Report in which the committee requests to be kept informed of development - Report No 399, June 2022

Case No 3375 (Panama) - Complaint date: 18-NOV-19 - Follow-up

Allegations: The complainant organization alleges that the Government interfered by requiring that collective bargaining for a new agreement in a transnational pineapple-exporting enterprise be conducted with a union considered to be compliant

1. 230. The complaint is contained in a communication dated 18 November 2019.
2. 231. The Government sent its observations in communications dated 30 August 2021 and 25 April 2022.
3. 232. 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. 233. In its communication dated 18 November 2019, the complainant organization alleges that the Government interfered by requiring that collective bargaining for a new agreement in Ananas Trading Inc. Panama S.A. (an enterprise based in Panama that is dedicated to the agricultural export of pineapples, hereinafter “the enterprise”) be conducted with a union that is “compliant” towards the enterprise (the Ananas Trading Inc. Panama S.A. Workers’ Union (SITRAATI)), to the detriment of the Union of Agroindustry and Related Industry Workers of Panama (SITAIP), which is affiliated to the Unified Confederation of Workers of Panama (CUTP).
2. 234. The complainant organization alleges that, on 11 June 2019, a few weeks before the expiry of the collective agreement in force in the enterprise, SITRAATI tried to register a collective agreement in an irregular manner. On 12 June, SITAIP submitted a list of claims for the purposes of negotiating a new collective agreement with the enterprise, which was rejected by a decision of the Regional Labour Directorate for West Panama (DRTPO) dated 29 June 2019. On 3 July 2019, SITAIP appealed against this decision to the Ministry of Labour and Employment Development (MITRADEL), but in view of the delay on the part of MITRADEL in resolving the dispute, the workers initiated a strike, with the participation of more than 360 workers from the enterprise. On 18 July, the Minister of Labour overturned the decision by the DRTPO, setting the two unions in competition with each other, even though, according to the complainant organization, it was well known that SITAIP is the majority trade union in the enterprise, as is demonstrated by the fact that more than 137 workers provided written statements with their signatures and identity card numbers confirming that they had never been members of SITRAATI.
3. 235. The complainant organization alleges that MITRADEL ignored the majority status of SITAIP and decided in favour of SITRAATI, with the specific intention of favouring an organization with close ties to the enterprise, thereby continuing harmful practices that undermine trade union democracy and the rights of agribusiness workers.
4. 236. The complainant organization also states that, during this process, SITAIP submitted a second list of claims, this time concerning violation of the law, and carried out the formalities associated with the call for strike action to take place on 8 November 2019. However, on 7 November 2019, the MITRADEL office for West Panama, on the instructions of the Ministry’s headquarters, decided to suspend the strike action, in violation of the workers’ right to strike.
5. 237. Lastly, the complainant organization states that, in view of the actions of MITRADEL, it requested a meeting with the Office of the Ombudsperson of Panama, at which it was decided that the Office of the Ombudsperson would investigate the case, while it was also being brought before other bodies.

