Observation (CEACR) - adopted 2019, published 109th ILC session (2021)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Honduras (Ratification: 1956)

The Committee notes the observations of the General Confederation of Workers (CGT), the Workers’ Confederation of Honduras (CTH) and the Honduran National Business Council (COHEP), which were sent together with the Government’s report. The Committee further notes the observations of the International Organisation of Employers (IOE), received on 30 August 2019, containing the Employers’ statements made before the 2019 Conference Committee on the Application of Standards The Committee also notes the observations of the International Trade Union Confederation (ITUC), received on 1 September 2019, and the related replies of the Government. Lastly, the Committee notes the observations of COHEP, supported by the IOE, received separately on 2 September 2019. The Committee notes that all the above-mentioned observations refer to matters examined by the Committee in the context of the present observation.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 108th Session, June 2019)

The Committee notes the discussion which took place in June 2019 in the Conference Committee on the Application of Standards (hereinafter: the Conference Committee) concerning the application of the Convention by Honduras. The Committee observes that the Conference Committee, after noting with serious concern the allegations of acts of anti-union violence, including the allegations of physical aggression and murders, and the prevailing climate of impunity, and after also noting the ILO direct contacts mission that took place in May 2019 and the resulting tripartite agreement, asked the Government to apply the tripartite agreement, including with respect to: (i) the establishment of a national-level committee by June 2019 to combat anti-union violence; (ii) the establishment of a direct line of communication between trade unions and relevant public authorities; (iii) the provision of prompt and effective protection to at-risk trade union leaders and members; (iv) the prompt investigation of anti-union violence with a view to arresting and charging those responsible, including the instigators; (v) the transparency of the complaints received through biannual reporting; (vi) the need for awareness-raising in relation to protective measures available to trade unionists and human rights defenders; (vii) the reform of the legislative framework, and in particular the Labour Code and the Penal Code, in order to ensure compliance with the Convention; and, lastly, (viii) the adoption of the operating regulations of the Sectoral Committee for the Handling of Disputes referred to the ILO (MEPCOIT) without prejudice to the complainants’ right to file complaints with the ILO supervisory bodies.

Direct contacts mission of May 2019 and follow-up action

The Committee duly notes the direct contacts mission that took place in May 2019 on the basis of the conclusions adopted by the Conference Committee in June 2018. The Committee notes with interest the tripartite agreement signed on 24 May 2019 at the end of the mission, covering the three following matters: (i) anti-union violence; (ii) legislative reforms; and (iii) reinforcement of the Economic and Social Council (CES) with regard to freedom of association. In this regard, the Committee also notes the technical assistance mission carried out by the Office in September 2019 with a view to initiating support for the implementation of the tripartite agreement.

Trade union rights and civil liberties

In its previous comments, after expressing concern at the large number of reported cases of anti-union violence, in particular the murder of 14 members of the trade union movement, and at the limited progress in the corresponding investigations, the Committee urged the Government to intensify its efforts: to investigate all acts of violence against trade union leaders and members, with the aim of identifying those responsible and punishing both the perpetrators and the instigators of these crimes; and to provide prompt and effective protection to at-risk trade union leaders and members. In this regard, the Committee recalls especially that it urged the Government to take the necessary steps to ensure: (i) that all the competent authorities tackle in a coordinated manner, and as a priority, the acts of anti-union violence; (ii) that account is fully and systematically taken in investigations of the possible anti-union nature of murders of members of the trade union movement; (iii) that the exchange of information between the Public Prosecutor’s Office and the trade union movement is improved; and (iv) that the budget is increased for both the investigations into acts of anti-union violence and protection schemes for members of the trade union movement.

The Committee notes the information from the Public Prosecutor’s Office supplied by the Government concerning 22 cases of alleged anti-union violence, including 16 murders. The Committee observes that this information indicates that: (i) seven cases are being investigated (murders of Sonia Landaverde Miranda, Alfredo Misael Ávila Castellanos, Evelio Posadas Velásquez, Juana Suyapa Posadas Bustillo, Maribel Sánchez, Fredy Omar Rodríguez and Roger Abraham Vallejo); (ii) five cases are before the courts (with regard to the murders of Alma Yaneth Díaz Ortega, Uva Erlinda Castellanos Vigil, José Ángel Flores and Silmer Dionisio George, the corresponding arrest warrants are due to be issued; with regard to the murder of Claudia Larissa Brizuela, the perpetrator has been convicted but has appealed against the conviction); (iii) five cases have been shelved or have been concluded (the judicial proceedings relating to the murders of Manuel Crespo and Ilse Ivania Velásquez Rodríguez have been concluded, while the investigations into the threats against Miguel López, Nelson Nuñez and Víctor Manuel Crespo Murcía have been shelved); and (iv) five cases have not been registered because no legal complaints have been filed in relation to them (deaths of Martin Florencio and Félix Murillo López; alleged abduction of Moisés Sánchez; alleged assault against Hermes Misael Sánchez; and alleged threats against Miguel López).

