Observation (CEACR) - adopted 2014, published 104th ILC session (2015)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Honduras (Ratification: 1956)

The Committee notes the observations of the International Trade Union Confederation (ITUC) of 2013, and the Government’s reply to those. The Committee notes the observations of the ITUC received on 1 September 2014 and of Education International (EI) received on 10 September 2014 and requests the Government to provide its comments in this regard. The Committee notes that many of the issues raised by the EI have already been submitted to the Committee on Freedom of Association within the framework of Case No. 3032, in which it is the complainant organization.

Regarding the dispute between the Government and teachers organizations in the education sector, the Committee has been noting for several years that the ITUC and the EI have been commenting in detail on the issue and that the report of the 2014 direct contacts mission indicates a lack of social dialogue and many legal reforms and unilateral measures by the authorities which have resulted in protests by teachers organizations, which have generated acts of violence. The Committee emphasizes the importance of restoring trust between the Government and teachers organizations and hopes that the authorities will foster a culture of social dialogue with the teachers’ organizations to resolve the current problems.

The Committee also notes the observations on the application of the Convention by the General Confederation of Workers (CGT) condemning the salary freeze in the public service and requests the Government to send its comments in this respect.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 102nd Session, June 2013)

Articles 1 and 2 of the Convention. Protection against acts of anti-union discrimination and interference. The Committee recalls that for many years its comments have referred to:

• -The lack of adequate protection against acts of anti-union discrimination, since the penalties provided for in section 469 of the Labour Code for impairment of the right to freedom of association (from 200 Honduran lempiras (HNL) to HNL10,000, HNL200 being equivalent to around US$12) are obviously insufficient and merely symbolic. The Committee noted that, according to the Government, protection against acts of anti-union discrimination in respect of workers’ employment is guaranteed by the provisions of: (i) article 128(14) of the Constitution of the Republic, which confers the right to freedom of association on employers and workers alike; (ii) section 517 of the Labour Code, which grants special state protection to workers when they notify their employers of their intention of forming a union and which provides that, from the date of such notification until receipt of the notice of legal personality, none of the notifying workers may be dismissed or transferred or suffer any impairment of their working conditions without due cause, as defined previously by the competent authority; and (iii) the provisions of the Code that impose the penalties indicated by the Committee. The Committee once again asked the Government to, in consultation with the social partners, take the necessary steps to amend the penalties established in section 469 of the Labour Code so as to make them dissuasive. Furthermore, the Committee again asked the Government to indicate specific cases in which section 321 of Decree No. 191-96 of 31 October 1996 (establishing penal sanctions for discrimination) has been used to apply sanctions for acts of anti-union discrimination.
• -The absence of full and appropriate protection against all acts of interference, and sufficiently effective and dissuasive penalties against such acts. In this regard, the Committee noted the Government’s statement that the legislation does contain provisions to afford workers’ organizations adequate protection against all acts of interference by employers, a case in point being section 511 of the Labour Code, which bars from membership of executive committees of enterprise unions or first-level unions or from appointment to trade union office, members who, on account of their duties in the enterprise, represent the employer or hold management posts or positions of trust or who are able easily to exercise undue pressure on their colleagues. The Committee recalled in this connection that the protection of Article 2 of the Convention is broader than that afforded by section 511 of the Labour Code and that in order to ensure that effect is given to Article 2 of the Convention in practice, the legislation must make express provision for sufficiently dissuasive remedies and sanctions against acts of interference by employers against workers and their organizations, including against measures that are intended to promote the establishment of workers’ organizations under the domination of employers or employers’ organizations, or to support workers’ organizations by financial or other means with the objective of placing such organizations under the control of employers or employers’ organizations. The Committee again requested the Government, in consultation with the social partners, to take the necessary steps to these ends. The Committee notes that the Government’s proposal submitted to the Social and Economic Council in 2014 addresses this request.

Article 6. Right of public servants not engaged in the administration of the State to bargain collectively. In its previous comments the Committee pointed out that, although Article 6 of the Convention allows public servants engaged in the administration of the State to be excluded from the Convention’s coverage, other categories of workers must be able to enjoy the guarantees laid down in the Convention and thus bargain collectively for their conditions of employment, including pay. The Committee asked the Government to take the necessary steps to amend sections 534 and 536 of the Labour Code barring unions of public employees from submitting lists of claims or signing collective agreements. The Committee again asked the Government to take the necessary measures to amend the legislation to take account to the abovementioned principle.

