of the right to collective bargaining;

(b)   the need to amend the legislation so that in the event of a strike attributable to the employer, the payment of wages for strike days is not imposed by law (section 514 of the Labour Code) but is a matter for collective bargaining between the parties involved; in this context, CONEP points out that the legislation does not require any proof, prior to the strike, that a collective agreement was breached or legal provisions repeatedly violated;

(c)   the requirement that the number of representatives of the parties in negotiations shall be from two to five (section 427 of the Labour Code).

Bargaining with non-unionized groups. In its previous comments the Committee referred to collective bargaining in the private sector with groups of non-unionized workers (section 431 of the Labour Code), and asked the Government to look into the matter with a view to ensuring that there is no collective bargaining with groups of workers where there is a trade union in the bargaining unit. The Committee notes with satisfaction that in its report the Government states that on 20 May 2009 Executive Decree No. 18 was adopted to regulate sections 398, 400, 401, 403 and 431 of the Labour Code. This Decree establishes that the right to negotiate and sign a collective labour agreement belongs to properly established social organizations and that, consequently, the Ministry of Labour will not entertain claims submitted by a non-organized group of workers (section 1). Furthermore, the employer may not negotiate with a non-organized group of workers the conclusion of a collective labour agreement or the claims for a collective labour agreement where there is a properly constituted trade union in the enterprise (section 2). Non-organized groups may apply for the registration of claims or a collective agreement, but the Ministry of Labour must first ascertain that there is no trade union in the enterprise and that there is no breach of trade union rights. Furthermore, such claims shall not preclude later submission of claims by an organization of workers, and the employer may not refuse to bargain.

Restrictions on collective bargaining in the maritime sector. In its earlier comments, the Committee took note of restrictions on collective bargaining in the maritime sector under section 75 of Legislative Decree No. 8 of 1998, establishing the conclusion of collective agreements as an option, which in practice leads to the denial of workers’ claims by employers and about which an application had been filed for this legislation to be found unconstitutional. The Committee also noted the Government’s statement that a draft of a new Shipping Code was to be submitted to the Legislative Assembly. The Committee requests the Government to report on this matter.

Lastly, the Committee notes that CONEP seeks the regulation of legal disputes and asks the possibility for employers to submit claims and initiate conciliation proceedings. The Committee invites the Government to address these matters through tripartite dialogue.

Noting that the discrepancies between legislation and practice and the Convention have existed for many years, and bearing in mind the seriousness of some of the restrictions mentioned, the Committee again urges the Government to take the necessary steps, in consultation with the social partners, to amend the legislation to bring it into full conformity with the provisions of the Convention and the principles of freedom of association. In view of the Government’s statement that although there is no agreement with the social partners for amendment of the Labour Code, it is ready to harmonize law and practice with the Convention and is formulating a Bill for this purpose, the Committee urges the Government to seek ILO technical assistance in this process and to provide information in its next report on all progress made.

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

The Committee notes that the Government’s report has not been received. It also notes the comments by the National Federation of Public Employees and Public Service Enterprise Workers (FENASEP) referring to issues raised by the Committee, and the comments by the International Trade Union Confederation (ITUC) stating that there are no collective agreements in the export processing zones and that employers interfere in the establishment of trade unions in the building sector. The Committee requests the Government to send its comments on these matters.

Articles 1 and 4 of the Convention. The Committee notes with satisfaction that Act No. 24 of 2 July 2007 to amend the Administrative Careers Act contains provisions to protect public servants against acts of anti-union discrimination, and establishes the right of associations of public servants to collective bargaining. The Committee notes, however, that according to FENASEP, the right to collective bargaining has not been regulated. The Committee requests the Government to provide information in this regard and to indicate whether municipal workers and workers in decentralized institutions enjoy the right to collective bargaining.

Article 4. In its previous observation, the Committee requested the Government to fulfil the commitments it made to the technical assistance mission carried out in February 2006 to hold meetings with the social partners in the form of seminars or workshops with ILO support and to promote actively tripartite dialogue on the following issues which are pending:

(a)   section 12 of Act No. 8 of 1981 provides that no enterprises (other than building enterprises) shall be required to conclude a collective labour agreement in the first two years of operations, which in practice could involve denial of the right to collective bargaining;

(b)   the need to amend the legislation so that in the case of strikes attributable to the employer, the payment of wages for strike days is not imposed by the legislation (section 514 of the Labour Code) but is a matter for collective bargaining between the parties involved;

(c)   the requirement that the number of representatives of the parties in negotiations shall be from two to five (section 427 of the Labour Code).