The Committee also notes the Government’s emphasis that the tripartite agreement of May 2019 provides for the establishment, within the CES, of a Committee on Anti-Union Violence comprising representatives from the authorities of the Secretariat-General for Government Coordination, the Ministry of Labour and Social Security and the Ministry of Human Rights, and from the social partners represented in the CES, with judicial entities also invited to participate. The Committee observes that, according to the tripartite agreement, the main functions of the Committee on Anti-Union Violence are: (i) to establish a direct line of communication between the trade unions and the State regarding anti-union violence; (ii) to ensure the participation of trade unions in mechanisms for the protection of human rights defenders; and (iii) to promote effective support for investigations into acts of anti-union violence. The Committee also observes that the tripartite agreement, signed on 24 May 2019, provides for a period of 30 days to establish the Committee on Anti-Union Violence, which will be required to send a status report to the CES 60 days later.

With regard to the protection measures for at-risk members of the trade union movement, the Committee notes the Government’s indication that: (i) a tripartite workshop was held within MEPCOIT on the National Protection System, which provides protection to all human rights defenders in the country, with the aim of publicizing it among the social partners; (ii) since 2015, a total of 427 requests for protection measures have been processed; (iii) 210 individuals are currently under the responsibility of the Directorate-General for the National Protection System; and (iv) four trade unionists have been the recipients of protection measures (Miguel Ángel López, Moisés Sánchez, Nelson Geovanny Núñez (who are currently out of the country) and Martha Patricia Riera (whose case file has now been shelved)).

The Committee notes that COHEP states in its observations, concerning the measures taken in relation to anti-union violence that: (i) it is still waiting for the Committee on Anti-Union Violence to start operating; (ii) there is still no formal exchange of information between the Public Prosecutor’s Office and the social partners; and (iii) it has still not received any information on the implementation of the National Protection System in relation to members of the trade union movement. The Committee notes the ITUC’s indications that: (i) the Network against Anti-Union Violence verified the occurrence of 109 acts of anti-union violence in Honduras between January 2015 and February 2019; (ii) 38 acts of violence against trade unionists, including 11 death threats, were recorded in 2018 alone; (iii) the use of violence by the authorities has increased, as shown by the deployment of the armed forces in a crackdown on protests by teachers and doctors in June 2019; (iv) with regard to the numerous reported murders of members of the trade union movement, only one conviction is known to have been handed down, and this is currently the subject of an appeal; (v) the Public Prosecutor’s Office has not taken any action to formalize mutual cooperation to ensure that these cases are processed; and (vi) the trade union movement is not represented in the National Council for the Protection of Human Rights Defenders, which is the body responsible for formulating preventive national policies for the protection of the life and integrity of at-risk population groups, including trade unionists.

The Committee notes the Government’s indication, in reply to the observations of the ITUC, that a first meeting of the Committee on Anti-Union Violence took place on 18 September 2019 with representatives of the Government and the social partners, and that the Ministry of Labour has drawn up a draft roadmap for consideration by the Committee on Anti-Union Violence.

The Committee duly notes the various items of information supplied by the Government and the social partners and also the report of the direct contacts mission. The Committee expresses grave concern at the persistent allegations of numerous acts of anti-union violence and also at the very small number of cases relating to the murders of members of the trade union movement which have resulted in judicial convictions. In this regard, the Committee also notes with concern the indication of the direct contacts mission that it was not given a description of the methods used by the Public Prosecutor’s Office to identify the possible anti-union motives of the alleged acts of anti-union violence. While welcoming the establishment of the Committee on Anti-Union Violence, the Committee observes that it has not yet received any information regarding the participation of judicial entities (the Public Prosecutor’s Office and the judiciary) in that committee. With regard to the mechanisms and measures of protection for at-risk members of the trade union movement, the Committee notes with regret that: (i) the number of trade unionists who have received protection is extremely small by comparison with the very large number of acts of anti-union violence reported by national and international trade union organizations; and (ii) the trade unions do not form part of the National Council for the Protection of Human Rights Defenders, which regulates the protection mechanism.

