Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Panama (Ratification: 1958)

Individual Case (CAS) - Discussion: 2011, Publication: 100th ILC session (2011)

A Government representative stated that Panama had received with great satisfaction the report of the Committee of Experts, in which, after examination of the reports which had been sent, Panama was listed among the “cases of progress” with regard to the application of Convention No. 87. His Government recognized the importance of the Committee of Experts, as demonstrated by the provision on 1 June 2011 of all the requested reports, including the one concerning Convention No. 87. In view of the above, his Government had been surprised to be informed that Panama was on the list of 25 cases to be examined in the Committee. He indicated that Panama, once again, questioned the procedures and the lack of transparency, as repeated by his Government individually and through the Group of Latin American and Caribbean countries (GRULAC) and the way in which the countries were selected, as well as the lack of proportion concerning those invited to communicate information to the Committee on the cases under discussion. His Government recognized and valued the Committee on the Application of Standards. Through its spirit of cooperation, based on objective and reliable information and equal treatment for all members of the Organization, it was possible to reveal weaknesses, the efforts and good practices in the implementation of ratified Conventions.

Referring to the observation of the Committee of Experts, he indicated that its requests had been met through the following legislative initiatives: Act No. 68 of 26 October 2010 amending sections 493 and 494 of the Labour Code concerning the effects of a strike, and establishing other provisions; Act No. 30 of 5 April 2011 repealing section 7 of Act No. 29 of 2010 restricting the right to collective bargaining during the first six years of operation of enterprises; Act No. 32 of 5 April 2011 establishing a special, comprehensive and simplified regime for the establishment and operation of export processing zones and laying down other provisions (taking account of the observations made to the Government of Panama on the application of the Convention). With regard to the remaining observations made by the Committee of Experts to Panama, he made the following comments. With regard to the legal personality of the National Union of Workers of the University of Panama (SINTUP), it was the responsibility of the Ministry of Government to grant legal personality or legal recognition, in accordance with the Constitution of Panama, as for public sector workers’ organizations, that was not the responsibility of the Ministry of Labour and Professional Development (MITRADEL). In a ruling on the application for the protection of constitutional guarantees (amparo) filed by SINTUP, which challenged the failure of MITRADEL to grant legal personality to the union, the Plenary of the Supreme Court of Justice decided not to admit the amparo action because recognition of legal personality for the union concerned was a matter for the Ministry of Government. With regard to the workers’ allegations of harassment and murders, his Government upheld the principle of freedom of association and the principle of human life. Accordingly, the National Government had been supplying information, punctually and responsibly, to the ILO on the previously mentioned criminal proceedings being handled by the judiciary with a view to clarifying the allegations made to the ILO. The judiciary had examined the cases and the Government of Panama had forwarded the rulings on the murder cases, which had resulted in convictions, to the Committee on the Application of Standards. With regard to Article 2 of the Convention, he emphasized the following measures: (a) section 174 (now section 179) and section 178 (now section 182) had been amended in the Single Text of the Administrative Careers Act of 4 August 2008. He said the Administrative Careers Directorate in Panama had established a committee composed of men and women workers of the associations of public servants which existed for evaluating the various matters relating to the international Conventions ratified by Panama. (b) With regard to the measures which had been taken to reduce the minimum numbers (40 for workers, ten for employers) needed to establish their respective organizations, he said that the social partners in Panama were satisfied that the minimum number of 40 for establishing an organization was the most widely accepted by the main workers’ confederations and federations in Panama. The number required for establishing an association of public servants was 50. Indeed, the Government was considering a review of that subject by the committee set up by the Administrative Careers Directorate in connection with bringing the Act into line with international Conventions. (c) With regard to the request made to the Government to take the necessary measures to ensure the right to strike of public servants who did not exercise authority in the name of the State and with regard to the request to amend the legislation so that workers’ federations and confederations could call and hold strikes against the Government’s economic and social policy, as well as strikes that were unrelated to a collective agreement, he said that the single text of the Administrative Careers Act did not envisage any obstacles to workers who did not belong to associations of public servants taking part in a strike or calling a strike. (d) With regard to the comments of the Committee of Experts concerning section 3 of Act No. 68 amending section 493(1) of the Labour Code, he said that the only intervention by the police during a strike was to protect people and property, not to stop the strike, in accordance with the outcome of tripartite discussions in a round table on dialogue held in October 2010.

With regard to the right of organizations to elect their representatives in full freedom, in accordance with Article 3 of the Convention, he made the following comments. (a) With regard to the repeated calls made by the Committee of Experts to take the necessary steps to amend the national legislation to allow foreign workers to take up trade union office, at least after a reasonable period of residence in the host country, he said that the National Constitution would have to be amended but that, nevertheless, foreign workers enjoyed all the benefits deriving from the collective agreements of the enterprises in which they worked. They could also participate as members of trade unions and the rights deriving from their employment relationship were therefore respected. (b) With regard to the request by the Committee of Experts to amend section 180-A of Act No. 24 of 2 July 2007 requiring public servants who were not affiliated to associations to pay ordinary dues to the association which obtained improvements in labour conditions, he said that the social partners considered the deduction of the dues as an acquired right for the trade unions and they had stated that its suppression would be a violation of their acquired rights. With regard to the right of organizations to organize their activities and to formulate their programmes in full freedom, he provided the following indications. (a) His Government was of the opinion that the intention of section 452 of the Labour Code was to prevent negotiations conducted by the parties to a dispute from disrupting the State’s constitutional duties to provide citizens with the basic public services, which had to be guaranteed by law. Hence arbitration was a mechanism of dialogue for avoiding the continuation of a strike that would result in economic losses for the State and the citizens of the country. (b) The Committee of Experts had asked the Government to take steps to ensure that, in the event of a strike, the right of non-striking workers to enter the workplace was guaranteed. The Government indicated that that section was the product of tripartite consensus reached by the round table on dialogue held in October 2010, and that it therefore had the approval of all the social partners in Panama. With regard to the right of public servants to collective bargaining established in Article 6 of the Convention, he made the following comments. (a) With regard to the right to collective bargaining of municipal workers and workers in decentralized institutions, no distinction was made between public servants, who were all officials in the administration of the State, whether they provided services in the central state administration or served in autonomous municipalities. The Administrative Careers Act therefore applied to all public officials without any distinction whatsoever. (b) With regard to collective agreements of officials in the administration of the State, officials in municipal authorities or decentralized institutions, the Administrative Careers Act provided for negotiation of their claims by means of complaints. In addition, there was a bill regulating municipal administrative careers which envisaged mechanisms for the settlement of disputes of municipal public servants by means of complaints or lists of demands.

The Employer members said that the case under discussion had been selected according to the usual criteria. It had been examined on previous occasions at the initiative of the Employers’ group, most recently in 2009, but that the situation had since changed considerably, due in part to the efforts of the Committee and the new approach being taken by the Government. Those efforts had been recognized by the Committee of Experts in its latest report, when it noted with satisfaction the progress that had been made. There were still some points that needed to change, such as the fact that workers could be prevented from entering their place of work and that senior executives could be allowed to enter only on condition they did not start up production. But the Employer members did recognize the progress that had been made and they were not the ones who had requested that the case be included for discussion.

The other observations of the Committee of Experts referred, in the first place, to the right of employees in the public service to establish and join trade unions. The only restrictions on that right were found in an Act of 1994 and from the Constitution. The Convention was applicable to all workers, including public servants, save for the derogation provided for in Article 9 of the Convention concerning the armed forces and the police. It was to be hoped that this matter would finally be resolved by changes to the regulations. The Government representative had referred in his statement to the amendment of the Administrative Careers Act, but it was not clear whether the amendment actually covered that point. It was to be hoped that additional information would be forthcoming in the discussion. The requirement for the establishment of a trade union of a number of workers that the Committee of Experts itself considered excessive and inappropriate and the further requirement that the members of the executive board of trade unions be of Panamanian nationality, were areas where improvements could be made, as the Employer members had been advocating for a long time. They hoped that those changes would not be long in coming. Finally, they drew attention to the point raised by the Committee of Experts regarding the deduction of union dues while a collective agreement or accord was in force. It was strange that, on the one hand, the Committee of Experts considered that deducting contributions from non-unionized public servants was contrary to Convention No. 87, while on the other it deemed that applying the same requirement to workers who were not public servants was valid only if the amount of the contribution was not so great as to limit their right to join the union of their own choosing. They were not aware of the real reasons for such a double standard, and they emphasized that as employers they were somewhat reticent about the practice of imposing union contributions on all the workers, especially where collective agreements covered the entire workforce. Freedom of association and the right to organize did not require the payment of a contribution to a specific trade union or employers’ organization. With regard to the Committee of Experts’ comments concerning the right to strike, they reiterated their view that an interpretation could not be inferred of its scope and limits. Regarding the acts of violence mentioned in the report, the Government representative had dealt with the matter in his statement, and the Employer members hoped that more information could have been given. In conclusion, they emphasized that there were still areas where Panama’s laws and regulations needed to be amended to achieve compliance with the Convention, especially in relation to the prohibition of public servants from joining trade unions and the requirement for non-unionized workers to pay union dues. That said, they noted that, unlike 2009, there had been significant improvements in the country’s regulations, and those, they believed, should be taken into account. Meanwhile, they hoped that in the course of the discussion it would become clear when and how the Government intended to introduce the remaining reforms.

The Worker members indicated that, according to information from the International Trade Union Confederation (ITUC), Panama had suffered from a climate of instability and violence throughout 2010, the climate of violence had been noted in the Committee’s conclusions for many years. By way of reminder, the case of the application of the Convention by Panama had been examined five times during the last ten years, and Panama had been the subject of 57 complaints which had been submitted to the Committee on Freedom of Association by the National Federation of Public Employees and Public Service Enterprise Workers (FENASEP), the National Council of Organized Workers (CONATO) and the National Union of Workers of the University of Panama (SINTUP). The report of the Committee of Experts referred to the situation of SINTUP and of the Single Union of Construction and Allied Industries Workers (SUNTRAC). Six murders of trade unionists, 700 cases of injury and 101 arrests had been reported for 2010, and the right to freedom of association was being violated in all sectors of activity.

The Worker members recalled that at the end of the Committee’s work in 2009 it had expressed the hope that the situation would change when the Government changed. However, the latest information suggested that nothing had been done. The points raised by the Committee of Experts in its latest report again concerned the compatibility of the Administrative Careers Act No. 9 and Act No. 44 of 1995 amending certain provisions of the Labour Code with Article 2 of the Convention. The Conference Committee had also noted them in its conclusions in 2009. Recalling that the Government had referred to two preliminary draft tools amending the above Acts, the Worker members regretted that no progress had been made. With regard to the application of Article 3 of the Convention, the report of the Committee of Experts emphasized that the Government had reiterated the need for a revision of the National Constitution. There was good reason to wonder why no such reform had yet been launched, given that the problem was a long-standing one. Moreover, the Committee of Experts had repeatedly emphasized in vain the need to amend section 180-A of Act No. 24 of July 2007 so as to abolish the requirement for public servants who were not affiliated to organizations to pay trade union dues. Even though the Government considered that it had measures concerning the exercise of the right to strike, the Worker members held a different view. Although that right, which was a corollary to the right of trade unions to conduct their activities in full freedom and to formulate their programme of action, and was enshrined in the Constitution of the country, the exercise thereof was hampered by the following obstacles: (1) a strike had to be approved by an absolute majority of workers in the enterprise concerned; (2) a strike could only be held if it concerned a dispute relating to an enterprise agreement; (3) national federations and confederations were denied the right to call strikes; (4) in the public service, the law provided for a very extensive minimum service and also for the possibility of imposing compulsory conciliation and arbitration; (5) in services considered essential, the Government had the possibility to requisition 50 per cent or more of the workforce; and (6) strikes were prohibited for workers employed by the Panama Canal Authority, in the export processing zones and in recently established enterprises. All those obstacles had been noted in the report of the Committee of Experts. The Worker members noted that the points raised were not new and they regretted that bringing the legislation into conformity with the Convention always came up against the same argument from the Government, namely that it was difficult or even impossible to launch a process of legislative change, which presupposed a prior dialogue and consensus between workers and employers. Observing that the trade unions were clearly unable to engage in negotiations which they knew in advance would lead to denial of their rights, the Worker members called on the Government to stop using that argument to justify the fact that they had not implemented the recommendations already made by the Committee in 2009.

The Employer member of Panama expressed his surprise at the inclusion of Panama on the list and insisted that the request to do so came neither from the employers of Panama nor from the International Organisation of Employers (IOE). For the most part, the problems raised by the application of the Convention had been resolved, especially as they related to the private sector. Panama was one of the countries in the subregion that had a genuinely dynamic employment creation policy, which was one of the principal concerns of the ILO. Moreover, the Government possessed all the political will to make the necessary changes. He referred to Act No. 30/2010 and to the provisions that had been adopted to comply with the recommendations of the Committee on Freedom of Association in Case No. 1931, and recalled the background to the occasion. The Government had suspended the Act and set up a broad social dialogue panel. The reason why Panama had been cited by the Conference Committee six times was the closure of enterprises preventing managers and non-strikers from entering their place of work. Today, enterprises were not being closed and it was possible to enter. He stressed that both the current government and previous governments had requested ILO technical assistance, which they had not received. In 2006 a mission had been sent to Panama in connection with Case No. 1931, but it had been unable to hold even a single meeting with the social partners because the workers’ side refused to budge an inch from its position on the labour law. The cause of all the problems was the combined application of the labour legislation of 1972 that had been adopted when the country’s situation was altogether different. In those days its economy had been based on industry. But for the past 15 years that was no longer the case. The services sector now played a much bigger role in the economy than industry. Panama had requested ILO technical assistance to help reform its Labour Code on a tripartite basis. As for the public sector, the Government had just appointed a commission of prominent people to consider proposed amendments to the Constitution. He indicated that he was in favour of the establishment of trade unions in the public sector and of the possibility for foreigners to be on a union’s executive board, and the workers’ side should present a proposal for reform. In conclusion, he reiterated firmly the request for technical assistance.

The Worker member of Panama said that it would shortly be the first anniversary of the horrific episode known as the Bocas del Toro massacre, when a humble people had been savagely attacked for protesting against Act No. 30, known as the Chorizo Act, which was intended to repress freedom of association, trample underfoot the right to strike and disregard collective agreements, among other objectives. As a result of a popular struggle, with extremely grave consequences for the people concerned, the Act had been repealed. The Government only admitted to two deaths, Antonio Smith and Virgilio Castillo, although a commission appointed by the Government acknowledged four deaths, while other reports, for example by the Office of the Ombudsperson, referred to ten deaths, half of them of children and almost all of them indigenous, and over 500 injured, including 70 who suffered partial or total loss of sight as a result of gunshot wounds to the face. Hundreds had also been detained and were still faced with trumped up charges, together with the persecution, arrest and death threats against trade union leaders. The Government had been responsible for more deaths in the last two years than over the preceding 22 years. He emphasized that the right to organize was denied to broad sectors of workers, applications for legal personality were refused and there was no right to organize for public employees, bank employees, workers in the Colón Free Zone, the education sector, ports and call centres, among others. The right to strike was not recognized for Canal workers. A regime of terror and persecution reigned in certain institutions, and specifically in the Social Security Fund, from which Gabriel Pascual and Juan Samaniego had been dismissed for opposing arbitrary measures intended to justify its privatization, while members of the Board of Directors of the Fund were subject to attempts to mount trumped up charges. Workers’ representatives had been dismissed in the education sector. He indicated that another issue was the attempt by the Government to criminalize social protest by legislative means, such as Act No. 14, known as the Ley carcelazo, under which demonstrators were subject to prison sentences, and the Act on telephone surveillance, or the Ley Pinchazo, under which the telephones of trade union leaders had been tapped during the last two presidential terms. Finally, he called for the investigation of the murders in Bocas del Toro, which had occurred during protests at the lack of safety regulations in the construction sector, and for the exercise of the right to strike to be permitted for Canal workers, together with the other rights afforded by the Convention, so that all workers in the public and private sectors were able to exercise their right to freedom of association.

The Government member of the United States observed that, in the context of the pending United States–Panama Trade Promotion Agreement and its strong protections for fundamental workers’ rights, her Government had been cooperating closely with the Government of Panama to resolve concerns regarding certain areas of its labour legislation. She noted that the observations of the Committee of Experts had been a key frame of reference in that undertaking. She noted that the Committee of Experts had commented for many years on legal provisions that restricted the rights of workers and employers without distinction to establish and join organizations of their own choosing and to organize their activities in full freedom. She commended the recent steps taken by the Government to amend and strengthen a number of key labour laws and urged the Government to continue along the path of legislative reform, fully involving civil society, including trade union stakeholders at all stages. In so doing, the Government should follow the detailed recommendations of the Committee of Experts and avail itself of the technical assistance provided by the ILO. Regular ILO assistance might provide an important stimulus for achieving tripartite consensus on the legislative measures recommended by the Committee of Experts. She also urged the Government to take the necessary steps to ensure that all workers in Panama were able to exercise their freedom of association rights in a climate that was free of violence and in which fundamental human rights were respected and fully guaranteed.

The Worker member of the Bolivarian Republic of Venezuela referred to the violation by the Government of the right of public servants to stability of employment, through the adoption of Act No. 43 of 2009 which had retroactively abolished the stability of 35,000 public employees and had led to the dismissal of 25,000 of them, as well as the elimination of the Administrative Careers Appeals Board, which was the body entrusted with hearing cases of dismissal in the public service. Trade union leaders in the public sector were continuously being dismissed without the legal procedures in force being observed, with their trade union immunity being ignored and their right to strike denied. He referred to the case of the trade unions of the Panama Canal, which had been denied the right to strike by the Supreme Court ruling of April 2009, despite the fact that the right to strike was set out in the National Constitution and Panama had ratified Convention No. 87 and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). The Committee of Experts had noted violations of the right to organize in the public sector and threats, harassment and massive dismissals of trade unionists. Sections 174 and 178 of the Administrative Careers Act No. 9 of 1994 continued to provide that there could be no more than one association in an institution and that the associations could have provincial or local chapters, but not more than one chapter per province. As indicated by the Government, even though Act No. 9 of 1994 had been amended by Act No. 43 of 30 July 2009, sections 174 and 178 had not been amended, in clear violation of Article 2 of the Convention. The Government of Panama had indicated that, in order to bring the law into line with the Convention, it would have to amend article 64 of the Constitution, which was the prerogative of the highest legislative authorities of the country. Thus, the Government was playing a cat and mouse game, while its refusal to recognize freedom of association was notorious. The Committee of Experts had also noted that the right of public servants to establish associations had been recognized in law, but that it was not exercised in practice. The right of organizations to organize their activities and to formulate their programmes in full freedom was established in the Convention and included the right to strike. However, in practice, this right was being denied to public sector workers. The Committee of Experts had recalled that the right to strike could be restricted only for those public servants who exercised authority in the name of the State. He also referred to the comments of the Committee of Experts concerning the prohibition of strikes by federations and confederations, the prohibition of strikes against the economic and social policies of the Government and the illegality of strikes which were not related to an enterprise collective agreement. All of these left no room for freedom of association, collective bargaining and industrial relations in Panama.

The Government member of Argentina, speaking on behalf of the Government members of the Committee, which were members of GRULAC, focused on certain elements of the statement made by the Government representative, which constituted progress in the implementation of the Convention. In its General Report, the Committee of Experts had expressed satisfaction at the steps taken by the Government of Panama for the implementation of the Convention and had included Panama among the cases of progress. Underlying that classification in the General Report of the Committee of Experts was the fact that the Government of Panama had adopted measures, which included legislative initiatives, such as the laws promulgated in 2010 and 2011, which took into account the observations and recommendations of the Committee of Experts and the Committee on the Application of Standards. These included the amendments to the Labour Code and significant changes in national policies and practices, such as the establishment of the Special Commission on the round table for dialogue in October 2010, in order to promote an environment conducive to dialogue, which had resulted in various tripartite agreements. Moreover, the Executive Decree of May 2001 had led to the issuance of work permits for foreign workers, who had benefited from an extraordinary regularization procedure undertaken by the National Migration Service. With regard to the observation of the Committee of Experts on the divergences between law and practice, he encouraged the Government of Panama and the social partners to continue their constructive dialogue in order to reach common agreements, especially with reference to amendments to be made to bring the Administrative Careers Act and the national law on associations, trade unions and the number of persons required for their establishment, into line with the Convention. In conclusion, he urged the ILO to continue working with Panama by providing technical cooperation in the area of freedom of association and to support the Government’s proposal to create a Supreme Labour Council, which had tripartite support.

The Worker member of Colombia emphasized the importance of recognizing freedom of association without so many restrictions in order to build a genuine social state based on the rule of law. He expressed concern at the lack of guarantees in Panama to ensure that trade unions could develop in a climate of respect, which had resulted in the low rate of unionization, due to the enormous bureaucratic hurdles that trade unionists had to overcome in order to assume their role in defence of workers’ rights. He requested the Government to take the necessary steps to ensure that trade unions could exercise their rights fully, without State interventionism, specifically by: removing the restriction requiring a minimum of 40 workers in order to form a trade union; introducing automatic registration, thereby avoiding situations such as those of the trade union in the health sector that had been seeking registration for several years and the failure to recognize a court ruling for the registration of an organization in Balboa and Cristobal; and allowing workers to choose the type of statutes they considered appropriate. The recommendations of the Committee of Experts should be followed up without further delay by the Government, with support from employers, with a view to the strengthening of democracy. Protecting freedom of association in a social state based on the rule of law was the best investment a government could make, as proved by the case of Switzerland. One of the secrets of that country’s development was clear and transparent tripartism. Valuing freedom of association, as the Government representative had said, could not remain merely rhetorical, but needed to be translated into real actions in law and practice.

The Worker member of Honduras indicated that the Committee of Experts had referred to the following issues: the denial of the right to strike in export processing zones, in recently established enterprises and for public servants; the prohibition of the right to strike of federations and confederations; the referral of disputes to compulsory arbitration in the private transport sector and the determination of a minimum service of 50 per cent for personnel in that sector. Nevertheless, as indicated by the Committee on Freedom of Association, strikes could only be restricted in services the interruption of which would endanger the life, personal health or safety of the whole or part of the population. The Committee on Freedom of Association and the Committee of Experts had indicated on numerous occasions that public transport was not an essential service, unless it consisted of a service of fundamental importance, which could only be ascertained in specific conditions, or when the strike went on too long. Moreover, the classification of strikes needed to be carried out by an independent body distinct from the administrative authorities, which lacked objectivity. With regard to public servants, he indicated that not all employees of the public administration should be considered as public officials. Indeed, the public service should be limited to those officials exercising authority in the name of the State. With regard to the prohibition of the right to strike of federations and confederations, he considered that it consisted of an arbitrary limitation intended to prevent general strikes which, according to the supervisory bodies, were legitimate. Similarly, the imposition of compulsory arbitration was arbitrary and contrary to the right to strike. In the final analysis, the sole objective of excessive regulation of strikes was to annul the right to strike.

The Government representative said that the current Government of Panama was fully aware of its responsibilities under the multilateral system and was not attempting to evade the responsibilities deriving from events that had occurred during previous administrations. It had therefore decided to take the necessary measures to remedy the consequences of those events. Panama recognized the importance of freedom of association, which was one of the main elements for the achievement of lasting peace. He referred to the adoption in May of the Executive Decree regularizing the issue of work permits for foreign workers through an extraordinary process undertaken by the National Migration Service. Over 13,000 migrant workers had benefited from the programme, known as Crisol de Razas. The economic and development policies of the national Government had generated economic growth, under the impact of a significant programme of investment in infrastructure and social projects. It was intended to create an attractive environment for foreign investment, without restricting the freedom of association of workers or the right to organize and to collective bargaining. The Government recognized that there had been divergences for years between law and practice and noted that the ILO technical assistance mission on freedom of association issues had not yet taken place. Nevertheless, there had been some positive progress in that regard. Efforts were being made to establish a Higher Labour Council. The Government hoped to be able to count on the ILO to continue working together. Emphasis should be placed on the freedoms and rights enjoyed by workers in Panama: they participated in the Minimum Wage Commission, which regulated matters relating to wages throughout the country; they participated in the Panamanian Institute for Labour Studies (IPEL) in relation to training for trade unions; and they received financial support from the Ministry of Labour and Employment Development for expenditure on education (US$2,154,800 had been allocated during the previous biennium). In practice, trade union leaders in Panama participated in all areas of economic, social, political and labour affairs, in full exercise of the right to freedom of association. With regard to labour jurisdiction, the Ministry of Labour and Employment Development facilitated cases of reinstatement following violations of trade union protection for unions that were being established, and it maintained a constant interest in furthering all the procedures for which it was responsible. With regard to public servants, a commission had been established composed of the FENASEP and other associations of public servants with a view to examining the various issues relating to the international Conventions that had been ratified. There was also a bill regulating municipal administrative careers. Furthermore, through the dialogue body which had repealed Act No. 30 of 2010, the participation of trade union confederations had been made more democratic. An amendment to section 1066 had allowed the participation of the National Council of Organized Workers (CONATO) and the Independent Confederation of Labour Union Unity (CONUSI), as illustrated by the participation in the present Conference of trade union organizations without interference from the Government, in accordance with their own rules. In conclusion, he said that in Panama there were 144,679 unionized workers governed by the Labour Code, of whom 124,097 were men and 20,582 were women. They were members of 398 unions, 50 federations, six confederations, three central organizations and other types of associations.

The Employer members referred to five issues. First, it was important to recognize the Government’s efforts to adapt its legislation to the Convention, so as to guarantee freedom of association, free enterprise and free access to enterprises. Second, efforts to promote social dialogue should be acknowledged, even though they had not yet resulted in specific benefits. Third, there were still outstanding issues, such as the right to organize of public employees, which would require amendments to legislation, and the need for workers to pay trade union dues before being able to benefit from collective agreements. Fourth, the Government should continue to be requested to amend the Labour Code, for which it would need to receive effective technical assistance from the ILO, and to strengthen social dialogue; even though on this last point, there existed a shared responsibility. All parties could thus assume their respective responsibilities. Lastly, the Government should be requested to continue providing detailed information on acts of violence so that the development of the situation could be properly assessed.

The Worker members emphasized that the case of Panama was one which regularly returned to the list of individual cases for the violation of the Convention, and that the issues had not changed over the years. In 2009, the Committee had indicated in its conclusions that it trusted that the new Government would implement the measures decided upon. With regard to the Government’s request for technical assistance, they recalled that the Committee had regretted in 2005 that the technical assistance it had proposed to the Government in 2003 had not yet been provided, and that no significant progress had been made in the application of the Convention. And yet the Government had expressed at that time its commitment to accept a technical assistance mission and to resolve the problems through dialogue with the social partners, and the Committee had expressed the firm hope that the Government would take the necessary measures with ILO technical assistance, in close collaboration with the social partners, so that workers’ and employers’ organizations could benefit in full from the rights and guarantees enshrined in the Convention without interference by the public authorities. Although a technical assistance mission had visited Panama in 2006, the situation had remained unchanged. In that context, the Worker members indicated that the mere fact that the Government was requesting a technical assistance mission did not constitute a sufficient guarantee and called for a high-level ILO mission to visit the country with a view to resolving, with the social partners, the problems of application of the Convention.

Conclusions

The Committee took note of the Government representative’s statements and the discussion that followed.

The Committee observed that the Committee of Experts had for many years been commenting on the serious legal restrictions on the right of workers and employers to freely establish organizations of their own choosing, to freely elect their representatives and the right to organize their administration and activities. The Committee observed that the Committee of Experts had noted the allegations of serious acts of persecution and violence against trade unionists.

The Committee noted the statements of the Government representative indicating that positive legislative amendments had been made in relation to certain of the issues referred to by the Committee of Experts or that agreements had been reached, and that a commission of public figures was addressing the issues raised by the Committee of Experts relating to the possible reform of constitutional provisions. He had added that certain legal issues in the public sector raised by the Committee of Experts had been or could be submitted to a joint commission. He emphasized that associations of public servants had the right to strike. With regard to the contributions payable by non-unionized workers in recognition of the benefits of collective bargaining, the Government representative had indicated that the unions were opposed to the abolition of the contribution. Information had been provided to the Committee of Experts on the judicial sentences handed down to those responsible for acts of violence against workers. Finally, he had recalled that the ILO assistance mission requested by the Government had not taken place.

The Committee noted with concern the allegations of murders and other serious acts of violence against trade unionists, as well as employment-related anti-union acts. The Committee noted that the Government had sent a reply on that subject to the Committee of Experts, which would examine and assess those matters at its next session.

The Committee welcomed the progress made by the Government with respect to certain matters raised by the Committee of Experts, including the amendment of the legislation so that the enterprise management could now enter its premises during a strike. The Committee nevertheless regretted that, despite the efforts mentioned by the Government, it was still unable to note significant progress in relation to the other important modifications requested in the legislation, in which the restrictions affected both workers and their organizations and employers and their organizations.

The Committee urged the Government to prepare on an urgent basis, with the technical assistance of the ILO and the intensification of social dialogue on the subject, specific draft provisions to amend the legislation to bring it into conformity with the Convention, including as regards the deficiencies in relation to trade union rights in the public sector and the compulsory dues for non-unionized workers, as well as with respect to the restrictions to the rights of employers’ organizations to carry out their activities.

The Committee emphasized the joint responsibility of the Government and the social partners for the reinforcement of social dialogue. Recalling that freedom of association could only be exercised in a climate free from violence in which fundamental human rights were fully respected and guaranteed, the Committee requested the Government to provide further information on the alleged acts of violence against workers and trade unionists.

The Committee requested the Government to send a report for examination at the next meeting of the Committee of Experts in 2011 explaining the measures adopted. In the light of the different views expressed in the Committee concerning legal and factual situations related to the Convention, it invited the Government to accept an ILO mission to assist effective social dialogue on these matters, which should report to the Committee of Experts at its next meeting.

