Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

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), received on 31 August 2018, and the Government’s reply in this respect. It also notes the observations of the Honduran National Business Council (COHEP) and of the ITUC, received on 31 August and 1 September 2021, respectively, on issues being examined by the Committee in this observation. The Committee requests the Government to provide its reply in this respect.

Article 1 of the Convention. Adequate protection against acts of anti-union discrimination. In its previous comment, the Committee noted with interest the amount of the fines prescribed for anti-union acts in the Labour Inspection Act of 2017 and requested the Government to provide information on their application and impact. The Committee notes the Government’s indication that: (i) since the entry into force of the Act, businesses have taken greater care not to commit violations of this type; (ii) the Act has made it possible to provide effective protection against anti-union discrimination since it provides for the immediate reinstatement of members of executive committees who have been dismissed; and (iii) the increase in fines has contributed to a decrease in this type of violation. The Committee notes that, as the COHEP indicates, in addition to the provisions of the Labour Inspection Act, section 295 of Legislative Decree No. 130-2017 published in the Official Gazette of 10 May 2019, containing the new Penal Code, establishes discrimination in employment as an offence punishable by penalties of from 1 to 2 years’ imprisonment and a daily fine of from 100 to 200 days (each day having a value of not less than 20 lempiras (the equivalent of US$0.83) and not more than 5,000 lempiras (the equivalent of US$209)). The Committee notes with interest that this provision explicitly refers to discrimination in employment, public or private, against any person for being a workers’ legal or trade union representative. The Committee observes, however, that according to the Government, in 2019 and 2020, 222 complaints concerning anti-union acts were filed and are still being processed and that the ITUC also reports anti-union dismissals. The Committee expresses the hope that the implementation of the Labour Inspection Act combined with the Penal Code will ensure more effective protection against acts of anti-union discrimination and prevent their recurrence. It requests the Government to provide detailed information on the outcomes of the aforementioned complaints and invites it to compile data on the average duration of legal proceedings (including appeals procedures) relating to discrimination on the grounds of trade union activities.

In its previous comment, the Committee requested the Government to provide information on the application of Ministerial Agreement No. STSS-196-2015 which protects workers wishing to form trade unions and to examine, with the social partners, the possibility of incorporating the content thereof in the Labour Code. In this respect, the Government indicates that upon receipt of a request for registration of a collective agreement, the General Labour Directorate (DGT) is immediately informed so that it can verify that the right of workers to form a trade union is not being curtailed. It also indicates that on 27 January 2021, it sent a note to the President of the Sectoral Committee for the Handling of Disputes referred to the ILO (MEPCOIT) of the Economic and Social Council (CES) to assess with the social partners the possibility of incorporating the content of the Agreement in the Labour Code. The Committee notes the COHEP’s indication that it agrees with the proposal to incorporate the content of the agreement in the Labour Code through the CES and its further indication that this matter could be included in the discussion on the reform of the Labour Code, taking into consideration that protection for workers wishing to form a trade union should also be offered to those who decide not to join one. The Committee notes that, as indicated in the observation on the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), although the health emergency did not allow the MEPCOIT to meet its commitments, it would be resuming them at the earliest opportunity. The Committee encourages the Government and the social partners to consider this matter in the context of the reform of the Labour Code and hopes that MEPCOIT resumes its activities as soon as possible. The Committee requests the Government to provide information in this respect.

Article 2. Adequate protection against acts of interference. The Committee has been asking the Government, after consultation with the social partners and in the context of the process of reforming the Labour Code, to take the necessary measures to incorporate in the legislation explicit provisions that ensure effective protection against acts of interference by the employer, in accordance with Article 2 of the Convention. The Committee notes the Government’s indication that, when carrying out an inspection, the DGT can identify whether there is any type of interference by the employer and that, if such is the case, corrective measures are applied through the labour inspectors. While it notes the Government’s indications, the Committee recalls 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 therefore once again requests the Government to take due note of this matter in the process of reforming the Labour Code, and to provide information on the progress achieved in this respect.

