Interim Report - Report No 399, June 2022

Case No 3383 (Honduras) - Complaint date: 28-JAN-20 - Active

Allegations: The complainant organizations allege a series of violations of freedom of association and the right to collective bargaining following the merger of two sugar industry trade unions

1. 139. The complaint is contained in a communication from the Union of Workers of the sugar, honey, alcohol and similar industries in Honduras (SITIAMASH) dated 28 January 2020 and communications from the Single Confederation of Workers of Honduras (CUTH) dated 7 May and 30 November 2021.
2. 140. The Government of Honduras sent its observations regarding the allegations in communications dated 6 August 2020 and 12 January 2022.
3. 141. Honduras 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. 142. In a communication dated 28 January 2020, SITIAMASH states that, following a decision made by both organizations, the Union of Workers of the northern sugar refineries and allied workers in the Guanchias sector (SITRAZUNOSASG) and SITIAMASH agreed to merge, with the first trade union, established in an enterprise and its subsidiaries (hereafter the group trade union), becoming a branch of SITIAMASH, an industry-level union. In this respect, the organization adds that: (i) SITIAMASH, established in 1959, is the main trade union for sugar workers in the country and is an affiliate of the Single Federation of Workers of Honduras, the Single Confederation of Workers of Honduras (CUTH) and the International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Associations; (ii) the merger respected all the internal processes of both organizations, as well as the respective administrative processes, as noted in Resolution No. 012/2018 of 14 March 2018 issued by the State Secretariat of the Labour and Social Security Departments (STSS); (iii) under the merger, SITIAMASH and the group trade union agreed on the goal of “concluding collective agreements to ensure a decent and dignified life for sugar workers and fighting for the existence of only one collective agreement between workers and employers in the Honduran sugar industry”; and (iv) with the backing of the labour inspector and the legal representative responsible for the merger, the enterprise Azunosa (hereafter “the enterprise”) was informed of the merger in question, so that it could take the necessary steps, especially with regard to collective bargaining and the deduction of union dues in the enterprise.
2. 143. The complainant organization goes on to indicate that, on 10 December 2018, the group trade union notified the STSS of its unilateral separation from SITIAMASH. In this respect, the complainant organization states that: (i) at no time was SITIAMASH informed of this separation process, which is not provided for in the labour legislation; (ii) in violation of the labour legislation, the labour administration, through Resolution No. 143/2018 of 10 December 2018, immediately registered the separation without any administrative processes having been undertaken and without demanding the fulfilment of all the requirements and processes that had been put in place during the merger; and (iii) the labour administration proceeded to immediately recognize a new executive committee of the group trade union.
3. 144. The complainant organization also alleges that: (i) the workers who opposed the separation were dismissed; (ii) the enterprise did not agree to receive a visit from the labour inspector following the complaint filed by SITIAMASH alleging the illegality of the separation and the dismissals; (iii) the enterprise never fulfilled its obligation to send SITIAMASH the union dues of unionized workers following the merger concluded on 14 March 2019; (iv) in this context, the President of SITIAMASH has been followed and his place of residence has been under surveillance; and (v) the lawyer appointed by SITIAMASH to undertake the administrative and legal action related to the trade union merger process and the aforementioned dismissals was the victim of an attack on 11 January 2020 during which her car and place of residence were shot at several times, luckily she avoided physical injury.