Individual Case (CAS) - Discussion: 2009, Publication: 98th ILC session (2009)

A Government representative said that his Government maintained its firm commitment to the Conventions that Panama had ratified and the responsibility deriving therefrom. With reference to the observations of the supervisory bodies to the Government to take the necessary measures, in consultation with the social partners in order to bring the national legislation into conformity with Conventions Nos 87 and 98 concerning the principles of freedom of association, the current administration had indicated that while it was in office it had been encouraging the social partners to reach an agreement, through tripartite dialogue, on how to adapt the national legislation to Conventions Nos 87 and 98. The Government, in consultation with the social partners, had submitted to the National Assembly two draft Bills, which responded to the recommendations of the ILO technical assistance mission that visited Panama from 6 to 9 February 2006. The Government had also amended sections 398, 400, 401, 403 and 431 of the Labour Code, bringing it into line with Conventions Nos 87 and 98 with respect to freedom of association and the right to organize. In this regard, it was important to emphasize that the current Government had clearly indicated the importance of adapting the national legislation to the ILO's fundamental Conventions with a view to complying with workers' rights for the creation of decent work. Considering that the present administration had reached the end of its mandate, it was in the Government's interest to continue the process of social dialogue and tripartite consultations with a view to consolidating democracy in Panama.

The Employer members indicated that this was the seventh time that the case had been examined by the Committee. It was a case of great importance for the Employer members. The observations of the Committee of Experts concerned several elements related to the right of employers and workers to establish and join organizations, and the right of organizations to freely organize their activities and formulate their programmes. They emphasized in this respect: (1) the importance of the right for trade union unity not to be imposed by legislation, which would be contrary to Convention No. 87; (2) the requirement in the Labour Code of too high a number of members to establish a professional employers' organization or a workers' organization in an enterprise; (3) the denial to public servants of the right to establish trade unions; (4) the requirement of Panamanian nationality to be a member of the executive board of a trade union; and (5) the deduction of trade union dues from the salaries of public servants who were not members of trade unions and who benefited from the improvements obtained in conditions of work under a collective agreement.

The Committee of Experts also set out a series of considerations relating to the right to strike. The Employer members reiterated their view that an interpretation could not be derived from the Convention concerning the limits and scope of the right to strike, and they maintained this position. The Employer members considered that the fundamental pillar upholding freedom of association was the freedom of the enterprise to organize its resources. The absence of direct or indirect coercion was based on this freedom.

Section 493 of the Labour Code, which had been amended in 1972, required the immediate closure of all the enterprises, establishments or businesses affected by a strike. This was a unique provision without parallel anywhere else in the world. This meant closure enforced by the police or by order of the public authorities. As such, once a collective action had been initiated, the labour administration authorities immediately proceeded to seal off the doors of employers' establishments or businesses, including those of the administrative and managerial offices. The labour administration authorities would instruct the police to ensure the closure and to duly protect persons and property. In other words, according to Panamanian law, their action prevented employers from entering their own businesses. The Committee of Experts, the Conference Committee and the Committee on Freedom of Association had reiterated that this regulation constituted a serious and inadmissible infringement, which violated the provisions of Convention No. 87. A regulation that forced enterprises to close in the event of a dispute: (1) completely undermined its ability to organize its resources; (2) violated the right of property and the right of free access to property; (3) restricted the freedom of movement of the employer; (4) interfered with the proper management of the employer's business, which also prejudiced the interests of the workers; (5) interfered in an inadmissible and excessive manner with the capacity to bargain freely, thereby obstructing or distorting any negotiation, particularly if the enterprise was also required to pay wages during this period; (6) could irreversibly threaten the sustainability of the enterprise itself; and (7) infringed the freedom of workers to support this type of action. The essence of the right to organize and freedom of association lay in their voluntary nature.

This case had been examined by the Conference Committee on no less than seven occasions, the last being in 2005, when the Employer members had indicated that nothing had changed since the Committee had examined the case in 2003. The Employer members had once indicated that the comments they had made in 2003 could literally be repeated, as the questions then raised continued to be grounds for great concern. The same could be said this year. The Committee of Experts had also recognized this and had referred to the serious discrepancies that continued to exist for so many years, qualifying them as "serious." The Committee on Freedom of Association had also considered that this provision violated the right of workers' to work and disregarded the basic needs of enterprises, including the maintenance of installations, the prevention of accidents and the right of employers and managerial staff to enter the enterprise premises and exercise their activities.

The Committee's final conclusions of 2005 had deplored the lack of progress for many years in this case and had urged the Government to take the necessary measures with the technical assistance of the ILO. A technical assistance mission had visited Panama in 2006, in view of the willingness of the Government to attempt to resolve the matter. The Employer members emphasized that the Government could no longer blame the lack of technical assistance, the lack of a sufficient majority in Parliament or the lack of consensus among the social partners. Compliance with the provisions of a fundamental Convention was the responsibility of the State and the involvement of employers' and workers' representatives did not constitute a requirement for consensus between them on all points of divergence with the Convention. The Employer members wished to know the extent to which the Government was willing to show its determination to resolve this case through tangible future action.

The Worker members indicated that a recent analysis by the ITUC on the situation of trade union rights in Panama showed that the past year had been marked by an intensification of anti-union persecutions of trade unionists of the Construction and Allied Workers' Union (SUNTRAC), the repression of various events and the issue of arrest warrants against trade unionists. Construction companies had also resorted to new strategies to undermine collective agreements and the report of the Committee of Experts also referred to the situation in SUNTRAC, and referred to very serious acts of violence against the leaders of the organization, and one case of arbitrary arrest, thereby confirming the analysis of the ITUC.

At the legislative level, the law recognized the right of workers to establish and join trade unions, with certain restrictions. The setting up of only one trade union was allowed for each establishment; trade unions could only establish one local branch per province and a minimum of 40 members were required to establish a first level trade union. The Committee of Experts had recalled that it was not for the State to impose trade union unity by intervening through legislative measures, as this was contrary to Articles 2 and 11 of the Convention. The same applied to the setting of a minimum number of workers, which was certainly not justified at the enterprise level. The Committee of Experts had also raised certain questions relating to the right of public servants to establish trade unions.

The right of organizations to elect their representatives in full freedom was also subject to certain restrictions. All the members of the executive body of a trade union had in practice to be nationals which represented an obstacle to the freedom to elect trade union representatives, while non-nationals were better able to defend their own interests, for example, when they were migrant workers. Practices contrary to the spirit of the Convention, set out in Act No. 24 of 2007, also existed with regard to trade union dues and affected collective bargaining. For a strike to be legal, it had to be approved in a ballot by an absolute majority of workers in the enterprise concerned. Strikes aimed at seeking improvements in working conditions, in relation to a collective agreement, or to protest against repeated violations of rights, were not authorized, nor were strikes to protest against government policy, seek an increase in the minimum wage or claim trade union recognition. Federations, confederations and national trade union centres had no right to call a strike. A Legislative Decree adopted in 1996 had undermined the right to strike by imposing a mandatory process of arbitration and conciliation and by listing several cases in which strikes were prohibited, the list of which could be extended by the Minister of Labour. The Government could also bring an end to a strike in the public sector by imposing mandatory arbitration. The law also required public servants to guarantee a minimum service and gave the Government the right for that purpose to requisition at least 50 per cent of public servants in essential services, including transport services, which went beyond the ILO definition of essential services.

The exercise of the right to strike therefore raised specific problems, and they shared the concern expressed by the Committee of Experts, when it noted with regret the non-conformity of national law and practice with the Convention which had persisted for many years. In consultation with the social partners, the Government should therefore take all the necessary measures.

The Employer member of Panama said that he would not comment on the cases referred to by the Worker members, since they did not appear in the observations of the Committee of Experts and therefore were not to be taken into account. Among the issues referred to by the Committee of Experts, he considered that the most serious was that of the closure of an enterprise in the event of a strike and he emphasized that there was no recourse available against closure in such a case. He explained that in practice the police would close the enterprise, seal its entrance and prohibit both workers and employers from entering. This had extremely serious consequences for the enterprise, and also for the workers, particularly those non-striking workers who were thus obliged to participate in the strike against their will. Moreover, it allowed for the closure in the event of a dispute based on a mere allegation by workers that the law had been violated and in the absence of proof of the allegation. Allegations were not even verified during conciliation. This was a breach of due process and constituted a serious case of irresponsibility.

He also addressed the issue of the obligation to pay wages lost during the closure of the enterprise. The Committee of Experts had already indicated that the payment of lost wages for strikes should be negotiated between employers and workers. He indicated that the common feature of these and other cases referred to by the Employer members was that the Government alleged that it could not change the situation due to the absence of consensus and a majority in the legislature. The Committee of Experts had been extremely patient, but there had to be a limit to such patience, as otherwise it would no longer be possible to trust the supervisory bodies.

The Government member of Uruguay speaking on behalf of the Group of Latin American and Caribbean States (GRULAC), emphasized that Panama had ratified the Maritime Labour Convention on 6 February 2009 and referred extensively to the positive effects of the ratification of the Convention. He also mentioned the ratification of Convention No. 167 in 2008. He indicated that this demonstrated the commitment of Panama to the ILO. He observed that seven GRULAC member States had been invited to appear before the Conference Committee, despite their cooperation with the supervisory mechanisms and were making efforts to give full effect to international labour standards. Finally, he called upon the employers and workers of Panama to continue the dialogue with the Government and reach their objectives through national and international labour standards, taking into account the commitment of Panama to social dialogue.

The Government representative of Panama indicated that his delegation had noted all the comments made by the Employer and Worker members concerning the application of Convention No. 87 and that, together with the conclusions adopted, they would be communicated to the transitional Government, which would take office on 1 July, so that it could take into consideration and discuss with the social partners the necessary reforms to the national labour legislation to bring it into conformity with the Convention. He indicated that the ILO technical mission that had visited Panama in 2006 had held all the necessary consultations with the social partners in relation to the observations of the Committee of Experts. These were described in the mission report submitted to the Committee of Experts reflecting the position of the Government and of the social partners. In 2007 and 2008, the Government had made huge efforts to address some of these observations. As each of the social partners in Panama defended its own position as to whether or not to amend the Labour Code, the Government could not, nor was it healthy for social dialogue, tripartism or democracy, to impose these reforms on one of the social partners when they might involve constitutional or legislative reforms.

Over the past few months, nevertheless, the Government, in consultation with the various partners, had submitted to the National Assembly two preliminary draft bills in the context of the recommendations made by the mission that had visited Panama. One concerned the reduction in the number of members required to establish a trade union from 40 to 20, and the other the repeal of the Act that restricted the right to organize in export processing zones for a period of two years.

The Government had also enacted four Executive Decrees amending the sections of the Labour Code that were related to the observations that the Committee had made, namely: Executive Decree No. 24 containing measures for compliance with the labour rights of workers and the obligations of employers relating to fixed-term contracts; Executive Decree No. 25 issued under sections 486 and 487 of Cabinet Decree No. 252 of 1971 (Labour Code amended by Act No. 44 of 1995); Executive Decree No. 26 establishing the factors to be taken into account with regard to the percentage of workers working in shifts in public service during strikes (minimum service) in accordance with the provisions of section 487 of the Labour Code; and Executive Decree No. 27 adopting measures to protect the independence and autonomy of workers' trade union organizations. These Decrees had already been enacted and had been published in the Official Gazette on 5 June 2009. In conclusion, he reaffirmed that the Government had made efforts to strengthen social dialogue.

The Worker members thanked the Government representative for the information provided and indicated that the Government appeared to be willing to bring the national law and practice into conformity with the Convention. It was still possible to give the Government another opportunity and it should accept the technical assistance of the ILO with a view to making an accurate assessment of the scope and content of the legislative amendments needed. The Government should also submit a report to the Committee of Experts for examination at its next session.

The Employer members believed that the fact that the Government had organized consultations did not excuse it from fully complying with Convention No. 87. Consultations with the social partners should not be used as a pretext to neglect responsibilities, using consensus as an excuse. They said that the Government had referred to bills that had nothing to do with the cause for concern and they were not certain that the employers had been consulted. They emphasized that they hoped for rapid progress and would not give up on the progressive use of the mechanisms available in the ILO supervisory system.

Conclusions

The Committee took note of the Government representative's statements and the discussion that followed.

The Committee noted that the Committee of Experts had for many years commented on the serious legal restrictions on the right of workers to freely establish organizations of their own choosing, to freely elect their representatives and the right to organize their administration and activities. The Committee of Experts' comments also repeatedly objected to the legislative provision that ordered the closing of the enterprise prohibiting management from accessing the workplace.

The Committee noted the Government representative's statements according to which a new Government would take office in July 2009 and it would receive the Committee's comments and conclusions from the current Government. The Government representative stated that the Government had addressed part of the Committee of Expert's comments on the application of the Convention and already had adopted various executive decrees to regulate various provisions of the Labour Code, for example, in the case of minimum services during a strike. It also submitted to the National Assembly two draft bills to reduce the minimum number of workers required to form a union and to guarantee fully the right to unionization in export processing zones. Finally, the Government representative stated that the Government could not impose legislative reforms where there was disagreement with one of the social partners, as this would contravene the principle of tripartism.

The Committee noted with concern the allegations of murders and other serious acts of violence against trade unionists, as well as employment-related anti-union acts. The Committee urged the Government to respond to the comments on the application of the Convention concerning serious acts of violence submitted to the Committee of Experts by two worker organizations.

The Committee regretted that, despite its having discussed the case on several occasions, it was not in a position to note significant progress with respect to the requested legislative amendments, the restrictions of which affected not only workers and their organizations, but also employers and their organizations. In this regard, the Committee observed, with concern, the negative effects created by provisions, such as the closing of the enterprise and the prohibition of management access to the workplace. The Committee considered it necessary that the Government had recourse to ILO technical assistance to evaluate the scope of the new provisions to which the Government referred and to complete the reforms in order to bring the legislation fully into conformity with the Convention.

The Committee urged the Government to prepare urgently and without delay a concrete draft for amending the legislation as regards the provisions concerning freedom of association and the right of employers to carry out their activities, as provided for in the jurisprudence of the supervisory bodies, so as to bring it into full conformity with the Convention, intensifying the social dialogue in this regard. The Committee requested the Government to send a report for examination at the next meeting of the Committee of Experts in 2009, explaining the measures taken, and expressed the need to observe concrete progress next year.

Individual Case (CAS) - Discussion: 2005, Publication: 93rd ILC session (2005)

A Government representative (Vice-Minister for Labour and Social Development) stated that his Government had yet to deal with several unresolved cases before the Committee on Freedom of Association (CFA) of violation of Conventions Nos. 87 and 98 - cases which it had inherited from previous governments. One of those, Case No. 1931, involved issues addressed in the comments of the Committee of Experts. Case No. 1931 had originated in a complaint against the Government of Panama submitted to the Committee on Freedom of Association by the International Organisation of Employers (IOE) and the National Council of Private Enterprise (CONEP) on 12 June 1997. In the complaint, the plaintiffs had claimed that the legislation in force restricted the rights of employers and their organizations, in violation of ILO Conventions Nos. 87 and 98, which formed part of the fundamental rights of workers. On the basis of the 318th Report of the Committee on Freedom of Association of the Governing Body, in its definitive report on Case No. 1931, it was evident that it had declared itself in favour of the requests of the IOE and CONEP, supporting the call for the reform of the Labour Code in the following areas: (a) the immediate closure of an enterprise in the event of a strike (paragraph 1 of articles 493 and 497 of the Labour Code). Employers complained that these provisions adversely affected the basic needs of enterprises, particularly as regards the maintenance of installations, accident prevention and the rights of employers and managerial staff to enter work premises and carry out their duties; (b) ensuring it was possible - it was considered an obligation - for workers to unilaterally submit collective disputes to arbitration (section 2 of article 452 of the Labour Code); (c) limiting the number of party representatives (delegates and advisers) in the collective bargaining process, which involved interference in the autonomy of free will, since that was an issue to be determined by the parties involved in that process (paragraph 3 of article 427 of the Labour Code); (d) the penalty of withdrawal from the collective agreement of a party and the failure to respond to a list of demands (paragraph 2 of article 510 of the Labour Code); (e) the payment of wages during ten days of strike. The Committee on Freedom of Association considered that the legislation should be amended so that payment of the wages corresponding to the days of strike would not be imposed by the legislation, but would be a matter subject to collective bargaining by the parties. The Committee on Freedom of Association had also requested that the withdrawal from conciliation by one of the parties would not give rise to disproportionate penalties and that the failure to respond to a list of demands would not result in unbalanced penalties.

Finally, still in relation to Case No. 1931, the ILO had reminded the Government that it stood ready to provide all the assistance necessary, so that Panamanian legislation could be brought more adequately into line with the ratified Conventions on freedom of association and collective bargaining.

The speaker said that his Government had been informing the ILO for a number of years that it would be impossible to carry out the Labour Code reforms requested by the Committee on Freedom of Association, due to the lack of consensus between the social partners (workers and employers), despite the efforts made in that regard by his Government. ILO technical cooperation had been used since 2002 to train the social partners on Conventions Nos. 87 and 98 with a view to increasing awareness of the scope of their provisions, however no significant progress had been made.

With regard to Case No. 1931, his Government pointed out the need for ILO technical advice, within the framework of international technical cooperation, in order to find consensual solutions that would enable national legislation to be brought into line with Conventions Nos. 87 and 98. His Government, in conjunction with the social partners, would shortly discuss when would be the most appropriate time to try to resolve the problem of Case No. 1931. It should be taken into account that the Government was in the midst of a process of state modernization and legislative reform.

The Government had furnished a good deal of information on the cases pending before the Committee on Freedom of Association. The speaker indicated that in the Labour Committee of the National Assembly proposals were under discussion involving the provisions mentioned by the Committee of Experts relating to the rights of civil servants and minimum services.

The Worker members recalled that, in 2003, this Committee had already had the opportunity to discuss this case due to the persistence of the observations of the Committee of Experts on the application of Convention No. 87 by Panama. The imposition of conditions on the establishment of trade union organizations, notably those for civil servants, the restriction of trade union activities in certain sectors or in relation to realities on the ground, and the restriction for certain sectors with regard to affiliation with a confederation: these were all elements of freedom of association which were in jeopardy. The report of the Committee of Experts had identified other questions to which no response had been received, such as problems of imposed arbitration; limits on the number of organizations by enterprise or by province; the imposition of a minimum number of members for the establishment of an employers' or workers' organization; the nationality requirement to serve on the executive organs of a trade union; the interpretation of the notion of essential services and interference in industrial disputes, especially strikes. The recognition by the Government of these problems and their appeal for ILO technical assistance were, in view of the declarations that had been made by the Government in 2003, but mild progress which had to be confirmed by a demonstration of concrete and real will to address the problems, which for the most part dated back to 1958, the year Panama ratified Convention No. 87. In spite of the resolution of certain problems in the application of this instrument, fundamental questions persisted which successive governments denied, either by claiming the superiority of domestic legislation or practice over provisions of the Convention, or by requesting technical assistance by the Office, along the lines of what had been done again by the Government representative today. In conclusion, the Worker members stated that the credibility of the Committee was in question and that it could no longer accept that, after all these years, it had still not received effective and concrete responses. In view of this, they reiterated their appeal to the Government to provide, at the next session of the Conference, a report indicating concrete measures taken with a view to bringing national law and practice into line with the Convention.

The Employer members stated that it was as if nothing had changed since this Committee had examined this case in 2003. The comments of the Employer members in 2003 could be exactly reproduced in extenso here. Further, all of the issues raised in 2003 were still of great concern. In particular, the fact that provisions of the Labour Code allowed for the closure of an enterprise during a strike was not an issue related to the right to strike, rather it was a massive interference in the running of an enterprise and in the collective bargaining process. They were surprised that the Committee of Experts had not addressed an issue raised in the 2003 discussion of this case, namely, the payment of wages during a strike. The requirement to pay wages during a strike was not appropriate and interfered with the process of collective bargaining and the management of an enterprise. In addition, the Government had indicated that it would welcome the technical assistance of the ILO. It would thus be in a position to provide a full report to the Committee of Experts next year, the preparation of which should include both social partners.

They concluded by noting that the last time this case had been discussed, the Government had claimed that no action could be taken because an election was imminent. This year, the Government had stated that progress had not been made because it was a new Government. There was no more room for excuses from the Government for not addressing these serious violations of the requirements of Convention No. 87.

The Employer member of Panama stated that following several years of excuses from the Government - the latest being the election campaign - for not bringing Panamanian legislation into line with Convention No. 87, the new Government found itself in a situation that it had inherited from the past. It was essential that, as of now, the Government respected the Conventions it had ratified, in this case Convention No. 87, placing emphasis on consultation with the social partners. Another matter of concern was the conditions imposed on the notion of consensus in the expression "consensual formula" as this could not justify the non-respect of obligations arising from Conventions Nos. 87 and 98. With confidence in the new Government, it was hoped that it would soon set a date for an ILO technical assistance mission, with a view to bringing Panamanian legislation into line with Convention No. 87.

The Worker member of Panama, indicating his full agreement with the report of the Committee of Experts with regard to the complaints made by the National Council of Organized Workers (CONATO), stated that it was at least suspicious that the employers of his country had intervened in this international forum for the application of Convention No. 87. These were the same employers who promoted and put into practice policies and measures which impeded the same Convention they were invoking. This had led to the situation in which the subcontracting of workers in his country had already turned into a new attack against trade union organization and collective bargaining and human rights, to the detriment of the dignity of Panamanian workers.

The speaker stated that the international community should be aware that every day, trade union organization was a clandestine activity, despite being recognized by the Constitution and in the law. In fact, today there had been lay-offs in an enterprise for the sole crime of wanting to organize to defend against abuses which some unscrupulous employers inflicted on workers.

In view of these examples, the speaker wished to state clearly that the workers of his country and the entire trade union movement were not ready to accept any labour reform which included a retreat from articles 491.1, 493.1 and 497. These were the only articles which guaranteed workers that employers would not violate or circumvent their right to organize, to collectively bargain and to strike.

He indicated his concern about the rightward drift of this international organization. Free enterprise should not be confused with freedom of association, as was the case in the Committee on Freedom of Association Case No. 1931, which had been filed by private enterprises in his country. He underlined the seriousness of stripping workers of their legitimate right to work, and thus their contribution to the growth of the enterprise through their personal effort, and he emphasized that the negation of the right to strike, to establish trade unions and to collectively bargain of public servants constituted a real outrage to the state workers which this Committee could not accept. He concluded with the hope that there would be prompt pronouncement of this Committee in this respect.

Following a point of order raised by the Employer member of Panama during the intervention of the Worker member of Panama, the Chairperson asked the speakers to limit their speeches to the case at hand.

The Worker member of Costa Rica, having expressed his full support for the statement made by the trade union representative of Panama, said that it was utterly paradoxical that in the Committee on the Application of Standards - which should watch over the principles and values, both moral and legal, of freedom of association - someone should dare to maintain a position which ultimately aimed to weaken that very freedom of association. That is what really lay behind the actions of the Panamanian business sector, which with the excuse of invoking compliance with Convention No. 87, sought to open a discussion to "revise" the laws of its country, with a clear objective to revoke laws that protected the exercise of freedom of association and the right to strike. For such employers, it was impossible to accept the democratic principle that when the majority of workers in an enterprise, organized in the form of a trade union, decided to call a strike, that strike would take place and the enterprise must cease its activities. This was a guarantee under Panamanian law which the employers, invoking Convention No. 87, wished to annul.

The speaker said that that law should be defended absolutely by the present Committee. Those powerful groups should not be allowed to get away with what they wanted. The representative of the Government of Panama should himself be the first to defend the right to strike, enshrined in the country's laws. No one in the present Committee had the right to demand less freedom of association. That would be a contradiction in terms. He hoped that the present Committee would take a firm stand to prevent the restriction of freedom of association and the right to strike in Panama.

The Worker member of Paraguay expressed his agreement with the Committee of Expert's report concerning complaints presented by the National Council of Organized Workers (CONATO). Workers' rights continued to be violated in a situation in which groups of extremely powerful employers did not respect the national laws or ILO Conventions. They continued to strangle workers through their failure to pay salaries, bonuses or leave.

He pointed out that with respect to the protection of human rights and respect for labour legislation, governments in many cases ratified ILO Conventions just to forget later that they were in force. This led to the violation of these rights, including the right to strike and the right to collective bargaining provided by Conventions Nos. 87 and 98. It was important to take this fact into account and adopt appropriate measures to guarantee the application of the above Conventions in practice and respect for human rights, which was also respect for the life of workers and their families.

The Government member of the Dominican Republic endorsed the statement by the Government representative of Panama in that the Committee should recognize the efforts that the new Government had been making in relation to Convention No. 87 concerning freedom of association, through its request for technical assistance to solve the problems that had arisen, in consultation and dialogue with the social partners. The statements made by the Government representative therefore appeared to reflect the existence of a culture of dialogue.

The Government member of El Salvador considered that it was important to implement the request by the Government of Panama for technical assistance from the ILO Subregional Office so as to ensure a better application of the Convention, in the context of dialogue and consultation with the social partners, and to achieve agreement among them. She expressed solidarity with the Government of Panama in its ongoing efforts to solve these problems.

The Government representative, having considered the observations made by the Worker members and the Employer members, reiterated the content of his speech, expressing his confidence in tripartism, consensus and the observance of international law.

The Worker members stated that, in the absence of the reply and actions on the part of the Government regarding the shortcoming identified over a number of years, they reiterated their request to the Government to supply, to the next session of the Conference, a report indicating concrete measures taken with a view to bringing the national legislation and practice into conformity with the Convention, particularly with regard to the conditions governing the establishment of trade union organizations, restrictions of trade union activities in certain sectors or in relation to realities on the ground, as well as restrictions for certain sectors as regards the affiliation to a confederation. They also wished that the Government would reply to the problems which had existed for many years, like compulsory arbitration, the limitation of the number of organizations by enterprise or by province, the imposition of a minimum number of members required for the establishment of an organization of employers and workers, the nationality requirement to become a member of an organization's executive organs, the interpretation of the notion of essential services, and also the interference in labour disputes, particularly in the case of a strike. The Worker members also requested the Government to accept effective technical assistance of the ILO, with a view to assessing the situation and to searching the unequivocal solutions to the problems raised.

The Employer members noted that the Government had accepted meaningful ILO technical assistance in this matter. In this regard, this assistance should also include the evaluation of the Bill mentioned by the Government representative to ensure that it addressed all matters in this case. They also noted that the Government had indicated it would involve the social partners in the preparation of the next report to the Committee of Experts.

The Committee took note of the oral statement given by the Government representative and the discussion that followed. The Committee observed that for a number of years the Committee of Experts had highlighted serious problems regarding the application of the Convention both in national law and in practice. The problems in question related to the existence of legal obstacles to establishing workers' and employers' organizations, to the trade union monopoly imposed by law in public institutions, to the requirement that one must be Panamanian in order to form part of the executive board of a trade union, to the possibility of imposing compulsory arbitration in cases of collective disputes, to the ban on the affiliation of public service federations to union centrals that encompassed private sector organizations and to legislative interference in the activities of workers' and employers' organizations. The Committee had also asked the Government to submit to the Committee of Experts a copy of the draft law on export processing zones. The Committee took note of the comments made before the Committee of Experts by a workers' organization and an employers' organization.

The Committee took note of the statement by the Government representative, according to which technical assistance from the ILO was needed in order to find consensual solutions to the problems set out by the Committee of Experts in relation to Conventions Nos. 87 and 98.

The Committee regretted that the technical assistance it had proposed in its 2003 review of the case had not yet materialized and that no significant progress had been recorded as regards the application of the Convention, but it noted that the Government had agreed to accept a technical assistance mission and that it stood ready to resolve the pending problems through dialogue with the social partners.

The Committee strongly hoped that the Government would take the necessary steps, with ILO technical assistance and in close cooperation with the social partners, to ensure that workers' and employers' organizations could fully enjoy the rights and guarantees enshrined in the Convention without any interference from the public authorities.

The Committee condemned the lack of progress over recent years and urged the Government to submit to the Committee of Experts, before the next meeting, a report containing detailed and precise information on the measures taken, including copies of any draft laws that had been drawn up or new legislation that had been adopted. The Committee requested that the social partners be fully involved in the drafting of the said report and hoped to be able to examine all the information the following year. The Committee also hoped that in the very near future it would be able to see significant and specific progress and that the technical assistance mission would be able to examine the draft law referred to by the Government.

Individual Case (CAS) - Discussion: 2003, Publication: 91st ILC session (2003)

The Government representative stated that according to the Committee on Freedom of Association, the recognition of the right of freedom of association did not necessarily imply the right to strike and that this right could be subject to restrictions, including prohibitions, relating to the public sector or essential services. Section 452 of the Labour Code, as amended by the Act No. 44 of 1995, which did not contravene the pronouncements of the Committee on Freedom of Association, was aimed at avoiding interruption of public services and to submit, shortly after the beginning of strike, the collective dispute to arbitration, as a modern and practical mechanism in those enterprises of public services which had been listed in section 486 of the Labour Code.

His Government believed in joint action and in tripartism, which was the reason for the existence of this organization. Public servants pursuing administrative careers could create or join associations of public servants of socio-cultural and economic nature in their respective institutions, which were aimed at the promotion of studies, training, improvement and protection of its members. It was also justifiable that public servants had the right to choose and to join the associations of their choice.

Under the legislation of Panama, trade unions of workers or professionals could be established with a minimum of 40 members, and the employers' organizations could be established with a minimum of ten members who should be totally independent from each other. This provision, agreed upon in 1995, had recently entered into force, and was applied in the Republic of Panama in an effective and efficient way without any problems. Section 64 of the Constitution of Panama provided that Panamanian nationality had been required for a person to serve on the executive board of a trade union. In order to change this, it was necessary to amend the constitutional provision. With respect to strikes and the obligation to maintain minimum services with 50 per cent of the personnel in establishments that provided essential public services, for these services to be considered as "essential" for the population, it must be shown that these services could not be interrupted without causing damage. In his opinion, there had been no interference of the legislative body in the activities of employers and workers. The Labour Code provided that, in case of strikes in public service establishments, the general or regional directorate of labour should decide whether to submit the strike to arbitration after its commencement; the party could then appeal the decision to the Minister of Labour and Social Development.

The Government of Panama maintained its firm political will to comply with all standards of the ILO. In the case of amendments to the Labour Code that were requested by the trade union committee, this implied that modification of the national Constitution was needed. However, important efforts had been made of analytical reconciliation of the various national sectors.

