Definitive Report - Report No 400, October 2022

Case No 3382 (Panama) - Complaint date: 18-FEB-20 - Closed

Allegations: The complainant organization alleges that a hotel enterprise committed a series of acts that are contrary to freedom of association and collective bargaining

1. 569. The complaint is contained in a communication from the Authentic Federation of Workers (FAT) received on 18 February 2020.
2. 570. The Government of Panama sent its observations in communications dated 30 September 2021 and 28 September 2022.
3. 571. 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. 572. In its communication received on 18 February 2020, the FAT indicates that on 22 February 2019, the Industrial Union of Hotel Workers and Related Activities (SITEHOSTAC), which is affiliated with the FAT, submitted a list of claims to the Directorate-General for Labour (DGT) in the Ministry of Labour and Social Development (MITRADEL) with a view to resolving a number of labour violations as well as negotiating a collective labour agreement with HARTIN TRADING S.A. (HOTEL SORTIS) (hereinafter “the enterprise”). The complainant alleges that the enterprise refused to discuss the aforementioned list and that, after exhausting all terms established by law regarding the conciliation process and subsequent negotiation, SITEHOSTAC requested arbitration in view of the constant refusal of the enterprise and the fact that it had not put forward any proposal throughout the process. The complainant states that SITEHOSTAC requested arbitration in order to resolve the conflict, as permitted under section 452 of the Labour Code, and that the enterprise responded by submitting an application for amparo [protection of constitutional guarantees] to the Supreme Court of Justice in order to avoid, or at least delay or prevent, the collective bargaining that it is obliged to undertake under section 401 of the Labour Code.
2. 573. The complainant further indicates that SITEHOSTAC provided a list of trade union members to the enterprise and requested it to deduct the union dues established in its statutes, as set out in section 373 of the Labour Code. The complainant alleges that the enterprise refuses to deduct union dues from the salaries of trade union members and has not handed over the said dues to the trade union, thereby committing an unfair labour practice as described in section 388, paragraph 5, of the Labour Code, by making an omission designed to influence workers in the enterprise to withdraw from or not join the trade union and to violate freedom of association.
3. 574. In addition, the complainant alleges that the enterprise does not allow trade union leaders to have direct contact with the workers, by not authorizing the paid or unpaid leave necessary for them to do so. It is alleged that this occurred with Mr Luis Hendricks, Mr Arquímedes Rodríguez and Mr Samy Ríos, demonstrating that the enterprise is interfering in trade union activity and preventing them from exercising their right of assembly and organization. The complainant indicates that in 2001, the Inter-American Court of Human Rights found against Panama for impeding, among other things, the right of assembly of trade unionists (Baena-Ricardo et al. v. Panama).
4. 575. The complainant further alleges that the enterprise relocated workers affiliated with the union in an arbitrary manner and posted them to remote areas, lacking facilities such as sanitation, thereby discriminating against them for being trade union members. Moreover, the complainant alleges that since MITRADEL carried out an inspection of the enterprise in September 2019, which culminated in the enterprise being fined for employing undocumented foreign workers, the enterprise, which attributed the request for the said inspection to the union, changed the working hours of unionized workers and union leaders, forcing them to work shifts from 11 p.m. to 7 a.m. to avoid contact with other workers. The complainant alleges that the enterprise punishes union members in an arbitrary and reckless manner by forcing them to work dawn shifts once they join the union, thus undermining the quality of family life and preventing trade union work in the case of union leaders.
5. 576. The complainant further alleges that the enterprise denied workers and union leaders Mr Luis Hendricks, Mr Arquímedes Rodríguez and Mr Benjamín Villanero access to work from 19 September 2019 until they were reinstated by order of the DGT contained in Order No. 050-DGT-19 of 27 September 2019, with which the enterprise has not fully complied to date since it has not paid the workers for the days on which they were denied access. The complainant indicates that although at the time of their reinstatement, by order of MITRADEL, the enterprise indicated that it had never dismissed them, the reports of the inspections that were carried out show that they were indeed denied access to the enterprise, being told, in an express statement of verbal dismissal, that they could not enter in order to work because they were “personae non gratae in the enterprise”.
6. 577. The complainant also alleges that the enterprise forces union members by means of threats, coercion, blackmail and any other means to withdraw from the union and that it has dismissed workers merely for belonging to the union. It alleges specifically that the enterprise threatened or forced Mr Jonny Lasso, Mr Kevin Sánchez and Mr Ariel Gómez to withdraw from the union. The complainant additionally alleges that in recent months, the enterprise has dismissed workers affiliated with the union, who have been called on to accept and sign a mutual agreement terminating the employment relationship and, if they did not do so, were threatened with a letter of dismissal, all with the intention of weakening the union and to obtain control over the workers. It is alleged that this serious situation occurred with Mr Roger Almengor and Mr Francisco Banda.