The Committee noted in its previous observation the discussion held in the Committee on the Application of Standards in June 2013 in which that Committee, after noting that the authorities were working on a bill and proposal of a partial reform of the Labour Code with the technical assistance of the ILO and taking into account the recommendations of the Committee of Experts, emphasized the importance of ensuring that the reform process was carried out in consultation with all the workers’ and employers’ organizations concerned and expressed the firm hope that the above bills would be submitted in the near future to the legislative authorities. The Committee on the Application of Standards requested the Government to accept a direct contacts mission to ensure the full application of the Convention and to establish a tripartite dialogue to overcome the problems noted.

The Committee notes the report of the direct contacts mission carried out in Honduras on 21 and 25 April 2014 and appreciates that the Government included in the mission’s mandate questions not only under this Convention but also under the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).

The Committee wishes to emphasize the conclusions of the direct contacts mission on the context and difficulties in industrial relations and the need to promote social dialogue through the Economic and Social Council (CES), which is a tripartite body:

The mission notes significant developments towards the objective of harmonization. Firstly, the ratification of Convention No. 144, dated 12 June 2012 and, secondly, the recent publication on 29 March 2014 of the Act on the Economic and Social Council (CES) (a body which was previously regulated by an Executive Agreement). Such developments are clear signals in favour of social dialogue. The above Act establishes that “the decisions taken by the CES shall be taken into account prior to the adoption of draft bills regulating socio-economic matters that are of particular importance in the regulation of such matters and other competences stipulated under section 4”, in section 2(1). Furthermore, it empowers the Council to give effect to the obligations under Convention No. 144 and other signed and adopted ILO Conventions, in section 7(3).

While in 2013 and 2014 there had been some successful attempts at tripartite social dialogue, such as the conclusion of agreements on fixing minimum wages, trade unions indicated to the mission a number of significant shortcomings in the social dialogue on the part of the former and current governments. Some of those concern the lack of tripartite consultations relating to several important acts (such as the new Act on employment paid by the hour or certain legal texts relating to social security) or consultation processes and even prior consultation processes which did not take account of the trade unions’ wish to be consulted jointly and with sufficient notice (and not, as was the case, separately). The trade unions indicated that this was an important issue for them, since they were progressing towards a trade union merger.

The mission took note of the Government’s indications regarding the political, economic and social context, and of its wish to address problems of this kind dynamically, promptly and creatively, taking into account the substantial, difficult and urgent economic and social challenges. In this regard, the mission wishes to emphasize the importance, when addressing labour and socio-economic problems, that the authorities ensure in-depth consultation with trade unions and the Honduran National Business Council (COHEP) to reach, in so far as possible, joint solutions. In this regard, it is crucial that the new impetus given to the CES through the corresponding Act gives way to increased in-depth social dialogue within this tripartite body to allow the urgent measures cited by the Government to be reconciled with joint solutions with the social partners to the degree possible, which implies allocating a reasonable period of time to dialogue.

The mission notes that the confidence of the trade unions in the Government has diminished over recent years, owing to a long dispute between the authorities and teaching sector organizations which resulted in legislative amendments without consultation, penalties imposed on many teachers, and a unilateral restructuring of vocational colleges. The mission is not dealing with this dispute (the trade unions submitted a complaint before another ILO body: the Committee on Freedom of Association (CFA)). Nevertheless, this dispute and its particular details including decisions and laws which were not subject to consultation, and measures against teachers’ colleges, and their leaders and members, have dramatically degraded the climate of confidence between the trade unions and the Government.

A contributory factor to the deterioration of confidence stated by the trade unions and the COHEP is the adoption of laws on labour issues affecting the interests of employers and workers which were not subject to consultation or at least not to genuine consultation (such as the Act on employment paid by the hour, and the Act of the National Pension Institute for Teachers). The trade unions and the COHEP also rightly deplore the fact that the National Congress amended the content of bipartite (between the trade unions and the COHEP) and tripartite agreements in certain Acts. The mission pointed out this problem to the President of the National Congress who was very receptive to the mission’s comments and understood the utmost importance of respecting tripartite agreements when they require ratification by the National Congress in order to be incorporated into legislation. The mission nevertheless recommended that the members of the Labour Commission of the National Congress and the honourable members in general should be made aware of the importance of this principle.