In its previous comments the Committee took the view that such restrictions were inconsistent with the Convention and noted that the Government was ready to harmonize national law and practice with the Convention in respect of these provisions if it had the agreement of the employers’ and workers’ organizations, particularly the National Council of Organized Workers (CONATO) and the National Council of Private Enterprise of Panama (CONEP). Since CONATO and CONEP hold different views, on which it commented in its last observation, the Committee requests the Government to continue to promote tripartite dialogue and to provide information on the activities (seminars and workshops) carried out and on developments on these issues.

The Committee also asked for a tripartite discussion to be held on collective bargaining in the private sector with groups of non-unionized workers (section 431 of the Labour Code), a matter on which the views of the Government, CONATO and CONEP differed. The Committee reminds the Government that collective bargaining with groups of non-unionized workers should be possible only in the absence of a union, and asks the Government to examine this matter in the context of the abovementioned tripartite dialogue so as to ensure that there is no collective bargaining with groups of workers when there is a trade union in the bargaining unit.

Lastly, the Committee took note of restrictions on collective bargaining in the maritime sector pursuant to section 75 of Legislative Decree No. 8 of 1998, which establishes the conclusion of collective agreements as an option, which in practice leads to the denial of workers’ claims by employers and about which an application had been lodged for this legislation to be found unconstitutional. The Committee also noted the Government’s statement that a draft of a new Maritime Code was to be submitted to the Legislative Assembly. The Committee asks the Government to report on this matter.

Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes the Government’s report, the comments on the application of the Convention made by the National Council of Organized Workers (CONATO) and the National Council of Private Enterprise of Panama (CONEP) and the conclusions and recommendations of the Committee on Freedom of Association in Case No. 1931 presented by the International Organization of Employers (IOE) (see 318th Report, paragraphs 493 to 507), and the report of the technical assistance mission which visited Panama from 6 to 9 February 2006 concerning the application of Convention No. 87, and it welcomes the fact that the Government agreed to extend the mission’s mandate to issues relating to the application of Convention No. 98. The Committee notes the comments of the International Confederation of Free Trade Unions (ICFTU), dated 10 August 2006, which relate essentially to matters that are already under examination.

The Committee raises below the issues to which it referred in its previous observation on the application of Convention No. 98 and the positions of the Government and the social partners as they are indicated in an annex to the report of the technical assistance mission:

Problems indicated by CONATO

(a) Denial of collective bargaining in enterprises established for less than two years (section 12 of Act No. 8 of 1981);

CONEP: Considers that it is reasonable to give space to enterprises established for less than two years to stabilize their situation and that this prohibition of collective bargaining, and indirectly of strikes, is therefore reasonable.

CONATO: Section 12 of Act No. 8 of 1981 provides that it is not compulsory for enterprises which have been established for less than two years to negotiate a collective agreement, with the practical consequence of the rejection of the claims made for this purpose.

Government: if there is agreement between the social partners there is no obstacle to allowing collective agreement in enterprises established for less than two years.

The Committee maintains its previous comments and considers that this restriction on collective bargaining is incompatible with the requirements of the Convention.

(b) Restrictions on collective bargaining in the maritime sector;

CONEP: An appeal has been launched to find this provision unconstitutional and work is currently being undertaken on new legislation respecting maritime labour.

CONATO: As section 75 of Legislative Decree No. 8 of 1998, in contrast with the Labour Code, does not establish the obligation to conclude collective agreements, but provides that enterprises may conclude them, this has in practice led to the denial of workers’ claims for this purpose and therefore the impossibility in practice to call a strike in support of the requirement to conclude a collective agreement.

Government: an application has been lodged for Legislative Decree No. 8 to be found unconstitutional. The outcome of the new ILO Consolidated Maritime Convention is awaited. A draft text of a new Maritime Code will be submitted to the Legislative Assembly in the near future.

The Committee requests the Government to provide the ruling of the Supreme Court of Justice and the draft text of the new Maritime Code.

