Interim Report - Report No 105, 1968

Case No 531 (Panama) - Complaint date: 29-AUG-67 - Closed

1. 276. The complaint by the International Federation of Christian Trade Unions (I.F.C.T.U.) is contained in several communications, dated 29 August, 6 October and 28 December 1967, addressed directly to the I.L.O. Following transmission of the text of these communications to the Government, the latter sent its observations on 1 April 1968.
2. 277. 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. A. The complainants' allegations

• Allegations relating to the Refusal by the Government to Grant Legal Personality to Various Trade Union Organisations
  278. 278 The complainants refer to the establishment of four trade union organisations, the National Union of Workers in the Food, Drink and Victualling Trades, the Tagarópulos Co. Workers' Union, the Commercial Employees' Union of David, and the Oil and Allied Workers' Union, to which the Government has refused to grant legal personality. The complainants state that the Government explains its refusal on the grounds of the existence of other unions in the same branch of activity. In support of their allegations the complainants forward the texts of the Government's decisions, pointing out that these contain no reference to any provisions of the Constitution or of the Labour Code which might justify them. It is alleged that these decisions infringe international standards in respect of freedom of association and that the Government's attitude is designed to prevent the expansion of the Isthmian Federation of Christian Workers, the Panamanian trade union movement affiliated to the I.F.C.T.U.
  279. 279 In its reply the Government states that it did in fact refuse to register as legal entities the Oil and Allied Workers' Union, the Food, Drink and Allied Workers' Union of Panama, the Commercial Employees' Union of David and the Commercial Employees' Union of Panama. The Government states that this refusal does not, however, indicate any anti-union policy, since Panama has ratified Conventions Nos. 87 and 98 and in 1967 legal personality was granted to 18 trade unions mentioned in the Government's reply. The decisions taken in regard to the trade union organisations which were not granted legal personality are at present before the Supreme Court of Justice, which is to give its judgment thereon. In this connection the Ministry of Labour, Social Welfare and Public Health has submitted a memorandum to the Supreme Court stating the reasons for the decisions in question. The Government reproduces some passages from that memorandum in its communication.
  280. 280 The memorandum refers to article 67 of the Constitution, which states that the Government may accept or reject the registration of a trade union. The granting of legal personality is dependent upon such registration. The Ministry points out that, although the Constitution recognises the right to establish trade unions freely, this does not imply that a request for registration of a trade union must be approved simply because it meets the legal requirements. If the Government were compelled to grant legal personality to every union making an application in accordance with the legal requirements, the result would be an indiscriminate proliferation of trade unions, which would run counter to a sound state policy on trade unions. Accordingly, section 305 of the Labour Code empowers the Ministry of Labour, Social Welfare and Public Health to develop the trade union movement, provided that this is done in a harmonious and orderly manner. Experience in Panama has shown that the existence of two or more unions in a single undertaking hinders labour relations and leads to problems of representation-for example for the purposes of collective bargaining. According to the Ministry's argument, recognition of a new union when one already exists in a particular undertaking would not promote the development of the trade union movement in a harmonious and orderly manner and would thus run counter to the Government's policy of promoting balanced trade unionism. Registration, and consequently legal personality, was refused to the organisations mentioned on the basis of the above considerations and the desire to prevent fragmentation of trade unions. The Government further states that at no time did it intend to inhibit the development of the trade union movement affiliated to the Isthmian Federation of Christian Workers.
  281. 281 The Committee has taken due note of the various decisions refusing registration as legal entities of the trade unions mentioned by the complainants. These decisions follow the same basic line of argument established by the Government in its reply, particularly concerning the existence of another trade union in the branch of activity in which the new trade union organisation wishes to be recognised. The decisions encourage the applicants to join forces with the unions already existing in the respective branches of activity in order to present a common front and contribute to social stability.
  282. 282 The Committee notes that the decisions which the complainants have called in question are at present before the Supreme Court of Justice, which is to give its judgment thereon. In these circumstances it might be considered that it is of some interest for the Government and the complainants to be made aware of the Committee's opinion with regard to these decisions before the judgment of the Supreme Court is given, in order that the Government might adopt appropriate measures taking this opinion into account. The Committee has adopted a similar practice with regard to certain draft legislation, expressing its opinion on the merits of the matter even before the enactment of the legislation. In such cases the Committee has considered that, as the Government had the initiative in the matter, it could introduce the appropriate amendments.