The Committee considers that the details highlighted above confirm the urgent need for the various state institutions to respond, in a coordinated manner and as a matter of priority given the seriousness of the situation, to the phenomenon of anti-union violence prevailing in the country. Observing that the establishment of the Committee on Anti-Union Violence can constitute an important first step in this regard, the Committee urges the Government and all the competent authorities to take the necessary measures, including budgetary measures, in the very near future to: (i) ensure due compliance with all elements in the tripartite agreement concerning action against anti-union violence; (ii) ensure the active involvement of all the relevant authorities, especially the Ministry of Human Rights, the Public Prosecutor’s Office and the judiciary, in the Committee on Anti-Union Violence; (iii) institutionalize and make effective the participation of the representative trade unions in the National Council for the Protection of Human Rights Defenders; (iv) draw up a special investigation protocol to enable the Public Prosecutor’s Office to examine systematically and effectively any anti-union motives behind the acts of violence affecting members of the trade union movement; (v) ensure that the criminal courts give priority treatment to cases of anti-union violence; and (vi) ensure adequate and prompt protection for all at-risk members of the trade union movement. The Committee observes that the Office has made technical assistance available to the Government and requests the Government to provide information on all progress made in this respect. The Committee also requests the Government to continue providing detailed information on criminal investigations and proceedings relating to acts of violence which have affected members of the trade union movement.

Legislative issues

Articles 2 et seq. of the Convention relating to the establishment, autonomy and activities of trade unions. The Committee recalls that it has been requesting the Government for many years to amend the legislation to ensure conformity with the Convention with respect to the following issues:

• -the exclusion from the rights and guarantees of the Convention of workers in agricultural and stock-raising enterprises which do not permanently employ more than ten workers (section 2(1));
• -the prohibition of more than one trade union in a single enterprise (section 472);
• -the requirement of at least 30 workers to establish a trade union (section 475);
• -the requirement that the officers of a trade union must be of Honduran nationality (sections 510(a) and 541(a)), be engaged in the corresponding activity (sections 510(c) and 541(c)) and be able to read and write (sections 510(d) and 541(d));
• -the prohibition on strikes called by federations and confederations (section 537);
• -the requirement of a two-thirds majority of the votes of the total membership of the trade union organization in order to call a strike (sections 495 and 563);
• -the authority of the competent ministry to end disputes in oil industry services (section 555(2));
• -government authorization or a six-month period of notice for any suspension of work in public services that do not depend directly or indirectly on the State (section 558); and
• -the referral to compulsory arbitration, without the possibility of calling a strike for as long as the arbitration award is in force (two years), of collective disputes in public services that are not essential in the strict sense of the term (sections 554(2) and (7), 820 and 826).

The Committee notes that the tripartite agreement of 24 May 2019 provides that in the context of the CES and on the basis of the relevant pronouncements of the ILO supervisory bodies, the tripartite constituents in the country shall agree to undertake a broad process of discussion and tripartite consensus which, subject to the existence of appropriate conditions, will make it possible to align the labour legislation to the Convention.

The Committee also notes the observations of the social partners concerning the revision of the labour legislation in order to bring it into line with the Convention. The Committee notes COHEP’s indication that: (i) it is in favour of amending sections 2, 472, 475, 510 and 541 of the Labour Code, as requested by the Conference Committee in June 2018; (ii) it is still waiting for a reform proposal from the Government; (iii) account should be taken of the content of the discussions on comprehensive reform of the Labour Code held between 1993 and 1995 with the support of the Office and which gave rise to broad consensus (except on the right to strike and solidarist associations); and (iv) any reform should be the subject of tripartite consultation and be supported by technical assistance from the Office.

