Observación (CEACR) - Adopción: 1995, Publicación: 83ª reunión CIT (1996)

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

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

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

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

- the requirement that only those of Panamanian nationality may serve on the executive board of a trade union organization (article 64 of the Constitution and section 369 of the Code); and

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

The Committee notes with satisfaction that the new Act No. 44 laying down standards to regularize and modernize labour relations, issued on 12 August 1995, amends and repeals various provisions of the Labour Code which had been the subject of comments for several years.

Specifically, Act No. 44, section 70, rescinds the requirement that 75 per cent of the members of a trade union must be Panamanian (section 347 of the Code); section 45 provides that the reasons for removal of members and leaders of an organization are to be determined by the rules of the organization, amending section 359 of the Code; under article 49, the authorities are only allowed to inspect the books of records, members and accounts when requested to do so by at least 20 per cent of its members, amending section 376(4) of the Code; and section 46 amends section 369 of the Code, by abolishing the requirement to be of Panamanian nationality in order to serve on the executive board of a trade union; the Committee hopes that the requirement in question will also be deleted from the Constitution (article 64).

Moreover, the Committee notes with interest that under section 41 of the above-mentioned Act No. 44, section 344 of the Labour Code is amended, reducing from 50 to 40 the minimum number of workers needed to establish an occupational organization. The Committee observes, nevertheless, that the too-high number of ten employers needed to establish an occupational organization has not been modified and hopes that the Government, in consultation with the social partners, will be able to reduce this requirement also and will continue to reduce still further the minimum number of workers in order to establish a trade union on the enterprise level.

With reference to the exclusion of public servants from the scope of the Labour Code and consequently from the right to organize (section 2(2) of the Labour Code), the Committee notes with interest that section 174 of Act No. 9 ("establishing and regulating administrative careers"), adopted on 20 June 1994 provides for the right to organize of public servants by establishing that "public servants engaged in administrative careers may establish or join associations of public servants of a social, cultural and economic nature, of their respective institutions, which have the aim of promoting the studies, training, improvement and protection of their members ...". The Committee duly notes that Act No. 9 lays down the right of public servants to strike in conformity with the law as well as the right to collective bargaining.

Nevertheless, the Committee observes that section 174 of Act No. 9 lays down that there shall not be more than one association in an institution and that the last paragraph of section 178 stipulates that the associations may have provincial or regional chapters but not more than one chapter per province.

In this respect, the Committee wishes to state that any system of trade union unity or monopoly imposed directly or indirectly by the law runs counter to the principle of free establishment of organizations of workers and employers set forth in Article 2 of the Convention. The Committee wishes to remind the Government that although it was clearly not the purpose of the Convention to make trade union diversity an obligation, it does at the very least require this diversity to remain possible in all cases. There is a fundamental difference between, on the one hand, a trade union monopoly established or maintained by law and, on the other hand, voluntary groupings of workers or unions which occur (without pressure from the public authorities, or due to the law) because they wish, for instance, to strengthen their bargaining position, or to coordinate their efforts to tackle ad hoc difficulties which affect all their organizations (see General Survey on freedom of association and collective bargaining, 1994, paragraph 91).

The Committee hopes that the Government will continue to make every effort to bring the legislation into full conformity with the Convention and requests it to keep it informed on any progress made in this regard.

The Committee is also addressing a direct request on certain points to the Government.