Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 281, Mars 1992

Cas no 1569 (Panama) - Date de la plainte: 07-JANV.-91 - Clos

1. 118. The complaints concerning the present case appear in communications from the Trade Union of Water and Electricity Board Workers (SITIRHE) dated 7 January and 15 February 1991, from the International Confederation of Free Trade Unions (ICFTU) dated 17 January 1991, and from the Trade Union of National Telecommunications Board Workers (SITINTEL) dated 18 January 1991. The Government of Panama sent its observations in communications of 22 February, 24 May and 3 November 1991, and 8 and 28 January 1992.
2. 119. 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 complainants' allegations

1. 120. The Trade Union of Water and Electricity Board Workers (SITIRHE) reports in its communication of 7 January 1991 that the Legislative Assembly of Panama on 14 December 1990 issued Act No. 25, eliminating trade union organisations from state enterprises. On 10 December, before this Act was even adopted, the head office of the Water and Electricity Board (WEB) had dismissed all trade union leaders including the General Secretary himself. Furthermore, the WEB's administration sent in troops to close and occupy the trade union's offices and premises and illegally withheld trade union dues.
2. 121. The complainant reports that the country's labour tribunals, without any legal justification, refused to receive the workers' petitions.
3. 122. Section 1 of Act No. 25 stipulates that:
   • To maintain constitutional order, the Executive and directors of independent and semi-independent institutions, state and municipal enterprises and other public state bodies are authorised 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 or associations of public servants; their trade union or sectoral delegates or 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.
   • Section 2 stipulates that:
   • The highest authorities of the various state bodies, such as Ministers of State, directors of independent and semi-independent institutions, state enterprises and other public bodies, the Public Prosecutor and the Administrative Prosecutor, the Comptroller-General of the Republic, governors and mayors may, having identified civil servants who participate in the actions described in article 1 of the present Act, declare their appointments void.
   • Paragraph: To enforce the administrative penalty of dismissal, the Executive, through the Council of the Cabinet, shall determine whether the activity threatens democracy and the constitutional order.
   • Section 3. The only recourse against the declaration that a public servant's appointment is void shall be an appeal to reconsider the case made to the authority which first handed down the decision, followed by an appeal to the next highest authority, this being the last possibility of administrative appeal.
4. 123. In its communication of 15 February 1991, the SITIRHE reports that the Government took steps to ensure that the bank where the trade union has its account no longer recognises trade union leaders who have been dismissed and denies them the right to administer the union's funds.
5. 124. The SITIRHE also sent a copy of Cabinet resolution No. 10 of 23 January 1991 regulating article 2 of Act No. 25 which defines the activities of public servants that are deemed to threaten democracy and law and order. This resolution states in article 1 that "strikes and work stoppages in the public sector are a threat to democracy and the constitutional order". Article 2 stipulates that any public servant who has promoted, called, organised or participated in or at any time in the future promotes, calls, organises or participates in work stoppages that are not in conformity with the procedures and restrictions established by law, or work stoppages in the public sector, shall be subject to dismissal.
6. 125. The ICFTU, in its communication of 17 January 1991, explains that Act No. 25 authorises the summary dismissal of public sector workers accused of having participated in the organisation, calling or execution of activities threatening democracy and law and order. The Executive, through the Council of the Cabinet, is the sole body competent to define such activities. The right to appeal against dismissals under this Act is limited, and the law does not provide the normal protection for trade unionists.
7. 126. The ICFTU adds that the intent and substance of the Act is obviously directed against trade unions, as it can be applied retroactively to 4 December 1990. It was on that date that the Panamanian trade union movement united to form the "National Coordinating Committee for the Right to Life", calling for a mass workers' demonstration so as to put pressure on the Government to accept a list of 13 demands it had previously rejected in October. Some 80,000 workers took part in the demonstration, at which the trade unions called a 24-hour general strike for the following day, 5 December. On the day of the strike, the Government reported an abortive coup by some members of the military. In the trade unions' view there is absolutely no proof that there really was an attempted coup or any action which might have constituted a real threat. In any case there is no link between the trade union demonstration and strike on 4 and 5 December and any military action which might have taken place. The Government, however, publicly accused the trade unions of complicity with the perpetrators of the coup attempt and of being traitors in order to discredit them and justify the subsequent denial of their fundamental rights.
8. 127. Finally, the ICFTU points out that since the adoption of Act No. 25, practically all trade union leaders have been dismissed in the public sector, including railways, water and electricity, communications, ports, public works and social security. The ICFTU believes these workers were dismissed because of their legitimate trade union activities, and that this is a deliberate and flagrant violation of the principles of freedom of association by the Government of Panama.
9. 128. In a communication of 18 January 1991 the Trade Union of National Telecommunications Board Workers (SITINTEL) joins in the SITIRHE's complaint and encloses a list of trade unionists and workers dismissed under Act No. 25.

