Observation (CEACR) - adoptée 2009, publiée 99ème session CIT (2010)

The Committee notes the comments of 26 August 2009 by the International Trade Union Confederation (ITUC) referring to matters already examined by the Committee; to the murder of a leader of the Single Union of Construction and Allied Industries Workers (SUNTRACS); the denial of the right to strike by the Panama Canal Authority; and the referral of all collective disputes in the export processing zones to compulsory arbitration. The Committee also notes the comments of 23 July by the National Federation of Public Employees and Public Service Enterprise Workers (FENASEP) referring to matters examined by the Committee. The Committee recalls that freedom of association can be exercised only in a climate that is free of violence in which fundamental human rights are respected and fully guaranteed, particularly the right to life and personal safety, and points out that the murder of a trade union leader requires that a judicial investigation be held in order fully to ascertain the facts, punish those responsible and prevent any recurrence. The Committee urges the Government to carry out an investigation thereon and to send its observations on this matter.

Lastly, the Committee notes the comments of 29 May 2009 by the National Council of Private Enterprise of Panama (CONEP) on the application of the Convention. The Committee requests the Government to send its observations in response.

The Committee likewise notes the discussions that took place in the Conference Committee on the Application of Standards in 2009 on the application of this Convention. It notes that a Government representative reported on: (1) the adoption of various executive decrees regulating certain provisions of the Labour Code (for example, Legislative Decree No. 26 on the determination of minimum services in the event of strike; and Executive Decree No. 27 adopting measures to maintain the independence and autonomy of workers’ organizations); and (2) the submission to the National Assembly of two bills, one to reduce the minimum number of workers required to form a union, and the other to guarantee fully the right to organize in export processing zones. The Committee notes that the Government representative also stated that the Government is not able to impose legislative reforms when there is disagreement between the social partners, as to do so would be contrary to tripartism. Furthermore, the Committee notes that the Conference Committee regretted that it was unable to note significant progress in the requested amendment of the legislation and considered that the Government ought to seek technical assistance from the ILO in evaluating the scope of the new provisions referred to by the Government and to complete the reforms so as to ensure full consistency with the Convention.

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

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

–           sections 174 and 178, last paragraph, of Act No. 9 of 1994 (“establishing and regulating administrative careers” – the “Administrative Careers Act”), (as amended by Act No. 24 of 2 July 2007), establishing, respectively, that there may not be more than one association in an institution, and that associations may have provincial or regional chapters, but not more than one chapter per province. The Committee recalls that according to Article 2 of the Convention, the legislation should envisage the possibility of workers being allowed to establish more than one organization if they so wish. The Committee requests the Government to take the necessary steps to amend sections 174 and 178 of the Administrative Careers Act as indicated above;

–           requirement of too large a membership (ten) for the establishment of an employers’ organization and an even larger membership (40) for the establishment of a workers’ organization at enterprise level, by virtue of section 41 of Act No. 44 of 1995 (amending section 344 of the Labour Code), and the requirement of a large number (40) of public servants to establish an organization of public servants under section 177 of the Administrative Careers Act. The Committee notes in this connection the information from the Government to the effect that the National Assembly has before it a bill to amend section 344 of the Labour Code by reducing from 40 to 20 the minimum number of workers or professionals needed to form a union. The Committee observes, however, that the abovementioned Decree does not amend the requirement of ten members in order to establish an organization of employers. In these circumstances, the Committee hopes that the bill to amend section 344 of the Labour Code will be adopted in the near future and that it will reduce not only the minimum membership required to establish workers’ organizations but also the minimum membership required to establish employers’ organizations. The Committee also asks the Government to take the necessary steps to amend section 177 of the Administrative Careers Act so as to reduce the minimum membership required for the establishment of organizations of public servants to a reasonable level. It asks the Government to indicate in its next report on any developments in this regard;

–           denial to public servants of the right to establish unions. In its previous comments, the Committee requested the Government to send its observations on the comments by FENASEP indicating that under the Administrative Careers Act, non-career public servants as well as those holding appointments governed by the Constitution and those who are elected and serving may not freely establish organizations of their choosing. The Committee notes that in its comments of 2009, FENASEP states that it is not deemed to be a workers’ organization and so may not participate in the National Council of Organized Workers (CONATO). The Committee requests the Government to send its observations in response.

Article 3. Right of organizations to elect their representatives in full freedom. Requirement to be of Panamanian nationality in order to serve on the executive board of a trade union (article 64 of the Constitution). The Committee pointed out in earlier comments that provisions on nationality that are too stringent could deprive some workers of the right to elect their representatives in full freedom; for example, migrant workers could be adversely affected in sectors in which they account for a significant share of the membership. In the Committee’s view, the national legislation should allow foreign workers to take up trade union office at least after a reasonable period of residence in the host country (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 118). The Committee accordingly asks the Government to take the necessary steps to have the legislation amended to take account of the aforementioned principle.

