Informe provisional - Informe núm. 378, Junio 2016

Caso núm. 3135 (Honduras) - Fecha de presentación de la queja:: 11-AGO-15 - Cerrado

Allegations: The complainant organization alleges the initiation of proceedings for the imposition of penalties and dismissals, other anti-union acts, and the refusal by the state entity Executive Directorate of Revenues (DEI) to negotiate with the trade union

1. 401. The complaint is contained in communications from the Single Confederation of Workers of Honduras (CUTH) dated 11 August 2011, 11 March 2014 and 12 June 2015. These communications were received on 12 June 2015.
2. 402. The Government sent its observations in a communication dated 7 September 2015.
3. 403. 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 complainant’s allegations

1. 404. In a communication dated 11 August 2011, the complainant organization alleges that, on 8 April 2011, the Workers’ Union of the Executive Directorate of Revenues (SITRADEI) presented a list of demands relating to the first collective labour agreement covering working conditions to the State Secretariat of the Labour and Social Security Departments, which was submitted by the General Labour Inspectorate on 13 April 2011 to the Executive Director of the Executive Directorate of Revenues (DEI). The complainant explains that on repeated occasions it requested the Executive Director of the DEI to negotiate the first collective agreement and that the request was always refused.
2. 405. In a communication dated 11 March 2014, the complainant organization alleges, for the period since 2011: that attempts have been made to destroy the SITRADEI; anti-union harassment of SITRADEI officials and members; the initiation of disciplinary proceedings, with the aim of dismissing trade unionists who would not agree to a polygraph test; the ongoing refusal to begin the negotiations of the first collective agreement; and the arrest of trade union members following the intervention of police and military officials at the country’s customs posts, claiming alleged acts of corruption.
3. 406. Regarding the allegation of failure to negotiate the list of demands relating to the first collective agreement covering working conditions, the complainant organization documents that: (1) on some occasions the DEI agreed to negotiate the list of demands, while on others it cited its status as a decentralized institution in order not to comply with them (reports of the General Labour Inspectorate dated 13 April 2011, 8 May 2012, 26 June 2013, 8 July 2014 and 18 July 2014); (2) on a number of occasions, the State Secretariat of the Labour and Social Security Departments decided that through the General Labour Inspectorate the DEI would be requested to initiate the applicable conciliatory discussions, in accordance with the Labour Code; and (3) on 10 July 2013, the representatives of the DEI, the State Secretariat of the Labour and Social Security Departments and the SITRADEI met to address the labour issues encountered and to reach an agreement through conciliation that would satisfy the needs of the workers and of the State. The meeting addressed issues including the negotiation of the collective agreement sought by the SITRADEI and the regulation of leave for officials to perform their trade union activities.
4. 407. Concerning the harassment of trade union officials and members, the complainant organization refers to penalties imposed on Ms Ruby Jackeline Soto, Ms Rossana Esther Ventura, Ms Carmen María Mondragón, Ms Rosa Vilma Ortiz, Ms Milly Janet Meza, Ms Mercy Nohelia Escoto, Mr Mario Antonio Cruz, Mr Oscar Omar Sanos, Mr Darwin Enrique Barahona and Mr Jorge Alberto Chavarría, executive members of trade union branches and confederations, for participating in union activities.
5. 408. The complainant organization also refers to trade union repression against Mr Jorge Alberto Argueta Romero and Mr Carlos Alberto Rodríguez, Treasurer and Disputes Secretary, respectively, of the SITRADEI executive board, for having participated for two hours in a trade union activity on 6 January 2014. Both officials were notified of their dismissal on October 2014.