B. The Government’s reply

1. 238. In its communication dated 30 August 2021, the Government provides its observations, noting that: (i) SITAIP submitted a list of claims to the DRTPO on 12 June 2019 for the purposes of negotiating a collective agreement; (ii) by Order No. 0.14-MC-DRTPO-19, the DRTPO rejected the list of claims submitted by SITAIP and ordered that the case be closed on the grounds that a collective agreement already existed and was being negotiated directly by SITRAATI; (iii) in disagreement with the decision by the DRTPO, SITAIP filed an appeal against the aforementioned Order with the Office of the Minister of Labour; (iv) by Decision No. DM-312-2019 of 17 July 2019, the Minister of Labour overturned Order No. 0.14-MC-DRTPO-19 in its entirety and ordered compliance with the provisions of section 402 of the Labour Code and the referral of the case back to its originating office (the DRTPO) for appropriate action; (v) the DRTPO (Collective Mediation Branch), by Note No. 2172-DRTPO-MC-19 of 2 August 2019, on the grounds that SITAIP had submitted a list of claims when a collective agreement already existed and was being negotiated directly by SITRAATI, established that there were concurrent claims as set out in section 402 of the Labour Code and that the union with the largest number of members should be accredited for the purposes of initiating negotiations with that union; (vi) by Note No. 2524-MC-DRTPO-19 of 16 September 2019, the DRTPO established that, on 10 September 2019, the Department of Social Organizations had submitted the requested information, reporting that SITAIP and SITRAATI had 61 and 132 members in the enterprise respectively, which meant that SITRAATI was the union designated to negotiate the lists of claims combined into a single list with a view to reaching a new collective agreement; (vii) as a result of the appeal filed by SITAIP against the aforementioned note, the DRTPO upheld its previous decision and stated that it was the responsibility of SITRAATI to negotiate both the list of claims submitted by SITAIP on 12 June 2019 and that submitted by SITRAATI on 11 June 2019; and (ix) in the record of the opening of the negotiations on 18 September 2019, held in the offices of the DRTPO, it was stated that, as it had 132 members, SITRAATI could renew the existing collective agreement and register it with the Department of Social Organizations in the Labour Directorate of MITRADEL. In its communication dated 25 April 2022, the Government specifies that the collective agreement is registered with the Directorate General of Labour under registration No. 60/19 dated 12 November 2019.
2. 239. The Government further notes that, on 27 September 2019, SITAIP submitted a further list of claims against the enterprise alleging the violation of and non-compliance with the Labour Code and that, on 30 October 2019, SITAIP submitted a formal call for strike action as of 8 November 2019. Then, while the negotiations with SITAIP were under way and while the Inspection Department was being asked to provide support relating to the call for strike action, the strike action was suspended by order of MITRADEL.