(c) Collective bargaining with groups of non-unionized workers in the private sector (section 431 of the Labour Code), even where a union exists, in the context of acts of interference by the employer; in particular, the exclusion of claims in certain cases, for example when the union notifies a situation of collective dispute and agreements have already been concluded with representatives of non-unionized workers:

CONEP: It is necessary to comply with the view of the Supreme Court, even though it has not yet been consolidated, that the enterprise may negotiate directly with the workers if the trade union does not hold negotiations.

CONATO: In practice, in violation of the law, groups of non-unionized workers in the private sector are being allowed to exclude unions from exercising collective bargaining by means of alleged accords prepared by the enterprise, as an overtly trade union practice and without there being any real submission of claims by non-unionized workers. As a consequence of these so-called trade union practices (which are flagrant), the agreements in question prevent, for up to four years, trade unions from being able to seek to engage in collective bargaining or to submit claims.

Government: there are no longer problems with collective accords with non-unionized workers, as these practices came to an end in September 2004; the Ministry of Labour does not accept a direct accord if claims have been submitted by the trade unions; if there are two sets of claims (one trade union and the other not from trade unions) the Labour Code establishes a procedure for competing claims (sections 402 and 416).

In view of the differences between the viewpoints of CONATO, CONEP and the Government, the Committee requests the latter to initiate tripartite dialogue on this issue with a view to achieving compliance with the principle that collective bargaining with groups of non-unionized workers should only be possible in the absence of a trade union.

(d) Denial of the right of collective bargaining to public officials not engaged in the administration of the State (section 135 of the Act on administrative careers).

CONEP: Prefers not to give its views on strikes by public officials as it is a matter which lies within the Government’s responsibility.

CONATO: As they are excluded from section 2 of the Labour Code, they are not covered by the right to conclude collective labour agreements, which is not included in the Act on administrative careers. Even though section 135 of this Act affords associations the right of collective bargaining to resolve disputes, there is no specific articulation of this and other provisions to ensure that it is operational, nor is the right to conclude collective agreements recognized.

The Committee notes from the mission report and the information provided by the Government that a draft reform of the Act on administrative careers is under discussion and it hopes that the future law will recognize and regulate the right to collective bargaining of public officials covered by the Convention in a manner which is in full accordance with the latter.

Problems indicated by CONEP

In its previous comments, the Committee noted that the CONEP indicates that the Government has not carried out the reforms requested by the Committee of Experts and the Conference Committee since 2000. Moreover, in its examination of Case No. 1931, the Committee on Freedom of Association observed that Panamanian legislation is not sufficiently clear with regard to certain aspects, that it regulates industrial relations in too much detail which constitutes a significant interference, and it contains provisions that are contrary to the principles to freedom of association and collective bargaining. More specifically, CONEP emphasized various points which were also raised by the Committee of Experts.

(a) The need to amend the legislation so that the payment of wages for strike days is not imposed by the legislation in the case of strikes attributable to the employer (section 514 of the Labour Code) but a subject for collective bargaining between the parties concerned. In this respect, the Committee notes that according to the mission report the positions of the Government and the social partners are as follows:

CONEP: In agreement with the position of the ILO that the payment of wages during strikes should be a subject for negotiation between the parties.

CONATO: This provision should not be amended.

Government: Open to consensus reached by the parties on this issue.

The Committee recalls that provisions which limit the subjects for negotiation between the parties relating to relations between them are incompatible with the Convention.

(b) The need, based on existing standards and procedures relating to conflicts of rights or interpretation, to establish a clear and rapid procedure, involving workers’ and employers’ organizations, to ascertain failure to comply with the legal provisions and the clauses of collective agreements with a view to preventing collective disputes on these issues.

CONEP: A provision should be added establishing a procedure for the resolution of conflicts of rights.

CONATO: This provision should not be amended.

Government: Does not wish to express an opinion but can go along with the consensus reached by the parties; referred to Act No. 53 of 1975 under which collective disputes relating to collective agreements can be resolved.

The Committee observes that Act No. 53 establishes the exclusive competence of the Ministry of Labour and Social Welfare to receive and decide on “requests relating to the interpretation of the law or the validity of clauses concluded in a collective agreement or other accord of a collective nature” and establishes a specific procedure with the participation of the parties to guarantee their right of defence. The Committee considers that it is not necessary to pursue its examination of this matter, unless CONEP provides new elements.

(c) Obligation for the number of delegates of trade unions, employers and employers’ organization to be between two and five (section 427 of the Labour Code);

CONEP: Agrees with the position of the ILO that the parties should determine the number of delegates and advisers in negotiations.

