Definitive Report - Report No 391, October 2019

Case No 3340 (Panama) - Complaint date: 27-SEP-18 - Closed

Allegations: In Case No. 3328, it is alleged that: (i) the Ministry of Labour favours the enterprise workers’ union to the detriment of SUNTRACS; (ii) the enterprise does not comply with agreements concluded with SUNTRACS; and (iii) workers seeking reinstatement are subject to police repression and detention. In Case No. 3340, it is alleged that the Ministry of Labour favours SUNTRACS to the detriment of the enterprise workers’ union and that the Government is allowing SUNTRACS to try to impose a collective agreement concluded with the Panamanian Construction Industry Board on workers who are not members of SUNTRACS

1. 413. The complaints are contained in communications from the Single National Union of Construction Industry and Allied Workers (SUNTRACS), the National Confederation of United Independent Unions (CONUSI) and Building and Wood Workers’ International (ICM) dated 8 June 2018 (Case No. 3328) and from the General Workers’ Union Confederation of Panama (UGT) dated 29 November 2018 and 19 June 2019 (Case No. 3340).
2. 414. The Government sent its observations in communications dated 7 and 13 February, as well as 26 June and 17 September 2019.
3. 415. 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).
4. 416. The Committee has decided to examine these two cases together, since they concern a similar issue, although raised from different union perspectives, and also because, in its replies, the Government emphasized that the cases are related.

A. The complainants’ allegations

Case No. 3328

1. 417. In their communication dated 8 June 2018, the complainant organizations (SUNTRACS, CONUSI and the ICM) indicate that in 1997, Minera Panamá SA (hereafter “the enterprise”), a subsidiary of the Canadian mining company First Quantum Minerals (FQM), was awarded an over 30-year lease to develop a copper-mining project (hereafter “the mining project”), which was launched in December 2011. The complainants allege that the enterprise obliged workers, when signing the employment contract, to join a union controlled by the enterprise: the FQM Construction and Development Enterprise Workers’ Union (hereafter “the enterprise workers’ union”) and that employment contracts were not given to those who refused to join.
2. 418. The complainant organizations indicate that, as a result of the labour exploitation of the mining project workers, who work more than 12-hour days without any occupational health and safety measures, a strike began on 13 March 2015 and ended six days later, with mediation by the Ministry of Labour and Labour Development (MITRADEL) and with the signing of an agreement in which the enterprise agreed to address their concerns relating to occupational safety, food distribution and transportation. The complainants allege that the enterprise never fulfilled this agreement. They also indicate that the lack of safety and health measures led to the death on 23 December 2015 of 29-year-old worker Faustino Díaz.
3. 419. The complainant organizations state that, even though SUNTRACS is the most representative union in the construction sector, MITRADEL has always ruled in favour of the enterprise and the enterprise workers’ union, recognizing it as the so-called representative of the workers and denying SUNTRACS the right to negotiate with the enterprise on behalf of its members. The complainants allege that MITRADEL’s decisions of 30 November 2016 and 5 April 2017 are proof of this. They have provided a copy of the latter decision, which states that: (i) SUNTRACS and the enterprise workers’ union simultaneously submitted of demands, and MITRADEL issued a decision ordering both to agree on the appointment of a joint representative to negotiate both lists with the enterprise, warning that should they fail to do so, the majority union would negotiate the lists; (ii) SUNTRACS submitted an application for amparo, which was granted due to the lack of grounds for the decision calling for the unions to agree and the violation of due process; (iii) MITRADEL issued a new decision ordering the unions to, within two working days, agree on the appointment of a joint representative to negotiate both lists, warning that should they fail to do so within the prescribed timeframe, the majority union would negotiate the lists; (iv) this decision was the subject of an administrative appeal filed by SUNTRACS, which was denied, thus upholding the decision; (v) the parties failed to reach an agreement and, in accordance with section 431 of the Labour Code, MITRADEL tallied the number of members, establishing 167 members in SUNTRACS and 361 members in the enterprise workers’ union, enabling the latter to negotiate the lists of both unions; and (vi) the decision was subject to appeal and review.
4. 420. The complainant organizations indicate that on 13 February 2018, the workers held a strike, demanding a wage increase, respectful treatment, health care and the negotiation of a collective agreement between SUNTRACS and the enterprise. They state that the strike ended on 18 February 2018 and that, two days later, they signed an agreement that put an end to the collective dispute, in which the enterprise agreed to, inter alia: (i) re-hire any workers who had participated in the strikes and whose short-term contracts had ended between 1 and 17 February 2018; (ii) initiate discussions with SUNTRACS aimed at finding solutions to various labour-related demands, including the negotiation of a new collective labour agreement between the parties; and (iii) not take reprisals against workers for having participated in the strike. The complainants allege that, with the complicity of MITRADEL, the enterprise has not honoured any of the terms established in the agreement. The complainants have sent a copy of a record dated 12 April 2018, in which MITRADEL observed that the enterprise had not complied with the agreement dated 20 March 2018 with regard to the re-hiring of workers who had been dismissed for having participated in the strike from 1 to 17 February 2018. In the record, MITRADEL stated that it was going to explore legal measures to enforce the agreement.
5. 421. The complainant organizations also indicate that the enterprise refused to comply with reinstatement orders issued in favour of over 30 workers who had been dismissed without any justification or legal basis and that, in protest against the enterprise’s failure to comply with the reinstatement orders, on 4 June 2018, the workers held a peaceful protest at the entrance to the enterprise, which was violently repressed by Cocle national police and the enterprise’s private security, who hit and arbitrarily arrested the workers who had been dismissed: Adolfo Yerena, Carlos Gondola, Hector Ramos Joniel Hall, Erick Pérez, Luis Gaitan, Luis Martines, José Borbua, José Bonilla, Dagoberto Chang, Alejandro Valdés and journalist Francis Guerra from an alternative media source, Frenadeso Noticias. The complainants indicate that when the workers filed a complaint, they were illegally taken into custody by members of the national police.

