Interim Report - Report No 342, June 2006

Case No 2372 (Panama) - Complaint date: 21-JUL-04 - Closed

Allegations: The complainant organization objects to Decree No. 8 of 1998 which regulates work at sea and on waterways and which, in the opinion of the organization, denies it the right to collective bargaining and to strike; it also alleges the dismissal of the General Secretary of the Panamanian Trade Union of Maritime Tugging, Barges and Related Services (SITRASERMAP) from the enterprise Smit Harbour Towage Panama in April 2002

879. The complaint appears in a communication from the Panamanian Trade Union of Maritime Tugging, Barges and Related Services (SITRASERMAP) dated 21 July 2004. The International Federation of Transport Workers (ITF) associated itself with the complaint in a communication dated 14 January 2005. The Government sent its partial observations in communications dated 27 December 2004, 22 March and 18 May 2005, and 15 May 2006.

1. 880. 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. 881. In its communication dated 21 July 2004, the Panamanian Trade Union of Maritime Tugging, Barges and Related Services (SITRASERMAP) objects to Decree No. 8 of February 1998, which regulates work at sea and on waterways, on the grounds that it undermines the employment stability and conditions of seafarers, in particular section 75 which prevents workers from initiating industrial action or presenting financial claims. The complainant organization indicates that, in the light of this section, workers employed at sea and on waterways are not allowed to present lists of demands with a view to a collective agreement or any other industrial agreement and that the conciliation procedure prior to striking may therefore not be initiated. This prevents a large sector of the workers from exercising the right to strike.
2. 882. The complainant organization states that the Supreme Court of Justice declared section 102 of the contested Decree to be unconstitutional (because, according to the complainant, it violated section 70 of the national Constitution which stipulates that no worker may be dismissed without a valid reason and without due process of law) and that, in January 2001, it requested the same judicial authority to declare various sections of the Decree unconstitutional, including the contested section 75.
3. 883. On the other hand, the complainant organization alleges that in June 2002 the enterprise Smit Harbour Towage Panama dismissed Captain Luis Fruto, General Secretary of SITRASERMAP, and that a decision on the matter from the Supreme Court of Justice is pending, following lengthy legal proceedings before various judicial bodies and a ruling by the Ministry of Labour and Social Development ordering his reinstatement and imposing a fine on the enterprise for contempt of court.
4. B. The Government’s reply
5. 884. In its communication dated 27 December 2004, the Government states that Decree No. 8 of 26 February 1998 was the result of a process of consensus, in which various trade unions and employers’ organizations participated, and which was mediated by the Government. It also indicates that there is a decision pending from the Supreme Court of Justice on the constitutionality of the Decree’s provisions; section 102 has already been declared unconstitutional.
6. 885. In its communication of 22 March 2005, the Government indicates that the Supreme Court of Justice has not yet handed down a ruling on the claim that Decree No. 8 of 1998 is unconstitutional. Nonetheless, the Government, through the Ministry of Labour and Social Development (MITRADEL) and the Panama Maritime Authority (AMP), has been holding inter-departmental meetings with the aim of, among other things, resolving the labour issues of the seafarers’ case, in accordance with the Conventions ratified by Panama. In this respect, job placement for seafarers and the labour inspection system have been discussed.
7. 886. In its communication of 18 May 2005, the Government states that it does not intend to issue a judgement on the dismissal of Mr. Luis Fruto as the matter is being examined by the Supreme Court of Justice. The Government also refers to the judicial proceedings taking place relating to the dismissal and states that the Supreme Court of Justice has still to make a ruling on the amparo (enforcement of constitutional rights) appeal lodged by Mr. Fruto. The Government also points out that the General Labour Directorate of the Ministry of Labour and Social Development ordered the reinstatement of Mr. Fruto and the payment of the wages owed to him, but that the judicial authority revoked this ruling.
8. 887. In its communication of 15 May 2006, the Government states that it remains determined to comply with the international obligations it has undertaken and to try to resolve, as far as possible, all the problems concerning the Conventions that Panama has ratified. It adds in this respect that it continuously works on this case but has not been in a position to achieve further progress given that the Supreme Court of Justice has not pronounced itself yet on the appeal lodged against Decree No. 8 of 26 February 1998 on grounds of unconstitutionality. Discussions are under way in order to obtain a consensus with a view to ratifying the Maritime Labour Convention, 2006. The Government finally indicates that consideration is given to the possibility of amending Legislative Decree No. 8 so as to bring it into conformity with the provisions of the new maritime Convention and respond to the issues raised in the present complaint with regard to the application of Convention No. 87.