4. 145. In a communication dated 7 May 2021, the CUTH provided additional information on the allegations presented by SITIAMASH. The CUTH stated specifically that: (i) the merger of the group trade union and SITIAMASH, officially registered by the labour administration on 14 March 2018, resulted from a decision by the group trade union’s general assembly on 26 August 2017, which did not face any opposition from the enterprise or the labour administration at that time; (ii) as a result of the merger, the group trade union had become the Guanchias branch of SITIAMASH; (iii) on 21 May 2018, the Guanchias branch of SITIAMASH presented the enterprise with a list of demands concerning all workers who performed their work on the enterprise’s premises, including workers directly employed by the enterprise and those employed though third-party companies; (iv) as noted in several inspection reports, the enterprise refused to engage in the dialogue that was repeatedly requested by SITIAMASH; (v) in violation of the legislation, the labour administration refused to appoint a mediator, as had been requested by SITIAMASH; (vi) on 4 November 2018, the enterprise, with the collusion of some workers occupying positions of trust and without seeking avenues for negotiation with SITIAMASH, established a parallel executive committee of the defunct group trade union, claiming that it had been appointed by the union’s general assembly, although the union had already merged with SITIAMASH, in accordance with the wishes of that general assembly; (vii) subsequently, the new parallel executive committee, without the permission of the general assembly, initiated a separation process, without duly notifying SITIAMASH and unbeknownst to the members of its Guanchias branch; (viii) the enterprise negotiated five collective agreements with the aforementioned executive committee within three months, which were registered by the STSS as agreements with companies subcontracted by the enterprise; (ix) on 9 July 2019, the enterprise dismissed Gustavo Alberto Quiroz Baquedano, Francisco Enrique Mendoza Canales, Rubén Darío Umanzor, Maynor José Ponce, Rony Alexis Cruz and José Magdaleno Benítez, all workers who were members of the executive committee of the Guanchias branch of SITIAMASH; (x) almost two years after the filing of a complaint regarding the violation of the trade union rights of the aforementioned trade union leaders, they are still waiting for the penalties provided for in the Labour Inspection Act to be imposed; (xi) the members of the Guanchias branch of SITIAMASH have been subject to coercion, threats of dismissal and offers of employment and economic benefits to leave their union and join the union orchestrated by the enterprise, and a permanent campaign of intimidation has been maintained with armed security guards stationed in the work areas in order to monitor and harass members of the Guanchias branch; and (xii) on 30 August 2019, a request was filed with the STSS to oppose the registration of the aforementioned collective agreements on the grounds that the group trade union lacked legal representativeness and was a union sponsored by the employer.
5. 146. In view of the above, the complainant alleges that: (i) since the group trade union was legally and duly merged with SITIAMASH, the election of a new executive committee of the defunct group trade union constitutes a mechanism for the creation of a parallel union, running counter to the interests of the workers as expressed in the assembly that authorized the merger of the unions; and (ii) the election of the executive committee of the trade union sponsored by the enterprise and parallel to the Guanchias branch of SITIAMASH and the registration of collective agreements were illegal administrative acts because SITIAMASH was never summoned by either the group trade union or the STSS and the negotiation of the collective agreements was carried out in absence of the Guanchias branch of SITIAMASH.
6. 147. In a communication dated 30 November 2021, the CUTH alleges an escalation of the harassment, intimidation, threats and persecution against the senior members of the SITIAMASH branch present in the enterprise. The CUTH alleges in particular: (i) the unjustified dismissal on 29 October 2021 of Carlos Rivera, Secretary-General of the branch of SITIAMASH in the enterprise; and (ii) threats of dismissal against the other workers of the enterprise who maintained their membership of SITIAMASH.

B. The Government’s reply

1. 148. In a communication dated 6 November 2020, the Government indicates that the State of Honduras respects Conventions Nos 87 and 98 and refrains from acts of interference of any kind into trade unions’ activities. The Government specifically indicates that: (i) the STSS registered the merger of the group trade union and SITIAMASH through Resolution No. 012/2018 of 14 March 2018 and that the relevant information can be found in the archives of the General Labour Directorate in the Department of Civil Organizations; (ii) however, the archives of this office do not contain a record of the locations in which SITIAMASH has branches; (iii) there is no evidence in the General Labour Directorate of the withdrawal of the legal personality of the group trade union, and this legal personality therefore remains valid; (iv) on 29 November 2018, Mr Montenegro Orellana appeared before the General Labour Directorate to notify it of the new executive committee of the group trade union; (v) as the public authorities must refrain from any interference which would restrict the right of the organizations to organize their administration, the General Labour Directorate took note of the new executive committee of the group trade union through Resolution No. 143/2018 of 10 December 2018; (v) the executive committee of the group trade union notified the General Labour Directorate through a notarized communication of 15 December 2018 of the union’s decision to separate from SITIAMASH; and (vi) in an order dated 17 January 2019 the General Labour Directorate acknowledged the decision of the union and, owing to the nature of the request and in strict respect for trade union independence, did not initiate any administrative procedures.