Case No. 3340

1. 422. In its communications of 27 September 2018 and 19 June 2019, the UGT indicates that within the mining project, there is an enterprise workers’ union, presently known as the Industrial Union of Mine Construction and Mining Development and Allied Workers (STM), which is affiliated with the UGT and with Trade Union Convergence. The UGT indicates that since the 1990s, SUNTRACS and the Panamanian Construction Industry Board (CAPAC) (enterprise organization) have been concluding collective labour agreements and alleges that the Government has been allowing SUNTRACS to try to impose on workers who are not members of SUNTRACS and who work in enterprises that are not affiliated with CAPAC the collective labour agreements signed by these two organizations. It also alleges that the Government has been complicit and allowed SUNTRACS to oblige the construction workers to pay it union dues, even though they are not members of the organization and even though the enterprises for which they work are not members of CAPAC. According to the complainant, this situation has caused chaos and confrontations between the mining project workers. The UGT further alleges that SUNTRACS is trying to have a union monopoly in the country and that the Government is being passive in this regard.
2. 423. The complainant organization has sent a document entitled “Violence and blackmail by the main leaders of SUNTRACS” dated 23 March 2018, which indicates that SUNTRACS’s political struggle for a union monopoly in the country spans more than two decades and that its strategy is based on discrediting other trade union leaders who do not support its interests and on inflicting violence and terrorizing workers and business owners. The document also mentions that on 16 January 2016, a group of workers and activists supported by SUNTRACS violently took over the premises of the enterprise undertaking the mining project, injuring 16 workers. Furthermore, in February 2018, SUNTRACS violently barged into the enterprise, leading the UGT to question why the Government allowed SUNTRACS to illegally occupy the enterprise premises for over 72 hours and why the Government would oblige the enterprise to sign an agreement with a non-mining-related trade union. The complainant has sent links to various articles published in the press referring to the above.
3. 424. The complainant organization has also sent a document entitled “Chronology of the conflict in Minera Panamá”, according to which: (i) the enterprise workers’ union acquired legal status in February 2014 and continues to be the majority union in the mining project; (ii) on 2 September 2014, MITRADEL registered the first collective agreement between the enterprise workers’ union and the enterprise, which is valid for four years; (iii) on 13 March 2015, a group of workers from a CAPAC-affiliated contracting enterprise for the Minera Panamá project carried out a work stoppage, blocking the exit of workers from all areas of project; given that these workers were covered by a collective labour agreement concluded between SUNTRACS and CAPAC, the latter demanded that the enterprise apply the agreement with CAPAC, which was not legally possible, since the enterprise had already concluded a collective agreement with the STM; (iv) in September 2016, MITRADEL approved changing the name of the enterprise union, which became an industrial union called the Industrial Union of Mine Construction and Mining Development and Allied Workers (STM); and (v) in 2017 and 2018, following several rounds of negotiations and even a strike held by the STM in January 2018, the STM and the enterprise signed various agreements relating to worker accommodation, the transportation system and conditions in dining areas.