CONATO: This provision (section 427(3)) should remain as it is; in practice it does not raise problems and enterprises often go beyond the statutory number of representatives.

Government: Is open to a possible amendment if there is agreement between the social partners.

The Committee considers that the parties to collective bargaining should be able to negotiate the number of delegates who are to participate in negotiations.

2. The Committee notes the Government’s statements that: (1) on repeated occasions it has expressed its readiness to harmonize national law and practice with these Conventions, but to achieve such harmonization, which involves amendments to the Labour Code, the Government would only be able to promote them if it had the consensus of employers’ and workers’ organizations; and (2) the final report of the technical assistance mission has not yet been received, but it may already be noted that in the meetings held with the social partners the differences between them were significant.

The Committee observes that the positions of CONATO and CONEP are divergent with regard to the amendment of the legislation on the points referred to above, as well as with regard to the possibility of compulsory arbitration at the request of one of the parties (the trade union organization) under section 452 of the Labour Code, which affects the application of Convention No. 98 and restricts the principle of free and voluntary negotiation. It also notes that the Government is prepared to make changes if there is consensus. The Committee wishes to place emphasis on one of the conclusions of the technical assistance mission:

The mission reminded the Government that the process of creating tripartite consensus requires a proactive and committed attitude from the Government in taking the necessary action to achieve this objective. It was in this context that the Minister of Labour announced the decision to hold certain preliminary meetings with workers’ and employers’ organizations (each separately) in the form of seminars or workshops to discuss the freedom of association Conventions and the national provisions for the purpose of which it requested, through the mission, the support of the ILO. In view of its findings, the mission considers it appropriate that this and other technical and operational support should be provided to the Government and the social partners in Panama.

The Committee regrets to note that the divergences referred to above between national law and practice and the Convention have persisted for many years and it recalls the gravity of certain of these divergences. The Committee requests the Government to give effect to its commitments made to the technical assistance mission concerning meetings with the social partners in the form of seminars or workshops with ILO support and to actively promote tripartite dialogue on all pending issues. The Committee hopes that in the near future it will be able to note improvements in the legislation and requests the Government to provide information in this respect and that, in accordance with the commitment given to the technical assistance mission, any draft amendment to the legislation or the industrial relations will not be used to regulate or include other issues.

Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee notes the Government’s report and the comments submitted by the National Council of Organized Workers (CONATO) and the National Council of Private Enterprise (CONEP). The Committee recalls that in 2000 the Conference Committee examined the application of the Convention in Panama.

1. The Committee noted in previous comments the 310th and 318th Reports of the Committee on Freedom of Association (June 1998 and November 1999), in which the latter examined Case No. 1931, brought by two employers’ organizations. The Committee shared the view of the Committee on Freedom of Association and emphasized the need to amend: (1) section 427(3) of the Labour Code, which restricts the composition of the representatives of the parties (delegates and advisors) to the collective bargaining process, so that the parties themselves may determine this issue; (2) section 510(2) of the Code, which imposes disproportionate penalties for withdrawal from the conciliation procedures and failure to reply to statements of claims; and (3) limited possibilities for the collective negotiation of payment of wages in the event of a strike (section 514 of the Code).

2. In its previous observation the Committee noted that CONATO’s comments on the application of the Convention addressed in particular: the restrictions on the right to collective bargaining in the public sector, the maritime sector, enterprises in export processing zones and enterprises that have been established for less than two years; collective bargaining with groups of non-unionized workers in the private sector, even where a trade union exists, in the context of acts of interference by the employer; the rejection by the employer of statements of claims in certain cases, such as where trade unions threaten collective action or where agreements concluded by representatives of non-unionized workers already exist; and certain specific acts of anti-union discrimination. The Committee noted the Government’s comments on these matters in which it denied CONATO’s allegations either outright or in part on the basis of the legislation. The Committee suggested that the Government should promote tripartite discussion of these issues with a view to resolving them. The Committee notes the Government’s statements in its report that: (1) it has requested technical assistance from the ILO sub-regional office with a view to better application of the Convention through dialogue and cooperation with the social partners and to reaching a general agreement on the issues pertaining to the requested reforms of the Labour Code; (2) the technical assistance could not be implemented in the run-up period to the elections and it was therefore decided to postpone it and to leave the matter up to the new Government that takes office on 1 September 2004.