2. 149. The Government states that the group trade union registered and concluded six collective agreements with different enterprises (Servicios Agrícolas de Soldaduras y Derivados de Montajes Estructuras Metálicas; Empresa Agrícola EMMODEI; Servicios Múltiples Tilos; Empresa de Operaciones de Industrias Metálicas; Servicios Múltiples Martínez; and Empresa Agrícola (ESAO)). The Government indicates that three of these collective agreements prompted SITIAMASH to file an appeal, and these appeals are currently being processed under the applicable administrative procedures. Insofar as the collective bargaining was undertaken through direct arrangements, the STSS never intervened in the bargaining process between the group trade union and the enterprises. Lastly, the Government adds that the alleged dismissals of senior members of SITIAMASH and the alleged persecution of that organization’s President are currently being investigated and that it is not aware of the aspects of the allegations related to trade union dues.
3. 150. In a communication dated 12 January 2022, the Government confirms that the merger between the group trade union and SITIAMASH was the result of a decision of the general assembly of the group trade union of 26 August 2019, which was registered by the labour administration on 14 March 2018. The Government stresses that this merger represents an exclusive action of the trade union. Regarding the allegations that the STSS denied SITIAMASH’s request to appoint a mediator to begin negotiations with the enterprise on the list of demands presented by SITIAMASH, the Government states that the applicants did not fulfil the legal requirements to initiate a mediation process, as it is necessary to demonstrate that the direct settlement stage has expired.
4. 151. With respect to the registration of the new executive committee of the group trade union, the Government reiterates that, although the STSS was notified of the merger of the aforementioned union with SITIAMASH, the withdrawal of the legal personality of the group trade union did not appear in the archives of the General Labour Directorate, for this reason it could not deny the request to register the new executive committee. The Government adds that, with regard to the collective agreements concluded by the group trade union, the STSS did not participate in any way and, in accordance with the principle of good faith and collective autonomy, limited itself to registering the collective agreements concluded, as they complied with the law.
5. 152. The Government reiterates that it also limited itself to taking note of the group trade union’s decision to separate from SITIAMASH, proving that the STSS did not interfere in any trade union. The Government states that, in this case, the separation is indicative of a conflict within the trade union, and the resolution of this type of conflict is the responsibility of the conciliation and arbitration boards.
6. 153. With regard to the dismissals of the members of the executive committee of the Guanchias branch of SITIAMASH, the Government states that, under section 516 of the Labour Code, the violation of trade union immunity must be proven before the competent labour court. The Government adds that the complainant organization contradicts itself as, on the one hand, it indicates that the labour inspectorate verified the above-mentioned dismissals and, on the other hand, it alleges delays in the action of the STSS. In relation to the allegations of coercion and threats against the members of the Guanchias branch of SITIAMASH, the Government states that the complainants have not indicated precisely who has perpetrated coercion and in what way.

C. The Committee’s conclusions

1. 154. The Committee notes that this case refers to allegations of the violation of freedom of association and collective bargaining in an enterprise in the sugar sector in connection with the merger between a trade union present in an enterprise in the sector and its subsidiaries (hereafter the group trade union) with an industry-level trade union, SITIAMASH. The Committee notes the complainant organizations’ allegations of: (i) the establishment of a parallel trade union with close ties to enterprise through the irregular registration of the executive committee of the group trade union, even though the union had already merged with SITIAMASH, and subsequently through the irregular separation of the group trade union from SITIAMASH; (ii) the obstruction of the collective bargaining undertaken by the branch of SITIAMASH and the irregular registration of collective agreements concluded by the new executive committee of the group trade union; (iii) the dismissal of the leaders of the branch of SITIAMASH and its Secretary-General; and (iv) threats and acts of anti-union violence against the President of SITIAMASH and the lawyer advising the organization. The Committee also notes that the Government states that it fully respects trade union independence, the labour administration has not carried out any act of interference in favour of any of the unions involved in this case and the labour inspectorate has fulfilled its obligations with respect to the allegations.