B. The Government's reply

1. 129. The Government reports in a communication of 22 February 1991 that the SITIRHE brought suit on 21 December 1990 before the Supreme Court, challenging the constitutionality of Act No. 25, which was promulgated with the sole purpose of maintaining constitutional order and democracy.
2. 130. In a communication dated 24 May 1991 the Government observes that, for the reasons appearing below, the complaint alleging that Act No. 25 of 14 December 1990 eliminates trade union organisations from state bodies is unfounded.
3. 131. The Labour Code regulates the employment relationship in the private sector; its scope is set by article 2, which stipulates that the Code's provisions are part of public law and are binding on all individuals, legal entities, enterprises, undertakings and establishments operating in Panama. Public employees are governed by a separate administrative code, except where specifically covered by one of the provisions of the Code.
4. 132. The Government emphasises that under the military regime the Labour Code was extended by special laws, albeit not in its entirety, to cover the national electric, telephone, railway and port services and points out that, although the laws were promulgated by the military regime without the parliamentary and constitutional procedures of a State based on the rule of law, they still apply and the Government observes and enforces them. The Republic of Panama has not ratified the Labour Relations (Public Service) Convention, 1978 (No. 151), but each of the institutions providing the above services has its trade union. While some workers who happened to be trade union leaders were dismissed on the basis of Act No. 25 for actions not falling within the purview of trade union activities, the trade unions never ceased to function and to be represented, since the vacated leadership positions were filled by the union leaders, deputies and assistants who were next in line.
5. 133. The Government points out that Act No. 25 was issued as a provisional measure with effect up to December 1991 for the sole purpose of maintaining constitutional order and democracy, because a movement had been formed since 16 October 1990 by trade union leaders and other public servants who had dictated to the national Government a list of demands that went beyond the economic and social objectives of trade union organisations and encroached upon the Government's prerogative in matters of politics, economic management, finance, administration and social security. This irregular procedure coincided with the first attempt at subversion by some officers of the former defence forces, led by an ex-colonel and ex-chief of the national police. Despite this, a Commission of Ministers studied the list of demands and gave an appropriate written reply to each and every one. The public service trade union leaders ignored the Government's replies and called a national strike for 5 December 1990, although there was no labour dispute and Panamanian law does not provide for "strikes" at the national level. During a march before the strike the above-mentioned colonel, who was in detention because of the attempted revolt of 16 October, escaped and a military rebellion began aimed at replacing the legitimate Government by a regime imposed by force. In obvious complicity with the rebellion, the trade union leaders declared that the strike would continue until the Government fell, clearly in support of the subversive movement.
6. 134. In its communication, the Government includes statements by two witnesses, Otilio Miranda (who later reportedly retracted his statement) and Danilo Martín Toro, who link the trade union leaders in the public sector with the military rebellion and claim that the General Secretary of the SITIRHE and other trade union leaders were in telephone contact with the rebels.
7. 135. The Government adds that the Constitution imposes limits and restrictions on trade union activities in public services so as to ensure that they operate normally. Act No. 8 of 25 February 1975, which endorsed the special legislation governing the employment relationship between the IRHE and INTEL and the persons working in these state institutions, establishes the procedure to be followed in case of labour disputes, from the initial presentation of the complaint right up to the possibility of a strike if the institution concerned does not comply with the ruling of an Arbitration Board (section 140 of Act No. 8/75). Panamanian legislation does not however contain any provision regarding the "right to strike".
8. 136. The Government maintains in its communication that the exercise of trade union activities is still effectively protected by Panamanian legislation. Trade union immunity is observed as long as the trade unions' activities are focused on the improvement of workers' economic and social conditions (section 357 of the Labour Code). As such, it cannot be interpreted as a form of immunity covering any type of action, including subversion of law and order and attempts at replacing the legitimate Government by a regime imposed by force. For these reasons, the Government disagrees with the ICFTU's view that the dismissals were the result of "legitimate trade union activities" and that "there is no link between the trade union demonstration" and "any military action which might have taken place".
9. 137. As regards the SITIRHE's argument that its trade union offices were occupied by troops, the Government points out that in actual fact the IRHE's administration had lent the trade union some space on a temporary basis for use until it found new premises. These facilities were guarded to ensure that no acts of vandalism took place, as had occurred under the military regime. At present, unionised workers have free access to the office, its property and records, and they carry out their activities in full freedom. Furthermore, both the SITIRHE and the SITINTEL maintain that funds from union dues were illegally withheld. This is incorrect, since the INTEL and the IHRE handed over the union dues to the trade union leaders in charge of these affairs. (The Government attached copies of deposit slips for SITINTEL union dues.)
10. 138. The Government denies the allegation that the authorities interfered in the management of the IRHE trade union funds. The IRHE's director merely gave the bank where the union funds were kept the names of those trade union leaders who had been discharged and of those who were still in their jobs, so that the union's accounts could be administered in conformity with the law (i.e. by those who had not been discharged). The Government gives the assurance that it respects fully the right of trade unions to manage their funds freely and independently.
11. 139. As regards the assertion that the country's labour tribunals refused to receive the workers' list of demands without any legal justification, the Government states in its communications dated 3 November 1991 and 8 January 1992 that 144 complaints of dismissal have been brought against the IRHE and INTEL before the Third Chamber of the Supreme Court. The Government also points out that 66 IRHE workers dismissed under Act No. 25 of 1990 who requested Conciliation Board No. 5 to reinstate them in their jobs had dropped their cases. The Government adds that the complainant organisations are wrong to claim that Act No. 25 of 1990 restricts public workers' complaints to administrative channels, since dismissed workers may appeal to the authority which took the measure and to the higher administrative authority, i.e. the Third Chamber of the Supreme Court, which is the highest labour authority. As regards the dismissal of IRHE and INTEL workers, the Government states that 15 of the 149 IRHE dismissed workers and ten of the 67 INTEL dismissed workers were reinstated on administrative appeal.
12. 140. Finally, regarding the claim that Act No. 25 is unconstitutional, the Government states that the Supreme Court declared that the Act was constitutional and, as such, legitimate and valid.