B. The Government’s reply

1. 578. In its communication dated 30 September 2021, the Government provides information concerning the various administrative and judicial actions relating to the issues raised in the complaint.
2. 579. The Government attached a copy of Note No. 606-DGT-21 in which the DGT within MITRADEL indicates that in the records and archives of the DGT there is a list of claims submitted by SITEHOSTAC on 22 February 2019 for the negotiation of a collective bargaining agreement and relating to violations of the labour laws by the enterprise under the following sections of the Labour Code: 17, 18, 39, 57, 128(3) and (10), 134, 138(4) and (5) (alleging that the enterprise forces workers, by coercion or by any other means, to withdraw from, or constrains them from joining, the union), 140, 148, 181, 182, 183, 185, 186, 187, 188, 191 and 197 (arbitrary change of shifts). In the Note, the DGT indicates that the dispute ended with the issuance of an arbitration award, of which SITEHOSTAC was notified on 4 December 2020 and the enterprise on 29 January 2021. In the same Note, the DGT also indicates that SITEHOSTAC made no claim, complaint or allegation against the enterprise for violation of articles 128(20) and 161(8) of the Labour Code concerning deductions of union dues of SITEHOSTAC members.
3. 580. The Government gives the following account of the events that led to the aforementioned arbitration award:
4. 581. The Government further indicates that various allegations have been submitted to the National Directorate of Labour Inspection and that on 19 September 2019, a general inspection was conducted by SITEHOSTAC in order to verify an allegation relating to: (i) workplace harassment and anti-union persecution of workers Mr Benjamín Villanero, Mr Luis Hendricks and Mr Rodrigo Méndez; (ii) gratuity payments of all departments; (iii) the number of foreign workers and their permits; (iv) whether recent dismissals, such as that of Mr Francisco Banda, were justified; and (v) whether workers were given rest breaks between rotating shifts.
5. 582. The Government reports that after having conducted the aforementioned inspection it was decided, as indicated in Decision No. 054-DGT-53-20 of 13 March 2022, to impose a penalty of 200 Panamanian balboas (equivalent to US$200) on the enterprise for having violated Act No. 7 of 2018 concerning measures to prevent, prohibit and punish discriminatory acts. In addition, after verifying whether the foreign workers in the enterprise had work permits, it was decided, by Decision No. 410-DGT-5-19 of September 2019, to impose a fine of 37,000 balboas on the enterprise for non-compliance with section 17 of the Labour Code.
6. 583. With regard to the allegation that the enterprise denied Mr Roger Almengor, Mr Luis Hendricks, Mr Arquímedes Rodríguez and others access to work, the Government indicates that: (i) on 25 September 2019, the National Directorate of Labour Inspection attended the enterprise in order to ascertain the aforementioned events and, by Orders Nos 050-DGT-19 and 051-DGT-53-19 of 27 September 2019, the DGT ordered that Mr Arquímedes Rodríguez and Mr Luis Hendricks be reinstated; (ii) the workers’ representative filed a complaint for contempt of the aforementioned Orders by the enterprise and sought verification, inter alia, as to whether both had been reinstated and whether they had been paid wages for the days on which they had been denied access to the enterprise; (iii) on 30 September 2019, the day of execution of the reinstatement order, the Chief of the Human Resources Department said that the workers could not be reinstated because neither one had been dismissed; (iv) by Order No. 030-DGT-53-20 dated 24 January 2020, the DGT dismissed the application for a fine for contempt against the enterprise filed by the workers’ representative, who submitted an appeal against the order, which remains pending; and (v) on 12 February 2020 the DGT admitted an application for a fine for violation of labour standards and granted the enterprise a period of three days to submit evidence and arguments that it deemed appropriate, which remains pending.
7. 584. By a communication dated 28 September 2022, the Government informs the Committee that the records and files of the DGT contain a list of claims concerning violations of labour legislation by the enterprise that was submitted by SITEHOSTAC on 29 October 2021. The Government indicates that the enterprise was notified of the list on 13 December 2021, that the conciliation process began on 23 December 2021, that according to the minutes of the mediation session held on 5 January 2022 the parties stated that they had engaged in dialogue and reached an agreement on the complaints contained in the list, and that consequently negotiations on the list had ended.