The Committee notes that in its recent comments CONEP states that the Government has not carried out the reforms requested by the Committee of Experts and the Conference Committee since 2000; that in dealing with Case No. 1931, the Committee on Freedom of Association observed that the legislation in Panama lacks clarity in some respects, particularly in relation to the excessively detailed regulation of labour relations which allows wholesale interference, and that some of its provisions are inconsistent with the principles of freedom of association and collective bargaining. CONEP adds that for this reason, the Committee on Freedom of Association accordingly asked the Government to take the necessary steps, without delay and in consultation with the social partners, to amend the provisions referred to in point 1 of this observation, and to amend the legislation in such a way that the payment of wages in respect of strike days is not statutory but a matter to be negotiated collectively by the parties. CONEP adds that the abovementioned Committee likewise recommended that in developing existing standards and procedures concerning conflicts of rights or interpretation, the Government should establish a clear, expeditious procedure, which would involve workers’ and employers’ organizations, for verifying non-compliance with legal provisions and clauses of collective agreements, making it possible to avoid collective disputes on the grounds under consideration.

The Committee stresses the need to amend the legal provisions in question. It hopes that the ILO technical assistance requested by the Government will take place very shortly and enable all these problems to be resolved. The Committee requests the Government to keep it informed on these matters.

Observation (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee notes the Government’s report and the comments made by the National Council of Organized Workers (CONATO) in a communication dated 21 August 2001.

1. The Committee had previously requested the Government to take measures to reduce the length of conciliation procedures (35 working days) set out in Decree No. 3 of January 1997, applicable to export processing zones, which could impede the application of Article 4 of the Convention. The Committee notes the Government’s indication in its report that the special commission for disputes sets the following time limits which, in its opinion, are reasonable, for conciliation procedures: ten days for the party to contest the allegations; 20 days to achieve a negotiated solution; and, if the parties have not reached an agreement, the above commission has five days to submit a proposed solution to the parties. The Committee notes that, according to the Government, during these periods the parties may continue negotiating directly and, if they consider it appropriate, may have recourse to an arbitration tribunal.

2. The Committee also noted the 310th and 318th Reports of the Committee on Freedom of Association (June 1998 and November 1999), in which the latter examined Case No. 1931, submitted by two employers’ organizations. The Committee shared the opinion of the Committee on Freedom of Association and emphasized the need to amend: (1) section 427(3) of the Labour Code, which restricts the composition of the representatives of the parties (delegates and advisers) to the collective bargaining process, so that the parties themselves may determine this issue; (2) section 510(2) of the Labour Code, which imposes disproportionate penalties for withdrawal from the conciliation procedure and failure to reply to statements of claims; and (3) the restricted possibilities for the collective negotiation of the payment of wages in the event of a strike (section 154 of the Code).

The Committee notes the Government’s statements, and particularly that: (1) the Government expresses great interest in complying with ILO standards, but unfortunately does not have the necessary Parliamentary majority; (2) the workers’ organizations have expressed their total opposition to the reforms concerned; (3) this problem can only be resolved through social dialogue and the Government is promoting such dialogue through four technical projects supported by the ILO and other bodies to create the conditions for achieving draft legislation agreed to by employers and workers; and (4) the Government has requested the technical assistance of the ILO in relation to the reforms and, through the national tripartite delegation to the 89th Session of the Conference, has sought ways of finding a solution with the International Labour Standards Department, which resulted in the idea of organizing seminars on international labour standards to promote the harmonization of the national legislation with Conventions. The Government hopes that these seminars can be organized in 2002.

The Committee emphasizes the need to amend the above legal provisions and hopes that the legislative reforms will be undertaken in the very near future.

3. The Committee notes that the comments of the CONATO on the application of the Convention refer in particular to: restrictions on the right to collective bargaining in the public sector, the maritime sector, enterprises in export processing zones and enterprises that have been established for less than two years; collective bargaining by groups of non-unionized workers in the private sector, even where a trade union exists, in the context of acts of interference by the employer; the rejection by the employer of statements of claims in certain cases, such as where trade unions threaten collective action or where agreements already exist concluded by representatives of non-unionized workers; and certain specific acts of anti-union discrimination. The Committee notes the Government’s comments in this respect, in which it denies and comments on CONATO’s statements from the point of view of the legislation.