C. The Committee’s conclusions

1. 888. The Committee observes that in this case the complainant organization objects to Decree No. 8 of 1998, which regulates work at sea and on waterways, which it views as obstructing the right to collective bargaining and to strike, and also alleges the dismissal of the General Secretary of the Panamanian Trade Union of Maritime Tugging, Barges and Related Services (SITRASERMAP) from the enterprise Smit Harbour Towage Panama in April 2002.
2. 889. As to Decree No. 8 of 1998, which regulates work at sea and on waterways, the Committee observes that the Government and the complainant organization state that, in January 2001, the constitutionality of a number of sections of the Decree, including section 75, which is criticized by SITRASERMAP, was contested before the Supreme Court of Justice. The Committee also notes that the Government does not deny the allegation that the Decree obstructs the right to collective bargaining and to strike and that it confirms that, through the Ministry of Labour and Social Development (MITRADEL) and the Panama Maritime Authority (AMP), interdepartmental meetings are being held with the aim of, among other things, resolving the labour issues of the seafarers’ case in accordance with the Conventions ratified by Panama. The Committee notes that the Government has informed the ILO that: (1) it will present a new Maritime Code Bill to the Legislative Assembly; (2) it remains determined to comply with the international obligations it has undertaken and to try to resolve, as far as possible, all the problems concerning the Conventions that Panama has ratified; (3) discussions are under way in order to obtain a consensus with a view to ratifying the Maritime Labour Convention, 2006 and consideration is given to the possibility of amending Legislative Decree No. 8 so as to bring it into conformity with the provisions of Convention No. 186 and respond to the issues raised in the present complaint with regard to the application of Convention No. 87. Under these circumstances, the Committee requests the Government to take the necessary measures to amend section 75 of Decree No. 8 of 1998 and to encourage and promote the full development and use of machinery for voluntary negotiation between employers or employers’ and workers’ organizations within the sector, with a view to the regulation of terms and conditions of employment by means of collective agreements. The Committee requests the Government to hold proper consultations with the most representative employers’ and workers’ organizations in this regard. Furthermore, the Committee requests the Government to keep it informed on any ruling handed down by the Supreme Court on the unconstitutionality of the various sections of Decree No. 8, as well as on any new legislation on the maritime sector presented to the Legislative Assembly.
3. 890. Concerning the dismissal of Mr. Luis Fruto, the General Secretary of the SITRASERMAP from the enterprise Smit Harbour Towage Panama in April 2002, the Committee notes that the complainant organization and the Government indicate that a decision from the Supreme Court is pending on the amparo appeal lodged by Mr. Fruto to enforce his constitutional rights, alleging that the correct procedures were not followed. Under these circumstances, the Committee regrets the long time that has lapsed since the beginning of these proceedings (April 2002); it trusts that the Supreme Court of Justice will soon hand down a ruling on Mr. Fruto’s dismissal and, taking into account that the Ministry of Labour had ordered the reinstatement of this trade union leader in his post, requests the Government, if it confirmed that this dismissal was due to his trade union activities, to take the necessary measures to ensure that he is reinstated in his post immediately with the payment of the wages owed to him and any other legal entitlements. The Committee requests the Government to keep it informed in this respect.

The Committee's recommendations

1. 891. In light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) With regard to the contested Decree No. 8, which regulates work at sea and on waterways, noting that the Government does not deny the allegation that this Decree obstructs the right to collective bargaining and the right to strike, the Committee requests the Government to take the necessary measures to amend section 75 of the Decree and to promote the full development and use of machinery for voluntary negotiation between employers or employers’ and workers’ organizations of the sector, with a view to the regulation of terms and conditions of employment through collective agreements. The Committee requests the Government to hold proper consultations with the most representative employers’ and workers’ organizations in this regard. The Committee also requests the Government to keep it informed of any ruling handed down by the Supreme Court on the unconstitutionality of various sections of Decree No. 8, as well as on any new bill on the maritime sector presented to the Legislative Assembly.
   • (b) As to the dismissal in April 2002 of the General Secretary of the Panamanian Trade Union of Maritime Tugging, Barges and Related Services (SITRASERMAP), Mr. Luis Fruto, at the enterprise Smit Harbour Towage Panama, the Committee regrets the long time that has lapsed since the beginning of the court case (April 2002) relating to the dismissal, trusts that the Supreme Court of Justice will soon hand down a ruling on the matter, taking into account the fact that the Ministry of Labour had ordered the reinstatement of this trade union leader in his post, the Committee requests the Government, if it is confirmed that the dismissal of this union official was due to his trade union activities, to take the necessary measures to ensure that he is reinstated in his post without delay with the payment of the wages owed to him and any other legal entitlements. The Committee requests the Government to keep it informed of the ruling of the Supreme Court of Justice.