The Committee notes the ITUC’s indication that: (i) there is a total absence of effective social dialogue in the country and this obstructs the reaching of tripartite consensus on legislative reform; and (ii) the situation described above raises fears among the national trade unions that the process of reforming the Labour Code may lead to the adoption of legislation which represents a backward step in terms of labour rights and freedom of association. In this regard, the Committee notes the Government’s reply to the ITUC’s observations indicating that: (i) it is seeking ways to achieve tripartite consensus on the reform of the Labour Code; (ii) to this end, a tripartite workshop was held in the CES on 11 September 2019; and (iii) on 26 September 2019, the Government asked the social partners to state their official position regarding the legislative reforms by 25 October 2019. Lastly, the Committee notes that the direct contacts mission observed that “some aspects of the reforms requested by the ILO supervisory bodies are being questioned by one or other of the social partners.”

Observing that it is clear from the above-mentioned details that establishing tripartite social dialogue on the reform of the labour legislation, as envisaged in the tripartite agreement of May 2019, calls for a special effort in terms of building trust between the parties, the Committee once again emphasizes the need to align the labour legislation to the Convention with regard to the various points highlighted in the present observation. The Committee therefore requests the Government to move forward as rapidly as possible, with technical support from the Office, in the implementation of the process of tripartite discussions envisaged in the agreement of May 2019 so that it will be able to report progress in the preparation of the requested reforms.

Section 335 of the Penal Code. In its previous comment, observing that some of the acts specified in section 335 of the Penal Code concerning terrorist offences were broadly defined, the Committee asked the Government to take the necessary measures to ensure that the application of this section by the competent authorities did not restrict the right of trade unions to protest and strike in a peaceful manner, and to provide any information on the possible impact of section 335 of the Penal Code on trade union activities. The Committee notes the Government’s indication that section 335(b) of the Penal Code concerning the advocacy, glorification or justification of terrorism was repealed by Decree No. 49-2018. While welcoming the above-mentioned repeal, the Committee emphasizes that its comments also referred to section 335(a). The Committee therefore repeats its previous requests to the Government relating to the application of section 335 of the Penal Code. Also observing that the direct contacts mission was informed of the adoption on 10 May 2019 of a new Penal Code whose date of entry into force was still the subject of debate in the National Congress, the Committee requests the Government to provide information on the entry into force of the new Penal Code and on any amendments made by that text to the definition of the crime of terrorism.

Application of the Convention in practice. The Committee notes the Government’s indication that: (i) legal personality was granted to seven trade union organizations in 2017 (three in the public sector, four in the private sector), eight in 2018 (seven in the private sector, one in the public sector), and eight between January and August 2019 (all in the private sector); and (ii) pursuant to the Labour Inspection Act adopted on 23 January 2017, a total of 13 fines for violations of freedom of association were imposed between 1 January 2018 and August 2019 (out of an overall total of 261 fines). The Committee also notes that: (i) the CGT and the CTH state in their observations that the Labour Inspection Act is still not being applied in a satisfactory manner on account of the inaction of the Attorney-General’s Office in this regard; (ii) COHEP states in its observations that it has still not received the information it requested regarding the fines which the Attorney-General’s Office imposed and for which the latter collected payment under the terms of the Labour Inspection Act; and (iii) the direct contacts mission indicates in its report that it received from the trade union federations numerous allegations of violations of freedom of association in practice, especially in the agri-export and education sectors.

Lastly, the Committee notes that the tripartite agreement of May 2019, in its section on strengthening the CES with regard to freedom of association, provides for the setting up of MEPCOIT as the dispute settlement body in the area of labour relations, and for the promotion of the good practices of the bipartite committee for the maquila (export processing) sector in other sectors of the economy. The Committee notes in this regard that an ILO technical assistance mission which took place in September 2019 has enabled an exchange of experiences with the moderator of the dispute settlement body of Panama.

In the light of the above, the Committee requests the Government to accelerate the process of application of the Labour Inspection Act and to give special attention to respect for trade union rights in the agri-export and education sectors. The Committee also hopes that MEPCOIT will start its dispute settlement work in the very near future, so that it can examine the alleged violations of freedom of association reported by the trade union federations to the direct contacts mission. The Committee requests the Government to provide information on this matter and on the promotion of the good practices of the bipartite committee for the maquila sector in other sectors of the economy.

Welcoming the commitments made in the tripartite agreement signed at the end of the direct contacts mission and duly noting the technical assistance provided by the Office to contribute to its implementation, the Committee hopes that it will soon note significant progress in the resolution of the serious violations of the Convention which have been recorded for a number of years.