Observation (CEACR) - adoptée 1992, publiée 79ème session CIT (1992)

The Committee notes the Government's reports and the information supplied to the Conference Committee in 1991.

The Committee recalls that the points that it has been raising for several years refer to the following:

- the exclusion of public servants from the scope of the Labour Code and consequently from the right to organise and bargain collectively (section 2(2) of the Labour Code);

- the requirement, under section 344 of the Code, of too high a number of members to establish an occupational organisation (50 workers or ten employers);

- the requirement that 75 per cent of trade union members are Panamanian (section 347);

- the automatic removal from office of a trade union officer in the event of his dismissal (section 359);

- the authorities' wide powers of supervision over the records and accounts of trade unions (section 376(4)).

More recently, the Committee has noted that Act No. 13 of 11 October 1990 provides for collective disputes to be submitted to compulsory arbitration in all enterprises that provide public services and in other enterprises when the continuation of the strike could result in serious economic problems for the enterprise; and that Act No. 25 of 1990 authorises the executive and the directors of independent and semi-independent institutions, state and municipal enterprises and other public bodies to declare void the appointments of persons in the public services who have participated or are participating in the organisation, calling or execution of activities that threaten democracy and the constitutional order, whether or not they hold office in trade unions and public servants' associations, their trade union or sectoral delegates and representatives, the officers of the public servants' associations, irrespective of the existence of trade union immunity and irrespective of whether they are governed by special laws.

The right of workers and employers, without distinction whatsoever, to establish and join organisations of their own choosing

With regard to the exclusion of public servants from the scope of the Labour Code and consequently from the right to organise and bargain collectively, the Government indicates that the National Constitution, in Chapters 2 and 3 of Title XI, establishes "the basic principles of personnel administration" and "the organisation of personnel administration" under which the Administrative Careers Act of 1963 was issued, amended by Cabinet Decree in 1968 which repealed the sections concerning the stability of public servants. These are the reasons why the Labour Code cannot be applied to public servants except in the specific cases where the right to organise is authorised, set out in Act No. 8 of 25 February 1975 and Acts Nos. 34 and 40 of February 1979 which apply to certain state enterprises. While noting this information, the Committee wishes to stress that the provisions of the Convention apply to all workers "without distinction whatsoever" and therefore cover all public officials and employees.

With regard to the requirement of too high a number of members to establish an occupational organisation (section 344 of the Labour Code), the Committee notes the Government's statement that the purpose of this section of the Code is to strengthen trade union organisations so that they can effectively use the right to bargain collectively which is based on the principle of the majority. The Committee has pointed out on a number of occasions that the requirement of too high a number of members may hamper or even prevent the establishment of occupational organisations of the choosing of those concerned, which would be contrary to Article 2 of the Convention.

As regards the requirement in section 347 of the Code that 75 per cent of union members must be Panamanian, the Government states that this is not a discriminatory requirement but rather one which belongs to the aspirations of organisations of workers because, for historical reasons, foreigners controlled the unions as well as economic activity; there is no ban on the right to unionise of foreigners, so long as the level of 25 per cent of members of the union is not exceeded. While noting these statements, the Committee wishes to remind the Government that the right of workers to establish and join unions, without distinction whatsoever, implies that all workers who are in the country legally shall enjoy the trade union rights provided for in the Convention, without any distinction, particularly on the grounds of nationality (in this connection see paragraphs 76, 77, 96 and 97 of the 1983 General Survey on Freedom of Association and Collective Bargaining).

The right of workers' and employers' organisations to elect their representatives in full freedom, to organise their administration and to formulate their programmes

Regarding the wide powers of the authorities to inspect, at least once every six months, the records, minutes and accounts of trade unions (section 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, since the unions are of public interest and, consequently, the Ministry of Labour and Social Welfare is obliged to promote the creation of these organisations. The Government states that such powers of supervision over this union documentation do not exist since the "minute 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 of the legal personality and the legal representatives of the organisation. The Ministry only intervenes when challenges are made by 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 abuse of office, to establish that they are properly kept. The Ministry cannot suspend any union leader even if it has established that there has been mismanagement of funds or his appropriation of them. Furthermore, the formality of lodging registration requests for new unions is aimed at giving them the protection or immunity (fuero sindical) of a trade union in the process of being set up, as provided in sections 381 and 185 of the Code. The Committee notes the detailed information supplied by the Government on these points, but recalls that this provision of section 376 confers excessive powers on the adminstrative authorities with regard to the internal management of unions, which is not consistent with the principles laid down in Article 3 of the Convention, under which unions have the right to organise their administration without any interference from the public authorities which would restrict this right or impede the lawful exercise thereof. The Committee considers that it would be desirable that the supervision of the auditing of accounts be carried out when a certain percentage of the members so requests or be carried out by the courts.

With regard to Act No. 13 of 11 October 1990, which sets out restrictions on the right to strike, the Committee takes note of the Government's information to the effect 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 which can be used following a summary verification of this disruption, with the workers being given a hearing. This Act is of a transitional and exceptional nature (to apply for a period of three years) and was promulgated as part of the "Stabilisation Policies" to facilitate the necessary economic recovery and encourage the creation of new sources of employment. The Committee also notes that under an agreement on cooperation in the social and labour sectors concluded on 4 December 1991 between the workers, the employers and the Government, possible changes in the period of application of Act No. 13 of October 1990 are to be discussed. While noting this information, the Committee reiterates that, according to its principles, the right to strike may only be subject to serious restrictions such as submission to compulsory arbitration for example: (1) in essential services in the strict sense of the term (services whose interruption would endanger the life, personal safety or health of the whole or part of the population); (2) in the case of public servants acting in their capacity as agents of the public authority; and (3) in the case of an acute national emergency.

Regarding Act No. 25 of 14 December 1990, with retroactive effect as of 4 December 1990, the Government states that this is an Act concerned with law and order against subversive acts by public servants; it is a temporary enactment in force until 31 December 1991. 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, exhorting the population to undertake a prolonged general work stoppage to secure the fall of the Government. The Committee reiterates its previous observation that Act No. 25, in so far as it could have given rise to dismissals on account of a person's holding trade union office, greatly prejudices the right of associations of public employees to organise their activities, including the use of strikes, and that it is intended to legitimise the dismissal of a large number of such employees without providing for judicial appeal against such decisions. The Committee notes, however, that the period of application of the Act has now expired.

In view of the seriousness of these discrepancies and the length of time that has elapsed since its first observation on these points, the Committee again urges the Government to amend these provisions in its legislation in the near future so as to bring the law and practice into conformity with the Convention.

[The Government is asked to supply full particulars to the Conference at its 79th Session.]