B. The Government’s reply

1. 425. In its communications dated 7 and 13 February, as well as 26 June and 17 September 2019, the Government sent its observations for both cases, as well as those of the enterprise, the National Council of Private Enterprise (CONEP) and CAPAC. The Government indicates that Cases Nos 3328 and 3340 concern the construction sector and, in particular, an inter-union dispute that has arisen in the mining project. The Government indicates that it is making significant efforts to ensure that all the organizations are able to fully enjoy freedom of association and that it cannot take sides in disputes between unions over the ownership of rights, such as the dispute between SUNTRACS and the enterprise workers’ union, which is now known as the STM and is affiliated with the UGT. The Government adds that it is regrettable that the complaints have not been discussed in the Committee for the Rapid Handling of Complaints, one of the committees under the Panama Tripartite Agreement, which meets weekly in MITRADEL and looks for consensual solutions to the cases brought before it.

Case No. 3328

1. 426. The Government indicates that on 4 October 2012, MITRADEL established a special bureau on mining, with 46 public officials responsible for handling labour issues, in the light of the complexity of the mining-related occupations, as well as the large number of mining workers, who total approximately 10,000.
2. 427. The Government indicates that in the mining project, union activities are wide-ranging and freely exercised and that five unions, including the enterprise workers’ union (now known as the STM) and SUNTRACS, co-exist. The Government indicates that MITRADEL has been an ally to all the trade union organizations in the search for instruments that promote respect for freedom of association and that, on several occasions, it has engaged in mediation and that various agreements have been signed and put an end to disputes. The Government refers in particular to the agreement signed on 18 March 2015, in which it was agreed that SUNTRACS would have access to the mining project and to the agreement dated 18 March 2018 (signed on 20 March 2018) which includes clauses relating to visits by SUNTRACS representatives to the mining project. The Government indicates that it has not been aware of any complaints regarding the implementation of the latter agreement, with regard to visits and the presence of SUNTRACS in the mining project, so it assumes that it is being implemented to the satisfaction of the parties.
3. 428. In its reply communicated by the Government, the enterprise indicates that it does not intervene in the unions’ internal affairs; that it does not interfere with right of workers to join the union of their choice or to refrain from joining a trade union organization; and that it does not favour any trade union organization. The enterprise denies the complainants’ allegation that it obliges workers, when signing the employment contract, to join the enterprise workers’ union.
4. 429. The enterprise indicates that on several occasions, SUNTRACS, through the use of violence and threats, has tried to force the enterprise to negotiate with it instead of with the STM, which has the right to negotiate because it is the most representative union, as it has a larger number of enterprise workers than SUNTRACS does. The enterprise states that in 2015 and 2018, SUNTRACS and the STM submitted lists of demands at the same time and that, on both occasions, MITRADEL, after tallying the number of enterprise workers belonging to each union, found that the STM was the most representative union and was therefore entitled to negotiate the collective labour agreement. The enterprise indicates that even though SUNTRACS is a minority union in terms of enterprise workers, in March 2015, it concluded an agreement and protocol for admission to the mining project with the enterprise, even though on several occasions, SUNTRACS has violently barged into the company premises, causing a work stoppage each time and jeopardizing the lives and integrity of all. The Government adds that SUNTRACS and the STM have applied to MITRADEL for the right to negotiate a new collective labour agreement, and that the procedure established in the Labour Code has been followed. The applications are still being processed due to the submission by SUNTRACS of applications for amparo, which must first be resolved.
5. 430. As regards the reinstatement orders, the company indicates that the courts had issued those orders before the company had been heard. It also indicates that the company had challenged those orders and that, after hearing the parties and considering the facts and evidence, the courts had thus far issued a ruling in six of the 31 cases, revoking the respective reinstatement orders. The company indicates that SUNTRACS lodged an appeal and that, in two cases, the Higher Labour Court of the First Judicial District issued a ruling that confirmed the revocation of the reinstatement orders, with those rulings duly enforced. The Government has sent the text of these rulings, which concluded that the company had not dismissed the workers but rather that the labour relationship had ended as their fixed-term contracts had expired and therefore reinstatement was not appropriate.
6. 431. As regards the alleged arbitrary detentions of workers engaging in peaceful protest calling for their reinstatement, the Government has sent a copy of a report by the national police dated 20 June 2019, signed by the chief of the second police district of Cocle, that indicates that there is no record of the detentions of the citizens named in the complaint.