C. The Committee’s conclusions

1. 585. The Committee notes that in the present case, the complainant alleges that a series of anti-union acts have been committed by a hotel enterprise against leaders and members of SITEHOSTAC. The complainant specifically alleges that the enterprise does not deduct union dues, does not grant union leave, arbitrarily relocates union members and threatens them so that they withdraw from the union, denied three union leaders access to work and dismissed two union members and that it has refused to negotiate a collective agreement. In its reply, the Government provides information on various actions taken principally by the DGT in relation to a number of the issues raised in the complaint and on penalties imposed on the enterprise in this regard.
2. 586. In relation to the allegation that the enterprise refused to negotiate with SITEHOSTAC a list of claims that it submitted on 22 February 2019 to the DGT in order to resolve a number of labour violations and to negotiate a collective agreement, the Committee notes the Government’s indication that: (i) after several appeals submitted by the enterprise and a strike notice by the union, the dispute was referred to arbitration; and (ii) the arbitration process concluded with the issuance of an arbitration award whereby the collective agreement for the period 2020–23 was registered. The Committee therefore understands, on the basis of the information provided by the Government, that the issue relating to the list of claims submitted by SITEHOSTAC in 2019 appears to have been resolved. The Committee also notes that, according to the information provided by the Government, SITEHOSTAC submitted a further list of claims on 29 October 2021 concerning violations of labour legislation by the enterprise and that in a mediation session on 5 January 2022 the parties reached an agreement in this connection. The Committee observes that that list of claims was not for the purposes of negotiating a collective agreement and that it is not apparent from the information provided that the violations of labour law were in relation to trade union matters.
3. 587. With regard to the allegation that the enterprise does not deduct union dues, while it notes the Government’s indication that the DGT has no record of any allegation in this regard, the Committee observes that the complainant attached copies of letters sent by SITEHOSTAC to MITRADEL on 9 and 13 September and 6 November 2019, alleging, inter alia, that the enterprise was refusing to deduct union dues of members despite having been formally requested to do so on several occasions. The Committee notes that although it is apparent from the documents attached by the Government that a general inspection of the enterprise was conducted on 19 September 2019, it is not apparent that the issue of union dues was the subject of the inspection. Noting that the Government attached a copy of the draft collective agreement submitted to the DGT by SITEHOSTAC on 22 February 2019 and taking into account that it contains a clause relating to the deduction of union dues, the Committee expects that this issue has been resolved with the issuance of the aforementioned arbitration award and requests the Government to ensure that this aspect of the complaint is definitively resolved. Noting also that the draft collective agreement also contains a clause relating to the granting of union leave, the Committee expects that the allegation that the enterprise did not grant such leave has also been resolved with the issuance of the arbitration award and requests the Government also to ensure that this aspect of the complaint is definitively resolved.
4. 588. With regard to the allegation that the enterprise arbitrarily relocates members and changes the working hours of unionized workers and trade union leaders, requiring them to attend or leave work in the early morning, preventing union activities in the case of the leaders, while the Committee notes that the Government does not strictly refer to this allegation, the Government indicates that SITEHOSTAC filed allegations of anti-union persecution with the National Directorate of Inspection and that, after having conducted an inspection on 19 September 2019, in March 2020 the enterprise was subject to a penalty for violation of Act No. 7 of 2018 concerning measures to prevent, prohibit and punish discriminatory acts. In the absence of specific information from the Government concerning the alleged relocations and recalling that no person shall be prejudiced in employment by reason of trade union membership or legitimate trade union activities, whether past or present [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 1074], the Committee requests the Government to ensure that SITEHOSTAC leaders and members are not subject to discriminatory treatment on the basis of their union membership or activities.