Right of organizations to organize their administration. Deduction of ordinary and extraordinary dues from the salaries of public servants who are not affiliated to the association of public servants and benefit from the improvements in conditions of work achieved in a collective agreement. In its previous comments, the Committee noted that section 180A of Act No. 24 of 2 July 2007 amending Administrative Careers Act No. 9, provides that public servants who are not affiliated to the association of public servants and enjoy the improvements obtained in conditions of work by a collective agreement, shall have the ordinary and extraordinary trade union dues agreed by the association deducted from their wages for as long as the agreement is in force. In the Committee’s view, to require by law that non-affiliated public servants shall pay ordinary dues to the association which obtained improvements in labour conditions raises problems of consistency with the Convention to the extent that such a requirement may influence the right of public servants freely to choose the association to which they wish to be affiliated. In these circumstances, the Committee requests the Government to take the necessary steps to have section 180A of Act No. 24 of 2 July 2007 amended so as to abolish the requirement for public servants who are not affiliated to associations to pay ordinary trade union dues, with the possibility of providing instead for the payment of a lesser amount than the ordinary trade union contribution for the benefits derived from collective bargaining.

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

–           denial of the right to strike in export processing zones (Act No. 25). In this connection the Committee notes that the Government informed the Conference Committee on the Application of Standards that a bill had been submitted to amend section 49B of Act No. 25 so as to allow workers or their social organizations to exercise the right to strike once conciliation is over. The Committee hopes that the bill will be adopted in the near future and asks the Government to report on progress in the enactment process;

–           denial of the right to strike in enterprises of less than two years’ standing pursuant to Act No. 8 of 1981. CONATO pointed out previously that since section 12 of the abovementioned Act establishes that no enterprise shall be compelled to conclude a collective agreement during the first two years of operations and since the general legislation allows strikes only in pursuance of collective bargaining or in other limited cases, the right to strike is in practice prohibited during the first two years of the enterprise’s operations. The Committee requests the Government to take the necessary steps to ensure that workers and their organizations in the enterprises in question have the right to strike;

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

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

–           authority of the Regional or General Labour Directorate to refer labour disputes to compulsory arbitration in order to stop a strike in private transport enterprises (sections 452 and 486 of the Labour Code) which do not provide a service that is essential in the strict sense of the term. The Committee requests the Government to take the necessary steps to amend the legislation to provide that compulsory arbitration shall be possible in the transport sector only at the request of both parties.

The Committee notes in this respect that the Government informed the Conference Committee on the Application of Standards about the adoption of Executive Decree No. 26 establishing parameters to be taken into account in determining the percentage of workers to be assigned to shift work in public services during a strike in the private sector (minimum services). The Committee requests the Government to send a copy of the abovementioned Decree;

–           obligation to provide minimum services with 50 per cent of the staff in the transport sector and penalty of summary dismissal for failure to comply with minimum services in the event of a strike (sections 152.14 and 185 of Administrative Careers Act No. 9 of 1994). The Committee recalls in this respect that minimum services should be limited to activities that are strictly necessary to cover the basic needs of the population or satisfy the minimum requirements of the service, while maintaining the effectiveness of the pressure brought to bear. Since this system restricts one of the essential means of pressure available to workers to defend their economic and social interests, their organizations should be able, if they so wish, to participate in defining such a service. In these circumstances, the Committee requests the Government to take the necessary steps to ensure that these minimum services provided in public services which go beyond essential services in the strict sense of the term, are reduced to a reasonable level and that organizations of the workers concerned may participate in determining them;

–           legislation interfering with the activities of employers’ and workers’ organizations (sections 452.2, 493.1 and 494 of the Labour Code) (closure of the enterprise in the event of a strike and compulsory arbitration at the request of one party). The Committee notes that in its comments of 2009, CONEP refers to the matter of closure of the enterprise in the event of a strike and indicates that such decisions may not be challenged by the employers concerned. The Committee notes that, according to CONEP, closure of an enterprise is not a symbolic act; the administrative authorities for labour with the collaboration of the police, place plastic seals on the entrances to the industrial and commercial facilities and the offices of enterprises thus barring access to the work centres by administrative staff or workers who do not support the strike, including access to computer equipment, archives and facilities that are necessary not only to the conduct of business but also to an informed approach (costs and other data) to negotiation with the union. According to CONEP, it is likewise impossible to undertake banking transactions or other activities to ensure the survival of the enterprise and, hence, the source of work. This leaves the employers defenceless in the face of the unions’ demands – which are granted, as is permission to use the facades of the buildings and access roads for painting and displaying posters and union propaganda. As a result, says CONEP, employers have to work “underground”, using hotels or their own homes to organize, administrate and coordinate negotiations for settlement of the dispute and to conduct all business necessary to the survival of the enterprise, taking care to leave no trace of their efforts, which might otherwise later be cited as proof that the employer has violated the closure order.

The Committee further notes that in its conclusions, the Conference Committee noted with concern the adverse effects of legislative provisions ordering the closure of an enterprise and barring the entrance of management staff to the facilities. In these circumstances, the Committee requests the Government to take the necessary steps to have the legislation amended so that: (1) in the event of a strike, management staff and non-striking workers are guaranteed the right to enter the facilities; and (2) compulsory arbitration is possible only at the request of both parties to the dispute, or in essential services in the strict sense of the term in the case of public servants who exercise authority in the name of the State.

Observing that for many years there have been discrepancies between law and practice and the Convention, and bearing in mind the gravity of some of the restrictions mentioned, the Committee again urges the Government, in consultation with the social partners, to take the necessary steps to amend the legislation so as to make it fully consistent with the provisions of the Convention and the principles of freedom of association. In view of the Government’s statement that although there is not as yet agreement with the social partners on amending the Labour Code, it is willing to harmonize law and practice with the Convention and is preparing a bill for the purpose, the Committee urges the Government to seek technical assistance from the ILO in this process, and in its next report to provide information on all progress made.