The Employer members stated that this case referred to many issues and that they wished to comment only on a few of them. As the right to strike did not derive from the provisions of Convention No. 87, they did not wish to refer to them.

First, referring to the power of the regional or general labour directorate to submit labour disputes in public enterprises to compulsory arbitration, the Employer members considered that this did not violate the Convention even though one would see this practice as government interference in the right to strike. However, the practice of compulsory arbitration represented an interference in the right to voluntary collective bargaining promoted under Convention No. 98. Recalling the position of the Committee of Experts recognizing that the State may interfere, under certain conditions, in collective bargaining in order to help to find a consensus between the social partners, they felt that, in Panama, the State may interfere whenever it considered necessary - which was only possible under limited conditions.

Coming to the issue of legislative limitation to one union per institution, that under national legislation, there shall be not more than one association in an institution, and the issue of limitation to one chapter per province for unions, these were clear violations of the Convention. Noting the indication given by the Government representative that this provision had been adopted in collaboration with the existing trade union and associations, the Employer members considered that this provision obviously served the objectives of the existing trade unions and associations only, since on the basis of this legislation, an existing trade union would not have competing unions and that the employers were to negotiate with one trade union only.

The Employer members stated that the requirement of Panamanian nationality for service on the executive board of trade unions constituted a clear violation of the Convention. They recalled that the Committee had already dealt with this problem on several occasions. The legal requirement of a minimum of 50 public servants to be able to establish an organization of public servants provided by the Act respecting administrative careers, clearly constituted another violation of the Convention. In their view, the reduction of the number of public servants required from 40 to 20, announced by the Government representative, would still violate the Convention in so far as this amendment would not lead to any improvement in this respect. The prohibition of public servants' organizations from affiliating with other organizations was an interference in the internal freedom of organizations, which constituted another violation of Convention No. 87.

The Employer members considered that the provisions of the Labour Code, that provided for the closure of the enterprise in the event of a strike, did not concern the right to strike. It was more a violation of the right to economic activity. The State's decision to close an enterprise in the event of a strike represented a massive interference in collective bargaining since the employer did not have the possibility to continue production with those workers who did not wish to participate in the strike.

A final point raised by the Employer members, and which was not reflected in the comments of the Committee of Experts, concerned the issue of payment of wages during a strike. They recalled that in 2000, the Conference Committee had treated the case of Panama in relation to the application of Convention No. 98. In its comments, the Committee of Experts had referred to the comments of the Committee on Freedom of Association but had omitted to comment on a law providing for the obligation of the employer to continue to pay the wages for the duration of the strike. Although issues concerning the right to strike did not derive from the provisions of Convention Nos. 87 and 98, they had been dealt with by the Committee of Experts in their comments under Convention No. 87 for Australia. In the case of Australia, the problem was different, i.e. the Australian law prohibited the employer from paying wages for the period of the strike. In this case, the Committee of Experts rightly said that the payment or non-payment of wages for the duration of the strike had to be the result of collective bargaining, and thus not the subject of legal provisions. However, the issue had to be dealt with under Convention No. 98 and not under Convention No. 87. As the Committee of Experts by chance had omitted to deal with this issue in the case of Panama, the Employer members felt it was important to raise this question and requested the Government representative to clarify whether the legal provisions concerned were still in force; if this was the case, they called upon the Government to repeal them rapidly.

The Worker members referred to the observations of the Committee of Experts which, for over 30 years now, had raised the following points: the exceedingly high minimum number of members required to form a professional organization; the requirement that trade unions had to have a minimum of 75 per cent Panamanian members; the automatic suspension of a trade union leader upon dismissal; the extensive powers of control by the authorities over the registers, records and accounts of trade unions; and the exclusion of civil servants from the scope of the Labour Code, which failed to recognize their right to form trade unions and to bargain collectively. Already this year, there was a feeling of "déjà-vu", which undermined the credibility of the supervisory system. The situation was serious and it was time that the Government of Panama stopped mere statements in this Committee and started fulfilling its obligations under the Convention in an effective and sincere manner.

The Worker member of Colombia stated that in Panama the right to strike was being violated in sectors that were not part of public essential services. In this regard, he referred to the transport services at the Panama Canal.

The Government member of the Dominican Republic stated that the Government of Panama had to bring the national legislation into conformity with Convention No. 87 on freedom of association. He recalled that the Government had expressed its interest in receiving the technical assistance from the ILO so that, within the framework of a social dialogue and the consensus promoted by it, the participants would undertake measures benefiting all parties involved.

The Worker member of Panama stated that between 1903 and 1972 not a single legitimate strike had been carried out, even though the right to strike was set out in the law. With trade liberalization, the Government and employers were endeavouring to promote the country through labour flexibility to make it attractive to foreign investment. The obstacles to the establishment of trade unions in areas characterized as strategic was a reality in his country. This was the case of the free zone of Colonia, the banking centre, which had over 150 international banks, and public sector workers. In the areas such as ports, compulsory arbitration was imposed because they were considered to be public services. Tribunals had been established in parallel to the labour courts to receive complaints from port workers, thereby excluding them from the scope of the Ministry of Labour and depriving them of the right to strike. The Department of Social Organizations was a type of regulatory body for the establishment of trade unions, and an excessively high number of members were required to establish trade unions, while migrant workers were prohibited from holding trade union office. A new constitutional provision had been adopted prohibiting strikes in the Panama Canal zone on the grounds that it was an international public service. Employers in Panama were trying to extinguish any right to strike by insisting on amendments to the Labour Code that would make it possible in future to hire workers, produce and sell products while workers were on strike. Finally, he called for any reform of labour legislation to be a result of dialogue and consensus, and not to be imposed by the Government or employers.

The Government representative stated that his Government respected the ILO Constitution as well as the national Constitution and the labour legislation of his country, that aimed to resolve conflicts between workers and employers. The freedom to establish trade unions had existed in Panama, with certain requirements that the existing organizations observed in their integrity. He indicated that they were present in this Committee not to resolve internal disputes and to appeal to the social partners to pursue national dialogue in order to find solutions.

The Employer members recalled that they had clearly pointed out their position in their initial statement. They deplored that the Government representative did not refer to the question of the employers' obligation under the legislation to continue to pay wages during the strike. Therefore, they would consider raising this issue again at next year's Conference. They noted with interest that two worker members criticized the closure of an enterprise in the event of a strike. This practice was not only an interference by the State in the freedom of an employer's economic activity, but it also forced the non-striking workers to a compulsory solidarity in this regard. The Employer members thought this was an interesting and instructive outcome of the discussion. They expressed the hope that the Government representative might wish to refer to this issue in the light of the discussions previously held in this Committee.

The Worker members stated that the Government had not given any reply to the numerous questions raised. Consequently, they had nothing to add.

The Government representative stated his respect for the procedures of the Committee and in this context he wanted to indicate that the question posed by the Employer members did not concern the points raised by the Committee of Experts. If the Employer members wished, his Government could respond to any questions that were addressed to it.

The Committee noted the oral information communicated by the Government representative and the ensuing discussions. The Committee observed with concern that for years the Committee of Experts has been noting serious discrepancies between the national law and practice, on the one hand, and the Convention on the other. These problems of application related to the following points: a single trade union imposed by law in the public sector, the requirement of too many members to form workers' or employers' organizations; interference in the internal affairs of workers' and employers' organizations, including the right to freely elect their representatives; the handling by law of certain issues which should be handled by collective bargaining procedures; sanctions in the case of collective bargaining agreements and disaffiliation of an organization of public servants from a confederation by administrative decision. The Committee took note of the statement by the Government that a bill has been prepared to ensure full respect of the rights of workers in export processing zones. The Committee noted furthermore, the willingness expressed by the Government to solve the problems of application of the Convention through a dialogue with the social partners. The Committee regretted to observe that no concrete progress had been made with respect to the application of the Convention, and expressed the firm hope that the Government take all the necessary measures, in close cooperation with the social partners, in order for the workers' and employers' organizations to be able to organize their activities without inference of the public authorities. The Committee reminded the Government of the possibility to request technical assistance from the Office in order to overcome the serious problems in the application of the Convention. The Committee urged the Government to send detailed and specific information on the measures taken, including any new bills or legislation adopted, in its next report, so that the Committee of Experts could examine again the situation in law as well as in practice.

Individual Case (CAS) - Discussion: 2001, Publication: 89th ILC session (2001)

The Government representative said that Panama had ratified 74 ILO Conventions, which placed it in 19th place for ratification of Conventions. Of the 74 Conventions ratified, 68 were in force, which put Panama in 13th place for Conventions in force. It had also always submitted its reports on time and had paid its contributions in advance up to 2002, which showed the great interest and respect in which it held the ILO. At the meeting of June 2000, Panama was called to answer in Case No. 1931. On that occasion it was explained that Panama had a democratically elected Government, that the country was also governed under a system of separation of powers and that the Government of Panama was very keen to comply with ILO standards. The Committee's recommendation in that case would require an amendment to the Labour Code and, unfortunately, the Government did not have the necessary parliamentary majority in the Legislative Assembly to pass the amendments requested, particularly as the labour organizations had expressed their opposition to those reforms. The reforms to the Labour Code requested by the Committee were directly related to strikes and their effects. It was over a year and nine months since the Ministry of Labour of Panama had ceased to be a ministry in charge of conflict to become the Ministry of labour development, social dialogue, cooperation and prevention and alternative solutions to disputes. As for strikes in Panama, 26 strikes were announced in 1999 and none actually materialized. In 2000, 33 strikes were announced and only one took place and in 2001 only 13 strikes had been announced, of which only one had taken place and that had lasted two-and-a-half days. That showed that strikes were virtually non-existent in Panama. The previous Government in 1995, which did have a parliamentary majority, reformed the Labour Code, a reform which was endorsed by the employers and the majority of workers, despite the fact that the reform led to social upheavals, disruption of social harmony and the deaths of four people. The Government believed in cooperation and tripartism, which was the raison d'être of the Organization and the Committee, and was fully convinced that the only way to bring about the changes proposed by the Committee was through social dialogue. For that reason, in a letter dated 6 August 2000, the Minister of Labour formally requested technical assistance from the Office and a multidisciplinary technical team was sent from San José, to provide specialist support in activities connected with employers' and workers' organizations. He did not have specific details of the result of that mission. The speaker reported that the Ministry of Labour and Work Development of Panama was developing a series of tripartite projects on cooperation and social dialogue, some of them sponsored by ILO and some by other bodies, among them the following: regional programme for modernization of the labour market sponsored by the IDB-USAID-SIECA which had established an executive body, the Labour Foundation, a bipartite body for social dialogue between employers and workers, promoted by the Government; pilot project for the promotion of renewed social dialogue to facilitate the creation of productive employment, labour protection and investment in human resources in the context of alternative dispute settlement, sponsored by IDB-USAID-SIECA; ARPE project sponsored by the ILO, a tripartite project promoting job-creation and poverty reduction; Relacentro project, sponsored by the ILO, on freedom of association, collective bargaining and labour relations in Central America; and ILO-PRODIAC project on social dialogue in Central America, to strengthen the consolidation of democracy. As could be seen, the Ministry of Labour and Work Development had been fulfilling its institutional mission as the leading, formative and standard-setting body for labour development policies, to promote harmonious labour relations and the use of alternative means of preventing and resolving disputes, and had developed strategic alliances with university institutions, government bodies, non-governmental organizations, employers' and workers' organizations, to implement programmes to facilitate social dialogue, cooperation and alternative ways of dispute settlement. Panama today enjoys an enviable social peace. The Government was making enormous efforts, to the extent of its powers, to encourage the necessary social dialogue, since it considered that on completion of those projects, conditions would have been created to narrow the gap between employers and workers and, on a basis of consensus, allow the presentation of a bill on the matters requested by the Committee. For all those reasons, the Government representative requested the Office to continue with the bipartite technical assistance through specialists in the activities of employers' and workers' organizations as the ideal channel for achieving the result hoped for by the Committee, since the Government, as already indicated, did not enjoy the parliamentary majority necessary to pass the labour reform bill needed to reflect the comments of the Committee of Experts.

The Worker members noted that the last discussion in this Committee concerning difficulties in the implementation of Convention No. 87 in Panama dated from 1992. Moreover, this country was on the list of individual cases examined the previous year by the Committee with respect to the application of Convention No. 98. Many of the problems which had been examined on that occasion, were raised again. The Committee of Experts had formulated comments on a wide range of legal provisions. Many of these comments concerned strikes in the public services. The Committee of Experts observed that the Government had adopted an excessively wide interpretation of the concept of "essential public services" and minimum service to be provided in certain public services in case of strike. Concerning the definition of "essential public services", the Worker members referred to the report of the Committee of Experts. Concerning the minimum service, they underlined that the legislation which required the conscription of 50 per cent of the personnel in case of entities providing essential public services, should be modified in consultation with workers' organizations. It was in fact important to look for a solution which guaranteed a minimum service without infringing upon the freedom of association of the civil servants concerned. Another problem tackled by the Committee of Experts was the constitutional obligation to be of Panamanian nationality in order to serve on the executive board of a trade union. The Worker members fully supported the position of the Committee of Experts in this respect. It was in fact necessary that the Government took appropriate measures in order to abolish this constitutional requirement which was not compatible with the right of workers to freely elect their representatives. With regard to points IV and IX of the observation of the Committee of Experts, the Worker members referred to last year's discussions regarding the application of Convention No. 98 by Panama. These questions had been examined by the Committee on Freedom of Association in the context of case No. 1931 and some legislative provisions could be incompatible in fact with the provisions of Convention No. 87. The Worker members underlined that it was important to seek a solution on a tripartite basis. It was essential that the Government introduced modifications to its legislation and consulted with the organizations of workers and employers. To conclude, the Worker members observed that there were difficulties in the implementation of the Convention in Panama and indicated to the Government that it could have recourse to the technical assistance of the ILO in order to bring its legislation into conformity with the Convention, as underlined by the Committee on Freedom of Association in its conclusion in Case No. 1931.

The Employer members stated, in respect of Panama's application of Convention No. 87, that they intended to focus only on the salient points in the case, as the Worker members had done. Further, they intended to focus on those points on which they considered that the Employer and Worker members were in full agreement. With regard to these points, the Employer members had taken a consistent position. First, in respect of the prohibition of more than one association of public servants in an institution, and more than one chapter per province, they considered that this prohibition gave rise to a trade union monopoly situation, which violated the Convention. Second, they considered that the excessively high number of members required for the establishment of employers' and workers' organizations at the enterprise level were unjustified and violated the principle of freedom of association. Third, the requirement that individuals serving on the executive board of a trade union be of Panamanian nationality was excessive and unjustified. It was enough to require the person to have resided in Panama for a certain period of time, but subsequently the individual should have access to employers' or workers' organizations and be permitted to hold office in such organizations. The Employer members pointed out that the issue of the right to strike had been addressed in the conclusions of the Committee on Freedom of Association, with which they were not in agreement. However, they noted some excessive provisions in the legislation which they considered to be incompatible with the Convention. In Panama, strikes resulted in the immediate closure of the enterprise, establishment or business affected. This closure was so complete that, even employers and management had no access to their property, non-striking workers were prevented from entering the premises and all production was stopped. They also considered that it was excessive for police to be involved in enforcing this closure. These provisions had a negative effect on business and were not based upon the provisions of either Conventions No. 87 or No. 98. Accordingly, they considered that the Government should repeal the relevant provisions of the Labour Code. Another aspect of the legislation to which the Employer members objected was the legal obligation for employers to pay wages due in respect of strike days. The Committee of Experts, referring to the conclusions of the Committee on Freedom of Association in the case of Panama, had addressed all points but this one. In contrast, the Employer members cited the case of Australia, discussed at last year's Conference, which involved a provision where workers were not allowed to be paid in the event of a strike. The Committee of Experts had criticized the Australian legislation, but where, as in this case, the provision required employers to pay the wages of striking workers, the Committee of Experts had said nothing. The Employer members noted that the Committee on Freedom of Association had correctly concluded that this issue was not one to be dealt with by the legislature, but must be resolved by the social partners themselves. Nevertheless, the Employer members urged the Government to repeal the legislation mentioned, considering that it impaired the rights of employers in the collective bargaining process. Unfortunately, the Employer members had heard few answers from the Government representative regarding which provisions were to be amended and when. They therefore demanded that the Government took measures to amend the provisions at issue so that Panamanian law and practice would be brought into line with the Convention.

The Worker member of Panama indicated that Panama was going through a difficult economic, social and political situation at the present time, which made it impossible for amendments to be made to the Labour Code, in a consensual manner. He recalled that the Panamanian Labour Code was amended in 1976, 1981, 1986, 1990 and 1995, and that all the above amendments had done away with the progress achieved by the workers. However, what was most serious was the excuse given that such amendments would allegedly create new jobs. On the contrary, the unemployment rate had increased in fact by 13.2 per cent of the total labour force. In that sense, he indicated that the complaint submitted by the business sector of Panama was not founded for the following reasons: (1) with regard to section 435(1) of the Labour Code regarding the setting of a deadline of 35 days for the negotiation of collective agreements, the above was sufficient time for the negotiation, through labour administration, and that if the claims of the employers were to be heeded, negotiations would be left without a set deadline. He added that the latter would prejudice greatly the workers. He equally highlighted that it was important for the majority of trade unions to negotiate directly, without any restrictions; (2) with respect to section 452(2) of the Labour Code, with regard to which the employers asked that collective conflicts be submitted to arbitration by mutual consent, he noted that the latter would imply a setback for the trade union movement of Panama, since the majority of the labour conflict cases had been submitted to arbitration in order to avoid strikes. He pointed out that, as claimed by the workers, leaving arbitration to be submitted by mutual consent would aggravate labour conflicts in the country because some enterprises would prolong the conflict in the case of strikes, and thereby the aspirations of workers would be aborted; (3) with respect to sections 493(1) and 497 concerning the closure of enterprises, establishments or businesses affected by strikes, the claims with respect to the amendments of the Labour Code put forward by the employers would lead to mediatized strikes, and the latter would mean in turn that the employers would continue to operate in their enterprises with new personnel. The latter would render the strike ineffective, and furthermore would lead to confrontation among workers. He added that in the case of Swaziland, the employers were of the view that the question of the right to strike was not envisaged in Convention No. 87. And even more, the details relating to the right to strike were not relevant, and if the right to strike were to be examined, the latter could not be dealt with in the Conference Committee, since according to the Employer members, the above point was not provided for by Convention No. 87. In that sense, he indicated that he did not understand how the contrary criterion was applied to the case of Panama. Finally, he emphasized that this Committee and the Committee of Experts were badly informed, indicating that the trade union movement was never officially notified that the ILO had sent any experts or technical staff to Panama to deal with the issue.

The Employer member of Panama indicated that during that day representatives of the National Council of Organized Workers (CONATO) had distributed to the room a publication titled, "Complaints against the Government of Panama, member State of the International Labour Organization, for violations of the right of freedom of association in Panama". These complaints refer specifically, on the one hand, to violations of freedom of association principles and the trade union rights contained in Conventions Nos. 87 and 98 in relation to civil servants who are only allowed to organize themselves as "associations" limiting in this manner their numbers, not allowing them to organize into federations or confederations, prohibiting their exercise to call a strike, establishing a wide range of essential services and other limitations that posed a great obstacle to the effective application of the aforementioned Conventions. On the other hand, with regard to the private sector, these complaints denounced the excessive requirement of a minimum of 40 members to form a trade union. The use, on behalf of the labour authorities, of excessively detailed articles of the Act to prevent unions from bargaining with employers and substituting them by a group of non-organized workers or excluding the union representatives to replace them by persons without legitimate representation and rejecting the group of petitions by means of a subterfuge allowing for an excessive regulation of trade union freedoms. These freedoms and rights of trade unions were seriously undermined in Panama and the Government had the responsibility, which it had not yet taken up, for bringing about the necessary legislative changes (see page 5 of the previously mentioned publication). These complaints mirrored the recommendations made by the Committee on Freedom of Association, such as the conciliation procedure full of procedural requirements which was far from being a mechanism that promoted voluntary bargaining, infringement of the rights of the social partners, the imposition of compulsory arbitration for non-essential public services, etc. He mentioned, however, that the individual responsible for this complaint, which had been made public that day, was one of the eminent authors of current labour legislation in Panama. His knowledge of the problem would be of great assistance and would help towards its solution with the determination and firmness that is characteristic of this Committee. He indicated that he was acting in the capacity of an Employer delegate at this Conference and that he represented the National Council of Private Enterprise in Panama (Consejo Nacional de la Empresa Privada de Panama), originator of the complaint which resulted in the review of specific articles of the Act that were not in conformity, in writing, spirit or application, with the principles and trade union rights of workers and employers. He was satisfied that on this occasion it was the National Council of Organized Workers of Panama (CONATO) that had acted in concert with the wishes and objectives of the organized employers of Panama. The challenges posed by globalization required a concept that was new for his small country but that only needed the exclusive and effective recommendations of the Committee on Freedom of Association. He mentioned that he wholeheartedly believed that Conventions Nos. 87 and 98 had been conceived for promoting and strengthening social peace, elevating human dignity and the right of all to happiness. He emphasized that the Committee's steadfastness would help the Government of Panama to take on its responsibilities and he concluded by saying that he hoped for a future of peace and fraternity in Panama.

The Government representative of Panama reiterated that the Government did not have a parliamentary majority to insert the amendments to the Labour Code, as requested by the Committee of Experts. He requested again the technical assistance of the International Labour Organization at the bilateral and tripartite levels so that the Panamanian workers' and employers' organizations reach an agreement on the amendments. He highlighted that the issue was not a problem of freedom of association, but that of social dialogue. He indicated his concern with the declaration made by the Worker member of Panama, which indicated that no communication was received from the ILO. The Government was in agreement on making the amendments suggested by the Committee, but indicated its need for technical assistance so that the social partners agree on pending questions. He noted that the ILO should keep up its efforts at the bipartite and tripartite levels, with regard to the amendments mentioned in Case No. 1931 and in respect of other standards that violate Convention No. 87.

The Worker members stated that Panama clearly faced difficulties in the application of Convention No. 87. They once again reiterated that solutions to the problems raised by the Employer members and Worker members should be found in the context of a genuine tripartite dialogue ensuring the full participation of the trade union organizations. Contrary to the statement of the Worker member of Panama, they also insisted that all matters previously addressed by the Committee of Experts be carefully examined.

The Worker member of Panama indicated that it was unacceptable for the trade union movement of Panama for a sixth reform to the Labour Code be undertaken, since each time that it had been modified the workers had lost rights. He mentioned that the social, political and economic conditions did not presently exist in the country for another reform. The problems faced by the workers of the public sector were not the ones mentioned by the Committee of Experts in their observation. He stated that the main problem was the refusal of the right to organize of these workers and that he hoped that next year the Committee would be in a position to address this issue. Finally, while recalling that one of the objectives of the ILO was to guarantee the existence of social peace, he pointed out that it was important to understand that a new reform of the Labour Code could have catastrophic results for the country.

The Employer members noted a series of issues examined by the Committee of Experts which represented restrictions on freedom of association for both employers and trade unions. They considered that these provisions constituted clear violations of freedom of association and that they should be repealed. This case was unusual in that it involved provisions which imposed extreme restrictions on the employers' freedom to carry out their activities. As the Worker member of Panama had correctly pointed out, Convention No. 87 did not govern the right to strike. However, the Employer members had addressed a different point in their earlier statement. The issue raised by the Employer members did not focus on the right to strike, but rather addressed the relationship between the strike and the employers' activities since, under Panamanian legislation, a workers' strike negatively affected the ability of employers to carry out their business. They considered these provisions to be excessive, involving the closure of the enterprises, imposing the obligation upon the employers to pay wages to striking workers, and barring employers and management from the employers' premises. They therefore believed that these provisions endangered if not violated employers' freedom of association rights. While acknowledging that there was no basis for such a finding in Convention No. 87, the Employer members nevertheless agreed with the conclusions of the Committee on Freedom of Association and called for the Government to repeal the provisions of the Labour Code at issue. They expressed the hope that workers and employers could move forward to reach consensus on other issues once a more balanced legislation had been enacted in Panama.

The Government representative highlighted that his previous declarations regarding the technical assistance of the ILO at the bipartite levels were made in accordance with what had been requested by the Committee of Experts in its conclusions.

The Committee took note of the oral information provided by the Government representative and the subsequent debate. The Committee underlined its concern that for years the Committee of Experts had been reporting serious discrepancies between national legislation and practice, on the one hand, and the Convention, on the other, particularly with respect to the following points: trade union unity imposed by law in public institutions, an excessively high number of members required to form workers' and employers' organizations, interference in the activities and internal affairs of workers' and employers' organizations, including the right to freely elect their officials, legislation on matters which should be settled by collective bargaining and disproportionate sanctions in the process for resolving collective labour disputes. The Committee noted that the Committee on Freedom of Association had also raised some of those issues. The Committee regretted to note that there had been no progress in the application of the Convention and urged the Government to take all necessary measures to bring national legislation and practice into full conformity with the provisions of the Convention. The Committee urged the Government to promote tripartite discussions to enable a consensual solution to problems that arose, in conformity with the Convention. The Committee recalled, like the Committee of Experts, that the technical assistance of the Office was available to the Government. The Committee expressed the firm hope that in the very near future it would be in a position to note real progress towards full application of the Convention, with respect to violations of the rights of employers and their organizations and workers and their trade unions. The Committee requested the Government to provide detailed information in its next report to allow the Committee of Experts to assess progress in the situation.

The Government representative highlighted that his previous declarations regarding the technical assistance of the ILO at the bipartite levels were made in accordance with what had been requested by the Committee of Experts in its conclusions.

Individual Case (CAS) - Discussion: 1992, Publication: 79th ILC session (1992)

As regards certain points cited in the observation of the Committee of Experts, the Government sends the following documents:

1. Draft Law No. 70 "Providing for the Establishment and regulation of the Civil Service";

2. Resolution No. D.M. 23/92 of 21 May 1992 which reduces the number of documents required for the recognition of social organisations.

In addition, a Government representative, referring to the point in the observation of the Committee of Experts on the application of the Convention with regard to the exclusion of public servants from the scope of the Labour Code, which is found in Chapters 1 and 2 of Title XI of the Constitution of Panama, indicated that a Bill on administrative careers had been tabled in the Legislative Assembly for study and approval. The Government intended to grant civil servants a legal framework in conformity with the principles of the merit systems as well as other rights and obligations ensuing from constitutional provisions and corresponding to the provisions of the Labour Code which were applicable to the private sector. With regard to the requirement of "an excessively high number of members required to establish trade union organisations" and that of "75 per cent of members of trade unions who were required to be Panamanian" raised by the Committee of Experts in its observation, their potential amendment was likely to be considered in a tripartite debate within the framework of cooperation in the social and labour sectors initiated by the Government. This consultation and the subworking groups that had been set up within it formed an appropriate framework to improve the Labour Code in conformity with ratified international labour Conventions. This measure was also intended to improve national production and the general conditions of workers and employers as well as to improve the possibilities to create new sources of employment. The question of "the automatic removal from office of a trade union officer in the event of his dismisal" was also being discussed within the framework of the cooperation process. This removal applies only to the leaders of unions at the enterprise level who must be employed at the enterprise. The removal does not apply to the sectoral unions, federations, confederations or trade union centres. As regards the authorities' wide powers of supervision over the records of accounts of trade unions, it would be appropriate to point out that resolution No. 23/92 of 21 May 1992, which reduced the number of documents which were necessary for the recognition and functioning of social organisations, restricted and regulated in an appropriate manner section 376, subsection 4, of the Labour Code, to take account of the previous observations of the Committee of Experts. As concerns the observations on Act No. 13 of 11 October 1990, it was important to emphasise the temporary and exceptional nature of this measure which was justified by a stabilisation policy to bring about economic recovery. This Act had not prevented the negotiation of six collective agreements in 1990 nor the adoption of nine other collective agreements through direct negotiations in 1991. Moreover, it had not prevented strikes but had simply introduced arbitration after consultation with workers to prevent the closure of the enterprise and the loss of employment in the case of prolonged strikes. Act No. 13 had to be re-examined within the framework of the labour management consultation process in order to rapidly re-establish the exercise of collective bargaining in conformity with international labour Conventions. As for the Public Order Act No. 25 of 14 December 1990, its provisions ceased to be in force on 31 December 1991. It had not been established that "an important number" of workers had been dismissed: that Act only affected public employees who had commited acts of violence towards other public employees or consumers of public services and who had damaged the installations and property of the State in non-union activities, as was the case of two public enterprises, and not because they were trade union leaders. However, the number of workers who had been dismissed only represented 2.3 per cent of the employees in each of these two enterprises. Numerous dismissed workers, 107 in the Water and Electricity Institute (IRHE) and 37 in the National Telecommunications Institute (INTEL), had appealed before the competent courts which paved the way for full jurisdiction administrative proceedings which had to be settled by the appropriate chamber of the Supreme Court. Detailed information in this respect had been submitted to the Committee on Freedom of Association (Case No. 1569) and in the supplementary reports on Conventions Nos. 87 and 98 presented in January 1992.

The Workers' members stated that the Conference had examined this case in 1981, in 1988 and in 1991. The long examination that had taken place the previous year had led to a conclusion which was put in a special paragraph of its report. Other than the points that were already well known, the Committtee of Experts also noted this year that more recent laws contained restrictions on the right to strike and provided for anti-union measures against public servants. The situation in law and in practice did not seem to have changed from last year. The only new element consisted in the "agreement on cooperation in the social and labour sectors" concluded between employers, workers and the Government in December 1991, which should allow for the beginning of consultations which would lead to an eventual amendment of Act No. 13 of 1990, restricting the right to strike. The content of the texts mentioned in the written communication by the Government appeared to be obscure. However, a slight change in the Government's attitude was noticeable in that it seemed to be more positive this year than during the debates that took place in 1991. The Government - as indeed certain other governments notably in Latin America - gave the impression of wishing to comply more with the supervisory bodies. This intention of the Government to proceed with certain changes had not resulted in any real progress in practice. It would also be appropriate to insist that the initiatives annouced result in an actual amendement of the legislation on all the points raised by the Committee of Experts for many years, notably on the elimination of state intervention in trade union internal affairs, the elimination of the requirement with regard to nationality, the guarantee of freedom of association of workers in the public sector and the respect of the right to strike. In view of the seriousness of these issues which had been emphasised in the Committee's conclusions of 1991 and having regard to the complexity of the information provided by the Government, a direct contacts mission from the ILO could be envisaged. In the absence of a change in the near future, not only in the intentions of the Government but also in reality, this Committee would be forced to note once again next year the discrepancies between stated intentions and actions.