C. The Committee’s conclusions

1. 240. The Committee notes that the present case concerns, first of all, a situation involving concurrent claims and a dispute over representativeness in a pineapple-exporting enterprise and, secondly, the suspension of a strike initiated by one of the two trade unions involved.
2. 241. With regard to the issue of concurrent claims, the Committee notes that the complainant organization alleges that the Government interfered by requiring that collective bargaining for a new agreement in the enterprise be conducted with a trade union (SITRAATI) that is considered by the complainant organization to be “compliant” towards the enterprise, to the detriment of the sectoral trade union SITAIP. The Committee notes that the complainant organization alleges in particular that: (i) on 12 June 2019, SITAIP submitted a list of claims for the purposes of negotiating a new collective agreement with the enterprise and that this list was rejected by a decision of the DRTPO dated 29 June 2019, while SITRAATI for its part was trying to register a collective agreement with the enterprise in an irregular manner; (ii) on 3 July 2019, SITAIP appealed to MITRADEL against this decision, but in view of the delay on the part of MITRADEL in resolving the dispute, the workers initiated a strike, involving more than 360 workers from the enterprise; and (iii) on 18 July, the Minister of Labour overturned the decision by the DRTPO and set the two unions in competition with each other, even though, according to the complainant organization, it was well known that SITAIP is the majority trade union.
3. 242. The Committee notes that, for its part, the Government states that: (i) the DRTPO, by Order No. 0.14-MC-DRTPO-19, rejected the list of claims submitted by SITAIP in June 2019 on the grounds that a collective agreement already existed and was being negotiated directly by SITRAATI; (ii) in response to the appeal filed by SITAIP against the above-mentioned Order, the Minister of Labour, by Decision No. DM-312-2019 of 17 July 2019, overturned Order No. 0.14-MC-DRTPO-19; (iii) by a note dated 2 August 2019, the DRTPO (Collective Mediation Branch), on the grounds that SITAIP had submitted a list of claims when a collective agreement already existed and was being negotiated directly by SITRAATI, established that there were concurrent claims as set out in section 402 of the Labour Code and that the union with the largest number of members should be accredited for the purposes of initiating negotiations with that union; and (iv) based on the communication from the Department of Social Organizations in the Labour Directorate of MITRADEL, according to which SITAIP and SITRAATI had 61 and 132 members in the enterprise respectively, the DRTPO established on two occasions that it was the responsibility of SITRAATI to negotiate both the list of claims submitted by SITAIP on 12 June 2019 and that submitted by SITRAATI on 11 June 2019, and then it could, as the majority union, renew the existing collective agreement and register it with the Department of Social Organizations in the Labour Directorate of MITRADEL.
4. 243. The Committee takes note of these points. It notes that the present case concerns an inter-union dispute between SITAIP and SITRAATI in connection with the renegotiation of the collective agreement in force, one month before its expiry. The Committee recalls that a matter involving no dispute between the government and the trade unions, but which involves a conflict within the trade union movement itself, is the sole responsibility of the parties themselves. The Committee also recalls that in cases of internal dissentions within a trade union organization, the Committee has pointed out that judicial intervention would permit a clarification of the situation from the legal point of view for the purpose of settling the question of the leadership and representation of the organization concerned [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, paras 1610 and 1615]. The Committee notes, on the one hand, that the complainant organization alleges that MITRADEL ignored the majority status of SITAIP and decided in favour of SITRAATI with the intention of favouring an organization with close ties to the enterprise and, on the other hand, that the Government states that it has simply applied the relevant provisions of the Labour Code, establishing that there were concurrent claims as set out in section 402 of the Code, and that it has acted on the basis of the information provided by the Department of Social Organizations, according to which SITRAATI is more representative, with more than twice the number of members. The Committee notes in this respect that MITRADEL overturned the first decision of the DRTPO to reject the list of demands submitted by SITAIP, pending confirmation of the representativeness of the unions, and that the membership figures on which MITRADEL based its decision to declare SITRAATI more representative are still being challenged by SITAIP.
5. 244. The Committee 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. The Committee also recalls that, where, under the system in force, the most representative union enjoys preferential or exclusive bargaining rights, decisions concerning the most representative organization should be made by virtue of objective and pre-established criteria so as to avoid any opportunities for partiality or abuse. The Committee also recalls that 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 [see Compilation, paras 1360, 1369 and 530]. In this regard, the Committee notes that, under section 402 of the Labour Code, in the event of concurrent claims and the absence of agreement between trade unions, the union with the largest membership in the enterprise has the right to bargain collectively. The Committee also recalls that the determination to ascertain or verify the representative character of trade unions can best be ensured when strong guarantees of secrecy and impartiality are offered. Thus, verification of the representative character of a union should a priori be carried out by an independent and impartial body [see Compilation, para. 533]. In view of the fact that the complainant organization is questioning the assessment of representativeness carried out by the labour administration, the Committee requests both the Government and the complainant organization to indicate whether SITAIP has had the opportunity to challenge in court the decision by MITRADEL concerning the above-mentioned dispute over representativeness and, if so, to provide information on the outcome of such proceedings. Noting also that the complainant organization states that it has approached the Office of the Ombudsperson regarding allegations of favouritism by the Government towards SITRAATI, the Committee also requests the Government and the complainant organization to provide information on the outcome of the investigations carried out.
6. 245. With regard to the call for strike action submitted by SITAIP on 30 October 2019, in the context of its list of claims concerning violation of the law, the Committee notes that the complainant organization alleges that SITAIP carried out the formalities associated with the call for strike action to take place on 8 November 2019, but that, on 7 November 2019, the MITRADEL office for West Panama, on the instructions of the Ministry’s headquarters, decided to suspend the strike action. The Committee notes that the Government, for its part, confirms the facts as presented and states that, while negotiations were under way with SITAIP on the list of claims submitted for violation of the law and while the Inspection Department was being requested to provide support relating to the call for strike action, the strike action was suspended by order of MITRADEL.
7. 246. While noting that it has no information on the reasons for which MITRADEL decided to suspend the strike action in question, the Committee recalls, on the one hand, that it has considered that that the right to strike may be restricted or prohibited: (1) in the public service only for public servants exercising authority in the name of the State; or (2) in essential services in the strict sense of the term (that is, services the interruption of which would endanger the life, personal safety or health of the whole or part of the population), and, furthermore, that the responsibility for suspending a strike should not lie with the Government, but with an independent body which has the confidence of all parties concerned [see Compilation, paras 830 and 914]. In the light of the above, the Committee requests the Government to indicate the reasons for which MITRADEL decided to suspend the strike action initiated by SITAIP.

The Committee’s recommendations

1. 247. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • (a) The Committee requests both the Government and the complainant organization to indicate whether SITAIP has had the opportunity to challenge in court the labour administration’s decision concerning the dispute over representativeness and, if so, to provide information on the outcome of those proceedings. The Committee also requests the Government and the complainant organization to provide information on the outcome of the investigations carried out by the Office of the Ombudsperson into the allegations of favouritism towards SITRAATI.
   • (b) The Committee requests the Government to indicate the reasons for which MITRADEL decided to suspend the strike action initiated by SITAIP.