Case No. 3340

1. 432. In its communication dated 7 February 2019, the Government indicated that it was making every relevant effort to ensure that all trade unions were able to fully exercise their freedom of association and that it was unable to intervene in inter-union disputes nor in engagement with employers’ associations in the scope of that freedom. The Government also indicated that SUNTRACS had signed a collective labour agreement with CAPAC (which brings together around 100 companies) in compliance with the conciliation procedures set forth in the Labour Code, and that MITRADEL did not have the authority to stop a company from negotiating a collective agreement with SUNTRACS with content identical to that contained in the agreement signed between SUNTRACS and CAPAC.
2. 433. CAPAC indicates that it is an employers’ organization that brings together the leading companies in the construction sector; that, since 2018, it has negotiated ten collective labour agreements with SUNTRACS that regulate labour relations between CAPAC members, which are generalist and specialist contractors, and their workers; and that those agreements were negotiated in accordance with the provisions of the Labour Code.

C. The Committee’s conclusions

1. 434. The Committee observes that Cases Nos 3328 and 3340 concern the same mining project that has involved around 10,000 workers since 2011. While the Committee observes that the allegations in the cases are different and the complaints were made by different organizations, it notes that the Government has indicated that the two cases are related, the common denominator being the dispute between two of the five trade unions involved in the project – SUNTRACS (complainant in Case No. 3328) and the STM, which is affiliated with the UGT (complainant in Case No. 3340) – regarding the ownership of rights to negotiate with the company. On this basis, the Committee has decided to examine both cases in one report, first examining each complaint separately and then presenting its conclusions in relation to their common elements.