The Employers' members indicated that their point of view differed from that of the Workers' members on a number of points. Concerning the substantive issues raised in this case, it was first of all clear that the denial of the right of public servants to bargain collectively constituted a flagrant violation of the Convention. The information on their legal situation contained in the report of the Committee of Experts and in the Declaration of the Government representative was, however, somewhat confusing and it would be appropriate if the Experts examined this question attentively once again. To know if the requirement of a minimum number of 50 workers or of ten employers to establish an organisation was too high, one could wonder what in fact was the right figure: the Committee of Experts found it to be too high. The Government promised to modify it but, however, the Convention did not say anything on this matter. One should therefore be careful in prescribing specific figures which in any case could only be arbitrary. On the other hand, concerning the requirement that 75 per cent of trade union members should be Panamanian, it was undeniable that there was a clear infringement of the Convention which guarantees right to freedom of association without any considerations of nationality. The Government stated that this issue was going to be examined and one would hope that this examination would have a positive outcome. As to the problem of the extensive supervisory powers of the authorities on trade union activities, it was important to distinguish between those powers that could lead to a real interference in the internal affairs of the union and the simple verification of accounts which according to the Government were intended to prevent or punish abuse. The Committee of Experts itself recognised that there could be an audit if a request was made by a tribunal or by the majority of union members. Union members indeed had to be protected against potential abuse and it would be appropriate if minorities could also benefit from this protection. With regard to restrictions on the right to strike, the agreement concluded in December 1991 between the social partners and the Government constituted a new and important element. Last year the Employers' members had already expressed their views on the way in which the right to strike had been interpreted by the Committee of Experts. The Experts, however, did not take into account the new agreement or the views of the Employers' members who had nevertheless explained in detail the reasons for which the principles relating to the interpretation of the Committee of Experts were not acceptable to them. The Committee of Experts which in paragraph 6 of its General Report said that it followed the "spirit of mutual respect, cooperation and responsibility" in respect of its relations with this Committee had however in the present case reiterated its previous stance without adducing additional arguments. In short the Employers' members were in complete agreement with the Committee of Experts as to the extreme gravity of this case, but were in complete disagreement as to certain elements of its analysis.

The Workers' member from Panama stated that he shared the views expressed by the Committee of Experts in its observation on the application of the Convention. The cooperation process that had taken place had led to the hope that the problems that were identified would be resolved. With regard to the questions examined by the Committee of Experts, although Act No. 13 had been adopted in exceptional circumstances, its application had been unilateral. A large number of workers had been dismissed pursuant to Act No. 25 and the recommendations formulated in that respect by the Committee on Freedom of Association should be followed. In spite of his support for the consultation process and his optimism as to its outcome, which should overcome the problems in time for the following year's meeting of this Committee, the speaker felt that it would be appropriate to continue to examine this case. The ILO could assist in the revision of the labour legislation in force.

The Government representative indicated that some of the points examined by the Committee of Experts had been suspended for a number of years but that the situation had been aggravated by the provisions introduced in 1990 because of the exceptional events that had taken place in his country. The Government had the firm intention of finding a solution to all the problems raised by the Committee of Experts. The consultation process constituted a particularly appropriate framework to examine these questions through dialogue between the Government and employers' and workers'organisations. This dialogue did not only cover Act No. 13 but had the aim of revising the whole of the Labour Code. Reiterating his previous declarations. the Government representative communicated information related to collective agreements that had been negotiated after the entry into force of Act No. 13.

The Committee took note of the written and oral information provided by the Government from which it understood that a tripartite consultation process had been started with a view to ensuring that the legislation was brought into complete conformity with the requirements of the Convention. At the same time, the Committee had the impression that the progress made so far was still limited. In view of the fact that the political situation in the country had changed dramatically only a few years ago and that the new Government found itself confronted with problems on the subject matter, the Committee suggested to the Government to invite a direct contacts mission from the ILO in order to reach the aforementioned goal in the near future.

Individual Case (CAS) - Discussion: 1991, Publication: 78th ILC session (1991)

The Government suplied the following information:

1. On the alleged high number of members required for the creation of a union (50 workers or ten employers under section 344 of the Labour Code), this requirement does not limit the right to unionise which is universally recognised because the Convention does not lay down minimum or maximum levels for the formation of a union and since there is no recommendation by the Committee of Experts on this point. In article 64 of the National Constitution, the number or amount that is set out in section 344 of the Labour Code is aimed only at strengthening union organisations so that they can effectively use the right to bargain as a basis for the collective right centred on the principle of the majority.

The current tendency of occupational organisations is to move towards the creation of industry-type unions so as to be able to pursue their activities throughout the national territory; this aim requires the grouping together of labour forces in numbers superior to those laid down by law. The union organisations themselves are against a reduction in the number of members required for the creation of a union, because this involves a splintering of the working class and a serious weakening of the workers' movement.

2. As regards the comment that 75 per cent of union members must be Panamanian (contained in s. 347 of the Labour Code), this is not a discriminatory requirement but rather one which belongs to the aspirations of organisations of workers because economic activity had been in the hands of foreigners, a domain that was extending into commercial activities where the workers involved were not Panamanian. In an effort to help nationals, standards were adopted setting percentages to enable Panamanians to work and to guarantee the right to organise. Apart from this criterion, there is no restriction or ban on unions, in their own organisations, to allow foreigners to become members, provided that their statutes permit this. This situation is viable since the legislation does not consider persons to be foreigners if their spouses are Panamanian or if they have resided in the country for ten years or more. The Government considers that none of the Articles in the Convention contains provisions on the inclusion or exclusion of, or ban restrictions on the membership of trade unions of foreigners. It adds, however, that none of the current trade union legislation in Panama (Labour Code) contains any prohibition or obstacle affecting the right to unionise of foreigners because of their nationality, so long as the level of 25 per cent of members of the union in question is not exceeded, as is provided in articles 17 and 20 of the National Constitution which reserve certain activities for Panamanian nationals and article 39 of the Magna Carta which guarantees freedom of association.

3. Regarding the observation on the automatic removal from office of a dismissed trade union official (s. 359 of the Labour Code), the Government considers it normal that the mandate of an officer of a works union ends when he is no longer a member because he has ceased to be employed by the enterprise. The Government admits that it is not clear in the Labour Code what happens to leaders of an industry level or mixed union and that is why section 359 of the Code is not applied to them. According to the Government, in addition, works unions could be led and/or dominated by former employees of the enterprise, which would be illogical and impractical.

4. Regarding the wide powers of supervision by the authorities over the records and accounts of trade unions (s. 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, as is laid down in the section referred to, since the unions are of public interest and, consequently, the Ministry of Labour and Social Welfare, being a state body, is obliged to promote the creation of these organisations and to certify their existence, validity and guarantee their protection. According to the Government, it is not clear that such powers of supervision over this union documentation exist since the "minutes 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 for the publicity of and authentication of the legal personality and the legal representatives of the organisation in question.

According to the Government, the Ministry only intervenes when challenges are made by the 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 of abuse of office so as to establish the level of accounting standards and honesty in the management of these accounts. The Ministry cannot suspend any union leader "for mismanagement of union funds" or "undue appropriation" of them. Protection of the integrity of union "management" prevents the Ministry from being able to make court challenges of any kind, a situation that has been the principal reason for corruption and the unions' loss of prestige.

In addition, the formality of lodging registration requests for new unions is aimed at giving them protection or immunity (fuero sindical) to all their members, as set out in sections 381 and 385 of the Labour Code. Without this requirement, that unions being formed lodge registration applications with the Ministry, such protection would not be effective.

5. With regard to the exclusion of public servants from the scope of the Labour Code and consequently from the right to organise and to bargain collectively (s. 2 (2) of the Labour Code), the Government states that Chapters 2 and 3 of Title XI of the 1946 National Constitution lay down the basic principles of personnel administration and the functioning of that administration, respectively. These constitutional provisions were the basis for the adoption of the Act on Administrative Careers in 1963 which was amended by Cabinet Decree in 1968 so as to repeal the sections concerning the stability of employment of public employees. The Labour Code could not be applied to public servants except for those exceptions allowing unionisation contained in Act No. 8 of 25 February 1975 and Acts Nos. 34 and 40 of February 1979 which apply, respectively, to state enterprises such as IRHE, INTEL and the National Port and Railways Authority of Panama. There are other administrative careers permitted by article 300 of the National Constitution, such as the judiciary (covered by the Judicial Code), teaching in the national education system, the diplomatic service, the health service, the act on nurses and auxiliary hospital staff, the act on laboratory assistants, the act on firefighters, post and telegraph employees, employees of the National Bank of Panama, etc. These are special laws which are not amended by the act on administrative careers. In addition, Panama has not ratified Convention No. 151 on the right to organise of public employees, and is thus not bound by that Convention. Nor is there a violation of Conventions Nos. 87 and 98 which have nothing to do with the right to organise of public employees, but rather regulate union relations between workers in private undertakings and employers, relations which are fully covered by the Labour Code.

6. With regard to the comments of the Committee of Experts on Act No. 13 of 11 October 1990 which supposedly "sets out restrictions on the right to strike" and to bargain collectively, the Government states 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. It can be used following a summary verification of this disruption, with the workers being given a hearing; this is provided for in the Act as a transitional provision lasting three years. To date it has not been used. This discretion is not new to Panamanian legislation. Previously, Act No. 95 of 1976 introduced a similar option.

7. Regarding the comments on Act No. 25 of 14 December 1990, the Government states that this is an Act concerned with law and order against subversive acts by public servants; that it is a temporary enactment in force until 31 December 1991; that 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 to overthrow the Government in the following ways: the organisers of the movement exhorted the population to undertake a permanent general work stoppage until the Government fell, and communications and dialogue took place between public servants organising the illegal stoppage and a mutineer after the police central headquarters had been taken. Only those public servants who engaged in physical violence against other officials by impeding their access to workplaces or who damaged state property have been sanctioned. The Government states that irregular "civil associations" are involved, set up under the provisions of the civil code as civic bodies and charities which have illegally tried to operate as ministerial unions and as the National Federation of Public Servants. It was not a labour "strike" since there was no indication that a labour dispute existed, but it was an illegal "general work stoppage".

At the end of March, the State Prosecutor of the Supreme Court considered unconstitutional only the subsection of article 2 of the Constitution which tried to establish that "The Executive, through the Cabinet Council, shall determine whether actions or events are to be considered as attacks on democracy and the constitutional order of the State", on the grounds that this power is a matter of law. On 23 May 1991, the full Supreme Court delivered a judgement concerning the petition claiming unconstitutionality lodged against Act No. 25 of 1990 by several trade union leaders and ex-employees of IRHE and INTEL; the judgement upheld the constitutionality of all provisions of Act No. 25 except as regards the above-mentioned subsection of article 2 of the Constitution.

In addition, a Government representative reiterated all of the written information communicated by his Government. He further referred to the difficulties encountered by his Government in complying with its obligations of sending the reports due in 1990 and indicated that 21 reports on the Conventions have been sent since March. With respect to the observations of the Committee of Experts concerning Act No. 13 of 11 October 1990 and Act No. 25 of 14 December 1990, he considered that these fall outside the reporting period and should be excluded from the present examination until such time as the Committee of Experts can examine the very significant documentation submitted with the reports of 1990 and 1991. Nevertheless, he took the opportunity to inform the Committee that Act No. 25 mentioned above does not involve any penal matters, nor provide for the detention of any person or create any type of discrimination. The detailed analysis of this Act made by the Attorney-General in April 1991 and the Supreme Court decision (May 1991) confirm that the Act does not violate constitutional principles or any human rights. It provides for administrative appeal, as well as for appeal before the Supreme Court. It also clearly defines the constitutionality of the retroactive nature of the Act, since it is a public order Act which normally can be applied retroactively without any time-limit. It was applied retroactively at the time of an unlimited general strike, about which a series of information was communicated for the Case No. 1569 examined by the Freedom of Association Committee.

As regards provisions of the Labour Code referred to by the Committee of Experts, the speaker indicated that the requirement of high number of members for the creation of a union (50 workers or ten employers under section 344 of the Labour Code) does not limit the right to unionise which if universally recognised because the Convention does not lay down minimum or maximum levels for the formation of a union and since there is no recommendation by the Committee of Experts on this point.

As regards the comment that 75 per cent of union members must be Panamanian (contained in section 347 of the Labour Code), this is not a discriminatory requirement but rather one which belongs to the aspirations of organisations of workers because economic activity had been in the hands of foreigners, a domain that was extending into commercial activities. Apart from this criterion, there is no restriction or ban on unions, in their own organisations, to allow foreigners to become members, provided that their statutes permit this.

Regarding the observation on the automatic removal from office of a dismissed trade union official (section 359 of the Labour Code), the Government considers it normal that the mandate of an officer of a works union ends when he is no longer a member because he has ceased to be employed by the enterprise. The Government admits that it is not clear in the Labour Code what happens to leaders of an industry-level or mixed union that this is why section 359 of the Code is not applied to them.

Regarding the wide powers of supervision by the authorities over the records and accounts of trade unions (section 376(4) of the Labour Code), the speaker indicated that the Ministry only intervenes when challenges are made by the members themselves to the election of an executive committee, and that 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 of abuse of office so as to establish the level of accounting standards and honesty in the management of these accounts. His Government is studying the elaboration of a Decree concerning section 376 of the Labour Code to determine the documents and acts which should be communicated to the Minister of Labour for keeping in the archives in order to avoid the powers of the authorities being considered to be too wide.

In addition, the formality of lodging registration requests for new unions is aimed at giving them protection or immunity (fuero sindical) to all their members, as set out in sections 381 and 385 of the Labour Code.

With regard to the observation concerning the exclusion of public servants from the scope of the Labour Code and consequently from the right to organise and to bargain collectively, the speaker stated that the 1946 Constitution lay down the basic principles of personnel administration and the functioning of that administration. These constitutional provisions were the basis for the adoption of the Act on Administrative Careers in 1963. There are other administrative careers permitted by article 300 of the National Constitution, such as the judiciary and teaching in the national education system.

With regard to Convention No. 98 the speaker stated that Act No. 13 of 1990 was clothed in the concept of "stabilisation policies" applicable in exceptional and temporary conditions to enable economic recovery and new employment generation. The Act recognises agreed pay increases and its application is based on their annual mean, thus guaranteeing protection of the workers; such increases would not be possible through negotiation because of the economy's precarious state. It also recognises temporary accords within collective agreements and permits new agreements to be negotiated directly, so that it does not prohibit or limit the right to negotiate collective labour agreements if the parties agree.

The Workers' members noted that the Committee of Experts' comments date back to 1967 without any positive reply from the Government and recalled that the Committee expressed its hope in 1989 that the legislation would be brought soon in conformity with the Convention. They observed that the information communicated by the Government verbally and in writing does not contain a reply and does not allow to note the progress made. On the contrary, acts setting out restrictions on the freedom of association and the collective bargaining were adopted in 1990. Thus, Act No. 25 of 14 December 1990 greatly prejudices the exercise of the right of associations of public employees to organise their activities, including through strikes. Noting that in its replies the Government stated that Conventions Nos. 87 and 98 have nothing to do with the right to organise with respect to public administration employees, the Workers' members asked how such arguments can be put forward after so many years and after the Committee expressed the hope in 1989 that the Government would take into consideration the Committee of experts' comments. Noting the lack of progress, as well as the information supplied by the Government, the Workers' members proposed to mention this case in a special paragraph of the Committee's report.

The Employers' members expressed their concern about this case, which has been dealt with on many occasions already. In fact, very little has changed. As can be seen from the information provided by the Government verbally and in writing, there is obviously no intention to undertake any changes at all. The Employers' members referred to the points which the Committee of Experts made in the beginning of its comments and considered them to be very clearly violations against the principles of freedom of association set out in Convention No. 87. They expressed the opinion that there is no reason why the public servant should be deprived of the right of freedom of association; there is no reason either in the requirement that 75 per cent of union members shall be Panamanian, even when the Government representative says that this can be traced back to the fact that in Panama there are many foreigners who are employed. It is not logical to exclude foreigners from participation in professional organisations, and the automatic removal from office of a trade union officer in the event of his dismissal is also a very clear violation of the Convention.

The Employers' members considered that it was not possible to determine whether the right to strike had been subjected to excessive restrictions, since the Experts had used the wrong yardstick. With regard to the only restrictions it held acceptable for essential services in the strict sense, the Committee of Experts had rightly referred to "its" principles; these were, in any case, not the principles of Convention No. 87. In this regard, the Employers' members referred to their opinion expressed in the course of the general discussion on the question of interpretation of ILO Conventions. But as regards the other points, they pointed out that the limitations imposed on freedom of association are very clear violations of Convention No. 87. With regard to the promotion of collective bargaining there also remains quite a lot to be done, taking into account the restrictions from carrying out collective bargaining for the public servants and legislative attacks on existing collective bargaining.

So, as far as Convention No. 98 is concerned, there is not any improvement either. This case has been dealt with for decades, and there is absolutely no evidence that in the foreseeable future anything is going to change. The Employers' members proposed to mention this case in a special paragraph of the Committee's report.

The Workers' member of Panama stated that Act No. 13 of 1990 violates the freedom of association by providing for the extension of current collective agreements and that the application of Act No. 25 has resulted in the dismissal of a large number of workers in the public sector. He emphasised that workers suffer from the consequences of the disorder which was due to the events which took place in his country. The speaker confirmed his devotion to tripartism and expressed the hope that the Committee of Experts' comments can be taken into account by the Government to ensure compliance with the Conventions. He expressed the opinion that a direct contacts mission should visit the country in order to find out what is actually going on there.

The Workers' member of Germany referred to the comments made by the Employers' members concerning the interpretation of the right to strike by the Committee of Experts and expressed the opinion that it should have been part of the general discussion, otherwise the work of the Committee on individual cases might be held up by constantly repeated reservations. He pointed out that discussions cannot be undertaken unless the principles which apply to a particular Convention are accepted.

The Employers' members stated that, as they said during the general discussion, it is unavoidable, while examining a case in order to find out whether a government has fulfilled its obligations or not, to look at the legal questions.

The Government representative stated that the Labour Code now in force was adopted in 1972 and consequently comments made since 1967 have nothing to do with this Code which tried to include provisions of various international instruments. He also indicated that the documentation, with respect to Act No. 25 has been sent for the Case No. 1569 under examination by the Committee on Freedom of Association, including a lot of evidence and documents which have not yet been analysed. The speaker considered it unfair to talk about a direct contacts mission to deal with Acts which have not yet been appropriately analysed by the Committee of Experts, nor should this case be mentioned in a "special paragraph" of the report of the present Committee because in only eighteen months of democratic rule there has not been enough time to rectify mistakes or legislations which were not in compliance with Conventions for over 20 years. He pointed out that his Government is not unwilling to bring the legislation into conformity with the Convention, but the fact that the labour sector is very distrustful of the Government does not allow any revision of the Labour Code. The speaker informed the Committee that his Government appealed for a national tripartite agreement with a view to amend some parts of the Labour Code in order to bring about the necessary economic recovery. He considered that a direct contacts mission is not justified at this stage.

The Committee took note of the information, both verbal and in writing, provided by the Government representative, as well as the discussion which took place in the Committee. It regretted that this information does not contain any new element which would make it possible to ensure a better application of the Convention. The Committee recalled that most of the comments made by the Committee of Experts date back to 1967. Bearing in mind the importance of the points raised in the comments which concern trade union rights as such, as well as the right to free collective bargaining, the Committee expressed its deep concern faced with the continuing number of serious divergencies between law and pratice, on the one hand, and Convention, on the other. The Committee urged the Government to adopt the necessary measures in the very near future in order to ensure full implementation of Conventions Nos. 87 and 98. While recalling the substance of its conclusions of 1989, the Committee trusts that specific measures in line with the observations made by the Committee of Experts can be observed next year.

The Committee decided to mention these conclusions in a special paragraph of its report.

Individual Case (CAS) - Discussion: 1989, Publication: 76th ILC session (1989)

A Government representative stated that the requirement of 50 workers to establish a trade union (section 344 of the Labour Code) neither limits the establishment of unions nor their affiliation, since the workers can establish unions by branch of activity or by profession; in fact, the majority of these organisations have workers employed by small enterprises in their membership. As reguards the requirement of ten employers to establish an occupational organisation (section 344) the same comments would apply. In practice, there are in the country large employers' organisations that encompass small or large enterprises; therefore, their freedom to organise is not restricted. As regards the prohibition of more than one union per undertaking (section 346) this provision refers specifically to the possibility of forming one "works union" which does not mean one "union by undertaking", since this provision permits the existence of two or more trade unions (for example by branch of activity, or by undertaking) in addition to the works union. This is the situation as it occurs in practice. As regards the requirement that 75 per cent of the members of a union be panamanian (section 347), the Committee of Experts considers that these questions are better dealt with in the trade unions by-laws. It goes without saying that the possibility of a greater number of foreigners being admitted to trade unions, by way of statutory provisions, would not guarantee territorial sovereignty, nor the purity of decisions taken by the social institutions in favour of Panamanians. The State would abdicate its constitutional function of protection of the native manpower in favour of the trade unions, which could prejudice the majority of the workers of the country. It can also be asserted that the panamanian trade unions - which consider that the number of work permits given to foreigners is excessive - would not like to see an increase in the percentage of foreigners permitted by section 347. As regards the automatic removal from office of a trade union officer in the event of his dismissal (section 359) this provision applies only to works unions as provided for by the language of this provision, and not to the branch or works unions, nor to the federations or central organisations. When a union officer loses his worker status, his links with the workers' organisation of that undertaking are also severed. As regards the authorities' wide powers of supervision over the records and accounts of trade unions (section 376, paragraph 4) the Government undertook to study - with the participation of the trade union - the possibility of excluding this obligation from the legislation. In practice, this provision has not been applied for many years; the Government therefore undertook to amend this obsolete provision. Concerning the exclusion of public servants from the scope of the Labour Code and the fact that they don't have the right to organise and bargain collectively, it must be noted that the draft Bill on the Public Service could not be discussed last year in the Legislative Assembly in view of the priorities that the public authorities had to consider in view of the current situation in Panama. In spite of this, the Council of Ministers again tabled that Bill on 25 May 1988 in the Legislative Assembly so that it could be discussed and adopted. In practice there is a large federation of public servants which carries on union activities and has all the prerogatives of unions. Sooner or later, the public servants will have to be covered by the Labour Code.

The Workers' members thanked the Government representative for the explanations given and for the fact that she readily admitted that some legal provisions contrary to the Convention should be modified or abolished. There are certain difficulties in the practical application of the Convention, as indicated by the complaints presented to the Committee on Freedom of Association by employers' and workers' organisations. The Workers' members welcomed the fact that the Government wanted to establish a dialogue on the application of the Convention, that it undertook to suppress the powers of supervision and control over the affairs of trade unions, and that it has tabled a draft Bill on public service in the Legislative Assembly. The Workers' members hoped that, as requested by the Committee of Experts, the draft law would grant public servants the right to organise and bargain collectively including, in the case of teachers, the right to strike. These are positive steps and it is to be hoped that legislation and practice on these points will be rapidly brought into conformity with the Conventions. As regards the number of workers necessary to establish an union, the prohibition of more than one undertaking union and the loss of status of trade union officers in case of dismissal, the Government representative seemed to indicate that, in practice, there is no problem of application of the Convention on these points. If that is the case, the Government should amend the legislation to bring it into conformity with the practice and to comply with the requirements of the Convention As regards the percentage of foreigners who can be members of a union, the Workers' members submitted that foreign workers should be treated equally with native workers, since they contribute equally to the wealth of the country. The Workers' members were surprised to hear the Government representative allege that Panamanian unions would not accept an increase in the percentage of foreigners that could, by law, be union members. In that respect, the Workers' members submitted that unions also must comply with the Convention. The Workers' members concluded by submitting that this Convention has been ratified in 1958 and that for many years there have been serious deficiencies in its application; they hope that tangible improvements will be adopted in the near future and that the country's law and practice will be brought into full conformity with the Convention. The Committee of Experts and the Conference Committee should examine these questions again next year.

The Employers' members stated that this was a typical case of restriction of freedom of association. The number of workers and employers needed to form an occupational organisation should be a matter of its own choice, and not imposed by legislation. If there are no difficulties in practice, as indicated by the Government representative, it would be advisable to abolish this restriction, as well as restrictions on the right of organisations freely to draw up their Constitution and rules, as they are contrary to the Convention. With regard to the prohibition to create more than one union by undertaking, the Government representative asserted that this prohibition did not exist and that the Committee of Experts had drawn erroneous conclusions in that respect in its report. As concerned the percentage of foreigners in unions, the legislation should not contain such a provision, as noted by the Workers' members. Even if the unions did approve of a limitation on the number of foreign members in a union, such a provision would be open to criticism. Regarding the automatic removal from office of a dismissed trade union officer, this question is also better dealt with in the trade union by-laws than in legislation. The Government's commitment to amend the Labour Code provision which gives the authorities wide powers of control over the unions' internal affairs was the most positive aspect of its statement. The fact that this provision has become obsolete gives reasons to hope that it will be amended. In addition, the Government tabled in the Legislative Assembly a draft Bill which should extend the right to organise to public servants and agents (who are not covered by the Labour Code). The Employers' members generally emphasised that several of these points have been examined repeatedly in the last 20 years (the Government has indeed accepted the observations of the Committee of Experts on some of these issues), and that the legislation could be partially - if not completely - modified. They recalled that, according to the Committee of Experts, the Government had delayed the submission to the National Assembly of the draft legislation to amend the provisions criticised, due to the serious economic crisis that the country is facing. One must be aware, however, of a converse proposition: human rights' violations are sometimes the root cause of social and economic crisis. The Employers' members insisted that the Government give precise indications as to how and when the legislation will be amended. These issues have been raised for so many years that the time has come to bring the legislation in conformity with the Convention.

The Workers' member of Greece indicated that Panama has ratified Convention No. 87, which is not the case of other countries; and yet these other countries participate in the discussions of the present Committee as if they had done so. He strongly emphasised that Third World countries prejudice all migrant workers of these countries by keeping in their legislation provisions similar to section 347 of the Panamanian Labour Code, which limits the percentage of foreign workers entitled to be union members. This is a discriminatory and racist provision which should be abolished.

The Government representative stated that she agreed in substance with the concerns expressed by the previous speaker. The provision in question limiting to 25 per cent the number of foreigners in a union, which could probably be explained by historical reasons, should be made more flexible in the future. She stressed that Panama does not discriminate against foreigners, nor does its legislation. Replying to the Employers' members, she deplored not being able to indicate when the legislation will be amended, since her country is going through an economic and political crisis, and faces serious reprisals and illegal sanctions from a foreign government.

The Workers' members insisted that legislation should not prescribe the maximum number of foreign workers authorised to be members of a union. They added that the Committee did not discuss the political difficulties facing the country, but the social problems that a legal provision may create. They recalled that the Committee has insisted for many years on the necessity of amending the legislation.

The Employers' members indicated that, according to the report of the Committee of Experts, it was the Government which declared that it had delayed the submission of a draft legislation amending the Labour Code, due to the economic crisis, and underlined once again the reciprocal effects of the economic crisis and the respect of human rights. Since the Government representative was unable to indicate when the legislative amendments will be adopted, the present Committee should again examine this case next year.

The Committee has taken note of the information supplied by the representative of the Government and has taken note also of the various opinions and comments expressed in the course of the discussion. The Committee notes, however, that the Committee of Experts has noted in its report the persistence of divergences, on the one hand between the law, the Labour Code, and on the other hand the practice and the full implementation of the Convention. It notes, however, in this respect that work to amend legislation has been undertaken. The Committee therefore expresses the hope that legislation will shortly be brought into line with the Convention on the points which the Committee of Experts noted since 1973. It finally hopes to be informed of any changes that may take place in this respect, and hopes that this will take place as of next year.

Observation (CEACR) - adopted 2022, published 111st ILC session (2023)

The Committee notes the observations of the National Confederation of United Independent Unions (CONUSI) received on 31 August 2022 relating to issues addressed in this comment. The Committee notes that the CONUSI’s allegations with regard to compulsory arbitration and the exercise of the right to strike in the air transport sector are being examined by the Committee on Freedom of Association (Case No. 3319). The Committee notes the observations of the National Council of Organized Workers (CONATO), received on 6 September 2022, alleging the intervention of the civil authorities in the decisions of trade union organizations with regard to their administration and obstacles on the part of the Government to the establishment and granting of legal personality to trade union organizations in various sectors. The Committee notes the Government's reply, received on 6 December 2022, to the CONUSI and the CONATO observations and will examine it in the context of the next examination of the application of the Convention.

Tripartite committees. The Committee notes the information provided by the Government with regard to the functioning of the committees which form part of the Panama tripartite agreement of 2012 and benefit from ILO technical support; the Implementation Committee and the Committee for the Rapid Handling of Complaints relating to Freedom of Association and Collective Bargaining. The Committee notes the Government’s comments that during the COVID-19 pandemic, such tripartite committees were used to discuss the various measures to be implemented in order to address the social and labour problems arising from the pandemic with the social partners. In this respect, the Government highlights the establishment of the tripartite dialogue forum on the economy and labour development in Panama (Decision No. 150 of 27 April 2020), which was established in May 2020 and functioned for one month with ILO technical support. The Committee notes the Government’s indication with regard to the adoption of 23 consensus agreements to preserve jobs, businesses and the economic recovery. On the other hand, the Committee notes that the CONUSI alleges that no effective consensus was reached on the measures adopted at the tripartite dialogue forum of May 2020. The Committee regrets the Government’s indication that as of April 2020, the work of the tripartite committees was suspended by the pandemic and that it had not been possible to resume this work despite the attempts of the Ministry of Labour and Labour Development (MINTRADEL), because the required quorum was not reached due to the repeated absence of the CONATO. In this respect, the Committee notes that the CONATO and CONUSI have joint representation on the tripartite committees, as confirmed by the Government Procurator under section 1066 of the Labour Code, and that MINTRADEL will follow the Procurator’s guidance. The Committee notes that the CONUSI states that inter-union conflicts have been engendered by the Government’s policies, which have favoured trade unions other than CONUSI. The Committee recalls the potential of the two committees to play a fundamental role in achieving the implementation of the Convention. The Committee urges the Government, in consultation with the social partners and with the ongoing technical support of the Office, to take the necessary steps to review the applicable policies relating to representation of the different trade union organizations on the tripartite committees with a view to restarting their work in the near future and, the Committee reiterates its invitation to the various State authorities to take due account of the tripartite committees’ decisions. The Committee requests the Government to provide information in this respect.

