Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee notes the Government’s report.

The Committee recalls that its previous comments concerned the following issues:

(a)   the authority of the Regional or General Labour Directorate to refer labour disputes to compulsory arbitration in order to stop a strike in a public service enterprise, including when the service cannot be considered essential in the strict sense of the term, such as transport (sections 486 and 452 of the Labour Code);

(b)   sections 174 and 178, last paragraph, of Act No. 9 (“establishing and regulating administrative careers”) of 1994, which lay down respectively that there shall 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;

(c)   section 41 of Act No. 44 of 1995 (amending section 344 of the Labour Code), which requires too large a membership (ten) for the establishment of an employers’ organization and an even larger membership (40) for the establishment of a workers’ organization at the enterprise level;

(d)   article 64 of the Constitution, which requires Panamanian nationality in order to serve on the executive board of a trade union;

(e)   the obligation to provide minimum services with 50 per cent of the personnel in establishments which provide essential public services, which go beyond essential services in the strict sense of the term and include transport, and the penalty of summary dismissal of public servants for failure to comply with the requirement concerning minimum services in the event of a strike (sections 152(14) and 185 of Act No. 9 of 1994);

(f)    legislation interfering with the activities of employers’ and workers’ organizations (sections 452(2), 493(1) and 497 of the Labour Code) (closing of the enterprise in the event of a strike and compulsory arbitration at the request of one of the parties). The Government provided the technical assistance mission with a copy of Executive Decree No. 32 of 1994, providing for minimum services to safeguard the security of the enterprise and its assets, and the maintenance of services. The Committee requests the employers’ confederation, which raised this issue, to provide its comments in this regard;

(g)   the requirement of a high number (50) of public servants to establish an organization of public servants under the Act respecting administrative careers. The Government acknowledged previously that the number is high, but pointed out that section 176 of Act No. 9 allows public servants to organize by class (category) or sector of activity, and the Committee asked the Government to take steps to amend the legislation with a view to reducing the minimum number of public servants required to establish organizations;

(h)   denial of the right to strike of workers engaged at sea and on inland waterways (Act No. 8 of 1998), and in export processing zones (Act No. 25);

(i)    prohibition for federations and confederations to call strikes (prohibition of strikes protesting against problems relating to economic and social policy, while strikes not related to a collective agreement in an enterprise are unlawful). The Committee emphasized that federations and confederations should have the right to strike and that organizations responsible for defending workers’ socio-economic and occupational interests should, in principle, be able to use strike action to support their position in the search for solutions to problems posed by major social and economic policy trends which have a direct impact on their members and on workers in general, in particular as regards employment, social protection and the standard of living (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 165). The Committee requested the Government to take steps to amend the legislation with a view to bringing it into line with these principles;

(j)    disaffiliation of the National Federation of Associations and Organizations of Public Servants (FENASEP) from a trade union confederation by decision of the authorities. The Government indicated previously that public servants are governed by the Act respecting administrative careers and considered that they must join homologous organizations of public servants. The Committee pointed out that, although first-level organizations of public servants may be restricted to this category of workers, such organizations should, however, be free to join federations and confederations of their own choosing, including those which also group together organizations from the private sector (see General Survey, op. cit., paragraph 193). The Committee requested the Government to take measures to amend the legislation with a view to bringing it into line with the above principle. The Committee requested the Government not to prevent the affiliation of the FENASEP;

(k)   denial to public servants of the right to establish unions. The Government indicated previously that interpretation by the National Council of Organized Workers (CONATO) was inconsistent with reality; the right of association of public servants is recognized in Act No. 9 of 20 June 1994 and, in practice, FENASEP operates in the same way as any other private sector organization and participates in CONATO and the International Labour Conference. The Committee notes that FENASEP indicated to the technical assistance mission that it was negotiating with the Government the draft text partially reforming the Act respecting administrative careers;

(l)    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 prohibition of the right to strike in the public service should be limited to public servants exercising authority in the name of the State [see General Survey, op. cit., paragraph 158];