In view of the high number of questions raised concerning the application of the Convention, the Committee suggests that the Government should promote tripartite discussions on these matters and that, after consulting the employers’ and workers’ organizations, it should consider the possibility of jointly requesting the technical assistance of the ILO with a view to the Committee being able to evaluate the application of the Convention with all the elements at its disposal and being able to find solutions to the problems raised.

Observation (CEACR) - adopted 1999, published 88th ILC session (2000)

The Committee notes the Government's report. The Committee recalls that in its last observation it pointed out that an overlong conciliation procedure (35 working days) as provided by Decree No. 3 of January 1997, applicable to export processing zones, could impede the application of Article 4 of the Convention. The Committee once again requests the Government to take the necessary measures to reduce the length of conciliation procedures and to keep it informed of all measures adopted in this respect.

In addition, the Committee notes the 310th and 318th Reports of the Committee on Freedom of Association (June 1998 and November 1999) which examined Case No. 1931, presented by two employers' organizations. The Committee of Experts shares the opinion of the Committee on Freedom of Association and stresses the need to amend: (i) section 452(2), which permits the imposition of arbitration at the request of one of the parties to the collective dispute; (ii) section 427(3) of the Labour Code which restricts the composition of the representatives of the parties (delegates and advisers) to the collective bargaining process, so that the parties themselves may determine this issue; (iii) section 510(2) of the Labour Code so that the withdrawal by one of the parties from the conciliation procedure does not give rise to disproportionate penalties; and (iv) section 510(2) so that failure to reply to a statement of claims does not entail disproportionate penalties.

The Committee requests the Government to take measures to amend these provisions and to keep it informed in this respect.

Observation (CEACR) - adopted 1997, published 86th ILC session (1998)

The Committee notes the report made by the Government. Similarly, it notes the observations made by the Latin American Central of Workers (CLAT) objecting to Decree No. 1, issued in January 1996, which accelerates the procedure for establishing enterprises in export processing zones and Decree No. 2, issued in February 1996, which amends Decree No. 1.

The Committee observes that the CLAT's comments concern the following provisions of Decrees Nos. 1 and 2, issued in 1996, in relation to the Convention:

-- section 2 of Decree No. 2 which provides that agreements relating to working conditions shall be reached in export processing zones, in all cases where such agreements do not affect the profitability of capital and allow fair, rational and acceptable rates of return and profits to be achieved;

-- sections 18, 19, 20, 21, 22, 25 and 26 of Decree No. 1, and sections 3, 4 and 5 of Decree No. 2 which provide for the establishment of a special department competent for disputes in export processing zones, in order to resolve any labour dispute which may arise, and within the above department, the setting up of a tripartite commission, which will be designed solely to reconcile the interests of employers and workers. CLAT criticizes the establishment of an unequal system for the resolution of disputes, based on a procedure extending over too long a period (35 working days) and in which, in the absence of an agreement between the parties, the dispute shall be subject to the arbitration procedure provided for in the Labour Code.

The Committee notes that in its report the Government states that, in relation to the observations made by CLAT, changes have been made to Decrees Nos. 1 and 2 relating to export processing zones by means of Decree No. 3 of 7 January 1997 which makes the following provisions:

(i) Section 9. The phrase which provided that collective agreements or Conventions may be concluded in all cases where such agreements do not affect the profitability of capital and allow fair, rational and acceptable rates of return and profits to be achieved, is repealed from section 2 of Decree No. 2.

(ii) Sections 10, 11, 12, 13, 14 and 15. These provisions amend the provisions of Decrees Nos. 1 and 2 relating to the establishment of a conciliation procedure, in the case of disputes or bargaining, before a tripartite commission; in this manner, if the parties concerned do not reach an agreement following the conciliation procedure, workers may go on strike. Similarly, the possibility of resorting to arbitration without the agreement of the organization concerned, following the procedure before the tripartite commission, is eliminated.

The Committee notes with satisfaction the changes made. Notwithstanding, it wishes to point out that in its opinion an excessively long conciliation procedure, such as that in the present case (35 working days), may be an obstacle to the provision made in Article 4 of the Convention. The Committee requests the Government to take the necessary measures to ensure that the conciliation periods provided for in Decree No. 3, issued in January 1997, are reduced. The Committee requests the Government to provide information in its next report on all measures adopted in this respect.