C. The Committee's conclusions

1. 141. The Committee observes that the allegations made by the complainant organisations concern the following:
   • (a) the mass dismissal of trade union leaders and workers in the public sector (railways, water, electricity, communications, public works, ports, etc.) because of the strike of 5 December 1990. According to the allegations, Act No. 25 of 14 December 1990 and Cabinet Resolution No. 10 provide that the Executives and administrations of state agencies may declare void the appointments of public servants whether or not they hold office in trade unions if they participate or have participated in activities that threaten democracy and the constitutional order, including "strikes and work stoppages in the public sector";
   • (b) the occupation of the SITIRHE's (electricity) premises by the military; and
   • (c) the intervention of the Government in the administration of trade union funds, preventing the trade union leaders (who had been dismissed en masse) from administering those funds and thus freezing union dues.
2. 142. As regards the alleged mass dismissal under Act No. 25 and Cabinet Resolution No. 10 of trade union leaders in the public sector (the complainant organisations list 87 names) and of workers in the same sector (95 names), the Committee observes that the Government states:
3. (1) that Act No. 25 was issued as a provisional measure with effect up to December 1991 for the sole purpose of maintaining constitutional order and democracy, because a movement had been formed since 16 October 1990 by trade union leaders and other public servants, who had dictated to the national Government a list of demands that went beyond the economic and social objectives of trade union organisations and encroached upon the Government's prerogative in matters of politics, economic management, finance, administration and social security;
4. (2) that Panamanian law does not authorise national strikes;
5. (3) that the SITIRHE and the SITINTEL did not comply with the procedures established by Act No. 8 of 25 February 1975 governing the employment relationship between the IRHE (electricity) and INTEL (communications) and persons working in these state institutions. In case of labour disputes, the law provides for the possibility of a strike only if the institution concerned does not comply with the ruling of an Arbitration Board;
6. (4) that there was complicity between the public sector trade union leaders and the soldiers behind the military rebellion which took place during the strike.
7. 143. The Committee takes due note of the arguments invoked by the Government. None the less, the Committee must observe that:
8. (1) the national strike called by trade union leaders in the public services for 5 December 1990 took place in response to the Government's reply to a list of union demands related to economic and financial matters and social security, although in the Government's view the demands were also political. However, according to the documentation which the Government encloses, the demands of a political nature do not refer to the overthrow of the Government but to "opposition to the privatisation of state enterprises or some of their activities; the repeal of the laws reforming the Labour Code; the repeal of the war decrees, as well as the decrees directed against workers; etc.";
9. (2) the Government's assertion that there was complicity between trade union leaders in the public sector and the soldiers behind the military rebellion does not appear conclusive, in that the Government merely encloses a statement by two people (one of whom later retracted the statement before the judicial authorities) to the effect that the General Secretary of the SITIRHE and other trade union leaders were in telephone contact with the rebels, and refers to a statement by the General Secretary, as quoted in a periodical (" ... and if, after the 24 hours are up, they do not want to negotiate, the strike will be extended by 48 or 72 hours ... until they eventually fall"); on the other hand, the Government's reply makes no mention of any criminal charges brought against trade union leaders for having committed offences against "the internal integrity of the State";
10. (3) the mass dismissal of trade union leaders and workers in the public sector on account of the strike of 5 December 1990 is a measure which can seriously compromise the ability of public sector trade union organisations to take action in the institutions in which they operate; likewise, given that the collective dismissals took place in a short space of time, there is good reason to conclude that the legal procedures and guarantees which should apply when civil servants and public employees are dismissed were not observed;
11. (4) the Committee has stated on many occasions that strikes at the national level are legitimate in so far as they have economic and social objectives and not purely political ones; the prohibition of strikes could only be acceptable in the case of civil servants acting on behalf of the public authorities or of workers in essential services in the strict sense of the term, i.e. services whose interruption could endanger the life, personal safety or health of the whole or part of the population;