2. 155. With respect to the relationship between the group trade union and SITIAMASH, the Committee notes that, on the basis of the information provided by the parties, the following chronology of events can be inferred: (i) on 24 August 2017, the general assembly of the group trade union decided to merge with SITIAMASH; (ii) this merger was registered by the labour administration in a resolution of 14 March 2018; (iii) on 21 May 2018, the branch of SITIAMASH presented a list of demands to the enterprise related to the terms and conditions of employment of all workers who performed work on the enterprise’s premises; (iv) in November 2018, the STSS was notified of an executive committee of the group trade union that had merged with SITIAMASH and registered it through Resolution No. 143/2018 of 10 December 2018; (v) on 15 December 2018, the group trade union notified the STSS of its separation from SITIAMASH, the labour administration took note of this decision through an order of 17 January 2019; and (vi) over the following months, the group trade union concluded a series of collective agreements with various companies contracted by the enterprise.
3. 156. The Committee notes the complainant organizations’ allegations that: (i) the reactivation of the group trade union with workers occupying positions of trust in the enterprise had the effect of establishing, with the support of the labour administration, a trade union controlled by the enterprise, parallel to the branch of SITIAMASH; (ii) the labour administration should not have registered the new executive committee of the group trade union because that organization had not existed since its merger with SITIAMASH; and (iii) the separation process of the group trade union, of which SITIAMASH was not informed and which was immediately registered by the labour administration, had not been subjected to the requirements that had accompanied the merger process between the two trade unions.
4. 157. The Committee notes the Government’s indications that: (i) although the labour administration had a record of the merger between the group trade union and SITIAMASH, it did not have a record of the withdrawal of the legal personality of the group trade union or the locations in which SITIAMASH had branches; (ii) in accordance with the principle of non-interference, the Government had limited itself to registering the different decisions that had been sent by the trade unions; (iii) the labour administration was informed of the decision of the general assembly of the group trade union to separate from SITIAMASH; and (iv) owing to the nature of the request it had received and with strict respect for trade union independence, the labour administration took note of this decision and did not initiate any type of administrative procedure in that respect.
5. 158. The Committee observes that, in view of the foregoing, there is a controversy regarding the legitimacy and the validity of the appointment of the executive committee of the group trade union following its merger with SITIAMASH and the separation of the group trade union from the industry-level union. The Committee observes the Government’s consideration that the situation in question reflects the existence of a conflict within a trade union, while the complainant organizations allege that it demonstrates the existence of interference aimed at facilitating the establishment of a union controlled by the enterprise, in a context of anti-union acts against senior members of SITIAMASH. The Committee recalls on the one hand, that it has emphasized the fundamental principle of workers being able to join organizations of their own choosing and of the enterprise not interfering in favour of a trade union and that respect for the principles of freedom of association requires that the public authorities exercise great restraint in relation to intervention in the internal affairs of trade unions. It is even more important that employers exercise restraint in this regard. They should not, for example, do anything which might seem to favour one group within a union at the expense of another [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, paras 1190 and 1193]. The Committee recalls on the other hand, that it has considered that the Committee is not competent to make recommendations on internal dissentions within a trade union organization, so long as the government does not intervene in a manner which might affect the exercise of trade union rights and the normal functioning of an organization and that when internal disputes arise in a trade union organization they should be resolved by the persons concerned (for example, by a vote), by appointing an independent mediator with the agreement of the parties concerned, or by intervention of the judicial authorities [see Compilation, paras 1613 and 1621]. While noting that it has not been informed of initiatives aimed at finding an internal solution for the organizations in question, the Committee observes that the annexes provided by the complainant organizations show that SITIAMASH took court action to have the group trade union dissolved. The Committee therefore requests the Government and the complainant organizations to provide information on the results of that action, and on other potential court action that SITIAMASH might have initiated in connection to the allegations of irregularities made by the complainant organizations in relation to the separation of the group trade union from SITIAMASH.