5. 589. Concerning the allegation that the enterprise denied union leaders Mr Luis Hendricks, Mr Arquímedes Rodríguez and Mr Benjamín Villanero access to work, until they were reinstated by order of the DGT, and that they were not paid wages for the days on which they were unable to enter the enterprise, the Committee notes the Government’s confirmation that the workers were reintegrated by order of the DGT. The Committee also notes the Government’s indication that a number of appeals filed in relation to the request to impose a fine on the enterprise in respect of these events remain pending. The Committee notes these elements and expects that any pending appeal will be resolved promptly and in accordance with freedom of association and that, if the alleged anti-union nature of the exclusion of trade union leaders from their workplaces is established, they receive the wages due to them.
6. 590. The Committee notes the allegation that the enterprise threatened and forced Mr Jonny Lasso, Mr Kevin Sánchez and Mr Ariel Gómez to withdraw from the union and threatened SITEHOSTAC members Mr Roger Almengor and Mr Francisco Banda so that they would accept and sign a mutual agreement to terminate the employment relationship, indicating that if they did not do so they would be given a letter of dismissal, all with the intention of weakening the union. While noting that the complaint does not contain specific documents relating to the situation of the aforementioned workers, and that the complainant does not indicate whether they instigated administrative and/or judicial proceedings in this respect, the Committee notes that the Government has not sent any observations in respect of these allegations. Recalling that direct threat and intimidation of members of a workers’ organization and forcing them into committing themselves to sever their ties with the organization under the threat of termination constitutes a denial of these workers’ freedom of association rights [see Compilation, para. 1100], the Committee requests the Government to ensure that workers in the enterprise are able to exercise their union activities without pressure or hindrance.
7. 591. The Committee notes that although it is apparent from the foregoing that allegations have been brought in respect of most of the matters at hand in this complaint and that on various occasions both the DGT and the National Directorate of Labour Inspection have intervened, conducting inspections, imposing penalties and ordering the reinstatement of workers, the Committee does not have at its disposal full information concerning the final settlement of a number of allegations of anti-union acts contained in the present complaint. Noting that the Government reported that, subsequent to the submission of the present complaint, an arbitration award was issued to resolve the collective dispute between the enterprise and SITEHOSTAC, and that in January 2022 the trade union and the enterprise engaged in dialogue and reached an agreement on alleged violations of labour legislation, and having not subsequently received further information from the complainant, the Committee requests the Government to continue taking the necessary measures to ensure that SITEHOSTAC and its members are able to exercise their trade union activities without hindrance within the enterprise and to ensure that all issues raised in the present complaint are satisfactorily resolved. The Committee also expresses the hope that relations between SITEHOSTAC and the enterprise have improved and expects that the necessary efforts will be made to ensure that they succeed in governing their relations through social dialogue and collective bargaining.

The Committee’s recommendations

1. 592. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to continue taking the necessary measures to ensure that SITEHOSTAC and its members are able to exercise their trade union activities within the enterprise without hindrance and to ensure that all aspects of the present complaint have been satisfactorily resolved.
   • (b) The Committee expects that any pending appeal relating to the reinstatement of trade union leaders will be resolved as soon as possible and requests the Government to ensure that if the alleged anti-union nature of the exclusion of trade union leaders from their workplaces is established, they have received the wages due to them.
   • (c) The Committee expresses the hope that relations between SITEHOSTAC and the enterprise have improved and expects that the necessary efforts will be made so that they succeed in governing their relations through social dialogue and collective bargaining.
   • (d) The Committee considers that this case is closed and does not call for further examination.