Observation (CEACR) - adopted 1995, published 83rd ILC session (1996)

The Committee notes from the Government's report the adoption of Act No. 9 establishing and issuing regulations governing administrative careers, of 20 June 1994, and the new Act No. 44 issuing regulations to regularize and modernize industrial relations, published on 12 August 1995.

In relation to its previous comment, relating to the need to grant the right to bargain collectively to public servants not engaged in the administration of the State, the Committee notes with interest that the new Act No. 9, in section 135(13), grants public servants the right to engage in collective bargaining concerning disputes and those aspects of the conditions of service of public servants with respect to which collective bargaining is not explicitly prohibited by law.

In this context, the Committee notes that, according to the Government's report, the new Government has established a National Commission in the public sector with a view to preparing regulations under the Act respecting administrative careers to ensure that it responds to the interests of public servants and is in conformity with the provisions of the Convention.

Furthermore, the Committee takes due note that, according to the Government's statement, new Act No. 44 strengthens collective agreements since, in accordance with section 53, their scope is extended and, in accordance with section 54, the parties are accorded freedom to establish the period covered by collective agreements and to amend them by common agreement while they are in force.

The Committee requests the Government to keep it informed of the progress made in practice in ensuring that in law and practice the category of public servants who are not engaged in the administration of the State are granted the right to bargain collectively, in accordance with Articles 4 and 6 of the Convention, and to supply any agreement concluded in this respect.

Observation (CEACR) - adopted 1994, published 81st ILC session (1994)

The Committee notes the Government's report and recalls that its previous comments referred to:

- the need to grant the right to bargain collectively to public servants not engaged in the administration of the State;

- restrictions on collective bargaining which extend current collective agreements for a further two years (section 1), and exempt for three years from the obligation to conclude collective agreements new enterprises or enterprises which have not already concluded such agreements (section 2 of Act No. 13 of 11 October 1990);

- denial of the possibility of collective bargaining for a period of four years in multisectoral zones (Act No. 16 of November 1990, section 34).

The Committee notes with satisfaction that Act No. 2 of 13 January 1993, under which "collective bargaining is recommenced and other measures adopted" repealed section 2 of Act No. 13 of 11 October 1990 and re-established the free exercise of collective bargaining, and that from the date of its coming into force 47 collective agreements have been concluded. The Committee notes moreover that Act No. 25 of 30 November 1992 repealed Act No. 16 of 1990, and that section 55 of Act No. 25 provides that the standards set out in the provisions of the Labour Code apply to relations between employers and workers in industries and enterprises established in export processing zones. The Committee requests the Government to supply information in its next report on the collective agreements which have been concluded in these zones.

With regard to the need to grant the right to bargain collectively to public servants not engaged in the administration of the State, the Committee regrets to note that the Government's report contains no information in this respect.

The Committee once again urges the Government to take steps to ensure that this category of workers enjoys the right to bargain collectively in law and practice, in accordance with Articles 4 and 6 of the Convention.

Direct Request (CEACR) - adopted 1992, published 79th ILC session (1992)

The Committee notes the comments transmitted by the National Council of Organised Workers (CONATO) in May 1991 in which it denounced the adoption of Act No. 16 of May 1990, which establishes multisectoral zones and denies the possibility of collective bargaining therein for a period of four years. The Committee also notes the Government's statement in reply to the above comments to the effect that Act No. 16, of May 1990, was adopted with the intention of creating new jobs and establishing export processing zones (maquiladoras), and that it is currently being re-examined in its entirety by the Legislative Assembly.

The Committee requests the Government to supply a copy of the above Act. It also requests the Government to provide detailed information in its next report on any other legislation that is in force or any draft text to amend Act No. 16 in relation to the rules governing employment in processing zones.

Observation (CEACR) - adopted 1992, published 79th ILC session (1992)

The Committee takes note of the Government's reports and the information supplied during the discussions of the Conference Committee in 1991.

The Committee recalls that since 1967 it has been commenting on the need to grant the right to bargain collectively to public servants not engaged in the administration of the State.

The Committee also made comments on Act No. 13 of 11 October 1990 which restricts collective bargaining by extending for two years current collective agreements, and by providing that new enterprises or those which have not concluded collective agreements are not obliged to conclude collective agreements, during a period of three years.