6. 159. With respect to the allegations regarding the collective bargaining with the enterprise and its subsidiaries, the Committee notes the complainant organization’s assertions that: (i) the enterprise has refused to discuss the list of demands presented by SITIAMASH in May 2018 with a view to regulating the terms and conditions of employment of all workers performing work on the enterprise’s premises, whether employed directly by the enterprise or by its subsidiaries; (ii) the labour administration refused to appoint the mediator requested by SITIAMASH; (iii) instead, at the beginning of 2019, the labour administration registered a series of collective agreements concluded by the group trade union with various subsidiary companies without involving SITIAMASH and its branch in the collective bargaining process; and (iv) SITIAMASH opposed the registration of the collective agreements in question before the labour administration because the group trade union lacked legal representativeness and was an organization sponsored by the employer. The Committee notes the Government’s indications that: (i) SITIAMASH did not fulfil the legal requirements for the appointment of a mediator as it had not demonstrated the expiry of the direct settlement period with the enterprise; (ii) SITIAMASH made administrative appeals against three of the six collective agreements negotiated and concluded by the group trade union; and (iii) in accordance with the principle of collective autonomy and after having verified the legality of the collective agreements concluded by the group trade union, the labour administration registered those agreements.
7. 160. The Committee duly notes the information provided by the complainant organization and the Government. In particular, the Committee notes that: (i) the complainant organizations allege that SITIAMASH was not involved in the collective bargaining processes initiated at the beginning of 2019 by the group trade union, an organization that they claim lacked legal representativeness and proper independence; and (ii) the complainant organizations state that, in August 2018, SITIAMASH presented a list of demands covering all workers of the enterprise and its subsidiaries, a point that has not been refuted by the Government. In this respect, the Committee recalls its consideration that in order to determine whether an organization has the capacity to be the sole signatory to collective agreements, two criteria should be applied: representativeness and independence. In the Committee’s view, the determination of which organizations meet these criteria should be carried out by a body offering every guarantee of independence and objectivity [see Compilation, para. 1374]. The Committee also observes that, under section 54 of the Honduran Labour Code, if there are several unions within the same company, the collective agreement must be concluded with the one with the largest number of workers in the negotiation. Noting the Government’s indications that SITIAMASH had submitted an administrative appeal against the registration of collective agreements that the STSS had determined to be legal, the Committee requests the Government to specify the criteria the STSS used to confirm that the group trade union was independent and more representative. The Committee also requests the complainant organizations to indicate whether the labour administration decisions in question had been contested before the courts.
8. 161. With respect to the allegations of the anti-union dismissal of the senior members of the Guanchias branch of SITIAMASH, the Committee notes the trade union’s allegations that: (i) six senior members of the Guanchias branch were dismissed on 9 July 2021; (ii) two years after filing a complaint for the violation of trade union rights, the penalties provided for in the legislation still have not been imposed; and (iii) the Secretary-General of the above-mentioned branch, Mr Carlos Rivera, was dismissed without cause on 29 October 2021. The Committee also notes that the Government: (i) indicates in its first communication that the dismissals of July 2019 were being investigated; (ii) stated in its second communication that the labour inspectorate had confirmed the dismissals and, given that an allegation of the violation of trade union immunity had been made, the matter fell under the jurisdiction of the labour courts; and (iii) has not referred to the alleged dismissal without cause of the Secretary-General of SITIAMASH. The Committee also observes that it emerges from the documents and annexes provided by the complainant organizations that: (i) in an official communication dated 10 August 2019 and addressed to the labour inspectorate, the lawyer of the dismissed senior members of the trade union concluded the administrative procedures related to the dismissals in order to begin court proceedings and requested the inspectorate to undertake investigations into a potential violation of section 469 of the Labour Code, which provides for the imposition of a fine in the case of a violation of the right to freedom of association; and (ii) a court action for the reinstatement of the six dismissed workers was lodged on 7 October 2019. The Committee recalls that no one should be subjected to anti-union discrimination because of legitimate trade union activities and the remedy of reinstatement should be available to