Case No. 3328

1. 435. The Committee notes that the complainant organizations allege that: (i) the company requires workers to join the STM, a trade union controlled by the company, and that although SUNTRACS has presented a list of demands for the purpose of negotiating collective labour agreements with the company, MITRADEL has favoured the STM, recognizing it as the implied representative of workers, thereby denying SUNTRACS the right to engage in collective bargaining on behalf of its members; (ii) the company has breached post-dispute agreements reached with SUNTRACS, including one signed on 20 March 2018 in which, among other points, the company had undertaken to reinstate workers dismissed for participating in a strike; they also allege that MITRADEL has not taken steps to demand compliance with the agreement; and (iii) workers who participated in a peaceful protest calling for their reinstatement, which was ordered by the courts, were restrained by police and detained arbitrarily.
2. 436. In this regard, the Committee notes that the Government and the company indicate that: (i) the company does not oblige workers to join any particular trade union and negotiates collective labour agreements with the STM and not with SUNTRACS because MITRADEL has determined that the STM is the most representative trade union and has the right to negotiate; the Government also indicates that both trade unions had subsequently asked MITRADEL to negotiate a new collective labour agreement and that these proceedings are ongoing as SUNTRACS has lodged an amparo appeal; (ii) MITRADEL has mediated between SUNTRACS and the company in order to resolve a number of different disputes and has facilitated the conclusion of agreements that allowed access and the presence of SUNTRACS in the mining project; and (iii) there is no record of police detention of the workers mentioned in the complaint and the workers have not been reinstated because the courts have revoked the reinstatement orders on the basis that the workers had not been dismissed but rather the term of their contracts had expired.
3. 437. Recalling that workers have the right to join organizations of their own choosing and that the authorities and employers should avoid all discrimination between trade unions, the Committee observes that in this case there are no elements that lead it to conclude that the company required the workers to join a particular union.
4. 438. As regards collective bargaining, the Committee observes that the MITRADEL resolution dated 5 April 2017 determined that the STM, and not SUNTRACS, would negotiate lists of demands because the STM was deemed to be the most representative given that it had more than double the number of members as SUNTRACS. In relation to the allegation that, through this resolution, MITRADEL denied SUNTRACS the right to negotiate in favour of its members in the mining project, the Committee recalls that the determination of the most representative trade union should always be based on objective and pre-established criteria so as to avoid any opportunity for partiality or abuse. Pre-established, precise and objective criteria for the determination of the representativity of workers’ and employers’ organizations should exist in the legislation and such a determination should not be left to the discretion of governments. The Committee also recalls that systems based on a sole bargaining agent (the most representative) and those which include all organizations or the most representative organizations in accordance with clear pre-established criteria for the determination of the organizations entitled to bargain are both compatible with Convention No. 98 [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, paras 529, 530 and 1360].
5. 439. Furthermore, the Committee notes that the Government indicates that both trade unions subsequently asked MITRADEL to negotiate a new collective labour agreement and that these proceedings are ongoing as SUNTRACS has lodged an amparo appeal in that respect. The Committee expects that the courts will shortly rule on the amparo proceedings described above.
6. 440. As regards compliance with the agreements that ended disputes between SUNTRACS and the company, the Committee observes that, while MITRADEL facilitated the conclusion of agreements, which, among other things, allowed access and the presence of SUNTRACS in the mining project, MITRADEL has also noted the company’s non-compliance with some points of these agreements. The Committee observes that, in a record dated 12 April 2018, attached by the complainant organizations, MITRADEL indicated that the company had breached the agreement signed on 20 March 2018, specifically by not reinstating the workers whom the company had committed to reinstate in the agreement. The Committee observes that MITRADEL had indicated in this record that it would examine the legal steps to be taken towards compliance with the agreement. The Committee recalls that agreements should be binding on the parties [see Compilation, op. cit., para. 1334] and expects that MITRADEL, as a facilitator of and signatory to the agreements, will take the necessary steps to ensure compliance with the agreements in question.
7. 441. Furthermore, the Committee observes that the complainant organizations allege that the company refused to comply with reinstatement orders issued in favour of more than 30 workers dismissed without justification or legal grounding. In that respect, the Committee notes that the company indicates that it has challenged these reinstatement orders and that the courts had thus far revoked six of the 31 reinstatement orders on the basis that the workers had not been dismissed but rather their contracts had expired. The Committee observes that neither the complainants nor the Government provided a copy of the reinstatement orders, which has prevented the Committee from ascertaining the reasons why the reinstatement was ordered. The Committee observes, however, that the Government has provided copies of the rulings that revoked the reinstatement orders and indicates that the names of the workers mentioned therein do not match the names of the workers whom the company had undertaken to reinstate in the agreement. In the light of the above, and given that there are pending judicial proceedings relating to the challenge filed against the reinstatement orders, the Committee expects that the courts will shortly rule on the matter and that the decisions issued will be respected.
8. 442. Regarding the allegation of police repression and detention of protesting workers calling for their reinstatement, the Committee observes that the complainant organizations did not send any information or evidence relating to the alleged police repression. It also observes that it is unclear whether the information submitted by the complainants refers to detention by the police or by the company’s private security services. Furthermore, the Committee has no information regarding the date on which the workers would have been released. On that basis, and noting that the Government has declared that there is no record that the workers were detained by the police, the Committee will not pursue its examination of this allegation.

