Interim Report - Report No 373, October 2014

Case No 3048 (Panama) - Complaint date: 30-SEP-13 - Closed

Allegations: refusal to register a transport workers’ trade union, dismissal of hundreds of workers following that refusal, and the existence of a trade union controlled by the enterprise

1. 407. The complaint is contained in a communication from the Confederation of Workers of the Republic of Panama (CTRP) of September 2013.
2. 408. The Government sent its observations in a communication dated 10 March 2014.
3. 409. Panama has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 410. In a communication of September 2013, the CTRP alleges that the Minister of Labour and Employment Development rejected the registration of the Trade Union of Public and Private Transport Workers of Panama (SITTRACOSEP) and, on the day after that rejection, more than 400 workers of the enterprise Transporte Masivo de Panamá SA “Mi Bus”, who supported the creation of the union, were dismissed.
2. 411. The complainant also alleges that an enterprise trade union already exists, controlled by the enterprise. The complainant attaches the text of the Minister’s ruling, dated 9 January 2013, in which she rejected the application for the registration of SITTRACOSEP. The complainant alleges that these acts violate ILO Conventions Nos 87 and 98.

B. The Government’s reply

1. 412. In a communication dated 10 March 2014, the Government declares that the refusal to grant SITTRACOSEP legal personality was not the result of a pre-established labour policy, but due to inconsistencies in the documentation provided in the application for legal personality, which are inadmissible in such an important act.
2. 413. The Government explains that on 4 January 2014, the Department of Social Organizations of the General Directorate of Labour received an application for legal personality from the organization.
3. 414. Having examined the documentation, the Department observed that the membership of the trade union that was being established included workers of the enterprise Transporte Masivo de Panamá SA, and certain self-employed workers, which made it impossible to continue processing the application, since the law prohibits the existence of two enterprise unions in the same enterprise, as set out in section 346 of the Labour Code. Nor could it be considered an industry union as the workers wishing to create the occupational organization do not work in two or more enterprises. Once the Department of Social Organizations realized that most of the founding members of the organization worked for that enterprise, and that the rest were independent transport operators, it observed that, although the stated purpose of the application was to register an industry union, section 342(3) of the Labour Code provides that “Trade unions are: … 3. Industry unions, when they are established by persons with different occupations, functions or specialities, providing services in two or more enterprises of the same type”.
4. 415. The union merely indicated that its members work for the same enterprise and that the rest are self-employed.
5. 416. However, if it is understood that the application for legal personality is for an enterprise trade union, the provisional executive committee of the applicant union is exclusively made up of workers of the enterprise Transporte Masivo de Panamá SA, which already has a trade union. It is also impossible to determine which workers are engaged in private transport and/or are self-employed. Accordingly, after the examination of the documentation, it was concluded that the aim of this new industry trade union was to carry out the functions of an enterprise union.
6. 417. If it is considered to be an enterprise union, the Government reiterates that the Ministry cannot allow two trade unions of the same nature to coexist in the same enterprise, in accordance with section 346 of the Labour Code:

   Note No. DM.217.2014

   • Section 346. An enterprise shall not have more than one enterprise trade union. Trade unions that find themselves in such a situation upon the entry into force of this Code will have one year in which to merge. If such a merger has not occurred by the end of that period, the Government shall proceed to the dissolution for that reason of the trade union with the lowest number of members.
7. 418. Following its examination of the application, the intention could not be understood as the establishment of an industry trade union, as it was not possible to identify the two enterprises in which the workers were engaged, nor an enterprise union, while another enterprise union existed. On these grounds, the Ministry of Labour and Employment Development cannot proceed with registration as the application does not comply with the requirements of section 342 of the Labour Code for the determination of the type of union that is to be established.
8. 419. The Government indicates that the provisions of the Labour Code respecting the establishment of trade unions, and in particular the prohibition in section 346 of more than one enterprise trade union in the same enterprise, has been the subject of “observations” from the ILO supervisory bodies which supervise the application of Convention No. 87, among others, including the Committee of Experts on the Application of Conventions and Recommendations (CEACR), the Conference Committee on the Application of Standards and the Committee on Freedom of Association (CFA).
9. 420. Accordingly, the Committee on the Panama Tripartite Agreement, also known as the “Harmonization Committee” (created in the context of the social dialogue established under the Panama Tripartite Agreement, signed on 1 February 2012), has included this subject in the list of observations by the ILO supervisory bodies which will be examined, studied and consensus-based solutions agreed upon through social dialogue within the Committee, to align national labour legislation with the provisions of Convention No. 87. It should be emphasized that the Committee on the Panama Tripartite Agreement is the social dialogue committee which is responsible for developing draft legislation and finding compromises based on consensus to align national law with the provisions of Conventions Nos 87 and 98, in accordance with the comments of the supervisory bodies on the application of ILO Conventions. If consensus is achieved between the parties, its mandate may be extended to the harmonization of other ILO Conventions ratified by Panama for which there are problems of implementation in national law.
10. 421. The Government indicates that, being aware of the importance of social dialogue as an instrument to find ways of resolving problems in the implementation of ILO Conventions Nos 87 and 98, it considered it appropriate to refer this case to the Tripartite Committee for the Rapid Handling of Complaints relating to Freedom of Association and Collective Bargaining (also known as the “Complaints Committee”) on 10 February 2014 so that it could be examined through tripartite dialogue in order to identify solutions and reach agreements based on consensus.