The Committee notes the Government’s indication concerning follow-up to the Memorandum of Understanding signed in 2016, relating to the Panama tripartite agreement of 2012, which establishes a timetable of activities including the establishment of a national tripartite body (Higher Labour Council), which should have been established in 2016 but which, with ongoing ILO technical support, is the topic of a bill scheduled for discussion at the July 2022 Session of the National Assembly. The Committee requests the Government to provide information on progress made in the establishment of this tripartite body.

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

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

• –the requirement that there may not be more than one association in a public institution, and that associations may have provincial or regional chapters, but not more than one chapter per province, under the terms of sections 179 and 182 of the Single Text of Act No. 9, as amended by Act No. 43 of 31 July 2009;
• –the 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 the enterprise level, under the terms of section 41 of Act No. 44 of 1995 (amending section 344 of the Labour Code), and the requirement of a high number of members (40) to establish an organization of public servants under section 182 of the Single Text of Act No. 9 (which, as indicated by the Government, has been declared unconstitutional by the Supreme Court, in a ruling of 30 December 2015); and
• –the denial to public servants (non-career public servants, as well as those holding appointments governed by the Constitution and those who are elected and serving) of the right to establish unions.

Article 3. Right of organizations to elect their representatives in full freedom:

• –the requirement to be of Panamanian nationality in accordance with the Constitution in order to serve on the executive board of a trade union.

Right of organizations to organize their activities and to formulate their programmes in full freedom:

• –legislation interfering with the activities of employers’ and workers’ organizations (sections 452(2), 493(4) and 494 of the Labour Code); the obligation for non-members to pay a solidarity contribution in recognition of the benefits derived from collective bargaining (section 405 of the Labour Code); and the automatic intervention of the police in the event of a strike (section 493(1) of the Labour Code); and
• –the prohibition on federations and confederations from calling strikes, the prohibition on strikes against the Government’s economic and social policies and on strikes not related to an enterprise collective agreement; the authority of the Regional or General Labour Directorate to refer labour disputes to compulsory arbitration in private transport enterprises (sections 452 and 486 of the Labour Code); and the obligation to provide minimum services with 50 per cent of the staff in the transport sector, as well as the penalty of summary dismissal of public servants for failure to maintain minimum services (sections 155 and 192 of the Single Text of 29 August 2008, as amended by Act No. 43 of 31 July 2009).

The Committee notes the information provided by the Government that it has not been possible to reform the constitutional provision on the requirement to be of Panamanian nationality in order to serve on an executive board due to the political situation in the country and the fact that the Constitution is rigid, although the Government emphasizes its interest in eliminating this constitutional provision. The Committee requests the Government to provide information on the measures envisaged or taken to amend this provision in the Constitution and to ensure that it is in conformity with the Convention.

With regard to the aforementioned provisions relating to the public sector, the Committee notes with concern that, according to the information provided by the Government, it has not been possible to make progress in the National Assembly with regard to the Bill on collective labour relations in the public sector due to the opposition of some organizations, and that a new bill must be drafted and submitted for discussion. The Committee recalls that in its previous comment it had welcomed the Bill with interest and had noted the Government’s representation that the Bill was based on tripartite agreement. With regard to the pending legislative matters relating to the private sector, the Committee notes the Government’s indication that progress has been limited due to the existing conflict in the Implementation Committee with respect to trade union representation. The Committee also notes the Government’s confidence that once the Higher Labour Council has been established and is operational, more favourable conditions in which to make progress with the adoption of the legislation and the necessary reforms will be created such that the pending legislative matters will be resolved. The Committee also notes that the Committee on Freedom of Association expressed confidence that the Government would adopt legislation to regulate the establishment, registration and functioning of public sector trade unions at the earliest opportunity in accordance with the principles of freedom of association and collective bargaining (389th Report, June 2019, Case No. 3317, paragraph 527). The Committee urges the Government, without delay and in consultation with the social partners, to take the necessary steps to bring its legislation on collective labour relations in the public sector, as well as those outstanding legislative matters relating to the private sector into conformity with the Convention. The Committee requests the Government to provide information on the progress achieved in this respect and reminds the Government that it may avail itself of the technical assistance of the Office.

Application of the Convention in practice. Granting of legal personality by the administrative authority. With regard to the normalization of granting legal personality to trade unions, the Committee notes that the Government highlights that during the period from March 2014 to March 2022, MINTRADEL granted legal personality to 16 public servants’ unions and 72 trade unions in the private sector. The foregoing stands in contrast with the period from July 2009 to June 2014, during which the legal personality of only 9 private sector trade unions was approved. The Committee notes the Government’s indication that from May 2018 to May 2022, 22 applications for legal personality were denied due to the fact that, in general terms, they were not in accordance with the relevant legal provisions, and that three applications remained to be approved. The Government indicates that in 2022, no applications for legal personality in the public sector were denied. The Committee notes that the three applications pending approval were submitted between April, May and June 2021. The Committee recalls that under Article 7 of the Convention, the recognition of legal personality cannot be denied to organizations that comply with the requirements established by the legislation. While taking due note of the overall increase in the number of legal personalities granted, the Committee requests the Government to ensure that the normalization of the process of granting legal personality applies fully to public sector as well as private sector organizations. Observing that the period of time required for decisions on the granting of legal personality is excessive in some cases, the Committee requests the Government to take the necessary steps to expedite these procedures and to provide information in this respect.

Compensatory guarantees. The Committee notes the Government’s reply to the observations of the CONUSI and the International Transport Workers’ Federation (ITF) of 2017 and 2018, with respect to the effectiveness of dispute settlement procedures, particularly as compensatory guarantees, in the Panama Canal. The Government indicates that the CONUSI and the ITF lack representativeness in the Panama Canal labour regime, since they are not trade union organizations or bargaining units recognized by the Labour Relations Board of the Panama Canal Authority, and that the Committee on Freedom of Association (Case No. 3106) examined this matter and closed the case. The Committee notes the CONUSI’s indication in its observations that it is a confederation to which several trade unions representing workers in the Panama Canal belong, together with the ITF. The Committee recalls that workers deprived of the right to strike should, in practice, be afforded impartial and rapid compensatory guarantees, such as conciliation and mediation procedures leading, in the event of deadlock in negotiations, to an arbitration mechanism seen to be reliable by the parties concerned. The Committee also recalls that the Committee on Freedom of Association closed Case No. 3106 in 2018, trusting that the Government would continue to follow up the issues raised with the unions concerned to consider any relevant improvements (387th Report, October 2018, Case No. 3106, paragraph 47). Noting that the Government does not provide further details with regard to the effectiveness of the dispute settlement procedures established as compensatory guarantees in the Panama Canal, the Committee requests the Government to provide detailed information in this respect including the number of procedures initiated and resolved and their duration.

Observation (CEACR) - adopted 2018, published 108th ILC session (2019)

The Committee notes the observations of the National Confederation of United Independent Unions (CONUSI), received on 9 March 2017 and 31 August 2018 as well as the general reply of the Government thereon. The Committee also notes the observations of the International Transport Workers’ Federation (ITF), received on 4 September and 21 November 2018, which mainly refer to matters addressed by the Committee in the present observation. The Committee notes that the observations of the CONUSI and the ITF refer to the effectiveness of procedures for dealing with disputes relating to the Panama Canal, a subject which was examined by the Committee on Freedom of Association in Case No. 3106, in which the Committee on Freedom of Association concluded its examination of the case and trusted that the Government would continue to follow up the matters raised by the trade unions concerned with a view to considering any relevant improvement. The Committee requests the Government to provide its comments on this subject.

The Committee notes with interest that both the CONUSI and the Government indicate that, in a ruling of 30 December 2015 which found unconstitutional various provisions of the Act on administrative careers (including the provision increasing from 40 to 50 the minimum number of workers required to establish an organization of public servants), the Supreme Court of Justice ruled that the Convention is part of the “constitutional block” of the country.

Tripartite committees. In its previous comments, the Committee noted the progress achieved by the committees which form part of the Panama tripartite agreement of 2012 and which benefit from ILO technical support: the Committee for the Rapid Handling of Complaints relating to Freedom of Association and Collective Bargaining and the Implementation Committee; the latter is seeking forms of consensus to bring the national legislation into harmony with the provisions of the Convention on the basis of the comments of the ILO supervisory bodies. The Committee notes with interest the role played by the Complaints Committee in relation to the granting of legal personality to the National Union of Education Workers (SINTE) and the contribution of the Implementation Committee in the preparation of draft legislation on freedom of association in the public sector with tripartite agreement. The Committee also notes that, in accordance with the Roadmap prepared in June 2018 by the moderator of the committees of the tripartite agreement, it is planned to establish a national tripartite consultative socio-labour body, with the possibility that the two current tripartite committees could be transformed into standing subcommittees of that body.

The Committee emphasizes the substantive role that the two committees can play in achieving the full application of the Convention, as they are not only contributing to the resolution of ad hoc disputes, but are also making it possible to develop tripartite agreement on substantive issues relating to freedom of association and collective bargaining. The Committee encourages the Government, with the ongoing technical support of the Office, to continue strengthening the tripartite committees and invites the various authorities of the State to take duly into account their decisions. The Committee requests the Government to continue providing information on this subject.

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

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

• -the requirement that there may not be more than one association in a public institution, and that associations may have provincial or regional chapters, but not more than one chapter per province, under the terms, respectively, of sections 179 and 182 of the Single Text of Act No. 9, as amended by Act No. 43 of 31 July 2009;
• -the 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 the enterprise level, under the terms of section 41 of Act No. 44 of 1995 (amending section 344 of the Labour Code), and the requirement of a high number of public servants (40) to establish an organization of public servants under section 182 of the Single Text of Act No. 9 (which, as indicated by the Government, has been declared unconstitutional by the Supreme Court, in a ruling of 30 December 2015); and
• -the denial to public servants (non-career public servants, as well as those holding appointments governed by the Constitution and those who are elected and serving) of the right to establish unions.

Article 3. Right of organizations to elect their representatives in full freedom

• -the requirement to be of Panamanian nationality in accordance with the Constitution in order to serve on the executive board of a trade union.

Right of organizations to organize their activities and to formulate their programmes in full freedom

• -legislation interfering with the activities of employers’ and workers’ organizations (sections 452(2), 493(4) and 494 of the Labour Code) (closure of the enterprise in the event of a strike and prohibition of entry to non-striking workers); the obligation for non-members to pay a solidarity contribution in recognition of the benefits derived from collective bargaining (section 405 of the Labour Code); and the automatic intervention of the police in the event of a strike (section 493(1) of the Labour Code); and
• -the prohibition on federations and confederations from calling strikes, the prohibition on strikes against the Government’s economic and social policies, and the unlawfulness of strikes that are not related to an enterprise collective agreement; the authority of the Regional or General Labour Directorate to refer labour disputes to compulsory arbitration in private transport enterprises (sections 452 and 486 of the Labour Code); and the obligation to provide minimum services with 50 per cent of the staff in the transport sector, as well as the penalty of summary dismissal of public servants for failure to comply with minimum services in the event of a strike (sections 155 and 192 of the Single Text of 29 August 2008, as amended by Act No. 43 of 31 July 2009).

With reference to the provisions referred to above respecting the public sector, the Committee notes that, according to the Government, the Bill on collective labour relations in the public sector is receiving its first reading by the National Assembly and it is the outcome of tripartite agreement in the Implementation Committee. The Committee notes that, both the Government and the CONUSI emphasize that the Bill represents historical progress on claims for the recognition of the right to freedom of association and that up to now there has been no positive explicit recognition in law of the right to freedom of association of public sector workers. The Committee notes that, in accordance with section 1 of the Bill, its purpose is to guarantee the recognition and full compliance with the rights of freedom of association, strike and collective bargaining, as well as an appropriate and effective system of dispute resolution. The Committee notes with interest that, according to the Government’s indication and the text attached by the Government, the Bill: (i) does not establish limits on the existence of one or more trade unions per institution; (ii) provides that all public servants shall be able to establish trade union organizations, without the requirement for previous authorization, and to join them, irrespective of their position, occupation or sector, with the exception of those public servants principally exercising authority or jurisdiction on behalf of the State; and (iii) guarantees of the right of trade union organizations of public servants to conclude collective agreements, and to exercise the right to strike. While noting that, in accordance with section 9 of the Bill, it maintains the requirement of a high number of members to establish an organization of public servants (40), the Committee notes with interest the progress achieved by the Implementation Committee in the preparation of the Bill based on agreement, which is a very important step in bringing the legislation applicable to the public sector into conformity with the Convention. Taking due note that the Bill on the regulation of collective labour relations in the public sector is under examination by the National Assembly, the Committee expresses the firm hope that it will be adopted in the near future. The Committee requests the Government to provide information on this subject.

With reference to the pending legislative issues relating to the private sector, the Committee notes the Government’s indication that the Roadmap prepared in June 2018 by the moderator of the committees of the tripartite agreement indicates that, firstly, the legislation respecting the public sector and, secondly, labour legislation governing the private sector will be brought into conformity with the criteria of the supervisory bodies in relation to freedom of association and collective bargaining. The Committee hopes that the Implementation Committee will address in the very near future the other pending legislative issues, including those relating to the Labour Code, with a view to bringing it into full conformity with the Convention. It also requests the Government to provide information on this subject.

Application of the Convention in practice. Granting of legal personality by the administrative authority. In its previous comments, and in relation to the observations of various trade unions, including the CONUSI, that the administrative authority refused to grant legal personality, the Committee noted with interest that, according to the Government’s indications, as from 2014 the granting of legal personality to trade unions had been normalized. In this regard, the Committee notes that the Government emphasizes that: (i) in comparison with the nine legal personalities granted between June 2009 and June 2014, during the period between June 2014 and June 2018 a total of 46 legal personalities were granted; and (ii) giving effect to a ruling of the Supreme Court of Justice of 27 November 2014, the Ministry of Labour and Employment Development granted legal personality to the SINTE on 15 April 2016. However, the Committee notes the indication by the CONUSI that: (i) the statistics provided by the Government do not indicate how many of the 46 legal personalities granted were to unions in the public or private sectors; (ii) nor does the Government indicate in how many cases legal personality was denied to unions in the public sector, how many are awaiting decision and how many applications there were; and (iii) up to now, legal personality has been granted to five unions in the public sector, and the approval of legal personality for nine unions in the public sector is still pending, despite the fact that the applications were made over six months ago. While taking due note of the general increase in the number of legal personalities granted, the Committee requests the Government to reply to the observations of the CONUSI and to ensure that the normalization of the process of granting legal personality fully applies to public sector as well as private sector organizations.

Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

The Committee notes the Government’s detailed reply to the observations made by the International Trade Union Confederation (ITUC) in 2012. The Committee also notes the observations made by the ITUC on 1 September 2015 and requests the Government to provide its comments on this subject. The Committee also notes the observations of the National Confederation of United Independent Unions (CONUSI) and the National Council of Organized Workers (CONATO), received on 31 August 2015, as well as the Government’s detailed reply to these observations and to earlier observations from these organizations that were received on 14 March 2014. The Committee further notes the observations of the International Organisation of Employers (IOE) of September 2013 and the Government’s comments in that regard. Lastly, the Committee notes the observations of the IOE received on 1 September 2015, which are of a general nature.

The Committee recalls that in its previous comments it trusted that the Government would deal with the issue of the refusal of the administrative authorities to grant legal personality to a number of unions, as raised by the ITUC, the National Federation of Associations and Organizations of Public Employees, CONUSI and CONATO. In this regard, the Committee notes with interest that, according to the Government’s indications, the granting of legal personality to trade unions has been normalized since 1 July 2014. According to the Government’s information in its report, over the past year legal personality has been granted to a total of 12 unions, compared with only nine over the previous five years.

Follow-up to ILO technical assistance. In its previous comments, the Committee noted with interest that, through the good offices of an ILO technical assistance mission, on 1 February 2012 representatives of the Government, CONATO, CONUSI and the National Council of Private Enterprise signed a tripartite agreement, as a result of which two committees were established: the Implementation Committee (with the objective of seeking forms of consensus to bring the national legislation into harmony with the provisions of the Convention and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98)); and the Committee for the Rapid Handling of Complaints relating to Freedom of Association and Collective Bargaining (the Complaints Committee). The Committee notes that on 11 June 2013, at the Tripartite Meeting of the Delegation of Panama (which occurred in the context of the 102nd International Labour Conference) the social partners undertook to reactivate the meetings of the committees established under the tripartite agreement of February 2012, but suspended since November 2012. The Committee recalls that the Implementation Committee had undertaken to address the following pending legislative issues:

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

• -The requirement that there may not be more than one association in a public institution, and that associations may have provincial or regional chapters but not more than one chapter per province, under the terms, respectively, of sections 179 and 182 of the Single Text of Act No. 9, as amended by Act No. 43 of 31 July 2009;
• -the requirement of too large a membership (10) for the establishment of an employers’ organization and an even larger membership (40) for the establishment of a workers’ organization at the enterprise level, under the terms of section 41 of Act No. 44 of 1995 (amending section 344 of the Labour Code), and the requirement of a high number (40) of public servants to establish an organization of public servants under section 182 of the Single Text of Act No. 9;
• -the denial to public servants (non-career public servants, as well as those holding appointment governed by the Constitution and those who are elected and serving) of the right to establish unions.

Article 3. Right of organizations to elect their representatives in full freedom

• -the requirement to be of Panamanian nationality in order to serve on the executive board of a trade union (the Government indicates that, although this limitation has been removed from the Labour Code, it remains in the Constitution).

Right of organizations to organize their activities and to formulate their programmes in full freedom

• -legislation interfering with the activities of employers’ and workers’ organizations (sections 452(2), 493(4) and 494 of the Labour Code) (closure of the enterprise in the event of a strike and prohibition of entry to non-striking workers); the obligation for non-members to pay a solidarity contribution in recognition of the benefits derived from collective bargaining (section 405 of the Labour Code); and the automatic intervention of the police in the event of a strike (section 493(1) of the Labour Code);
• -the prohibition on federations and confederations from calling strikes, the prohibition on strikes against the Government’s economic and social policy, and the unlawfulness of strikes that are not related to an enterprise collective agreement; the authority of the Regional or General Labour Directorate to refer labour disputes to compulsory arbitration in private transport enterprises (section 452 and 486 of the Labour Code); and the obligation to provide minimum services with 50 per cent of the staff in the transport sector, as well as the penalty of summary dismissal of public servants for failure to comply with minimum services in the event of a strike (sections 155 and 192 of the Single Text of 29 August 2008, as amended by Act No. 43 of 31 July 2009).

In this regard, the Government indicates that, as agreed in the record of the Tripartite Meeting of the Delegation of Panama of June 2013, the Implementation Committee undertook to deal first with issues relating to the conformity of labour legislation respecting the public sector. The Committee notes that: (i) after two years of infrequent activities, nine working meetings of the Implementation Committee were held in October and November 2015, in which various agreements were reached on subjects relating to the collective rights of public sector workers (the right to organize, the right to collective bargaining, the right to strike and the settlement of disputes); (ii) the Government indicates that the objective of these meetings is to reach consensus on the various subjects with a view to subsequently drawing up draft legislation on the collective rights of public servants; and (iii) if consensus is achieved among all parties on the draft legislation, it will then be submitted to the executive authorities with a view to its referral to the legislative authorities for adoption.

The Committee welcomes the progress achieved in the work of the Implementation Committee and the agreements reached in its working meetings, and particularly those recognizing the constitutional right to freedom of association of public servants. However, the Committee observes that some of the agreements reached are not necessarily in accordance with its previous comments, particularly with regard to the need to allow trade union pluralism in public institutions and the need to reduce the minimum number of members required for public servants to be able to establish organizations. Under these conditions, the Committee hopes that the draft legislation that will be prepared in the near future will recognize the possibility for public servants to establish more than one organization for each institution, if they so wish, and to reduce to a reasonable level the requirements regarding the minimum number of members necessary to establish an organization of public servants.

The Committee recalls that other issues relating to the private sector remain pending and notes the Government’s indication that they have not yet been dealt with by the Implementation Committee. The Committee firmly trusts that the Implementation Committee will continue to make its best efforts, taking into account the comments made by the Committee, to bring the law and practice into full conformity with the Convention. The Committee requests the Government to provide information on the agreements reached in the meetings of the Implementation Committee and on the draft legislation on the collective rights of public servants that is being prepared, and on the other measures adopted to ensure the full conformity of the legislation with the Convention.

Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 100th Session, June 2011)

Comments from workers’ and employers’ organizations. The Committee notes the Government’s reply to the observations dated 17 August 2011 from the General and Autonomous Confederation of Workers of Panama (CGTP) and the National Federation of Public Employees and Public Service Enterprise Workers (FENASEP); and to the observations of the National Confederation of United Independent Unions (CONUSI) dated 14 October 2011. The Committee also notes the observations from the International Trade Union Confederation (ITUC) dated 31 July 2012 and from FENASEP dated 24 August 2012 referring to matters already examined by the Committee, and also the refusal of the administrative authority to grant legal personality to various trade unions. The Committee notes the comments made by the International Organisation of Employers (IOE) on the right to strike, in a communication dated 29 August 2012, which are dealt with in the General Report of the Committee.

Technical assistance. In its previous observation the Committee noted that further to the discussion that took place within the Conference Committee on the Application of Standards in June 2011, the Government accepted the visit of a technical assistance mission with a view to drawing up, as a matter of urgency, a draft of specific provisions to amend the legislation and bring it into conformity with the Convention. The Committee notes that the mission took place from 29 January to 2 February 2012 and in particular it observes with interest that, through the good offices of the mission, the representatives of the Government, the National Council of Organized Workers (CONATO), the National Confederation of United Independent Unions (CONUSI) and the National Council of Private Enterprise (CONEP) signed an agreement to: (1) launch dialogue on the Committee’s comments on the application of Convention No. 87 and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98); (2) carry out training and awareness-raising activities on freedom of association, collective bargaining and social dialogue, in the context of which the comments of the ILO supervisory bodies will be examined in depth; and (3) establish with ILO assistance a tripartite commission for the rapid handling of complaints which will examine, as a matter of urgency and with the aim of finding solutions and reaching agreements, any reports of violations of freedom of association and collective bargaining.

The Committee further notes the Government’s statements that under the abovementioned tripartite agreement: (1) the Committee on the Implementation of the Tripartite Agreement, whose objective is to seek forms of consensus based on compromise to enable national law to be aligned to the provisions of Conventions Nos 87 and 98, and the Committee for the Rapid Handling of Complaints relating to freedom of association and collective bargaining, have become operational; (2) as a result of the meetings of the two aforementioned committees, with ILO technical assistance, a number of agreements have been signed and the tripartite members of the committees elected their moderator by consensus; (3) with a view to strengthening and giving legal formality to tripartite dialogue which has been occurring in the country on the basis of the tripartite agreement, Executive Decree No. 156 of 13 September 2012 was promulgated, creating the Committee on the Implementation of the Tripartite Agreement and the Committee for the Rapid Handling of Complaints relating to freedom of association and collective bargaining, and appointing a moderator; (4) in July 2012 the President of the Republic convened a meeting with the country’s trade union leaders with a view to achieving a rapprochement with the union leadership and launching a positive dialogue with the sector; (5) the education subsidy to FENASEP and the General Workers’ Union of Panama (UGT) was restored, demonstrating the Government’s wish to settle this matter as one of the pending issues relating to freedom of association which was highlighted by the public sector workers; and (6) with the Labour Foundation of Panama and ILO technical assistance, a workshop on Conventions Nos 87 and 98 was held in May 2012 for the members of the Committee on the Implementation of the Tripartite Agreement and was attended by representatives of workers and employers and independent consultants, as well as officials from the Ministries of Labour, Education and Health, the Administrative Careers Directorate, the University of Panama, the Social Security Fund, private universities and trustees of the Labour Foundation. The Committee further notes that during the 2012 session of the International Labour Conference, the International Labour Standards Department facilitated a meeting between the tripartite delegations of Switzerland and Panama in order to share experiences in the field of social dialogue.

The Committee welcomes the initiatives in the field of social dialogue and trusts that the allegations made by the ITUC and FENASEP concerning the refusal of the administrative authority to grant legal personality to a number of trade unions will be dealt with in the context of the Committee for the Rapid Handling of Complaints.

Pending legislative issues

The Committee recalls that for a number of years it has been making comments on the following matters:

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

• – sections 179 and 182 of the Single Text of Act No. 9, as amended by Act No. 43 of 31 July 2009, 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 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 the 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 182 of the Single Text of Act No. 9;
• – the denial to public servants (non-career public servants, as well as those holding appointments governed by the Constitution and those who are elected and serving) of the right to establish unions.

Article 3. Right of organizations to elect their representatives in full freedom.

• – the requirement to be of Panamanian nationality in order to serve on the executive board of a trade union.

Right of organizations to organize their activities and to formulate their programmes in full freedom.

• – legislation interfering with the activities of employers’ and workers’ organizations (sections 452.2, 493.4 and 494 of the Labour Code) (closure of the enterprise in the event of a strike and prohibition of entry to non-striking workers); the obligation for non-members to pay a solidarity contribution in recognition of the benefits derived from collective bargaining (section 405 of the Labour Code); the automatic intervention of the police in the event of a strike (section 493(1) of the Labour Code);
• – the ban on federations and confederations from calling strikes and on strikes against the Government’s economic and social policy, and the unlawfulness of strikes that are unrelated to an enterprise collective agreement; the authority of the Regional or General Labour Directorate to refer labour disputes to compulsory arbitration in private transport enterprises (sections 452 and 486 of the Labour Code); and the obligation to provide minimum services with 50 per cent of the staff in the transport sector, and the penalty of summary dismissal of public servants for failure to comply with minimum services in the event of a strike (sections 155 and 192 of the Single Text of 29 August 2008, as amended by Act No. 43 of 31 July 2009).

The Committee notes with interest that: (1) as regards the alignment of national standards relating to administrative careers with the provisions of Conventions Nos 87 and 98, the Committee on the Implementation of the Tripartite Agreement has the specific mandate to deal with this subject and a tripartite subcommittee was established to examine subjects relating to administrative careers; (2) the subcommittee (Working Subcommittee on Administrative Careers) is tasked with examining all matters relating to freedom of association and collective bargaining for public officials; (3) it held meetings on 11 May 2012 with representatives of the Government, the Administrative Careers Directorate and, for the workers, representatives of FENASEP, which chairs the subcommittee; and (4) in the context of the subcommittee, consensus has been reached on a number of points relating to freedom of association and the modalities of representation of public servants, and it is hoped that once consensus has been reached between the parties regarding the Committee’s various observations, it will be possible to adopt appropriate measures aligning the Act concerning administrative careers with the provisions of the ILO Conventions.

As regards the other pending legislative issues, the Committee notes the Government’s statements that: (1) these subjects are included in the list of pending issues which the Implementation Committee has been preparing and the order of priority will be determined in order to harmonize the legislation in force with Conventions Nos 87 and 98; (2) it is hoped that the dynamics will soon be established to deal with all non-administrative career matters; and (3) many of these subjects are issues that cannot be resolved overnight, since they go back more than ten years, but through the social dialogue fostered by the tripartite agreement every effort will be made in the Implementation Committee to arrive at compromises enabling the national legislation to be aligned to the Convention. The Committee trusts that in the context of the process of tripartite dialogue which has been initiated the national legislation will be brought fully into conformity with the Convention. The Committee requests the Government to provide information in its next report on any developments in this regard.

Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 100th Session, June 2011)

The Committee notes the Government’s reply to the comments from the International Trade Union Confederation (ITUC) dated 24 August 2010 (concerning allegations in the context of Cases Nos 2677 and 2706 examined by the Committee on Freedom of Association (CFA), and the comments from the National Council of Private Enterprise (CONEP) dated 29 May 2009 (concerning allegations made in the context of Case No. 1931 examined by the CFA).

Moreover, the Committee notes the comments from the General and Autonomous Confederation of Workers of Panama (CGTP) and the National Federation of Public Employees and Public Service Enterprise Workers (FENASEP) dated 17 August 2011, concerning issues which are already the subject of examination by the Committee and by the CFA, as well as the detailed response of the Government in this respect. The Committee also notes the comments from the National Confederation of United Independent Unions (CONUSI) dated 14 October 2011, in connection with the Government’s report.

The Committee notes the discussion that took place within the Committee on the Application of Standards of the International Labour Conference in June 2011, and also the fact that in its conclusions it urged the Government to draw up, as a matter of urgency and with ILO technical assistance and stepping up social dialogue in this regard, a draft of specific provisions to amend the legislation and bring it into conformity with the Convention. The Committee notes that the Government accepted the visit of a technical assistance mission and hopes that this will go ahead in the near future.