those who are victims of anti-union discrimination and where cases of alleged anti-union discrimination are involved, the competent authorities dealing with labour issues should begin an inquiry immediately and take suitable measures to remedy any effects of anti-union discrimination brought to their attention [see Compilation, paras 1163 and 1159]. In addition, observing that the court action initiated against the dismissals that took place in 2019 has reportedly still not received a ruling, the Committee recalls that cases concerning anti-union discrimination should be examined rapidly, so that the necessary remedies can be really effective; an excessive delay in processing such cases constitutes a serious attack on the trade union rights of those concerned [see Compilation, para. 1139]. In view of the foregoing, the Committee requests the Government to: (i) provide information on the execution and the outcomes of the investigations requested by SITIAMASH for the violation of the right to freedom of association resulting from the dismissal of several of its senior members in July 2019; and (ii) provide its observations regarding the alleged dismissal of the Secretary-General of the SITIAMASH branch in October 2021. The Committee also requests that the necessary measures be taken to ensure that the court action initiated in relation to the above-mentioned dismissals is concluded in the near future in accordance with freedom of association and requests the Government to keep it informed in this respect.
9. 162. In relation to the allegations of threats, coercion and acts of anti-union violence in the context of the merger and separation of the two unions in question, the Committee notes the complainant organizations’ specific allegations of: (i) threats of dismissal and offers of employment and economic benefits for the members of the Guanchias branch of SITIAMASH to leave that union and join the union orchestrated by the enterprise; (ii) the presence of armed security guards in the workplace to monitor and harass SITIAMASH members; (iii) the persecution of the President of SITIAMASH and the surveillance of his house; and (iv) the attack on 11 January 2020 with several gunshots aimed at the vehicle and house of the lawyer appointed by SITIAMASH to monitor the files related to the present case. The Committee notes the Government’s indication that the allegations of threats and coercion against SITIAMASH members lack specific information regarding the form of the acts and their perpetrators. The Committee also notes that the Government: (i) indicated in its first communication that the alleged persecution of the SITIAMASH President was being investigated, an element about which it did not provide further information in its second communication; and (ii) has not provided its observations regarding the alleged attack on the organization’s lawyer. Recalling that the rights of workers’ and employers’ organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of these organizations, and it is for governments to ensure that this principle is respected [see Compilation, para. 84], the Committee urges the Government to take without delay the necessary measures to guarantee the safety of the persons who have reportedly been victims of acts of anti-union violence and to investigate the allegations of the complainant organizations. The Committee requests the Government to keep it informed in this respect.

The Committee’s recommendations

1. 163. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government and the complainant organizations to provide information on the outcomes of the court action to dissolve the group trade union initiated by SITIAMASH, as well as the other court action SITIAMASH might have taken in relation to the allegations of irregularities reported by the complainant organizations related to the separation of the group trade union from SITIAMASH.
   • (b) With regard to the registration of collective agreements concluded by the group trade union, the Committee requests the Government to specify the criteria used by the STSS to confirm the independence and greater representativeness of the aforementioned organization. The Committee also requests the complainant organizations to indicate whether the above-mentioned decisions of the labour administration were contested before the courts.
   • (c) The Committee requests the Government to:
     • provide information on the execution and the outcomes of the investigations requested by SITIAMASH into the violation of the right to freedom of association resulting from the dismissal of several of its senior members in July 2019; and
     • provide its observations regarding the alleged dismissal of the Secretary-General of the branch of SITIAMASH in October 2019.
   • (d) The Committee requests that the necessary measures be taken to conclude without delay the court action initiated in relation to the above-mentioned dismissals in accordance with freedom of association and requests the Government to keep it informed in this respect.
   • (e) The Committee urges the Government to take without delay the necessary measures to guarantee the safety of the persons who have reportedly been subjected to acts of anti-union violence and to investigate the above-mentioned allegations of the complainant organizations. The Committee requests the Government to keep it informed in this respect.