12. (5) according to the information supplied by the Government, so far only two trade union leaders and 13 IRHE workers, and 10 INTEL workers who were dismissed have been reinstated, while 66 dismissed workers have withdrawn the complaints against the IRHE that they brought before the Conciliation Board;
13. (6) finally, from the legislative point of view, the following must be emphasised:
    • - with the exception of very isolated cases (the Electricity Trade Union and the Telecommunications Trade Union) civil servants and workers in the public sector, under the national legislation, are denied the right to establish trade unions and other trade union rights;
    • - the Committee of Experts has emphasised for several years now that civil servants and workers in the public sector should be granted union rights;
    • - at its March 1991 meeting the Committee of Experts on the Application of Conventions and Recommendations requested the Government to take measures with a view to repealing Act No. 25, under which mass dismissals had taken place, in light of the fact that the Act greatly prejudices the exercise of the right of associations of public employees to organise their activities;
    • - in the view of the Committee, the expression "threatens democracy and constitutional order" in Act No. 25 and in Cabinet Resolution No. 10, under which the dismissals took place, is excessively vague and may lend itself to abuse.
      • In these circumstances, the Committee considers that the mass dismissal of trade union leaders and workers in the public sector was a serious violation of Convention No. 98. The Committee therefore urges the Government to take measures with a view to reinstating the trade union leaders and the workers still dismissed, inasmuch as this can only contribute to restoring normal and harmonious labour relations. In any event, the Committee further requests the Government to keep it informed of developments and of the outcome in the dismissed workers' cases now before the Third Chamber of the Supreme Court. The Committee likewise requests the Government to take the measures necessary to ensure that the law embodies the right for civil servants and workers in the public sector to organise trade unions and all other trade union rights recognised in Conventions Nos. 87 and 98.
    • 144. As regards the allegation that the SITIRHE's premises were occupied by the military, the Committee notes the Government's explanation that there is now free access to the premises and that these facilities were guarded to ensure that no acts of vandalism took place there, as reportedly had occurred under the military regime. The Committee reminds the Government that an indispensable corollary of the inviolability of trade union premises is that the public authorities may not insist on entering premises without a judicial warrant authorising them to do so, a warrant which did not figure in this case (see Digest of decisions and principles of the Freedom of Association Committee, 3rd edition, 1985, paras. 202 and 203), and that otherwise there is the risk of serious interference by the authorities in trade union activities.
14. 145. As regards the allegation that the Government is freezing the SITIRHE's trade union funds and keeping dismissed trade union leaders from having access to and administering trade union dues, the Committee observes that this freeze resulted from the dismissal of trade union leaders who thus lacked the legal authority to administer the funds. The Committee emphasises that the dismissal of a trade union leader should not prevent him or her from exercising trade union activities during his or her mandate, and considers that the administration of trade union funds should be carried out by the leaders designated in accordance with the trade union's by-laws and without any interference whatsoever. It is for the union members themselves to decide whether the leaders should keep managing the funds of the organisation. The Committee therefore requests the Government to take measures to that effect.

The Committee's recommendations

1. 146. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) As regards the mass dismissal of trade union leaders and workers in the public sector on account of the strike of 5 December 1990, the Committee urges the Government to continue taking measures with a view to reinstating the trade union leaders and workers who are still dismissed, and to keep it informed of the dismissed workers' cases now under consideration.
   • (b) Likewise, the Committee requests the Government to take the measures necessary to ensure that the law embodies the right of civil servants and workers in the public sector to organise, and all other trade union rights recognised by Conventions Nos. 87 and 98.
   • (c) The Committee urges the Government fully to respect in future the principle that an indispensable corollary of the inviolability of trade union premises is that the public authorities may not insist on entering premises without a judicial warrant authorising them to do so.
   • (d) The Committee requests the Government to allow the SITIRHE's trade union leaders to have access to and to administer trade union dues, in accordance with the trade union's by-laws and without any interference whatsoever.