The Committee observes that the Government repeats its previous comments on the right of workers in the private sector to organise and the right of certain public sector employees to bargain collectively. In this connection, the Committee reiterates that under Article 6 of the Convention it is only the narrow category of public servants engaged in the administration of the State who may be excluded from the guarantees provided for by the Convention. Since it has not noted any positive developments in relation to this question for several years, the Committee again urges the Government to take the necessary measures in the near future to bring law and practice into full conformity with the Convention.

With regard to Act No. 13 of October 1990, the Government stresses the exceptional and temporary nature of this legislation which concerns "stabilisation policies" and indicates that the Act recognises agreed pay increases, calculated on the basis of their annual mean for each year of the extension and so guarantees protection of the workers, pointing out that such increases would be unlikely to be concluded through negotiation, because of the precarious state of the economy. This Act also recognises temporary accords within collective agreements and permits new agreements to be negotiated directly, so that it does not prohibit or limit the right to negotiate collective labour agreements if the parties agree. The Government also explains that the purpose of Act No. 13 is to improve national production, which dropped considerably as a result of the crisis that affected the country, by maintaining peaceful labour relations so as to attract new investment. However, the Government indicates that under a consultation agreement in social and labour matters, concluded on 4 December 1990 between workers, employers and the Government, the currency of Act No. 13 of October 1990 is being discussed.

While taking note of the above-mentioned consultation agreement in social and labour matters, the Committee recalls that the measures contained in Act No. 13 do not encourage the full development and utilisation of voluntary negotiation as the most appropriate means of regulating conditions of employment by means of collective agreements, as provided for in Article 4 of the Convention. The Committee again asks the Government to take measures to repeal or amend the above-mentioned restrictions.

Observation (CEACR) - adopted 1991, published 78th ILC session (1991)

The Committee notes that the Government's report only covers the period from 30 October 1988 to 30 October 1989 and does not contain any information which enables it to modify its previous comments.

In the comments that it has been making since 1967, the Committee has requested the Government to grant the right to bargain collectively to public servants not engaged in the administration of the State, since under Article 6 of the Convention it is only the narrow category of public servants engaged in the administration of the State who may be excluded from the guarantees provided for by the Convention. Since it has not noted any positive developments in relation to this question, the Committee urges the Government to take measures in the near future to bring the law and practice into conformity with the Convention.

Furthermore, the Committee notes that the Legislative Assembly has adopted Act No. 13 of 11 October 1990, which provides for restrictions on collective bargaining. More precisely, the Act provides for the extension for two years of current collective agreements and for enterprises which are being established or which have not concluded collective agreements to be excluded from the obligation to conclude collective agreements for three years. In view of the fact that these provisions do not promote collective bargaining in the sense set out in Article 4 of the Convention, the Committee requests the Government to take measures to repeal or amend the above restrictions, since the only limitation that is admissible to the principle of free collective bargaining concerns wage negotiations, in the context of a policy of stabilisation, when the Government considers that it would not be possible for wage rates to be fixed freely by means of collective negotiations; nevertheless, such a restriction should be imposed as an exceptional measure and only to the extent necessary, without exceeding a reasonable period, and it should be accompanied by adequate safeguards to protect workers' living standards.

[The Government is asked to report in detail for the period ending 30 June 1991.]

Observation (CEACR) - adopted 1989, published 76th ILC session (1989)

The Committee notes the Government's report.

In the comments that it has been making since 1967, the Committee has been asking the Government to grant the right to bargain collectively to public servants not engaged in the administration of the State, since under Article 6 of the Convention it is only the narrow category of public servants engaged in the administration of the State who may be excluded from the guarantees provided for by the Convention.

The Committee notes the Government's statement in its report that it has abandoned the draft Decree to which it referred in previous reports, through which it was preparing to give effect to Book III of the Labour Code to public employees, since it hopes that the Legislative Assembly will debate next year a Bill to regulate administrative careers, granting the rights of association, collective bargaining, strikes and arbitration to public servants.

After examining the above Bill, the Committee notes that the possibility of concluding collective agreements is excluded from the forms of negotiation envisaged in the Bill. The Committee emphasises that organisations of public officials and employees who are not engaged in the administration of the State should be able to negotiate collective agreements, in accordance with Articles 4 and 6 of the Convention and it urges the Government to take steps to include a provision of this nature in the Bill and to supply information in this connection.