B. The Government’s reply

1. 409. In its communication dated 7 September 2015, the Government states that the DEI is a responsible institution that respects human and labour rights. It observes that the complaint relates to a period of almost five years; the most recent allegations focus mainly on the alleged intention of the Government to destroy the SITRADEI.
2. 410. With respect to the failure to negotiate the list of demands relating to the first collective labour agreement covering working conditions, the Government states that the DEI is a decentralized institution which is attached to the State Secretariat of the Finance Department. It explains that the DEI was established in 2010 and that it is governed by the special regulations for administrative, fiscal and customs careers, which came into force on 7 March 2012. On 24 September 2013, the then minister in charge of the DEI requested an opinion from the General Directorate of Labour of the State Secretariat of the Labour and Social Security Departments, in order to determine whether the DEI was obliged to negotiate a collective agreement with the SITRADEI. On 26 September 2013, the General Directorate of Labour issued an opinion indicating that the DEI was not obliged to negotiate a collective agreement with the SITRADEI. The Government recalls, moreover, that under article 536 of the Labour Code, “trade unions of public employees cannot present lists of demands or conclude collective agreements, but trade unions of other official workers shall have all the powers of other workers’ unions and their lists of demands shall be handled on the same basis as all others, even if they are not entitled to call or conduct strikes”.
3. 411. With regard to the harassment of trade union officials and members, the Government explains that executive and branch members were summoned in due legal form for abandoning their respective jobs and suspending their work in an untimely manner (on 3, 6 and 7 January and 1 April 2014) and for not complying with and violating a number of internal rules set out in Chapter XXIII (disciplinary regulations) of the special regulations for administrative, fiscal and customs careers. It adds that the objections presented by the employees concerned were rejected and that the penalties imposed were upheld by legal decision.
4. 412. The Government also explains that, on 22 October 2014, Mr Jorge Alberto Argueta Romero and Mr Carlos Alberto Rodríguez were dismissed for having unjustifiably suspended their work. This was done in accordance with due legal process or, put in other terms, after having obtained the respective judicial authorizations to proceed with their dismissal (withdrawal of immunity), once the decision of the Labour Court relating to Mr Jorge Alberto Argueta Romero had been confirmed by the Court of Appeal, and once the appeal for the protection of constitutional rights (amparo) lodged with the Constitutional Chamber of the Supreme Court by both men had been allowed, without suspending the act contested.
5. 413. With regard to the polygraph test, the Government states that it is regulated by the General Supervisory Act governing the Application of Tests for the Evaluation of Trust for all public servants. It adds that the SITRADEI lodged an action of unconstitutionality against the test and that the Constitutional Chamber of the Supreme Court allowed the action, but without suspending the act contested.

C. The Committee’s conclusions

1. 414. The Committee observes that the present case alleges actions or omissions by the DEI, which occurred between August 2011 and January 2015, consisting of: the intention to destroy the SITRADEI through anti-union harassment of SITRADEI officials and members; the initiation of disciplinary proceedings, with the aim of dismissing trade unionists who would not agree to a polygraph test; the arrest of trade union members following the intervention of police and military officials at the country’s customs posts, claiming alleged acts of corruption; and the ongoing refusal to begin the negotiations of the first collective agreement.
2. 415. With regard to the allegation of harassment of officials and members, the Committee notes the Government’s explanations whereby the penalties imposed on the executive and branch members of the trade union were imposed in accordance with the law, and the objections presented by the employees concerned were rejected. Concerning the dismissal of Mr Jorge Alberto Argueta Romero and Mr Carlos Alberto Rodríguez, the Committee notes that, according to the Government, they were dismissed for having unjustifiably suspended their work, in accordance with due legal process, once the appeal for the protection of constitutional rights (amparo) lodged with the Constitutional Chamber of the Supreme Court had been allowed, without suspending the act contested. The Committee requests the Government to inform it of the result of the appeal for the protection of constitutional rights (amparo) lodged with the Constitutional Chamber of the Supreme Court.
3. 416. Regarding the alleged initiation of disciplinary proceedings, with the aim of dismissing trade unionists who would not agree to a polygraph test, the Committee takes note of the explanations provided by the Government indicating that the polygraph test is regulated by the General Supervisory Act governing the Application of Tests for the Evaluation of Trust for all public servants. Recognizing the workers’ fear that the polygraph test could be used for anti-union purposes and the alleged disciplinary proceedings aimed at dismissing trade unionists who would not agree to taking the test, the Committee requests the Government to inform it of the result of the action of unconstitutionality lodged by the SITRADEI against the use of polygraph tests. The Committee also requests the complainant organization to provide more detail about the initiation of disciplinary proceedings for the purpose of dismissing trade unionists who do not agree to a polygraph test.
4. 417. The Committee requests the complainant organization to provide more detail about the alleged arrest of trade unionists following the intervention of police and military officials at the country’s customs posts, claiming alleged acts of corruption.
5. 418. With regard to the alleged refusal to negotiate, the Committee notes that, according to the Government, the DEI is not obliged to negotiate a collective agreement with the SITRADEI and that the Labour Code does not apply to the trade union in respect of the presentation of lists of demands nor the conclusion of collective agreements. In this respect, the Committee recalls that: “all public service workers other than those engaged in the administration of the State should enjoy collective bargaining rights, and priority should be given to collective bargaining as the means to settle disputes arising in connection with the determination of terms and conditions of employment in the public service” [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 886].

The Committee’s recommendations

1. 419. 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 to inform it of the results of: (i) the appeal for the protection of constitutional rights (amparo) lodged with the Constitutional Chamber of the Supreme Court in respect of the dismissal of Mr Jorge Alberto Argueta Romero and Mr Carlos Alberto Rodríguez; and (ii) the action of unconstitutionality lodged by the SITRADEI against the use of polygraph tests.
   • (b) The Committee requests the complainant organization to provide more detail about the allegations concerning: (i) the initiation of disciplinary proceedings for the purpose of dismissing trade unionists who do not agree to a polygraph test; and (ii) the detention of trade unionists, as a result of the intervention of police and military officials at the country’s customs posts, claiming alleged acts of corruption.