Observation (CEACR) - adopted 1990, published 77th ILC session (1990)

The Committee takes note of the Government's report received on 19 October 1989 and of the information provided at the Conference Committee in 1989 and the discussion that ensued. Furthermore, the Committee takes due note of the assurances supplied by the new Government in its report, to respect fully the application of the Convention and to examine the appropriate measures to bring the national legislation into conformity with the Convention.

The Committee recalls that since 1973 its comments have addressed the following points:

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

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

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

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

- 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)).

1. With regard to the minimum number of workers and employers to establish an occupational organisation, the Committee notes that in its report received on 19 October 1989 the Government recalls the statement that a reduction of this number would result in trade union pluralism, which was not the wish of the organisations. Furthermore, the danger that workers in small enterprises would thus be excluded from the right to organise, which was pointed out by the Committee, would not exist because such workers would be able to group together in professional or industrial unions, as is the case in practice.

While noting these statements, the Committee recalls that, under the legislation, the requirement regarding the minimum number of members for establishing an organisation applies to works unions and to professional or industrial unions. As the Committee has constantly stressed, the minimum number laid down by the legislation is clearly too high and is contrary to the principle of Article 2 of the Convention whereby workers and employers are entitled to establish and join organisations of their own choosing.

The Committee requests the Government to amend the legislation to reduce the number of workers or employers required to establish a workers' or employers' organisation to a reasonable level, so that the principle contained in Article 2 of the Convention is not compromised.

2. With regard to the minimum number of Panamanian members of a union (section 347), the Committee also notes that in its report received on 19 October 1989, the Government merely indicates that the trade unions, which are already critical of the number of foreign workers, would not like to see an increase in the number of foreigners admitted to the trade unions. The Government adds, in response to the Committee's comments, that to allow trade unions to deal with this question in their by-laws which would be tantamount to the State abdicating its constitutional function of protection of the native manpower in favour of the trade unions, and that this could also prejudice employer-worker relations. None the less, the Government representative to the Conference Committee stated that it would be desirable for this provision to be made more flexible.

While noting these statements, the Committee wishes to remind the Government that the right of workers to establish and join trade unions without distinction whatsoever implies that all the workers legally in its territory enjoy the trade union rights provided for by the Convention without distinction, in particular, as to nationality (see in this connection paragraphs 76, 77, 96 and 97 of the 1983 General Survey on Freedom of Association and Collective Bargaining).

The Committee therefore urges the Government yet again to take the necessary measures to remove any legal restrictions on the right of foreign workers legally in its territory to establish trade unions without any distinction, in particular, as to nationality.

3. The Committee also notes that in its report received on 19 October 1989 the Government reiterates its statements to the effect that section 359 of the Code, which provides for the automatic removal from office of a trade union officer in the event of his dismissal, applies only to officers of works unions and not to those of industrial or professional unions or of trade union federations or central organisations.

The Committee recalls that under Article 3 of the Convention workers' organisations are entitled to elect their representatives in full freedom and that, consequently, it is up to those organisations to designate their representatives.

4. With regard to the obligation imposed on trade unions to allow the labour authorities to examine their records and accounts (section 376, subsection 4, of the Labour Code), the Committee again notes the Government's statement to the effect that this provision is not applied in practice. It also notes that the Government intends to examine this question with the trade unions.

The Committee trusts that this provision, which confers excessive powers on the authorities over the internal administration of trade unions, will be amended to bring it into conformity with Article 3 of the Convention, which provides that workers' and employers' organisations have the right to organise their administration without any interference from the authorities which would impede the lawful exercise thereof.

5. In its previous observation, the Committee noted that the draft Decree to extend Book III of the Labour Code to public servants had been set aside since it was hoped that the Legislative Assembly would discuss a Bill to regulate administrative careers, which would recognise the rights to associate, bargain collectively, strike and go to arbitration for public servants, who are excluded from the Labour Code.

In its report received on 19 October 1989, the Government states that it has not been possible for the Legislative Assembly to discuss this Bill and that the Committee will be informed of any developments in this respect. The Government recalls that, in practice, there is a large national federation of public servants which carries on union activities and which has all the prerogatives of a union.

While noting these statements, the Committee recalls that the rights guaranteed by the Convention apply to all workers without distinction, including public servants, except for the armed forces and the police, and it trusts that measures will be taken in the near future to guarantee these rights for the persons concerned.

The Committee expresses the hope that the Government, as stated in its last report, will take steps in the near future to bring all the legislation into conformity with the Convention. It recalls that in its 1981 report the Government included the texts of two Bills that were to bring its legislation into conformity with the Convention but the Government subsequently stated it was unable to resume the examination of these Bills owing to the country's internal situation.

The Committee trusts that these Bills could be re-examined and it requests the Government to provide full particulars of any developments in this respect with its next report.