C. The Committee’s conclusions

1. 422. The Committee observes that in this case the complainant organization alleges the rejection of the registration of the legal personality of SITTRACOSEP on 9 January 2013, and the dismissal of more than 400 workers of the enterprise Mi Bus on the day after this administrative decision. The complainant also alleges that an enterprise trade union already exists, controlled by the enterprise. The Committee notes the Government’s indication that the substantive legal grounds for refusing the registration of the applicant union related to the fact that it did not represent workers from two or more enterprises (an industry union) and/or that an enterprise union already existed, for which reason another could not be registered under sections 342 and 346 of the Labour Code.
2. 423. The Committee notes that the Government recalls that this case involves provisions of the Labour Code relating to the establishment of trade unions to which objections have been raised by the Committee of Experts on the Application of Conventions and Recommendations and the Committee on Freedom of Association, and that these issues will be discussed in the (Tripartite) Harmonization Committee in order to find solutions based on consensus. The Committee notes that the Government, which expresses the wish to align its legislation with ILO Conventions Nos 87 and 98, has also submitted this case to the Committee for the Rapid Handling of Complaints Relating to Freedom of Association and Collective Bargaining with a view to its examination through tripartite dialogue in order to identify solutions and reach agreements based on consensus.
3. 424. The Committee recalls that all workers, without distinction whatsoever, including without discrimination in regard to occupation, should have the right to establish and join organizations of their own choosing, and that the free exercise of the right to establish and join unions implies the free determination of the structure and composition of unions [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, paras 216 and 333]. The Committee firmly expects the Committee for the Rapid Handling of Complaints to reach solutions which will satisfy the applicant trade union, SITTRACOSEP, and which will resolve the legislative problems related to the establishment of trade union organizations mentioned by the Government in its reply, and which make it impossible to legally establish an enterprise trade union when another already exists, and to establish an industry union which represents both the workers of an enterprise and self-employed workers.
4. 425. The Committee regrets that the Government has not sent any observations regarding the allegations concerning the dismissal of more than 400 workers on the day following the refusal to register the applicant trade union, or the allegation that an enterprise union already exists, which is controlled by the enterprise. The Committee urges the Government to conduct an inquiry without delay and to obtain information about the enterprise through the relevant employers’ organization, and that if the allegations are proven, to take measures to resolve the situation and to keep it informed in this regard.

The Committee’s recommendations

1. 426. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee recalls that all workers, without distinction whatsoever, including without discrimination in regard to occupation, should have the right to establish and join organizations of their own choosing, and that the free exercise of the right to establish and join unions implies the free determination of the structure and composition of unions. The Committee firmly expects the Complaints Committee to reach solutions which will satisfy the applicant trade union, SITTRACOSEP, and which will resolve the legislative problems related to the creation of trade union organizations mentioned by the Government in its reply, which make it impossible to legally establish an enterprise union when another already exists, and to establish an industry union which represents both the workers of an enterprise and self-employed workers.
   • (b) The Committee regrets that the Government has not sent any observations regarding the allegation concerning the dismissal of more than 400 workers on the day following the refusal of the registration of the applicant trade union, or in answer to the allegation that an enterprise union already exists that is controlled by the enterprise. The Committee urges the Government to conduct an inquiry without delay and to obtain information about the enterprise through the relevant employers’ organization, and that if the allegations are proven, to take measures to resolve this situation and to keep it informed in this regard.