Articles 4 and 6. Promotion of collective bargaining. Right of collective bargaining of public servants not engaged in the administration of the State. In its previous comment, the Committee, having taken note of the Government’s indication that various decentralized and centralized institutions were permitted to submit claims and engage in collective bargaining, requested the Government to specify the texts that recognized the right of workers to collective bargaining in these institutions, and how they were related to sections 534 and 536 of the Labour Code, which provide that unions of public employees may not submit lists of claims or conclude collective agreements. The Committee notes the Government’s indication that the Constitution of the Republic embraces the principles and practices of international law and establishes equal rights, including the right to collective bargaining. With regard to sections 534 and 536 of the Labour Code, the Government indicates that while it is true that there are limitations on collective bargaining in the public sector, trade unions can submit “respectful statements” containing requests and allowing negotiations aimed at improving administrative organization or working methods. It indicates that there are “respectful statements” in four public institutions. The Committee further notes that the COHEP forwarded information provided by the DGT indicating that in the public sector, 34 collective agreements, two collective accords, nine special accords, 26 memorandums of understanding and four “respectful statements” are in place. The Committee also notes that the Committee on Freedom of Association (CFA) examined allegations of failure by a public institution to comply with a collective agreement and requested the Government to promote dialogue between the parties so that the collective agreement is fully implemented (see 386th Report, June 2018, Case No. 3268). The Committee observes that while it appears from the foregoing information that collective bargaining is in practice possible in certain public institutions, the fact remains that sections 534 and 536 of the Labour Code do not allow unions of public employees to submit lists of claims or conclude collective agreements. The Committee further recalls that a system in which public employees may only submit to the authorities “respectful statements”, a mechanism that does not allow for real negotiations to take place with regard to conditions of employment, is not in accordance with the Convention. It further recalls that although Article 6 of the Convention excludes public servants engaged in the administration of the State (such as public servants in ministries and other comparable government bodies and their auxiliaries) from its scope of application, other categories of public servants and public employees (for example, employees of public enterprises, municipal services and decentralized entities, public sector teachers and transport sector personnel) should enjoy the guarantees provided for by the Convention and, therefore, be able to undertake collective bargaining with respect to their terms and conditions of employment, in particular their pay. The Committee therefore once again requests the Government to take the necessary measures to amend sections 534 and 536 of the Labour Code so that the right to collective bargaining of public servants not engaged in the administration of the State is duly recognized in national law. It encourages the Government to address this issue in the context of the process of reforming the Labour Code and requests it to provide information in this respect.

Article 4. Collective bargaining on trade union leave. The Committee notes that, in the context of the aforementioned Case No. 3268, the CFA observed that according to section 95(5) of the Labour Code, the employer is not obliged to grant more than two days of paid trade union leave in each calendar month, and in no case more than 15 days in the same year. The CFA referred this legislative aspect of the case to the Committee. In the same way as the CFA, the Committee recalls that the payment of wages to full-time union officials should be up to the parties to determine, and the Government should authorize negotiation on the issue of whether trade union activity by full-time union officials should be treated as unpaid leave. The Committee requests the Government, in consultation with the representative workers’ and employers’ organizations and in the context of the Labour Code reform process, to take the necessary steps to review the legislation so that restrictions on the possibility of collective bargaining on remuneration for trade union leave be removed.

Application of the Convention in practice. Export processing zones. The Committee notes the information provided by the Government in relation to ten inspections carried out in export processing zones following complaints of violations of trade union rights. It notes that half of the complaints were shelved because no evidence of violations of trade union freedom was found, four were referred for resolution and notification and in one case a fine was imposed. The Committee requests the Government to continue to provide full information in this respect, including the number of collective agreements concluded in export processing zones and the number of workers covered by them.

Collective bargaining in practice. The Committee notes the information provided by the Government and by the COHEP on a number of collective agreements concluded and in force in the country, indicating the sectors concerned and the number of workers covered. The Committee encourages the Government to continue to provide detailed information in this respect and once again requests the Government to report on the measures taken, in accordance with Article 4 of the Convention, to promote collective bargaining. On the other hand, recalling that a direct contacts mission which took place in Honduras in 2019 at the request of the Conference Committee on the Application of Standards in relation to Convention No. 87 received numerous allegations of violations of freedom of association in practice from trade union federations, especially in the agri-export and education sectors, the Committee requests the Government to provide information on collective bargaining in those sectors.

The Committee reminds the Government of the possibility to avail itself of the technical assistance of the Office.