(m)  denial of the right to strike in enterprises which have been in existence for less than two years under the terms of Act No. 8 of 1981. CONATO indicated that section 12 of the Act provides that no enterprise shall be compelled to conclude collective agreements during the first two years of operation and that the general legislation permits strikes only in pursuance of collective bargaining or in other limited cases. The Committee notes that the Government does not refer to this issue in its report and requests it to provide its comments on this matter;

(n)   the need for the support of the majority of the workers in the enterprise, shop or establishment to call a strike (section 476(2) of the Labour Code). The Government indicated previously that it considered the restriction to be justified by the effects produced by strikes under the national legislation (closure of the enterprise, prohibition upon the conclusion of new employment contracts, etc.). The Committee takes due note that the Government and the social partners indicated to the mission that if the above percentage is not obtained, at the third meeting of the union assembly, the requirement is for a simple majority of voting members.

The Committee notes the Government’s statements in its report in which it repeats that it has shown its willingness to bring national law and practice into conformity with Conventions Nos 87 and 98, but that in order to do so it is necessary to amend the Labour Code, which in turn requires tripartite consensus. However, such consensus does not exist since, as the ILO technical assistance mission (February 2006) observed, there are significant differences between the social partners. The Government expressed the view that in light of the sensitivity of the subjects (right to organize, strikes, etc.), any reform has to be undertaken with tripartite consensus so that social peace is not endangered.

With reference to the specific points and requests for information, the Committee notes that the Government has provided the ruling of the Supreme Court which implicitly recognizes the right to collective bargaining and to strike of shipowners and organizations of seafarers, and which finds that section 75 of Legislative Decree No. 8 of 1998 infringes articles 64 and 65 of the Constitution. The Committee notes this ruling with satisfaction. It also notes with satisfaction that the FENASEP has been able to affiliate to the Workers’ Central Organization (a previous government had cancelled the affiliation of the FENASEP to a trade union federation which included private sector workers, in which case the Committee had requested guarantees of the right to trade union affiliation).

The Committee notes that the Government has provided the text of the draft reform of the Act respecting administrative careers and notes with interest that it guarantees the right of association and the other rights envisaged in the Convention, and that it establishes protection against acts of anti-union discrimination and interference and recognizes the right to collective bargaining. Nevertheless, as the Act provides that “there shall not be more than one association in an institution”, the Committee requests the Government to take measures to amend this provision so as to guarantee the application of Article 2 of the Convention, which sets out the right of workers to establish organizations of their own choosing; the exercise of this right could also be facilitated by reducing the minimum number of members or founders, which is set at 40 in the draft text (the Government nevertheless indicates that FENASEP is opposed to this measure).

The Committee notes that the Government has provided the text of Act No. 25 respecting export processing zones and recalls that it noted previously that a World Trade Zones Bill, which referred to the relevant provisions of the Labour Code for all matters relating to relations between workers and employers, would replace the above Act. The Committee understands that at present there is no right to collective bargaining or to strike in export processing zones, and accordingly maintains its previous comments on this subject.

The Committee regrets that the Government has not referred to certain legal provisions identified by the technical assistance mission in 2006 which could be amended as neither the Government nor the social partners were opposed to such amendment. These concern in particular the following: (1) reducing to four the number of employers needed to establish an employers’ organization; (2) removing the restriction on the free affiliation of associations of public servants to other trade union organizations, particularly those of a higher level which group together public servants and other workers; and (3) the possibility for associations of public servants to have more than one chapter (section) per province.

The Committee regrets to note that the discrepancies referred to above between the law and practice and the Convention have existed for many years, and that some of the restrictions referred to are serious. The Committee requests the Government to fulfil its commitments to the technical assistance mission of 2006 in terms of holding meetings with the social partners in the form of seminars or workshops with the ILO’s support and to actively promote tripartite dialogue on all pending issues. The Committee hopes that in the near future it will be in a position to note improvements in the legislation and requests the Government to keep it informed in this regard and, in accordance with the assurances given to the technical assistance mission, to ensure that any proposals to reform the trade union legislation are not used to regulate or include other issues.

The Committee notes with interest a new law of 2 July 2007, just transmitted by the Government, which grants public servants the right to establish and join trade unions and to engage in collective bargaining. The Committee understands that the new law provides for protection against acts of anti-union discrimination. The Committee will examine the new legislation fully at its next session.