The mission recalls that the pending issues affect the exercise of fundamental labour rights and highlights that the legal reforms requested by the CEACR should be carried out as rapidly as possible, following an in-depth tripartite discussion which should necessarily be held within the CES. Subsequently, various partners indicated to the mission that a preliminary draft bill on the Code of Labour Procedure could contribute to speedier and more effective justice and thereby to increased protection against infringements of the Labour Code. The mission hopes that this text will be submitted to the CES.

The mission welcomes the commitment of the COHEP to social dialogue and collective bargaining which corresponds with a long tradition of consultation, and is a commitment shared by the trade unions.

The mission emphasizes that the COHEP and the trade unions urged that in the CES: (1) the governmental sector is represented by authorities of the highest level; (2) adequate funding is provided in order to meet the technical expectations that their functions entail; (3) the ILO provides assistance to the CES technical section; and (4) it is ensured that the CES meets monthly or as frequently as necessary. The mission notes with interest that the Government agrees with these points and also agrees that, as the social partners hoped, the members of the National Congress shall be involved in the final stages of the consultation process in order to ensure respect of the tripartite agreements.

The mission notes the Government’s comments that no areas for any employment and economic development zones (ZEDE) have been determined and therefore the terms for self-regulation regarding labour and procedures have not been determined either. The mission suggests that the CEACR should follow up this issue and considers that the Government should provide the CEACR with information on developments of union rights in those areas.

In addition, the trade unions report a high level of corruption in labour inspection and, as discussed with various authorities, the mission suggests that an ILO audit should be carried out which includes a technical diagnosis of the functioning of labour inspection and also handles complaints of corruption, with a view to taking relevant corrective measures.

The mission expresses the firm hope that the measures mentioned in these conclusions will be written into a roadmap and an action plan which adequately set out the intermediate targets and stages in order to make tangible progress, in line with the CEACR comments.

The Committee notes the Government’s indications in its report that: (i) the CES adopted the roadmap for discussion of the proposal on the harmonization of the Labour Code taking into account the recommendations of the Committee of Experts and the technical advice of the ILO; this proposal also includes the question of the right of public servants not engaged in the administration of the State to bargain collectively; (ii) since 2010, the Office of the Public Prosecutor has not received any complaints concerning discrimination (for anti-union harassment), but the National Human Rights Commissioner (CNDH) has examined nine complaints and the General Labour Inspectorate has handled three, two of which refer to the non-deduction of trade union dues; and (iii) the employment and economic development zones (ZEDE) (Organic Act of 12 June 2013) have not been created and no substantial progress has been made.

The Committee recalls that the issues in question relate to fundamental rights and pose no technical difficulties, and therefore – taking into account that according to the statement in the mission’s report that “both the Government and the social partners share the objective of bringing the national legislation fully into line with Conventions Nos 87 and 98” – it is incumbent on the authorities to take all necessary measures so that together with the most representative workers’ organizations it fulfils the recommendations of the 2013 Committee on the Application of Standards and introduces the requested reforms into the legislation. The Committee notes that the CES roadmap sets out the discussion and adoption of the legal reforms by the National Congress in September 2014 and, given the delay, urges the Government to take all necessary measures to that end and expresses the firm hope that concrete progress will be noted in the near future, bearing in mind the far-reaching importance of the pending legislative questions.

Application of the Convention in practice. The Committee requests the Government to provide information on the exercise of union rights in the export processing zones (which must not be confused with the ZEDE, which the Government indicates have not been created) and more specifically on complaints of violations of union rights enshrined in the Convention, and the number and coverage by sector of collective agreements.

Lastly, the Committee notes with concern the complaints of a high level of corruption within the labour inspectorate and notes that the Government reacted positively to the suggestion of the direct contacts mission that an ILO audit be conducted. The Committee requests the Government to provide information in this regard, in particular relating to cases of corruption connected to the exercise of union rights.