The Committee recalls that it has been making comments for many years on the following issues:

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

• – Sections 179 and 182 of the Single Text of Act No. 9, as amended by Act No. 43 of 31 July 2009, 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 notes the Government’s indication in its report that the Directorate for Administrative Careers, attached to the Ministry of the Presidency, has established a commission for reform of the Act governing administrative careers, with a view to aligning the latter to the ratified Conventions and that these amendments will be submitted to the executive body for examination and consideration. The Committee notes that CONUSI states that the trade union movement is not certain that a bill is being drawn up to bring the legislation into conformity with the Convention. The Committee hopes that any draft reform of the legislation will be the subject of consultations with the social partners and requests the Government to provide information in its next report on any developments in this respect.
• – The 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 the 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 182 of the Single Text of Act No. 9. The Committee notes the Government’s statement that: (1) the figures mentioned are accepted by the principal workers’ confederations and federations in the country, which have considered that any reduction thereof would result in the creation of parallel trade unions, which goes against the principle of trade union representativeness; (2) the number of ten members for establishing a professional employers’ organization is a figure favoured by representatives of the employers; (3) in order to modify these figures there must be tripartite consensus and to date no interest has been shown in reducing these figures but it will be a subject for discussion in the context of the tripartite social dialogue to be launched by the Government with the Labour Foundation (FUNTRAB); and (4) as regards public servants, the commission for reform of the Act governing administrative careers is also tasked with amending section 182 of the Single Text of Act No. 9 and the proposed amendments will be submitted to the executive body for study and consideration. The Committee hopes that, in the context of the announced tripartite dialogue, the Government will take every possible measure to reduce the minimum number of members required so that workers, employers and public servants are able to establish their organizations, and requests the Government to keep it informed of any further developments in this respect.
• – The denial to public servants (non-career public servants, as well as those holding appointments governed by the Constitution and those who are elected and serving) of the right to establish unions. The Committee notes the Government’s indication that the commission on reform of the Act governing administrative careers also intends to amend section 179 of the Single Text of Act No. 9 and that the amendments will be submitted to the executive body for examination and consideration. The Committee requests the Government to provide information on any further developments in this respect.

Article 3. Right of organizations to elect their representatives in full freedom.

• – The requirement to be of Panamanian nationality in order to serve on the executive board of a trade union. The Committee notes that the Government repeats its indication that to bring the legislation into conformity with the Convention, it would be necessary to amend the Political Constitution, and that foreign workers enjoy all benefits resulting from the collective agreements of the enterprises where they work and may participate as members in unions respecting the rights which may derive from their employment relationship. 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 the 1994 General Survey on freedom of association and collective bargaining, paragraph 118). Since this is a case of unjustifiable discrimination, the Committee again requests the Government to take the necessary measures to make the required amendments taking into account the principle referred to above.
• – The right of organizations to organize their administration. In its previous comments the Committee asked the Government to take the necessary measures to amend section 180-A of Act No. 24 of 2 July 2007 amending Act No. 9 on administrative careers, so as to abolish the requirement for public servants who are not affiliated to associations to pay ordinary trade union dues for the benefits derived from the collective agreement, 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. In this regard, the Committee notes with satisfaction that section 180-A became section 187 of the Single Text of 29 August 2008, which was, in turn, repealed by Act No. 43 of 31 July 2009.

Right of organizations to organize their activities and to formulate their programmes in full freedom.

• – Denial of the right to strike in export processing zones (section 49B of Act No. 25 of 1992) and denial of the right to strike in enterprises of less than two years’ standing (section 12 of Act No. 8 of 1981). In its previous observation the Committee noted that the Ministry of Labour and Employment Development (MITRADEL), together with the Ministry of Trade and Industry (MICI), had been working to formulate amendments on this subject, resulting in the formulation of a preliminary draft bill to amend section 49 of Act No. 25 of 1992 and to repeal section 12 of Act No. 8 of 1981. The Committee notes with satisfaction the Government’s reference to the adoption of Act No. 32 of 5 April 2011, which repeals section 12 of Act No. 8 of 1981 and amends section 49B of Act No. 25 of 1992 in such a way that workers or their respective organization in export processing zones are permitted to exercise the right to strike once the conciliation process has been completed (section 55 of Act No. 32 of 5 April 2011).
• – Denial of the right to strike for public servants not exercising authority in the name of the State. In its previous observation the Committee asked the Government to take the necessary measures to ensure the right to strike of public servants who do not exercise authority in the name of the State. The Committee notes the Government’s indication that both the Constitution (article 69) and the Single Text of 29 August 2009 (section 137) guarantee the right to strike of public servants.
• – The ban on federations and confederations from calling strikes and on strikes against the Government’s economic and social policy, and the unlawfulness of strikes that are unrelated to an enterprise collective agreement. The Committee notes the Government’s statement that: (1) federations and confederations participate in public demonstrations relating to economic and social policies of the Government and it is common practice for the workers to exert means of pressure, such as strikes, when they are opposed to any measures affecting their sector; and (2) the workers and the employers have not raised the possibility of amending the legislation on these subjects, nor is there any consensus between the social partners. The Committee recalls 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 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 the General Survey, op cit., paragraph 165). The Committee underlines the importance of the legislation being clearly aligned to the practice which, according to the Government, exists in the country and requests the Government to provide information on any further developments in this matter.
• – The 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). The Committee notes the Government’s indication that: (1) forced or compulsory arbitration in the transport sector is a measure to which the State may have recourse in urgent situations of possible disruption to public order as the only alternative for serving and mediating in the resolution of a collective labour dispute; and (2) the intention of section 452 is to prevent the interruption, as a result of the negotiations held by the parties to the dispute, of the State’s constitutional right to provide citizens with the most important public services which must be guaranteed by law, and so arbitration to avoid strike action is a mechanism for dialogue which prevents the public from suffering economic losses. However, the Committee observes that the legislation provides for the maintenance of a minimum service in the event of a transport strike. The Committee recalls that compulsory arbitration to end a collective labour dispute or a strike is acceptable if it is at the request of both the parties involved in the dispute or in cases where the strike in question may be restricted or even prohibited, i.e. in the case of disputes in the public service involving public servants exercising authority in the name of the State or in essential services in the strict sense of the term, namely those services whose interruption would endanger the life, personal safety or health of the whole or part of the population. The Committee therefore once again requests the Government to take the necessary steps to amend the legislation so as to provide that compulsory arbitration in collective disputes in the transport sector is only possible at the request of both parties or under the abovementioned circumstances.
• – The obligation to provide minimum services with 50 per cent of the staff in the transport sector, and the penalty of summary dismissal of public servants for failure to comply with minimum services in the event of a strike (sections 155 and 192 of the Single Text of 29 August 2008, amended by Act No. 43 of 31 July 2009). The Committee notes the Government’s statement that the abovementioned provisions do not, in principle, affect the exercise of the right to strike since: (1) summary dismissal is possible in the event of banned or illegal strikes; and (2) the obligation to provide minimum services with 50 per cent of the staff applies to “essential public services”, such as food provision, water and electricity, transport, etc. The Committee recalls that transport is not an essential service in the strict sense of the term; nevertheless, it is a public service of fundamental importance and in the event of a strike the imposition of a minimum service could be justified. However, given that the 50 per cent figure provided for in the legislation might be excessive, the Committee recalls that minimum services should be limited to activities that are strictly necessary to cover the basic needs of the population or to satisfy the minimum requirements of the service, while maintaining the effectiveness of the pressure brought to bear, and that 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 the event of any disagreement as to the number and duties in relation to the minimum service, such disagreement should be settled by an independent body enjoying the confidence of the parties. Observing that a number of the abovementioned services cannot be defined as essential services in the strict sense of the term, the Committee again requests the Government, taking into account the principles described above, to take the necessary steps to ensure the respective legislative amendments and to provide information in its next report on any further developments in this respect.
• – Legislation interfering with the activities of employers’ and workers’ organizations (sections 452.2, 493.4 and 494 of the Labour Code) (closure of the enterprise in the event of a strike and prohibition of entry to non-striking workers). The Committee observes that section 493.4 of the Labour Code, as amended by Act No. 68 of 26 October 2010, does not provide in the event of a strike for free entry for non-striking workers. The Committee notes the Government’s indication of its intention to examine the standard with a view to analysing the points raised and to consider in what manner the abovementioned provisions may be amended. The Committee requests the Government to provide information in its next report on any further developments in this respect.
• – The obligation for non-members to pay a solidarity contribution in recognition of the benefits derived from collective bargaining. In its previous observation the Committee noted that section 2 of Act No. 68, amending section 405 of the Labour Code, provides that “the collective agreement shall apply to all persons who work in the categories covered by the agreement, in the enterprise, commerce or establishment, even though they are not members of the union. Non-unionized workers who benefit from the collective agreement shall be obliged, during the period covered by the collective agreement, to pay the ordinary and extraordinary dues agreed by the union, and the employer shall be obliged to check such dues off from wages and forward them to the union.” The Committee considered that “solidarity” dues in view of the benefits derived from collective bargaining by workers who are not members of the unions concluding a collective agreement are not contrary to the provisions of the Convention; nevertheless, such dues should be set at an amount which does not prejudice the right of workers to join the trade union organization of their choosing. The Committee notes the Government’s statement that it shares the opinion that legislation should be adopted establishing that these dues should be set at an amount which enables workers to join the trade union organization of their choosing and the reform resulting from section 2 of Act No. 68 should be subject to tripartite revision. The Committee emphasizes that in a previous paragraph it noted with satisfaction the legislative changes in the public sector relating to solidarity dues and considers that the same system should apply to the private sector. The Committee requests the Government to provide information on any further developments in this matter.
• – The automatic intervention of the police in the event of a strike. In its previous observation the Committee noted that section 3 of Act No. 68 amends section 493(1) of the Labour Code, which provides, in its amended form, that “once the strike has commenced, the Regional or General Labour Inspectorate or Directorate shall immediately give orders for the police authorities to duly guarantee or protect persons and property”. The Committee considered, in cases of strike movements, that the authorities should resort to the use of the public forces only in grave situations or those in which public order is seriously threatened. The Committee notes the Government’s statement that in reality the public forces are used or the police units are ordered to appear only in cases where strikes assume a non-peaceful appearance in which the integrity of persons, property of the enterprise or public order are affected, and not with the aim of suspending the strike or in cases where strikes assume a peaceful form. The Committee therefore requests the Government to consider the possibility of amending the legislation in such a way that, in conformity with the practice indicated by the Government, the public forces may only intervene in cases where strikes lose their peaceful character. The Committee requests the Government to provide information in its next report on any further developments in this respect.

Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

The Committee notes the Government’s reply to the previous comments of the International Trade Union Confederation (ITUC) concerning murders and acts of violence against trade unionists. The Committee also notes the conclusions and recommendations of the Committee on Freedom of Association in Case No. 2706. The Committee further notes the comments of the ITUC dated 24 August 2010, which refer to the refusal of the Government to grant trade union status to the National Union of Workers of the University of Panama (SINTUP), and in general report that workers are victims of persecution and murders. The Committee requests the Government to provide its observations in this respect. The Committee recalls that freedom of association can only be exercised in a climate that is free of violence and in which fundamental human rights are respected and fully guaranteed. The Committee also requests the Government to provide its observations in relation to the comments made by the National Council of Private Enterprise (CONEP) in 2009.

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 of Act No. 9 on administrative careers 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 notes the Government’s indication in its report that Act No. 9 of 1994 was amended by Act No. 43 of 30 July 2009, but that sections 174 and 178 have not been amended. The Committee recalls that, in accordance with 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 once again requests the Government to take the necessary measures to amend sections 174 and 178 of the Act on administrative careers as indicated above;

–      the 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 the 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 Act No. 9 on administrative careers (now section 182 of the Single Text of Act No. 9). The Committee notes the Government’s indication that Act No. 43 of 30 July 2009 amends section 182 referred to above, raising the required number of members for the establishment of an organization of public servants from 40 to 50. The Committee requests the Government to take the necessary measures to reduce the minimum number of members required so that workers, employers and public servants are able to establish their organizations. The Committee requests the Government to provide information in its next report on any developments in this respect;

–      the denial to public servants (non-career public servants, as well as those holding appointments governed by the Constitution and those who are elected and serving) of the right to establish unions. The Committee notes the Government’s indication that to bring the legislation into conformity with the Convention it would be necessary to amend article 64 of the Political Constitution, which is a matter for the highest authorities of the country. The Committee recalls that it has always considered that the exclusion of public servants from the right to organize is contrary to the Convention (see the General Survey of 1994 on freedom of association and collective bargaining, paragraph 48). The Committee observes that the legislation grants public servants the right to establish associations for the defence of their interests. The Committee once again requests the Government to take the necessary measures to ensure that all public servants, including non-career public servants, as well as those holding appointments governed by the Constitution and those who are elected and serving, are able to establish and join the organizations or associations of their own choosing in full freedom (and not only one organization for each institution), thereby guaranteeing such organizations the rights set out in the Convention.

Article 3. Right of organizations to elect their representatives in full freedom.

–      the 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 notes the Government’s indication that to bring the legislation into conformity with the Convention, it would be necessary to amend article 64 of the Political Constitution, which is a matter for the highest authorities of the country. The Committee recalls once again 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 the General Survey, op. cit., paragraph 118). In this respect, the Committee once again requests the Government to take the necessary measures to make the required amendments taking into account the principle referred to above;

–      the right of organizations to organize their administration. In its previous comments, the Committee requested the Government to take the necessary measures to amend section 180-A of Act No. 24 of 2 July 2007, amending Act No. 9 on administrative careers, 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. In this respect, the Committee notes the Government’s indication that, on the occasion of the most recent amendment of Act No. 9 of 1994, section 180-A was not amended. The Committee recalls once again that the requirement 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 as such a requirement may influence the right of public servants to choose freely the association that they wish to join. Under these conditions, the Committee once again requests the Government to take the necessary measures for the amendment of section 180-A of Act No. 24 of 2 July 2007 as indicated above.

Right of organizations to organize their activities and to formulate their programmes in full freedom. The Committee recalls that in its previous comments it commented on various aspects related to the exercise of the right to strike. In this respect, the Committee notes the Government’s general comments relating to the exercise of the right to strike to the effect that: (1) strikes in Panama, as a constitutionally recognized right, take place within legally established limits set out in the Labour Code; (2) the right to strike per se does not give entitlement to the payment of wages for the days of stoppage, even where it is declared legal; (3) conciliation as a procedure for the resolution of collective labour disputes occurs in accordance with specific rules initiated by the presentation of a list of claims; (4) the abandonment of conciliation does not give rise to “disproportionate penalties”, although it brings an end to the procedures; if this step is taken by the employer, it not only precludes the conciliation stage, but sets in motion the period of twenty days for the workers to call a strike; if it is taken by the workers, the latter have to recommence their action; (5) procedures have been established for the settlement of disputes of right involving the interpretation of the law, and primarily through mediation; (6) there are no formalities governing requests for mediation, although where the dispute is such as to admit the exercise of the right to strike, the parties may also request it through the submission of a list of claims; (7) the provision referred to above gives rise to another settlement mechanism, as in the case of the list of claims and the National Labour Act, under the terms of Act No. 53 of 1975, which provides for a jurisdictional body; and (8) although machinery is established in labour law for the settlement of collective disputes, it is not adequate.

The Committee recalls that the following matters raise problems of conformity with the Convention:

–      denial of the right to strike in export processing zones (section 49B of Act No. 25 of 1992) and the denial of the right to strike in enterprises of less than two years’ standing (section 12 of Act No. 8 of 1981). The Committee notes the Government’s indication that the Ministry of Labour and Employment Development (MITRADEL), together with the Ministry of Trade and Industry (MICI), have been working to formulate amendments on this subject, resulting in the formulation of a preliminary draft Bill to amend, among other provisions, section 49 of Act No. 25 of 1992 and to repeal section 12 of Act No. 8 of 1981. The Committee requests the Government to keep it informed of any developments in this respect and to provide a copy of the final text when it has been adopted;

–      the denial of the right to strike for public servants. 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) or to essential services in the strict sense of the term (those the interruption of which would endanger the life, personal safety or health of the whole or part of the population). The Committee once again requests the Government to take the necessary measures to ensure the right to strike of public servants who do not exercise authority in the name of the State;

–      the ban on federations and confederations from calling strikes and on strikes against the Government’s economic and social policy, and the unlawfulness of strikes that are unrelated to an enterprise collective agreement. The Committee recalls once again 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 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 the General Survey, op. cit., paragraph 165). The Committee once again requests the Government to take steps for the amendment of the legislation so as to align it with the principles described above and so that the right to strike is not restricted to strikes related to a collective agreement;

–      the 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 notes the indication that the right to strike as a constitutionally recognized right, is exercised within the legally established limits set out in the Labour Code, and its comment that mediation and conciliation procedures are available. The Committee recalls that compulsory arbitration to end a collective labour dispute is acceptable if it is in all cases at the request of both of the parties involved in the dispute. The Committee therefore once again requests the Government to take the necessary steps to amend the legislation so as to provide that compulsory arbitration is possible in the transport sector only at the request of both parties;

–      the obligation to provide minimum services with 50 per cent of the staff in the transport sector, and the penalty of summary dismissal of public servants for failure to comply with minimum services in the event of a strike (sections 152.14 and 185 of Act No. 9 of 1994 on administrative careers). In this respect, the Committee notes the adoption of Executive Decree No. 25 of June 2009, which provides in section 2 that the provisions of the Labour Code respecting strikes in public services shall be applicable to the public air and maritime passenger transport services (sections 485–488 respecting strikes in public services) and of Executive Decree No. 26 of June 2009, which provides that in cases in which striking workers in a public service have designated an insufficient number of workers to provide or cover emergency services through shifts, the Ministry, in taking action to increase the percentage of workers up to the 30 per cent allowed by the law (section 487(2) of the Labour Code), shall justify the decision using criteria such as: (a) it is a situation in which the life, safety and health of the population are placed at risk; (b) if the original conditions for the provision of services determined by the workers were maintained, the normal living conditions of citizens could be seriously affected and/or an economic, social or political crisis created with serious consequences; and (c) the existence of the source of employment for workers and the enterprise would be imperilled. The decision adopted by the authority is immediately enforceable. The Committee finally notes that the legislation does not refer to the possible participation of the organizations of workers concerned in the determination of the minimum services envisaged in those public services, which go beyond essential services in the strict sense of the term. The Committee emphasizes that minimum services should be limited to activities that are strictly necessary to cover the basic needs of the population or to satisfy the minimum requirements of the service, while maintaining the effectiveness of the pressure brought to bear, and that 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. Moreover, in the case of any disagreement as to the number and duties in relation to the minimum service, such disagreement should be settled by an independent body enjoying the confidence of the parties. The Committee once again requests the Government, taking into account the principles described above, to take the necessary steps to ensure the respective legislative amendments;

–      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 of the parties). The Committee previously requested the Government to take the necessary steps to ensure 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, in essential services in the strict sense of the term or in the case of public servants exercising authority in the name of the State. The Committee notes the adoption of Act No. 68 of 26 October 2010 amending, among other provisions, sections 493–494 of the Labour Code. The Committee notes with satisfaction new section 493(3) which, in accordance with the comments made by the Committee for several years, provides that “the owners, directors, managing director, the staff closely involved in these functions and workers in positions of trust shall be able to enter the enterprise during the strike, provided that their purpose is not to recommence productive activities”. The Committee nevertheless notes that the free access of non-striking workers is not provided for in the event of a strike. The Committee once again requests the Government to take steps to ensure that in the event of a strike the right of entry of non-striking workers to the facilities is guaranteed;

–      the obligation for non-members to pay a solidarity contribution in recognition of the benefits derived from collective bargaining. The Committee notes that section 2 of Act No. 68, amending section 405 of the Labour Code, provides that “the collective agreement shall apply to all persons who work in the categories covered by the agreement, in the enterprise, commerce or establishment, even though they are not members of the union. Non‑unionized workers who benefit from the collective agreement shall be obliged, during the period covered by the collective agreement, to pay the ordinary and extraordinary dues agreed by the union, and the employer shall be obliged to check such dues off from wages and forward them to the union”. In this respect, the Committee considers that “solidarity” dues in view of the benefits derived from collective bargaining by workers who are not members of the unions concluding a collective agreement are not contrary to the provisions of the Convention; nevertheless, such dues should be set at an amount which does not prejudice the right of workers to join the trade union organization of their choosing. The Committee requests the Government to take the necessary steps for the amendment of the legislation as indicated above, and to provide information in its next report on any measure adopted or envisaged in this respect;

–      the automatic intervention of the police in the event of a strike. The Committee notes section 3 of Act No. 68, amending section 493(1) of the Labour Code, which provides, as amended, that “once the strike has commenced, the Regional or General Labour Inspectorate or Directorate shall immediately give orders for the police authorities to duly guarantee or protect persons and property.” The Committee considers, in cases of strike movements, that the authorities should resort to the use of the public forces only in grave situations or those in which public order is seriously threatened. The Committee therefore requests the Government to take steps for the amendment of the legislation as indicated above.

The Committee notes the Government’s indication in its report, with regard to the requested legislative amendments, that on various occasions it has shown its will to adapt the national legislation to the provisions of the Convention. However, as this involves the amendment of the Labour Code, as well as of other legal provisions, it is very difficult to engage in a process of the amendment of this legal instrument, as it necessarily involves the will, dialogue and consensus between workers and employers, in accordance with the practice in Panama. The Government adds that regrettably up to now no consensus has been achieved in this respect, for which reason the National Government, with a view to complying with this international commitment and reflecting the conclusions of the Committee on the Application of Standards at the 98th Session of the International Labour Conference (June 2009) and the comments of the Office, has requested the technical assistance of the ILO with a view to addressing the issues relating to freedom of association, in order to seek ways forward to allow the harmonization of national law and practice with the provisions of the Convention. Observing that the discrepancies between the law and practice and the Convention have existed for many years, and taking into account the gravity of some of the restrictions referred to above, the Committee hopes that the Government will take the necessary measures to bring the legislation into conformity with the provisions of the Convention and that the requested technical assistance will be provided in the very near future. The Committee requests the Government to provide information in its next report on any progress achieved in this respect.

Legislative initiatives. The Committee notes the adoption of Legislative Decree No. 27 of 5 June 2009 adopting measures intended to preserve the independence and autonomy of workers’ trade union organizations.

Observation (CEACR) - adopted 2009, published 99th ILC session (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.

Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

The Committee notes that the Government’s report has not been received.

The Committee takes note of the comments of 29 August 2008 by the International Trade Union Confederation (ITUC) on the application of the Convention. The Committee notes that the ITUC alleges very serious acts of violence against officials of the Construction and Allied Workers’ Union (SUNTRAC) and the arrest of one official of the same union. The Committee requests the Government to send its observations on this matter. The Committee further notes the comments of the National Federation of Public Employees and Public Service Enterprise Workers (FENASEP), on issues raised by the Committee.

The Committee recalls that its comments refer to the following matters which raised problems of compliance 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 (“establishing and regulating administrative careers”) of 1994, which laid down respectively that there shall not be more than one association in an institution and that associations may have provincial or regional branches, but not more than one branch per province. The Committee observes that Act No. 24 of 2 July 2007 amending and supplementing Act No. 9 on Administrative Careers has not abolished the trade union monopoly imposed by the latter. FENASEP is of the view that these provisions should not be amended because to allow more than one single association or branch would fragment the trade union movement. The Committee points out that although it may be in the workers’ interest to avoid a proliferation of trade unions, the unity of the trade union movement should not be imposed by the State through legislative measures, because intervention of this kind is contrary to the principle laid down in Articles 2 and 11 of the Convention. The Committee requests the Government to take the necessary steps to amend the legislation to this effect.

–      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; and the requirement of a large number (50) of public servants to establish an organization of public servants under the Act on Administrative Careers. The Committee observes that Act No. 24 of 2 July 2007 amends Act No. 9 on Administrative Careers and provides (section 9) that in an institution where no association exists, 40 public servants are needed in order to constitute an organization of public servants. This number is acceptable to FENASEP. The Committee recalls in this connection that a minimum membership of 40 workers to establish a union would be permissible in the case of industrial unions, but the minimum should be lower in the case of an enterprise union or a base-level union in an establishment so as not to obstruct the creation of such organizations. The Committee also reiterates that a membership of ten for the establishment of an employers’ organization is too large and may be an obstacle to the creation of such organizations. The Committee requests the Government to take the necessary steps to amend the legislation accordingly.

–      Denial to public servants of the right to establish unions. The Government indicated previously that the interpretation by the National Council of Organized Workers (CONATO) was inconsistent with reality; the right of association of public servants is established 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 in its comments, FENASEP states under the Act of Administrative Careers, that non-career public servants, public servants in appointive posts governed by the Constitution, public servants in elective posts and those in service may not organize. The Committee requests the Government to send its comments on this point.

Article 3. Right of organizations to elect their representatives in full freedom. Article 64 of the Constitution stipulates that the members of the executive body of a trade union must be of Panamanian nationality. As the Committee has already pointed out, provisions on nationality which are too strict could deprive some workers of the right to elect their representatives in full freedom, for example migrant workers 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 so as to ensure compliance with the abovementioned principle.

Right of organizations to organize their administration. The Committee observes that section 180A of Act No. 24 of July 2007, amending the 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 will have the ordinary and extraordinary trade union dues deducted from their salaries and paid to the association during the duration of the agreement. In this respect, the Committee considers that imposing by legislative means the payment of an ordinary contribution to the association which obtained improvements in the labour conditions by public servants who are not members raises problems of conformity with the Convention to the extent that it may influence the right of public servants to freely choose the association to which they wish to be affiliated. In these conditions, the Committee requests the Government to modify section 180A of Act No. 24 of July 2007 so as to eliminate the requirement to pay ordinary trade union dues imposed on public servants who are not affiliated to associations, with the possibility of providing, in turn, for the payment of a smaller 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). The Committee recalls that the right to strike may be restricted or banned only in the event of an acute national crisis and in respect of public servants exercising authority in the name of the State or in services which are essential in the strict sense. In the Committee’s view, to deny the right to strike in export processing zones is inconsistent with this principle. It therefore asks the Government to take the necessary steps to ensure that workers’ organizations in these zones may exercise the right to strike.

–      Denial of the right to strike in enterprises which have been in existence for less than two years pursuant to Act No. 8 of 1981. CONATO previously pointed out that section 12 of the Act provides that no enterprise shall be compelled to conclude collective agreements during its first two years of operation and that the general legislation allows strikes only in pursuance of collective bargaining or in other limited cases. The Committee requests the Government to take the necessary steps to guarantee the right to strike of the workers and their organizations in these enterprises.

–      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 asks the Government to take the necessary steps to guarantee the right to strike for 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’s 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, 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, op. cit., paragraph 165). The Committee requests the Government to take steps to amend the legislation so as to bring it in conformity with these principles and so as not to restrict the right to strike 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 a public service enterprise, including when the service is not essential in the strict sense of the term, such as transport (sections 452 and 486 of the Labour Code). The Committee requests the Government to take the necessary steps to amend the legislation to provide that compulsory arbitration is possible in the transport sector only at the request of both parties.

–      Obligation to provide minimum services with 50 per cent of the staff in establishments which provide “essential public services” but 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). The Committee requests the Government to take the necessary steps to amend the legislation to ensure that: (1) the organizations of the workers concerned may participate in determining minimum services and the number of workers who are to provide them, and that in the event of disagreement, the matter shall be resolved by an independent body; and (2) the penalty of summary dismissal is abolished.

–      Legislation interfering with the activities of employers’ and workers’ organizations (sections 452.2, 493.1 and 497 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 asks the Government to indicate any amendments envisaged to ensure that compulsory arbitration is allowed only at the request of both parties to the dispute in the case of public servants exercising authority in the name of the State or in essential services in the strict sense of the term, and to ensure that in the event of a strike, the management staff may have access to the enterprise if they so wish.

The Committee notes with regret that the abovementioned discrepancies between Panama’s law and practice and the Convention have existed for many years and that some of the restrictions mentioned are serious. The Committee recalls that in its previous observation it took note of the Government’s statement that it intended to harmonize national law and practice with Conventions Nos 87 and 98, that this would require a tripartite consensus but that there were glaring differences in the views of the social partners. The Committee asks the Government to take the necessary steps, in consultation with the social partners, to bring the legislation into line with the Convention and with the principles of freedom of association. It requests the Government to report on any measures taken to this end.

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.

Direct Request (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes the Bill to reform the Administrative Careers Act in part. To the extent that the Act applies to public servants not engaged in the administration of the State, the Committee requests the Government to consider introducing provisions to cover the issues in its observation that concern the right to organize of public servants.

The Committee asks the Government to send the Constitutional Court’s decision regarding the complaint challenging the constitutionality of Act No. 8 of 1998 on the right to strike of workers engaged at sea and on inland waterways.

The Committee notes that, for worker-employer relations, the World Trade Zones Bill (to replace the Act on export processing zones) refers to the relevant provisions of the Labour Code. The Committee requests the Government to send a copy of the future Act as soon as it is adopted.

Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes the Government’s report, the discussion that took place in the Conference Committee in June 2005, the comments on the application of the Convention submitted by the National Council of Organized Workers (CONATO), the National Council of Private Enterprise (CONEP), as well as the comments of the International Confederation of Free Trade Unions (ICFTU) of 10 August 2006 (which mostly refer to the matters previously raised by the Committee). The Committee further notes the conclusions and recommendations of the Committee on Freedom of Association in Case No. 1931 brought by the International Organisation of Employers (IOE) (see 318th Report, paragraphs 493-507), and the report of the technical assistance mission conducted in Panama from 6 to 9 February 2006.

1. The Committee takes note of the main conclusions of the technical assistance mission and, in particular, notes that the Government indicated to the mission that, although it wishes to align its legislation with Conventions Nos. 87 and 98, it is not in a position to push for any reform of the Labour Code that does not have the agreement of both the workers’ and employers’ organizations. Furthermore, it stated that it is aware, however, that a consensus between the workers and the employers is highly improbable, at least in the short term, and states its readiness to embark on a process that would lead gradually to the revision of the offending provisions through measures that would bring the parties closer and eventually secure agreement.

2.  The Committee recalls that its previous comments concern 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 transportation (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 that 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 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 185 and 152.14 of Act No. 9 of 1994).

(f)    Legislation interfering in the activities of employers’ and workers’ organizations (sections 452(2), 493(1) and 497 of the Labour Code) (closure of the enterprise in the event of a strike and compulsory arbitration at the request of one of the parties). The Government gave the mission a copy of Executive Decree No. 32 of 1994 providing for minimum services to safeguard the security of the enterprise and its assets, and maintenance services.

(g)   The requirement of 50 public servants in order to establish an organization of public servants under the Administrative Careers Act. The Government acknowledged 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). The Government stated that No. 15 of indent B of section 49-A of Act No. 25 of 1992, grants workers in export processing zones the right to strike; and that with regard to the right to strike of seafarers regulated by Decree No. 8 of 1998, the Supreme Court of Justice is currently hearing a complaint alleging unconstitutionality. The Committee asked the Government to send both texts and a copy of the above Court’s decision.