  283. 283 In several previous cases the Committee has pointed out that Article 2 of Convention No. 87, which Panama has ratified, provides that workers and employers shall have the right to establish and to join organisations " of their own choosing ". This provision of the Convention is in no way intended as an expression of support either for the idea of trade union unity or for that of trade union diversity. It is intended to convey, on the one hand, that in many countries there are several organisations among which the workers or the employers may wish to choose freely, and, on the other, that workers and employers may wish to establish new organisations in a country where no such diversity has hitherto been found. In other words, although the Convention is evidently not intended to make trade union diversity an obligation, it does at least require this diversity to remain possible in all cases. Accordingly, any governmental attitude involving the " imposition " of a single trade union organisation would be contrary to Article 2 of Convention No. 87.
  284. 284 Nevertheless, in view of the problems which may arise in certain cases as a result of the simultaneous existence of more than one trade union in the same branch of activity and for the same category of workers, the Committee has agreed that a country's legislation may establish a distinction between the most representative trade union organisations and the other trade union organisations. A distinction of this kind should not accord to the most representative organisation advantages extending beyond a priority granted in certain countries (on the ground of its having the largest membership) in representation for such purposes as collective bargaining or consultation by governments or for the purpose of nominating delegates to international bodies. This distinction should not have the effect of depriving trade union organisations not recognised as being among the most representative of the essential means whereby they may defend the occupational interests of their members, organise their administration and activities and formulate their programmes, as provided for in Convention No. 87.
  285. 285 Accordingly, the Committee recommends the Governing Body:
       • (a) to draw the Government's attention to the principles set out in paragraphs 283 and 284, emphasising the importance it attaches to the standard contained in Article 2 of Convention No. 87, which Panama has ratified, according to which workers and employers shall have the right to establish and to join organisations of their own choosing;
       • (b) to request the Government to be good enough to reconsider its position with regard to the refusal to register the trade unions in question, adopting appropriate measures for ensuring that the application of the legislation is in conformity with the standard in question, and to keep the Governing Body informed thereon.
  286. Allegations relating to the Non-Admission of Trade Unionists to Committees for the Revision of the Labour Code
  286. 286 The complainants state that, for the purpose of the revision of the Labour Code, the Government set up three committees in January 1967 without consulting the representative trade union organisations and without including any trade union representative in these committees. The Isthmian Federation of Christian Workers, the Trade Union Federation of Workers of the Republic of Panama and the National Federation of Transport Workers had formed a committee which requested the Vice-Minister of Labour and the Inspector-General of Labour to allow trade union representatives to participate in these committees. This request was rejected on the grounds that it would obstruct the work of the committees. Subsequently the Government issued a decree appointing two lawyers and the head of the production department of an undertaking as advisers representing the trade unions. The appointment of these three persons was not discussed with any organisation representing the workers. A further request to the Minister of Labour, Social Welfare and Public Health to allow three workers' representatives to participate in the committees obtained no reply. At the time of the submission of the complaint (6 October 1967) no trade union federation had been informed of the work carried out on the revision of the Labour Code or had received copies of the preliminary draft which was drawn up with the assistance of an I.L.O expert. The complainants consider the Government's attitude to be contrary to I.L.O standards and harmful to good relations between trade union representatives and government authorities.
  287. 287 The Committee notes that the Government's reply makes no reference to this aspect of the complaint. The Committee therefore recommends the Governing Body to request the Government to be good enough to send its observations regarding the complainants' allegations.

The Committee's recommendations

1. 288. In these circumstances the Committee recommends the Governing Body:
   • (a) with regard to the Government's refusal to grant legal personality to several trade union organisations:
   • (i) to draw the Government's attention to the principles set out in paragraphs 283 and 284, emphasising the importance it attaches to the standard contained in Article 2 of Convention No. 87, which Panama has ratified, according to which workers and employers shall have the right to establish and to join organisations of their own choosing;
   • (ii) to request the Government to be good enough to reconsider its position with regard to the refusal to register the trade unions in question, adopting appropriate measures for ensuring that the application of the legislation is in conformity with the standard in question, and to keep the Governing Body informed thereon;
   • (b) with regard to the non-admission of trade unionists to the committee for the revision of the Labour Code, to request the Government to be good enough to send its observations regarding the complainants' allegations;
   • (c) to take note of this interim report, it being understood that the Committee will submit a further report after receiving the information requested.