Case No. 3340

1. 443. The Committee notes that the UGT, which is affiliated with the STM, alleges that the Government condoned attempts by SUNTRACS to enforce the collective agreement that it had signed with CAPAC on non-members employed by construction companies not affiliated with CAPAC (in particular workers employed by mining project contractors). It also alleges that the Government has condoned attempts by SUNTRACS to require construction workers, including non-members, to pay trade union dues to SUNTRACS. The Committee also observes that, according to the complainant, SUNTRACS inflicted violence and terror on workers and employers and on several occasions SUNTRACS members violently took over the company’s premises, resulting in injuries to several workers.
2. 444. In this respect, the Committee notes that the Government indicates that the collective labour agreements signed between SUNTRACS and CAPAC follow the procedure set forth in the Labour Code and that MITRADEL cannot stop a company from negotiating a collective agreement with SUNTRACS with content identical to that contained in the agreement signed between SUNTRACS and CAPAC. The Committee also notes that CAPAC indicated that it is an employers’ organization that brings together the leading companies in the construction sector; that, since 2018, it has negotiated ten collective labour agreements with SUNTRACS that regulate labour relations between CAPAC members, which are generalist and specialist contractors, and their workers; and all such agreements were negotiated in accordance with the provisions of the Labour Code.
3. 445. The Committee observes that, according to the complainant organization’s allegations, SUNTRACS sought to impose the terms of its collective labour agreement with CAPAC on the workers of a CAPAC-affiliated mining project contractor. According to the complainant, this would not be legally viable since the company already has a collective agreement with the STM that covers these workers. In this respect, the Committee recalls that systems of collective bargaining with exclusive rights for the most representative trade union and those where it is possible for a number of collective agreements to be concluded by a number of trade unions within a company are both compatible with the principles of freedom of association [see Compilation, op. cit., para. 1351].
4. 446. As regards the allegations of violent actions by SUNTRACS, while the Committee observes that the complainant organization has sent a link to various articles published in the press that indicate that SUNTRACS violently entered the company’s premises, these and other press articles also indicate that STM-affiliated workers who wanted SUNTRACS to withdraw from the project had protested violently against SUNTRACS members, preventing them from accessing the company’s premises. In this regard, the Committee recalls that trade union organizations should conduct themselves responsibly and respect the peaceful manner in which the right of assembly should be exercised [see Compilation, op. cit., para. 211].

Conclusions common to both cases

1. 447. The Committee observes that both cases contain allegations of favouritism on the part of the Government towards one trade union organization or the other. In this respect, the Committee notes that the Government indicates that it cannot intervene in the dispute between SUNTRACS and the STM and that it laments the fact that the complaints have not been discussed in the Committee for the Rapid Handling of Complaints, a commission established in the scope of the Panama Tripartite Agreement that seeks to resolve cases with consensual solutions.
2. 448. The Committee observes that the information and documentation submitted in both cases demonstrate that the Government, through MITRADEL, has acted as a mediator in numerous disputes within the company, has facilitated the signing of agreements and has proved that the company has breached some points of such agreements. The information and documentation submitted in both cases does not lead the Committee to conclude that there has been any favouritism or special treatment of either trade union organization by the Government.
3. 449. In the light of the above, and given that several matters raised in the complaints appear to be recurring and unresolved issues, the Committee invites the Government to seek to foster a climate of dialogue and trust when interacting with the trade unions concerned and the company, against a backdrop of trade union pluralism, to help to maintain harmonious labour relations within the company. To this end, the Committee encourages the Government to redouble its efforts towards dialogue and conciliation and to examine, together with the organizations and the company, the issues raised with a view to reaching agreements that overcome these challenges with the support of tripartite dialogue forums within the country.

The Committee’s recommendations

1. 450. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee expects that the Ministry of Labour and Labour Development (MITRADEL), as a facilitator of and signatory to the agreements signed between the trade unions and the company, will take the necessary steps to ensure compliance with the agreements in question.
   • (b) The Committee expects that the courts will shortly rule on the pending judicial proceedings relating to the reinstatement of the workers and that the decisions issued will be respected.
   • (c) The Committee invites the Government to seek to foster a climate of dialogue and trust when interacting with the trade unions concerned and the company, against a backdrop of trade union pluralism, to help to maintain harmonious labour relations within the company. To this end, the Committee encourages the Government to redouble its efforts towards dialogue and conciliation and to examine, together with the organizations and the company, the issues raised with a view to reaching agreements that overcome these challenges with the support of tripartite dialogue forums within the country.