(i)    Federations and confederations prohibited from calling strikes (prohibition of strikes protesting against problems relating to economic and social policy; strikes not related to a collective agreement in an enterprise are unlawful). The Committee pointed 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 positions to seek 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 on freedom of association and collective bargaining, 1994, paragraph 165). The Committee asked the Government to take steps to amend the legislation with a view to bringing it into line with these principles.

(j)    Disaffiliation of FENASEP from the Trade Union Convergence 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 basic‑level organizations of public servants may be restricted to this category of workers, such organizations should, nonetheless, 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 abovementioned principle. The Committee requested the Government not to prevent the affiliation of FENASEP with the Trade Union Convergence Confederation.

(k)   Denial to public servants of the right to form unions. The Government indicated previously that CONATO’s interpretation 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 emphasized in earlier comments that, irrespective of the wording used, the decisive factor is that the associations in question enjoy the rights set out in the Convention. The Committee notes that FENASEP informed the mission that it was negotiating with the Government the text of a Bill to reform the Administrative Careers Act in part.

(l)    Denial of the right to strike to public servants. The Government indicated previously that the Constitution allows special restrictions in cases determined by law. The Committee recalls that 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 (Act No. 8 of 1981). CONATO pointed out that under section 12 of the Act, no employer shall be compelled to conclude collective agreements during the first two years of an enterprise’s operation and that the general legislation permits strikes only in pursuance of collective bargaining or in other limited cases. The Committee asked the Government to provide its comments on this matter.

(n)   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 at the third meeting of the union assembly, the requirement is for a simple majority of voting members.

3. Concerning these abovementioned issues, the Committee notes the following positions of the social partners as indicated to the technical assistance mission. In this respect:

–      CONEP indicated that: (a) transport must be kept among the public services because its interruption in the event of a strike would paralyse essential services, including those carried on by public employees; arbitration at the request of only one of the parties is not compatible with the Convention; (b) prefers not to comment on this matter; (c) a minimum of 40 workers to establish a union is reasonable; the minimum number of employers to establish an employers’ association should be four; (d) it is not the time to amend the Constitution. It prefers not to comment until it has analysed the value of an ILO Convention as compared to the Constitution. In practice, employers form chambers, not organizations and these are governed by civil law, although employers’ associations are envisaged in the Labour Code; (e) prefers not to comment on this matter; (f) in the event of a strike, the right of access to the enterprise of management staff and the freedom of non‑strikers to work should be safeguarded; (g) prefers not to comment on this matter; (h) legislation has been challenged as unconstitutional and work is under way on new legislation to govern work at sea; (i) prefers to maintain the status quo, i.e. that such strikes are illegal; (j, k, l) prefers not to comment on these issues; (m) that it is reasonable to allow enterprises with less than two years’ standing enough breathing space to establish themselves, so the prohibition on collective bargaining and indirectly, on strikes, is reasonable.

–      CONATO indicated that: (a) transport should be removed from the list of public services for the purposes of this section. Furthermore, they do not agree with ILO’s position against compulsory arbitration at the request of the workers; (b) prefers to maintain trade union unity at public institution level; (c) the minimum number of workers to establish a union should be 20. Employers should be able to establish associations with four members; (d) the trade union movement has no interest in amending this rule; (e) transport should be removed from the list of essential public services; (f) these provisions should not be amended. The ban on employers’ admission during strikes should be maintained; (g) the number 30 should be replaced by 40 but the phrase “but no more than one chapter per province” should be deleted because it constitutes a restriction; (h) maritime sector: unlike the Labour Code, section 75 of Legislative Decree No. 8 of 1998 lays down no obligation to conclude collective agreements but allows enterprises to conclude them, which in practice has led to claims of this kind being rejected, so that it is in fact impossible to call a strike in support of a demand for a collective agreement; (i) trade union organizations of different levels should have the right to strike in their various areas of competence, including against the Government’s economic and social policy; (j) any restriction on federations and confederations joining other organizations of their choice should be eliminated; (k, l) the public sector being excluded by section 2 from the Labour Code, it is not covered by the right to conclude collective labour agreements as there is no such right in the Administrative Careers Act. Although section 135 of the Act gives associations the right to collective negotiation in disputes, there are no specific provisions allowing this right to be put into effect nor is the right to conclude collective agreements recognized. Furthermore, the restrictions in section 183 prevent exercise of the right to strike in a collective conflict of interests; (m) section 12 of Act No. 8 of 1981 establishes that there is no obligation to negotiate collective agreements in enterprises that have been in existence for less than two years, which in practice means that any grievances that include such claims are rejected. In other words, not only is the right to collective bargaining of workers restricted, but exercise of the right to strike to support a demand for a collective agreement is prevented.

–      Concerning export processing zones, the Committee notes that CONEP points out that workers in exports in processing zones may call strikes if they have industry unions. CONATO indicates that, since Act No. 25 of 1992 likewise establishes in section 49, paragraph B, No. 9, that enterprises may not conclude collective agreements, the same occurs as in the maritime sector, i.e. workers may not call a strike to support a claim to a collective labour agreement. The Government states that there is a new Bill on export processing zones. The Committee requests the Government to communicate a copy of the new legislation as soon as it is adopted.

4. The Committee notes the Government’s statements that: (1) it has repeatedly stated its readiness to align national law and practice with these Conventions, but to do so implies amending the Labour Code; it would be in a position to promote such amendments only with the agreement of the employers’ and workers’ organizations; (2) the final report of the technical assistance mission has still not been received, but it can already say that at the meetings the mission held with the social partners, there were glaring differences in the views of CONEP and CONATO regarding amendment of the Labour Code to take account of the points made about Conventions Nos. 98 and 87; and (3) it is awaiting the mission’s final report.

5. The Committee observes that some legal provisions might be reformed in the very near future in so far as the Government, CONATO and CONEP are not opposed to them. Such amendments include: (1) reducing to four the number of employers needed to establish an employers’ association; (2) removing the restriction on the free affiliation of associations of public servants to other trade union organizations, particularly those of a higher level, grouping public servants and other workers; (3) the possibility for associations of public servants to have more than one chapter (section) per province.

The Committee notes with regret that the abovementioned discrepancies between law and practice and the Convention still exist after many years, and that some of the restrictions that the Government does not wish to eliminate are serious, for example, the imposition by law of trade union unity for public institutions, the legal requirement that trade union leaders must be Panamanian and the fact that the law does not allow strikes against the Government’s economic and social policy. The Committee requests the Government to fulfil its commitment to arrange meetings with the social partners in the form of seminars or workshops with ILO support and actively to promote tripartite dialogue on all pending issues. The Committee expresses the hope that it will be in a position in the very near future to note improvements in the legislation, and requests the Government to keep it informed in this regard and, in accordance with its assurances to the technical assistance mission, to ensure that the proposals to reform the trade union legislation are not used to regulate or include other issues.

The Committee is addressing a direct request to the Government on the complaint challenging as unconstitutional Legislative Decree No. 8 of 1998 concerning the right to strike of workers engaged at sea and on inland waterways, on the draft reform of the Act on export processing zones (World Trade Zones Bill) and on the Bill to reform the Administrative Careers Act in part.

Direct Request (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee notes the Government’s report. In its previous comments, the Committee noted the comments made by the National Council of Organized Workers (CONATO) and made the following comments:

(a)  Denial of the right of public servants to establish trade unions. The Government indicated previously that the interpretation made by CONATO is not in accordance with reality. The right of association of public servants is recognized in Act No. 9 of 20 June 1994, and in practice the National Federation of Public Servants’ Associations and Organizations (FENESEP) operates in the same way as any other private sector organization and participates in the CONATO and the International Labour Conference. The Committee emphasizes that, irrespective of the wording used, the decisive factor is that the associations in question enjoy the rights set out in the Convention.

(b)  Denial of the right to strike of public servants. The Government indicated previously that the Constitution allows special restrictions in cases determined by the 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 on freedom of association and collective bargaining, 1994, paragraph 158). The Committee requests the Government to take measures to bring the legislation into line with the above.

(c)  Denial of the right to strike in enterprises which have been in existence for less than two years (Act No. 8 of 1981). CONATO pointed out that under section 12 of the Act, no employer shall be compelled to conclude collective agreements during the first two years of an enterprise’s operation and that the general legislation only permits strikes in pursuance of collective bargaining or in other limited cases. The Committee requests the Government to provide its comments on this matter.

(d)  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 that it considered that this restriction is 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 recalled that if a State deems it appropriate to establish in its legislation provisions which require a vote by workers before a strike can be held, it should ensure that account is taken only of the votes cast, and that the required quorum and majority are fixed at a reasonable level (see General Survey, op. cit., paragraph 170). The Committee requests the Government to take measures to amend the legislation with a view to bringing it into line with the above.

The Committee notes that the Government has requested the technical assistance of the ILO Subregional Office and hopes that this assistance will be provided in the near future and that it will cover all of the matters raised. The Committee requests the Government to provide information on this subject.

Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee notes the Government’s report, the discussion in the Conference Committee in June 2003, the comments on the application of the Convention made by the National Council of Private Enterprise of Panama (CONEP) and the conclusions and recommendations of the Committee on Freedom of Association in Case No. 1931 (see 318th Report, paragraphs 493 to 507).

1. The Committee recalls that its previous comments related to the following provisions:

-  the power of the Regional or General Labour Directorate to submit labour disputes to compulsory arbitration in order to stop a strike in a public service enterprise, including those which cannot be considered essential services in the strict sense of the term, such as transportation (sections 486 and 452(3) of the Labour Code);

-  sections 174 and 178, final 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;

-  section 41 of Act No. 44 of 1995 (amending section 344 of the Labour Code), which requires an excessively high number of members to establish an employers’ organization (ten) and an even higher number to establish a workers’ organization (40) at the enterprise level;

-  article 64 of the Constitution, which requires Panamanian nationality to serve on the executive board of a trade union;

-  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 respecting minimum services in the event of a strike (sections 185 and 152(14) of Act No. 9 of 1994); and

-  legislation interfering in the activities of employers’ and workers’ organizations (sections 452(2), 493(1) and 497 of the Labour Code) (closure of the enterprise in the event of a strike and compulsory arbitration at the request of one of the parties).

2. The Committee also referred in its previous observation to the comments made by the National Council of Organized Workers (CONATO) on the application of the Convention.

(a)  Requirement of 50 public servants to establish an organization of public servants under the Act respecting administrative careers. In its previous report, the Government acknowledged that this is a high number, but pointed out that section 176 of Act No. 9 allows public servants to organize by class (category) or sector of activity. The Committee requests the Government to take measures to amend the legislation with a view to reducing the minimum number of public servants required to establish organizations.

(b)  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). The Government stated that both sectors may conclude collective agreements, but did not refer specifically to the right to strike. The Committee had requested the Government to indicate whether this right may be exercised in both sectors, and on what legal basis.

(c)  Prohibition of federations and confederations from calling strikes (the prohibition of strikes protesting against problems relating to economic and social policy and the unlawful nature of strikes not related to a collective agreement in an enterprise). The Government stated that it is the trade unions which maintain relations with the workers (whether or not they are unionized) at the enterprise level, and that if federations and confederations could call strikes, this would lead to trade union cannibalism and infighting between organizations. With regard to strikes protesting against the Government’s economic and social policies, it states that it is unjustified to submit enterprises to the effects of a strike of this type, since such policies are outside the control of the employer. The Committee emphasizes that federations and confederations should enjoy the right to strike. The Committee pointed out that organizations responsible for defending workers’ socio-economic and occupational interests should, in principle, be able to use strike action to support their positions to seek 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 on freedom of association and collective bargaining, 1994, paragraph 165). The Committee requests the Government to take measures to amend the legislation with a view to bringing it into line with the above principles.

(d)  Disaffiliation of the FENASEP from the Trade Union Convergence 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 points 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 requests the Government to take measures to amend the legislation with a view to bringing it into line with the above principles. The Committee requests the Government not to prevent the affiliation of FENASEP with the Trade Union Convergence Confederation.

3. In its recent comments, the National Council of Private Enterprise of Panama (CONEP) indicates that the Government has not carried out the reforms requested by the Committee of Experts and the Conference Committee since 2000. CONEP adds that a number of these reforms were also requested by the Committee on Freedom of Association. CONEP emphasizes the need to amend: (1) sections 493(1) and 497 of the Labour Code, the provisions of which respecting strike action jeopardize the basic needs of the enterprise, especially with regard to the maintenance of equipment, the prevention of accidents and the right of employers and managerial staff to enter the premises of the enterprise and carry on their activities; and (2) section 452(2), which allows the imposition of compulsory arbitration at the request of only one of the parties to the collective dispute.

The Committee notes the Government’s statements in its report, according to which: (1) it requested the technical advice of the ILO Subregional Office to improve the application of the Convention within a framework of dialogue and concerted action with the social partners and to achieve general agreement on all the points raised with regard to the requested reforms of the Labour Code; (2) as it was a pre-electoral period, it was not possible to seek this technical advice and the decision to postpone it was taken by the new Government, which took office on 1 September 2004; (3) section 49-A(B)(15) of Act No. 25 of 1992 grants the right to strike to workers in export processing zones; (4) with regard to the right to strike of workers engaged at sea, governed by Decree No. 8 of 1998, a petition to find the provision unconstitutional is currently before the Supreme Court of Justice; and (5) with regard to the amendments to the legislation requested in relation to public servants, despite the efforts made by the Government to give effect to the comments of the Committee, it has not been possible to achieve consensus on this subject.

The Committee hopes that the ILO technical assistance requested by the Government will be provided in the very near future and that it will make it possible to overcome all the problems raised. The Committee requests the Government to provide information in this regard.

Finally, the Committee requests the Government to provide a copy of the Bill to guarantee the rights set out in the Convention in export processing zones, to which the Government representative referred in the Conference Committee in 2003, to inform it of the decision of the Supreme Court of Justice on whether Decree No. 8 of 1998 is unconstitutional and to provide a copy of Act No. 25 respecting export processing zones.

The Committee is examining other matters in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee notes the Government’s report and the comments made by the National Council of Organized Workers (CONATO), which are examined below:

(a)  Denial of the right to establish trade unions for public servants. The Government indicates that the interpretation made by CONATO is not in accordance with reality. The right of association of public servants is recognized in Act No. 9 of 20 June 1994 and in practice the National Federation of Public Servants’ Associations and Organizations (FENASEP) operates in the same way as any other private sector organization and participates in the CONATO and the International Labour Conference. The Committee emphasizes that, irrespective of the wording used, the decisive factor is that the associations in question enjoy the rights set out in the Convention. The Committee will examine below another issue related to this matter.

(b)  Denial of the right to strike for public servants. The Government states that the Constitution allows special restrictions in cases determined by the 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 on freedom of association and collective bargaining of 1994, paragraph 158). The Committee requests the Government to take measures to bring the legislation into line with the above.

(c)  Declaration by the public authorities in practice that strikes are illegal by virtue of the regulations respecting the conciliation period. The Government states that, under the terms of sections 498 et seq. of the Labour Code, it is the responsibility of sectional labour judges to determine whether a strike is legal or illegal. The Supreme Court of Justice has recognized that, during the conciliation period, the administrative authority has to ensure that the enterprise with which the trade union wishes to negotiate is related to the activities and objectives of the trade union, which must have members in the above enterprise. The Committee notes this information.

(d)  Denial of the right to strike in enterprises which have been in existence for less than two years by virtue of Act No. 8 of 1981. CONATO points out that under section 12 of the Act, no employer shall be compelled to conclude collective agreements during the first two years of an enterprise’s operation and the general legislation only permits strikes in the pursuance of collective bargaining or in other limited cases. The Committee requests the Government to provide its comments on this matter.

(e)  Need to have 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 considers that this restriction is justified by the effects produced by strikes due to the national legislation (closure of the enterprise, prohibition upon the conclusion of new employment contracts, etc.). The Committee considers that if a State deems it appropriate to establish in its legislation provisions which require a vote by workers before a strike can be held, it should ensure that account is taken only of the votes cast, and that the required quorum and majority are fixed at a reasonable level (see General Survey, paragraph 170). The Committee requests the Government to take measures to amend the legislation with a view to bringing it into line with the above principle.

(f)  Suspension by administrative authority of the legal personality of a trade union. The Committee notes the Government’s statement that the Minister of Labour withdrew the above suspension by decision of 18 October 2000.

(g)  Interference by the authorities in the internal activities of trade unions. According to the Government, the call made by the authorities for trade unions to hold elections as from 2001 refers only to those unions whose current trade union rules and whose schedules for the holding of elections are overdue; the point is to guarantee compliance with trade union rules. The authorities therefore requested trade unions to update the list of their members, as envisaged in section 273 of the Labour Code; it also makes it possible to determine the most representative trade union for the purposes of negotiation and to identify the trade union to which trade union dues are to be paid. The Committee notes this information.

(h)  The authorities’ decision not to act upon the document certifying the executive board of the Trade Union of Workers in the Enterprise Compañía Marítima de Panamá. The Government explains that as it is an enterprise trade union, the duties of the new executive board had to be discharged by members of the enterprise, but that the executive board members worked in another enterprise; nevertheless, as of 24 July 2000, the trade union in question became a branch trade union and the problem has been resolved. The Committee notes this information.

(i)  Obstacles preventing representatives of the International Transport Workers’ Federation from discharging trade union functions in vessels flying the Panamanian flag. The Government explains that there is no such prohibition, but that authorization has to be sought from the Panama Maritime Authority and that one of the latter’s officials has to accompany them. The Committee notes this information.

Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee notes the Government’s report and the conclusions and recommendations of the Committee on Freedom of Association in Case No. 1931 [see 318th Report, paras. 493-507].

1. The Committee recalls that its previous comments referred to the following provisions:

-  the power of the Regional or General Labour Directorate to submit labour disputes to compulsory arbitration in order to stop a strike in a public enterprise, including those which cannot be considered essential services in the strict sense of the term (including food products of basic necessity and transportation, under sections 486 and 452(3) of the Labour Code);

-  sections 174 and 178, final 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;

-  section 41 of Act No. 44 of 1995 (amending section 344 of the Labour Code), which requires an excessively high number of members to establish an employers’ occupational organization (ten) and an even higher number to establish a workers’ organization (40) at the enterprise level;

-  article 64 of the Constitution, which requires Panamanian nationality to serve on the executive board of a trade union;

-  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 which include transport, and the penalty of the summary dismissal of public servants for failing to comply with the requirement respecting minimum services in the event of a strike (sections 185 and 152(14) of Act No. 9 of 1994); and

-  legislation interfering in the activities of employers’ and workers’ organizations (sections 452(2), 493(1) and 497 of the Labour Code) (closure of the enterprise in the event of a strike and compulsory arbitration at the request of one of the parties).

The Committee notes that the Government emphasizes the difficulties of amending its legislation both in respect of the setting in motion of the procedures for constitutional reform, and the absence of a parliamentary majority. The Government further emphasizes that the technical assistance of the ILO is indispensable. The Committee trusts that the Government will be in a position to amend the above provisions in the near future and requests the Government to keep it informed in this respect.

2. The Committee also referred in its previous observation to the comments on the application of the Convention made by the National Council of Organized Workers (CONATO). The Committee examines below the main points raised by CONATO:

(a)  Requirement of 50 public servants to establish an organization of public servants under the Act respecting administrative careers. The Government recognizes that this is a high number, but section 176 of Act No. 9 allows public servants to organize by class (category) or sector of activity. The Committee requests the Government to take measures to amend the legislation with a view to reducing the minimum number of public servants required to establish organizations.

(b)  Denial of the right to strike for workers engaged at sea and on inland waterways (Act No. 8 of 1998) and in export processing zones (Act No. 25). The Government states that both sectors may conclude collective agreements, but does not refer specifically to the right to strike. The Committee requests the Government to indicate whether this right may be exercised in both sectors, and on what legal basis.

(c)  Prohibition of federations and confederations from calling strikes (the prohibition of strikes protesting against problems relating to economic and social policy and the unlawful nature of strikes not related to a collective agreement in an enterprise). The Government states that it is the trade unions which maintain relations with workers (whether or not they are unionized) at the enterprise level, and that if federations and confederations can call strikes, this would lead to trade union cannibalism and infighting between organizations; with regard to strikes protesting against the Government’s economic and social policies, it states that it is unjustified to submit enterprises to the effects of a strike of this type, since such policies are outside the control of the employer. The Committee emphasizes that federations and confederations should enjoy the right to strike. The Committee recalls that organizations responsible for defending workers’ socio-economic and occupational interests should, in principle, be able to use strike action to support their position to seek 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 requests the Government to take measures to amend the legislation with a view to bringing it into line with the above principles.

(d)  Disaffiliation of the FENASEP from the Trade Union Convergence Confederation by the decision of the authorities. The Government states that public servants are governed by the Act respecting administrative careers and considers that they must join homologous organizations of public servants. The Committee points 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 requests the Government to take measures to amend the legislation with a view to bringing it into line with the above principle. The Committee requests the Government not to prevent the affiliation of FENASEP with the Trade Union Convergence Confederation.

The Committee is examining other matters raised by CONATO in a direct request.

Observation (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee notes the Government’s report, the discussion in the Conference Committee on the application of the Convention and the conclusions and recommendations of the Committee on Freedom of Association in Case No. 1931 (see 318th Report, paragraphs 353-371).

The Committee recalls that its previous comments referred to the following provisions:

-  the power of the Regional or General Labour Directorate to submit labour disputes to compulsory arbitration in order to stop a strike in a public enterprise, including those which cannot be considered essential services in the strict sense of the term (including food and transportation, under sections 486 and 452(3) of the Labour Code);

-  sections 174 and 178, final 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 can have no more than one chapter per province;

-  section 41 of Act No. 44 of 1995 (amending section 344 of the Labour Code), which requires an excessively high number of members to establish an employers’ occupational organization (10) and an even higher number to establish a workers’ organization (40) at the enterprise level;

-  article 64 of the Constitution, which requires Panamanian nationality to serve on the executive board of a trade union;

-  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 which include transport, and the penalty of the summary dismissal of public servants for failing to comply with the requirement respecting minimum services in the event of a strike (sections 185 and 152(14) of Act No. 99 of 1994); and

-  legislation interfering in the activities of employers’ and workers’ organizations (sections 452(2), 493(1) and 497 of the Labour Code) (closure of the enterprise in the event of a strike and compulsory arbitration at the request of one of the parties).

The Committee also notes the comments of the National Council of Organized Workers (CONATO) concerning the application of the Convention, which refer to the numerical requirements to establish trade union organizations in the public and private sectors and the type of organizations which can be established, the many restrictions in law and practice on the right to strike (the administrative classification of its legality in practice; the use of conciliation to prevent lawful strikes; denial of the right to strike to federations and confederations; the imposition of minimum services which are too high in the event of a strike; restrictions on strikes in the maritime sector, in export processing zones and in enterprises which have been established for less than two years; the imposition of compulsory arbitration in certain cases; the requirement of a majority of workers in the enterprise for a lawful strike; the illegality of strikes not related to a collective dispute with an enterprise, etc.); cases of interference by the authorities in the internal affairs of trade unions; cases of the denial of access by trade union leaders to their jobs in ports; and, administrative refusal of the affiliation of a federation to a confederation; etc.

The Committee notes the Government’s comments denying or commenting on CONATO’s allegations from the point of view of law and practice, and even recognizing that the minimum number of public servants required to establish a trade union association in the public administration is high.

In view of the high number of specific issues and the complexity of the questions raised concerning the application of the Convention, the Committee suggests that the Government should promote tripartite discussions on these matters. The Committee further recommends that, after consultations with the employers’ and workers’ organizations, the Government consider the possibility of jointly requesting the technical assistance of the ILO. The Committee would then be able to evaluate the application of the Convention in full knowledge of all the facts and of possible solutions to the problems raised.

Direct Request (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee notes the information provided by the Government in its report and recalls that its previous comments referred to the following matters:

Prohibition of strikes in the Panama Canal zone

The Committee notes that the Organic Act establishing the Panama Canal Authority, adopted in 1997, provides in section 92 thatin order to ensure that the international public service for which the Canal was created, its operation may not be interrupted wholly or in part nor diminished for any reason. Strike action, go-slows and any other unjustified work stoppage is prohibited. In the event of any of the above, the administration of the Authority shall take measures to re-establish the service immediately and shall apply the sanctions set out in the law and in regulations, including dismissal. The Committee also notes Act No. 9 of 1997, by virtue of which all collective agreements shall include a procedure for the lodging of complaints, which shall include the possibility of having recourse to arbitration and alternative means of resolving them. This procedure shall constitute the exclusive administrative machinery for the resolution of disputes (section 104). Furthermore, by virtue of section 111 of the same Act, the Labour Relations Board shall be established, which shall have the functions (section 113) of resolving disputes concerning the scope of negotiations, deadlock in negotiations and denunciations relating to labour practices. The Board shall appoint investigators, facilitators, mediators and arbitrators familiar with the labour system in force in the Central Canal Authority.

The Committee hopes that, within the protection offered by Act No. 9 of 1997, workers who are thus deprived of an essential means of defending their socio-economic and occupational interests (such as strike action), are in practice afforded impartial and rapid compensatory guarantees, for example, conciliation and mediation procedures leading, in the event of deadlock in negotiations, to arbitration machinery seen to be reliable by the parties concerned (see General Survey, 1994, paragraph 164). The Committee requests the Government to provide it with a copy of the above Act so that it can determine the extent to which the various procedures envisaged for the settlement of such disputes comply with the requirements of the Convention. The Committee also requests the Government to provide information on the solutions found in practice to a sample of the disputes which have been referred to such procedures so that it can assess the effectiveness and expeditious nature of the latter.

Observation (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee notes the Government’s report, and the conclusions and recommendations of the Committee on Freedom of Association in Case No. 1931, concerning the legal obligations on employers and their organizations, contrary to freedom of association principles (see 310th Report, paragraphs 493-507).

The Committee recalls that its previous comments related to the following provisions:

-  the power of the Regional or General Labour Director to submit labour disputes to compulsory arbitration in order to stop a strike in a public enterprise including those which cannot be considered essential services in the strict sense of the term (among those, food and transport under sections 486 and 452(3) of the Labour Code;

-  the requirement of 75 per cent of Panamanian nationals to establish a trade union (article 347 of the Labour Code);

-  sections 174 and 178, final 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 can have no more than one chapter per province;

-  section 41 of Act No. 44 of 1995 (amending section 344 of the Labour Code) which requires an excessively high number of members to establish an employers’ occupational organization (ten) and an even higher number to establish a workers’ organization (40) at the enterprise level;

-  article 64 of the Constitution, which requires Panamanian nationality to serve on the executive board of a trade union;

-  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 which include transport, and the penalty of the summary dismissal of public servants for calling or participating in strikes which are prohibited or declared illegal, or failing to comply with the requirement respecting minimum service in the event of a strike (articles 152(14) and 185 of Act No. 9 of 1994); and

- legislation interfering in the activities of employers’ and workers’ organizations (articles 493(1) and 497 of the Labour Code).

I. Compulsory arbitration in public service enterprises beyond
  essential services in the strict sense of the term

While the Government does not refer to this point in its report, the Committee recalls that, for food services, it would be possible to establish a minimum service to ensure users’ basic needs (see General Survey on freedom of association and collective bargaining, 1994, paragraph 162). Moreover, transport services are not essential services per se, unless a strike in such services exceeds a certain duration or extent so that the health, safety or life of the population may be endangered (see 1994 General Survey, paragraph 160).

II.  Requirement of 75 per cent of Panamanian
  nationals to establish a trade union

With reference to its previous comments, the Committee notes with satisfaction that section 347 of the Labour Code, by virtue of which "75 per cent of the members of any union shall be of Panamanian nationality" was repealed by section 70 of Act No. 44 of August 1995.

III.  Prohibition of more than one association of public servants
  in an institution, and more than one chapter per province

The Committee notes that the national Government has established a commission to examine this matter and develop feasible solutions. The Committee recalls that any system of trade union unity or monopoly imposed either directly or indirectly by the law is not compatible with the principle of the freedom of workers and employers to establish organizations of their own choosing as set out in Article 2 of the Convention. The Committee requests the Government to provide information on the measures which are adopted to amend the legislation so that all public servants are able, if they so wish, to establish and join trade union organizations of their own choosing. The Committee also requests a copy of the amended legislation.

IV.  The excessively high number of members required by section 41 of
  Act No. 44 for the establishment of occupational organizations
  of employers and workers at the enterprise level

The Committee notes once again the Government’s justification of these requirements on the grounds that they were the result of a tripartite consensus between the social partners, namely employers and workers, with the participation of the Government. In this respect, the Committee once again requests the Government to take the necessary measures to reduce the number of ten members required to establish an organization of employers and to reduce even further the minimum number of 40 workers required to establish a trade union organization at the enterprise level, leaving it at the discretion of the employers’ and workers’ organizations to determine these matters in their respective rules.

V.  Constitutional requirement to be of Panamanian nationality
  to serve on the executive board of a trade union

The Committee notes the Government’s statement to the effect that it can be difficult to amend the political Constitution, since special procedures have to be followed which require majorities which are not currently available to the Government. The Committee emphasizes that 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 (General Survey, op. cit., paragraph 118). The Committee once again hopes that the Government will take the relevant measures to eliminate this requirement from the political Constitution and will keep it informed of any progress made in this respect.

VI.  Obligation to provide minimum services with 50 per cent of the personnel in establishments which provide essential public services (section 185 of Act No. 9 of 1994, "establishing and regulating administrative careers"), including transport services (section 486 of the Labour Code)

  Sanctions: Summary dismissal of public servants for calling or participating in strikes which are prohibited or declared illegal, or failure to comply with minimum service requirements in legal strikes (section 152(14) of Act No. 9)

The Committee recalls that it is excessive to require the presence of 50 per cent of the personnel to provide minimum services in the case of essential services in the strict sense of the term. However, in services which are not essential in the strict sense of the term (such as transport), a negotiated minimum service could be established which is limited to the basic needs of the population or to satisfying the minimum requirements of the service, while maintaining the effectiveness of the pressure brought to bear (see General Survey, op. cit., paragraph 161). The Committee considers that the requirement of 50 per cent of the personnel to provide these minimum services in the event of a strike in the transport sector is not compatible with the principles of freedom of association. Furthermore, the Committee once again recalls that "sanctions for strike action should be possible only where the prohibitions in question are in conformity with the principles of freedom of association" (see General Survey, op. cit., paragraph 177).

VII.  Legislation restricting the activities of employers’ and workers’ organizations

  Closure of enterprises, establishments or businesses affected by a strike, in accordance with sections 493(1) and 497 of the Labour Code

The Committee notes the information provided by the Government in its report to the effect that a process of tripartite consultation has been initiated with all the organizations of employers and workers concerning the recommendations of the Committee on Freedom of Association. The Committee of Experts recalls that, in the event of a lawful strike, these provisions go beyond the protection of the exercise of the right to strike and may infringe the freedom to work of strikers, while disregarding the basic needs of the enterprise (maintenance of equipment, prevention of accidents and the right of employers and managerial staff to enter the installations of the enterprise and to exercise their activities). In these conditions, in the same way as the Committee on Freedom of Association, the Committee of Experts expresses the firm hope that the Government will take the necessary measures to repeal sections 493(1) and 497 of the Labour Code.

VIII.  Possibility for workers to submit collective disputes unilaterally to arbitration (section 452(2) of the Labour Code)

The Committee recalls that recourse to compulsory arbitration at the request of one of the parties would only be admissible as a compensatory guarantee in essential services in the strict sense of the term. The Committee recalls that arbitration imposed at the request of one party is generally contrary to the principle of voluntary bargaining and thus the autonomy of bargaining partners. An exception might, however, be made in the case of provisions which, for instance, allow workers’ organizations to initiate such a procedure on their own, for the conclusion of a first collective agreement (see General Survey, op. cit., paragraph 257).

In this regard, the Committee requests the Government to take appropriate measures to amend the second paragraph of section 452 of the Labour Code within the meaning of the principle expressed above.

IX.  Payment of wages due in respect of strike days and
  penalization for withdrawal from conciliation by one
  of the parties and failure to reply to a statement of claims

In this regard, the Committee notes the conclusions and recommendations in which the Committee on Freedom of Association in November 1999 (Case No. 1931) requested the Government to envisage amending the legislation in such a way that: (1) the payment of wages in respect of strike days is not mandatory but a matter for resolution by the parties; (2) the withdrawal by one of the parties from the conciliation procedure does not give rise to disproportionate penalties; and (3) that failure to reply to a statement of claims does not entail disproportionate penalties.

The Committee reminds the Government that, if it so wishes, it may have recourse to the technical assistance of the ILO to bring its legislation into conformity with the Convention. It also requests the Government to provide information in its next report of any progress achieved in this respect.

Direct Request (CEACR) - adopted 1998, published 87th ILC session (1999)

The Committee notes that the information contained in the Government's report does not respond to the points raised in its previous comments which referred to the following:

1. Compulsory arbitration

-- the powers of the Regional or General Labour Authorities to submit collective disputes to compulsory arbitration to settle disputes which occur in public service enterprises, which are not essential services in the strict sense of the term (the food and transport services), in accordance with sections 486 and 452(3) of the Labour Code.

In this respect, the Committee takes due note of the detailed information contained in the Government's report to the effect that the food services included under section 486 of the Labour Code are considered as essential services since essential items which affect several integral service sectors are referred to thereunder. In particular, the Committee takes due note of the Government's statement and recalls that the establishment of a minimum service could be established to ensure that the basic needs of these sectors are satisfied (see the General Survey on freedom of association and collective bargaining, 1994, paragraph 162).

With regard to the transport service, the Committee notes the Government's statement to the effect that collective and individual transport is a public service which is offered by the State and which is considered as an essential service due to the population's general dependency on this service and the paralysis of the transport service, particularly in an urban area, would constitute an infringement of the freedom of movement which is guaranteed by the State.

The Committee, whilst taking due note of the Government's comments, insists that the transport service is not an essential service, per se, but may become essential if the strike affecting it exceeds a certain duration or extent so that the life, personal safety or health of the population are endangered, or in a situation of acute national crisis (see General Survey, op. cit., paragraph 160).

2. Minimum service

-- the obligation to provide minimum services with 50 per cent of the persons who normally work in these services which provide essential public services (section 185 of Act No. 9 of 1994 "which are established and regulated by administrative authority"), such as the transport service (section 486 of the Labour Code).

In this regard, the Committee again requests that in the event that a service is not an essential service in the strict sense of the term, a negotiated minimum service should be established, which is limited to the basic needs of the population or to satisfying the minimum requirements of the service, while maintaining the effectiveness of the pressure brought to bear (see General Survey, op. cit., paragraph 161).

3. Sanctions

-- the summary dismissal for calling or participating in illegal or unlawful strikes or failing to comply with the requirements of a minimum service in a legal strike (section 152(14) of Act No. 9).

In this respect, the Committee notes the Government's statement to the effect that calling or participating in an illegal strike are grounds for summary dismissal. The Committee recalls that "sanctions for strike action should be possible only where the prohibitions in question are in conformity with the principles of freedom of association" (see General Survey, op. cit., paragraph 177).

4. Public servants' organizations

-- section 176 of Act No. 9, which lays down that public servants' associations may group together to form federations of public servants' associations by occupation or branch of activity, who may, in turn, form confederations.

The Committee notes the Government's statement to the effect that the legal status and interests of public servants' associations differ from those of trade union organizations in the private sector, as a consequence of which, in practice, it would be difficult for higher-level organizations to form or affiliate with workers' organizations in the private sector. Nevertheless, the Committee takes due note of the Government's statement to the effect that the Public Servants' Federation is a member of the National Workers' Organization Council (CONATO).

5. Dismissal

-- work-stoppages which have not complied with the requirements established in law empower the employer to request the labour administration authorities to dismiss the worker or workers who instigated the stoppage or the administrative authorities to impose a fine of 50 to 500 balboas (section 15 of Executive Legislative Decree No. 3 of 7 January 1997).

In this respect, the Committee takes due note that the dismissal procedure guarantees the worker concerned the right to a defence hearing.

6. Prohibition strikes in the Panama Canal zone

The Committee regrets that the Government has not responded to its comments concerning the prohibition to call or participate in strike action, go-slows or any other unjustified work stoppage or slow-down which may jeopardize the smooth functioning of the international public service for which the Panama Canal was created (section 92 of Act No. 19 of 11 June 1997 which established the Panama Canal Authority).

In this respect, the Committee again recalls that in the event that strike action is prohibited, workers who are thus deprived of an essential means of defending their social, economic and occupational interests should be afforded rapid and impartial compensatory guarantees, for example conciliation and mediation procedures leading, in the event of deadlock, to arbitration machinery seen to be reliable by the parties concerned (see General Survey, op. cit., paragraph 164). The Committee again requests the Government to indicate the measures envisaged or adopted in this respect.

7. Requirement of 75 per cent of Panamanian nationals to establish a trade union

The Committee regrets that the Government has not responded to its comment relative to the precondition that 75 per cent of the members of a trade union should be Panamanian nationals. The Committee takes into account that this provision (section 347 of the Labour Code) has been the subject of its comments for reasons of non-conformity with the Convention and that the Committee had noted with satisfaction in its 1996 observation that section 70 of Act No. 44 of 1995 had repealed this provision, and requests the Government to specify whether section 347 of the Labour Code which still appears in a publication after 1996 remains in force and, if so, the necessary measures taken to repeal this provision.

The Committee again expresses the hope that a report will be submitted to enable its examination during the next session and that it will contain full information on the points raised.

Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

The Committee notes the Government's report and the Committee on Freedom of Association's conclusions and recommendations in Case No. 1931 (Panama), which was approved by the Governing Body at its 272nd Session in June 1998, and which refers to the restrictions on the right of employers and their organizations provided for in the law (210th Report, paragraphs 493-507).

A. The Committee recalls that its previous comments referred to the following provisions:

-- section 174 and the final paragraph of section 178 of Act No. 9 ("establishing and regulating administrative careers"), of 1994, which lays down respectively that there shall not be more than one association in an institution, and that associations may have provincial or regional chapters, but can have no more than one chapter per province;

-- section 41 of Act No. 44 of 1995 (amending section 344 of the Labour Code) which requires an excessively high number of members to establish an employers' occupational organization (10) and an equally high number to establish a workers' organization (40) at the enterprise level;

-- section 64 of the Constitution which requires Panamanian nationality to serve on the Executive Board of a trade union.

In regard to the prohibition of more than one public servants' association in an institution and more than one chapter per province, the Committee notes the Government's statement in its report setting out the reasons for such provisions, including the reduction of the number of public servants. Nevertheless, the Committee emphasizes again that any system of trade union unity or monopoly, implicitly or explicitly imposed by law, is contrary to the principle that workers and employers shall have the right to establish organizations of their choosing as laid down in Article 2 of the Convention. On this point, the Committee again requests the Government to take the necessary measures to amend its legislation so that workers have the right to establish and join trade union organizations of their own choosing, should they so wish.

As regards the number of members required to establish an employers' or a workers' organization, the Committee notes the Government's statement to the effect that Act No. 44 of 1995 issuing this provision, was the result of a tripartite consensus between the Government and social partners. Notwithstanding the latter, the Government has noted the Committee's observations.

In this respect, the Committee again requests the Government to take the necessary measures to reduce the number of members required to establish an organization of employers to fewer than ten and to further reduce the minimum number of 40 workers required to establish an occupational organization at the enterprise level, particularly if this requirement prevents collective bargaining in smaller enterprises.

With regard to the requirement of Panamanian nationality to serve on the Executive Board of a trade union, the Committee notes the Government's statement, despite the fact that constitutional reforms require a special procedure, the Government has noted the Committee's comments on this point. The Committee again hopes that the Government will adopt the necessary measures to repeal this provision in the Political Constitution.

B. Case No. 1931. As regards lockouts in enterprises, establishments and businesses in the event of a strike, as provided in sections 493(1) and 497 of the Labour Code (Case No. 1931), the Committee considers that in the case of a legal strike such provisions go beyond the protection of the right to strike and may restrict the freedom to work of non-striking workers, ignoring the basic needs of the enterprise (maintenance of premises, accident prevention and the right of entrepreneurs and managers to enter the premises and to exercise their activities). In such conditions, the Committee of Experts, in the same way as the Committee on Freedom of Association, requests the Government to take measures to repeal the above provisions set out in sections 493(1) and 497 of the Labour Code.

As regards the possibility of workers unilaterally submitting collective disputes to arbitration (section 452(2) of the Labour Code), whose findings shall be legally binding on the parties (section 470 of the Labour Code), the Committee recalls that arbitration imposed at the request of one party is generally contrary to the principle of the voluntary negotiation of collective agreements and thus, the autonomy of bargaining partners. Nevertheless, an exception could be made in the cases in which provisions exist, for instance, allowing workers' organizations to initiate such a procedure for the conclusion of a first collective agreement (see General Survey on freedom of association and collective bargaining, 1994, paragraph 257).

In this respect, the Committee requests the Government to take the necessary measures to amend section 452(2) of the Labour Code to reflect the above-noted principle.

The Committee again hopes that the Government will continue to take measures to bring the legislation into full conformity with the provisions of the Convention and requests the Government to inform it in its next report of any progress made in this respect.

The Committee is addressing a request directly to the Government on other points.

Direct Request (CEACR) - adopted 1997, published 86th ILC session (1998)

The Committee notes the observations made by the Latin American Central of Workers (CLAT) on the application of the Convention and the Government's responses to them. The Committee confirms that the Government's report does not contain any responses to the questions raised in its previous direct request, and it is therefore obliged to reiterate its previous comments which referred to the following points:

-- the right of the labour authorities at the regional or national levels to submit collective disputes to compulsory arbitration when they occur in a public service enterprise, as determined in section 486 of the Labour Code (section 452(3) of the Code).

In this respect, the Committee again stresses that the transport and food services included under section 486 are not per se essential services in the strict sense of the term.

Furthermore, the Committee notes that Act No. 9 ("establishing and regulating administrative careers"), approved on 20 June 1994, contains some provisions which may cause problems in the application of the Convention.

Section 185 of Act No. 9 lays down the obligation to provide minimum services with 50 per cent of the staff which normally work in them when this relates to bodies which provide essential public services including some which are not essential in the strict sense, especially those relating to transport; and section 152(14), which provides that calling or taking part in strikes which are prohibited or declared illegal, or failing to comply with the requirement for minimum services during lawful strikes, is a reason for direct dismissal.

Recalling once again that the sanctions, such as direct dismissal, provided for in section 152(14) of Act No. 9 should be proportionate to the type and seriousness of the violation committed by the worker, the Committee draws the Government's attention to the fact that workers and their organizations should be able, if they so wish, to participate in defining such a service, along with employers and the public authorities. In addition, the minimum services should be limited to the operations which are strictly necessary to meet the basic needs of the population or the minimum requirements of the services, while maintaining the effectiveness of the pressure brought to bear (see General Survey on freedom of association and collective bargaining, 1994, paragraph 161).

Section 176 of Act No. 9 lays down that public servants' associations may establish federations of public servants' associations by class or sector of activity; and that they may in turn establish confederations.

On this matter, the Committee recalls 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 choosing, including those which also group together organizations from the private sector (see op. cit., paragraph 193). The Committee again requests the Government to inform it whether they can, if they so wish, join with other organizations in federations which are not public servants' federations. If not, the Committee requests the Government to adopt appropriate measures to amend legislation to that effect.

The Committee again requests the Government to take the necessary measures to ensure that its law and practice comply with the principles of freedom of association.

In its observations, CLAT indicates that Executive Legislative Decrees Nos. 1 and 2 of 1996 (which accelerate the procedure for the establishment of enterprises in export processing zones) contain provisions restricting the exercise of the right to strike by establishing that only after a period of 20 working days, once the conciliation and arbitration procedure has been exhausted (sections 23, 25 and 27), may workers in free zones declare strikes. Similarly, they indicate that in accordance with section 30 of the same Decrees, stopping work without fulfilling the above provisions gives an employer the right to terminate the employment contracts of those responsible.

The Committee notes the Government's comments, in particular that the Decrees in question were amended by Legislative Decree No. 3 of 7 January 1997, the provisions of which (sections 12-15) provide only for a preliminary conciliation procedure lasting for 36 working days which must be completed before a strike can be declared legally. The Committee observes with interest that Legislative Decree No. 3 does not refer to arbitration. However, it notes that under section 15 of the same Decree a work stoppage without the fulfilment of the above-mentioned formalities gives an employer the right to request, from the labour administration authorities, the termination of the employment contracts of the worker or workers responsible for the unlawful stoppage, or the imposition by the administrative authorities, at the employer's request, of a fine of 50 to 500 balboas.

In this respect, the Committee requests the Government to indicate whether workers have the possibility to appeal against such decisions.

The Committee observes that section 92 of Act No. 19 of 11 June 1997 establishing the Panama Canal Authority prohibits strikes, go-slows and any other unjustified work stoppage so as to ensure that such action does not affect the international public service for which the Canal was created.

In this respect, the Committee reminds the Government that if the right to strike is subject to restrictions or a prohibition, workers who are thus deprived of an essential means of defending their socio-economic and occupational interests should be afforded impartial and speedy compensatory guarantees, for example conciliation and mediation procedures leading, in the event of deadlock, to arbitration machinery seen to be reliable by the parties concerned (see op. cit., paragraph 164). The Committee requests the Government to adopt measures in accordance with the above.

The Committee expresses the hope that a report will be sent so that it may be examined at its next meeting and that the report will contain complete information regarding the matters raised.

Observation (CEACR) - adopted 1997, published 86th ILC session (1998)

The Committee notes the information supplied by the Government in its report and confirms that it indicates that it will send a response to the questions raised by the Committee in its previous observation at a later date. The Committee recalls that its previous comments referred to the following provisions:

-- section 174 and the last paragraph of section 178 of Act No. 9 ("establishing and regulating administrative careers") of 1994, which established that there shall be not more than one association in an institution and that the associations may have provincial or regional offices but not more than one office per province respectively;

-- section 41 of Act No. 44 of 1995 (amending section No. 344 of the Labour Code) which requires an excessively high number of members in order to establish an occupational employers' organization (ten) and an even higher number to establish a workers' organization at enterprise level (40).

As regards the fact that it is impossible for there to be more than one public servants' association in an institution, or more than one office per province (section 174 and the last paragraph of section 178 of Act No. 9 of 1994), the Committee reiterates that any system of single trade union organization 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 once again reminds 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 1994 General Survey on freedom of association and collective bargaining, paragraph 91).

As regards the number of members required to establish an employers' and workers' occupational organization (section 41 of Act No. 44, amending section 344 of the Labour Code), the Committee once again requests the Government to reduce the number of members (ten) required to establish an employers' organization and to reduce even further the minimum number of 40 workers required to establish a trade union organization at enterprise level.

The Committee hopes once again that the Government will continue to make efforts to bring the legislation into full conformity with the provisions of the Convention, and requests the Government to keep it informed of any progress made in this respect.

The Committee is also addressing a request directly to the Government relating to certain matters.

Direct Request (CEACR) - adopted 1996, published 85th ILC session (1997)

The Committee notes that the Government's report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which concerned:

- the right of the labour authorities at the regional or national levels to submit collective disputes to compulsory arbitration when they occur in a public service enterprise, as determined in section 486 of the Labour Code (section 452(3) of the Code).

In this respect, the Committee stresses that the services of transport and food included under section 486 are not per se essential services in the strict sense of the term.

Furthermore, the Committee notes that Act No. 9 ("establishing and regulating administrative careers"), adopted on 20 June 1994, contains some provisions which may cause problems in the application of the Convention, namely:

- section 185 which lays down the obligation to provide minimum services with 50 per cent of the staff which normally work in them when this relates to bodies which provide essential public services including some which are not essential in the strict sense, especially those relating to transport; and section 152(14), which provides that calling or taking part in strikes which are prohibited or declared illegal, or failing to comply with the requirement for minimum services during lawful strikes, is a reason for direct dismissal.

Recalling that sanctions, such as direct dismissal, provided for in section 152(14) of Act No. 9 should be proportionate to the type and seriousness of the violation committed by the worker, the Committee draws the attention of the Government to the fact that since the imposition of a minimum service 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, along with employers and the public authorities. In addition, the minimum services should be limited to the operations which are strictly necessary to meet the basic needs of the population or the minimum requirements of the services, while maintaining the effectiveness of the pressure brought to bear (see General Survey on freedom of association and collective bargaining, 1994, paragraph 161).

- section 176 which lays down that public servants' associations may establish federations of public servants' associations by class or sector of activity; and that they may in turn establish confederations.

On this matter, the Committee requests the Government to inform it whether they can, if they so wish, join with other organizations in federations which are not public servants' federations. If not, the Committee requests the Government to adopt appropriate measures to amend legislation to that effect.

The Committee once again requests the Government to take the necessary measures to ensure that its law and practice comply with the principles of freedom of association.

Observation (CEACR) - adopted 1996, published 85th ILC session (1997)

The Committee notes that the Government's report has not been received. It must therefore repeat its previous observation which 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);

While noting that section 46 of Act No. 44 amends section 369 of the Code by abolishing the requirement that members of the executive board of a trade union must be of Panamanian nationality, the Committee expressed the hope that this requirement would also be removed from the Constitution (Article 64).

Moreover, the Committee noted 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 observed, nevertheless, that the too-high number of ten employers needed to establish an occupational organization had not been modified and hoped that the Government, in consultation with the social partners, would be able to reduce this requirement also and would 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 noted 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 noted 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 observed 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 pointed out 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 reminded 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 of 1994 on freedom of association and collective bargaining, paragraph 91).

The Committee again expresses the hope 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.

Direct Request (CEACR) - adopted 1995, published 83rd ILC session (1996)

The Committee notes that the Government's report contains no information on the question of:

- the right of the labour authorities at the regional or national levels to submit collective disputes to compulsory arbitration when they occur in a public service enterprise, as determined in section 486 of the Labour Code (section 452(3) of the Code).

In this respect, the Committee stresses that the services of transport and food included under section 486 are not per se essential services in the strict sense of the term.

Furthermore, the Committee notes that Act No. 9 ("establishing and regulating administrative careers"), adopted on 20 June 1994, contains some provisions which may cause problems in the application of the Convention, namely:

- section 185 which lays down the obligation to provide minimum services with 50 per cent of the staff which normally work in them when this relates to bodies which provide essential public services including some which are not essential in the strict sense, especially those relating to transport; and section 152(14), which provides that calling or taking part in strikes which are prohibited or declared illegal, or failing to comply with the requirement for minimum services during lawful strikes, is a reason for direct dismissal.

Recalling that sanctions, such as direct dismissal, provided for in section 152(14) of Act No. 9 should be proportionate to the type and seriousness of the violation committed by the worker, the Committee draws the attention of the Government to the fact that since the imposition of a minimum service 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, along with employers and the public authorities. In addition, the minimum services should be limited to the operations which are strictly necessary to meet the basic needs of the population or the minimum requirements of the services, while maintaining the effectiveness of the pressure brought to bear (see General Survey on freedom of association and collective bargaining, 1994, paragraph 161).

- section 176 which lays down that public servants' associations may establish federations of public servants' associations by class or sector of activity; and that they may in turn establish confederations.

On this matter, the Committee requests the Government to inform it whether they can, if they so wish, join with other organizations in federations which are not public servants' federations. If not, the Committee requests the Government to adopt appropriate measures to amend legislation to that effect.

The Committee once again requests the Government to take the necessary measures to ensure that its law and practice comply with the principles of freedom of association.

Direct Request (CEACR) - adopted 1995, published 82nd ILC session (1995)

The Committee notes that the Government's report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

The Committee notes that section 452(3) of the Labour Code confers on the labour authorities at the regional or national levels the right to submit collective disputes to compulsory arbitration when they occur in a public service enterprise, as determined in section 486 of the Labour Code.

In the Committee's opinion, the services of transport and food included under section 486 are not per se essential services in the strict sense of the term.

The Committee requests the Government to take the appropriate measures to permit workers in these services to exercise the right to strike.

Observation (CEACR) - adopted 1995, published 82nd ILC session (1995)

The Committee notes that the Government's report has not been received. It must therefore repeat its previous observation which read as follows:

1. With regard to the authorities' wide powers of supervision over the records and accounts of trade unions (section 376(4) of the Labour Code), the Committee notes Decision No. D.M. 23/92 of 21 May 1992 in which the number of documents required is reduced and the effects of section 376(4) of the Code are limited. The Committee hopes that in the near future this provision of the Labour Code will also be amended. 2. With reference to the restrictions on the right to strike (Act No. 13 of 1990), the Committee notes that Act No. 2 under which collective bargaining is reinstated and other labour provisions adopted, was approved by the Legislative Assembly on 13 January 1993 and repeals section 452(4) of the Labour Code respecting compulsory arbitration in enterprises when the continuation of the strike could result in serious economic problems for the enterprise. The Committee wishes nevertheless to remind the Government of the comments which it has been making for several years with regard to the following points: -- the exclusion of public servants from the scope of the Labour Code and consequently from the right to organize 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 organization; -- the requirement that 75 per cent of trade union members are Panamanian (section 347); and -- the automatic removal from office of a trade union officer in the event of his dismissal (section 359). With regard to the exclusion of public servants from the scope of the Labour Code and consequently from the right to organize, the Committee notes the information supplied by the Government that it has formally submitted a Bill respecting administrative careers to the Legislative Assembly for examination and approval. In this connection, the Committee notes that Bill No. 1, establishing and regulating administrative careers, does not contain any provisions on the right to organize of public servants. It only refers to the right to join associations to promote and give some dignity to public servants (section 128(8)) of the Bill, but not to the right to organize of public servants to defend their occupational interests. The Committee requests the Government to take the necessary measures in this respect. With regard to the requirement of too high a number of members to establish an occupational organization (section 344 of the Labour Code) and the requirement for 75 per cent of the union members to be of Panamanian nationality (section 347 of the Code), as well as the automatic removal from office of an enterprise-level trade union officer in the event of his dismissal (section 359 of the Code), the Committee notes that, according to the indications provided by the Government, possible reforms of these provisions would be dealt with in a tripartite manner within the framework of a concerted social process. The Committee also notes that the final paragraph of section 64 of the Political Constitution, and section 369 of the Labour Code, require that the executive board of a trade union organization be composed exclusively of persons of Panamanian nationality. In this context, the Committee is of the opinion that the legislation should be made more flexible in order to permit organizations to choose their leaders without hindrance and also to permit foreign workers to hold trade union office, at least after a reasonable period of residence in the host country (see paragraph 118 of the 1994 General Survey on Freedom of Association and Collective Bargaining). The Committee again expresses the strong hope that the necessary measures will be taken to harmonize the legislation more fully with the Convention and reminds the Government that the ILO is available for technical cooperation in this respect.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

Observation (CEACR) - adopted 1995, published 83rd ILC session (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.

Direct Request (CEACR) - adopted 1993, published 80th ILC session (1993)

The Committee notes that section 452(3) of the Labour Code confers on the labour authorities at the regional or national levels the right to submit collective disputes to compulsory arbitration when they occur in a public service enterprise, as determined in section 486 of the Labour Code.

In the Committee's opinion, the services of transport and food included under section 486 are not per se essential services in the strict sense of the term.

The Committee requests the Government to take the appropriate measures to permit workers in these services to exercise the right to strike.

Observation (CEACR) - adopted 1993, published 80th ILC session (1993)

The Committee notes the information supplied by the Government in its report and the discussions that took place during the Conference Committee in June 1992.

The Committee notes with interest that some progress has been achieved in the legislation with regard to the powers of the authorities over the administrative aspects of trade union organizations and the right to strike:

1. With regard to the authorities' wide powers of supervision over the records and accounts of trade unions (section 376(4) of the Labour Code), the Committee notes Decision No. D.M. 23/92 of 21 May 1992 in which the number of documents required is reduced and the effects of section 376(4) of the Code are limited. The Committee hopes that in the near future this provision of the Labour Code will also be amended.

2. With reference to the restrictions on the right to strike (Act No. 13 of 1990), the Committee notes that Act No. 2 under which collective bargaining is reinstated and other labour provisions adopted, was approved by the Legislative Assembly on 13 January 1993 and repeals section 452(4) of the Labour Code respecting compulsory arbitration in enterprises when the continuation of the strike could result in serious economic problems for the enterprise.

The Committee wishes nevertheless to remind the Government of the comments which it has been making for several years with regard to the following points:

- the exclusion of public servants from the scope of the Labour Code and consequently from the right to organize 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 organization;

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

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

With regard to the exclusion of public servants from the scope of the Labour Code and consequently from the right to organize, the Committee notes the information supplied by the Government that it has formally submitted a Bill respecting administrative careers to the Legislative Assembly for examination and approval. In this connection, the Committee notes that Bill No. 1, establishing and regulating administrative careers, does not contain any provisions on the right to organize of public servants. It only refers to the right to join associations to promote and give some dignity to public servants (section 128(8)) of the Bill, but not to the right to organize of public servants to defend their occupational interests. The Committee requests the Government to take the necessary measures in this respect.

With regard to the requirement of too high a number of members to establish an occupational organization (section 344 of the Labour Code) and the requirement for 75 per cent of the union members to be of Panamanian nationality (section 347 of the Code), as well as the automatic removal from office of an enterprise-level trade union officer in the event of his dismissal (section 359 of the Code), the Committee notes that, according to the indications provided by the Government, possible reforms of these provisions would be dealt with in a tripartite manner within the framework of a concerted social process.

The Committee also notes that the final paragraph of section 64 of the Political Constitution, and section 369 of the Labour Code, require that the executive board of a trade union organization be composed exclusively of persons of Panamian nationality.

In this context, the Committee is of the opinion that the legislation should be made more flexible in order to permit organizations to choose their leaders without hindrance and also to permit foreign workers to hold trade union office, at least after a reasonable period of residence in the host country (see paragraph 160 of the 1983 General Survey on Freedom of Association and Collective Bargaining).

The Committee again expresses the strong hope that the necessary measures will be taken to harmonize the legislation more fully with the Convention and reminds the Government that the ILO is available for technical cooperation in this respect.

Observation (CEACR) - adopted 1992, published 79th ILC session (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.]

Observation (CEACR) - adopted 1991, published 78th ILC session (1991)

The Committee notes that the Government's report only covers the period 30 October 1988 to 30 October 1989 and that it contains no indications enabling the Committee to modify its previous comments.

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

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

- 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)).

In view of the gravity of these points and the large number of years for which it has been insisting upon the need to amend the legislation, the Committee urges the Government to take measures in the near future to bring the law and practice into conformity with the Convention.

Furthermore, the Committee notes that the Legislative Assembly has adopted Act No. 13 of 11 October 1990, which sets out restrictions on the right to strike. The above Act 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. The Committee emphasises that, according to its principles, the right to strike can only be subject to serious restrictions, such as for example submission to compulsory arbitration in: (1) essential services in the strict sense of the term (those whose interruption would endanger the life, personal safety or health of the whole or part of the population); (2) the case of public servants acting in their capacity as agents of the public authority; and (3) in the event of an acute national crisis. The Committee therefore requests the Government to take measures to amend the above-mentioned provisions in order to take full account of these principles.

Finally, the Committee notes that Act No. 25 of 14 December 1990, with retroactive effect as of 4 December 1990 "authorises the Executive and directors of independent and semi-independent institutions, state and municipal enterprises and other public state 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 associations of public servants; their trade union or sectoral delegates and representatives, the officers of the associations of public servants, irrespective of the existence of trade union immunity; and irrespective of whether they are governed by special laws". The Committee observes that appeals may be made only to administrative and not to judicial bodies against the above declarations that appointments are void. The Committee considers that Act No. 25 greatly prejudices the exercise of the right of associations of public employees to organise their activities, including through strikes, that it is intended to legitimise the dismissal of a large number of such employees, and it requests the Government to take measures to repeal it.

[The Government is asked supply full particulars to the Conference at its 78th Session and to report in detail for the period ending 30 June 1991.]

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.