Rapport intérimaire - Rapport No. 368, Juin 2013

Cas no 2990 (Honduras) - Date de la plainte: 29-AOÛT -12 - Clos

Allegations: Violations of the collective agreement, impediments to collective bargaining, dismissals and anti-union practices in a company and in the Honduras Institute of Children and the Family

1. 521. The complaint is contained in two communications from the Authentic Trade Union Federation of Honduras (FASH), dated 29 August 2012. The first communication was also signed by Workers’ Union of the Casa Comercial Mattews Cemcol Comercial y Similares (SITRACCMACCOS), the second by the Workers’ Union of Honduras Institute of Children and the Family (SITRAIHNFA).
2. 522. The Government sent its observations in a communication on 11 December 2012.
3. 523. 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. 524. In a communication dated 29 August 2012, FASH and SITRACCMACCOS allege that in 2012, the company Casa Comercial Mattews Cemcol Comercial y Similares, claiming a full restructuring of the company – but in reality seeking to dissolve the trade union – succeeded in getting many of the trade unionists to leave its employ and later dismissed the many other trade union members precisely when the trade union changed its statutes with a view to change from a company union to an industry-level union. The complainant organizations point out that at the date of the complaint the seven board members were the only ones that had not been dismissed; the employment relationship of all the remaining trade unionists had been terminated. The complainants have requested that the collective agreement be honoured, including the terms relating to the payment of wages and to the social benefits of those who were dismissed.
2. 525. In another communication dated 29 August 2012, FASH and SITRAIHNFA allege that the Honduras Institute of Children and the Family claims that the trade union should be dissolved so that the Institute can do business with non-governmental organizations (NGOs). The authorities are debating whether to dismantle the Institute and establish a Children’s Ombudsman Office with new staff.
3. 526. Further, the aforementioned organizations allege that the Institute failed to comply with various terms of the 2009 collective agreement (this agreement continues to be in force, since the complainants allege that the Institute’s authorities have blocked the negotiation of the new agreement). They also allege that the Institute does not recognize the trade union as the representative of all the workers, whether affiliates or not. Other terms that the Institute has failed to comply with include, for example, those relating to overtime hours of work, staff transportation, provision of equipment, regulatory procedures and job stability. Therefore, according to the complainants, the Institute has dismissed employees orally and in writing. The trade unions have sent many attachments.

B. The Government’s reply

1. 527. In its communication of 11 December 2012, the Government states that it respects union rights and that the authorities recognize SITRAIHNFA, as evidenced by the six agreements concluded in the Institute. SITRAIHNFA terminated the last collective agreement and apparently negotiated in a series of meetings with the former executive director the provisions of the collective agreement without accepting those relating to wage increases and others having economic and financial implications. The Government explains that during this time the Institute has been engulfed by a budgetary and financial crisis, to the extent that on 21 September 2011, under Executive Order No. 066-2011, a state of emergency was declared at the Institute, and an intervening commission was set up. The commission was operational until January 2012, when the current executive director was named. Under the general provisions relating to the Council of Ministers contained in Executive Orders Nos PCM-063-2011 and PCM-027-2012, his powers in dealing with the budget and financial resources have been restricted, owing to the domestic and international financial crisis affecting the State, to the extent that all wage increases are prohibited by law, a point that the complainants seek to overlook. In other words, the Government reiterates that the signing of the seventh collective agreement has not been possible in view of the country’s financial situation, in particular the Institute’s available budgetary resources, and the legal impediments duly shown by the executive orders that the Government attached to its communication.
2. 528. The Government states that the allegation that dismissals at the Institute are made orally and in writing, and that the trade union is not recognized or its existence denied is not true. This allegation can easily be refuted by the many specific records and grievance records that are properly drawn up in the presence of the trade union in the Institute’s Department of Human Resources. A union representative is thus present and signs the documents. The representative is granted the right to speak in defence of the workers’ interests, in accordance with the rules of procedure and the collective agreement, which alone defeats this allegation.
3. 529. The Government adds that when the bill for the establishment of the National Children’s Ombudsman Office was brought before the Honduran National Congress, the members of the SITRAIHNFA Central Board of Directors were invited by the State to attend so that they too could present their initiatives and observations. The proposals of both parties are now awaiting debate in the legislative branch. In view of the preceding statement, the wording of the complaint stating that “the Government’s intention is to do business with NGOs” not only lacks respect, but is totally inappropriate and does not merit any consideration whatsoever because such defamatory accusations should not be made capriciously and without substantiation to international bodies.
4. 530. In addition, the Government considers inappropriate and capricious the statement that the executive branch intends to dissolve the Institute, and thus the trade union. The plan to set up the National Children’s Ombudsman Office to replace the Institute is not the decision of the executive branch alone, since the relevant bill was drafted by a team composed of representatives of bodies engaged in international cooperation dealing with youth programmes, such as: the United States Agency for International Development (USAID) and the United Nations Children’s Fund (UNICEF); civil society, representatives of the Inter-institutional Coordination of Private Organizations for Children and Children’s Rights (COIPRODEN), an organization representing more than 30 organizations devoted to youth programmes; the Office of the Public Prosecutor for Victimized Children, an integral part of the Office of the Public Prosecutor of the State; and the executive branch, represented by the Justice and Human Rights Secretariat and the senior management of the Institute, based on the competencies granted by the Constitution and the legal provisions governing its institutional life. By creating a new institution, this bill aims to extend the scope of the Institute, which is oriented solely towards children at social risk or criminal law offenders. It also will also cover the human rights of the 3.8 million children of Honduras. Further, this bill falls within the frame of the Law on the Country Vision and National Plan, which in the case of the Institute, requires it to decentralize its functions through the municipalities, with the compulsory expansion of the present 36 municipalities in which it operates, to the 298 municipalities throughout the country.
5. 531. With regard to the trade union’s recognition, the Government states that apparently the complainants do not recall the contents of clause 4 of the collective agreement in force that states as follows: “If for whatever reason the Honduras Institute of Children and the Family should change its name or its representatives, the new authority shall continue being the “employer” in matters of employment. The relation will be governed by the rules of procedure in force, in addition to the provisions of the present collective agreement, and by the Labour Code, as a legal framework. In all cases the trade union will be recognized automatically as the legitimate representative of the professional and general interests of its respective members with whatever name is adopted by the new institution.”
6. 532. Concerning the alleged impediments to collective bargaining, the Government denies impediments by the Institute and refers to the records of grievance hearings granted on behalf of the workers and to specific records referring to the conciliation produced by the mediation of the Secretariat of Labour aimed at bringing a halt to the countless illegal walkouts by the trade union that cause prejudice to the children and the Institute. In all these documents the union appears precisely as the workers’ representative.
7. 533. With respect to the alleged violation by the Institute’s authorities of the employment agreement, the Government states that according to the trade union, the terms range from those relating to payment of overtime hours of work to the alleged violation of constitutional guarantees, the obligation to provide staff transportation under certain conditions, the provision of furniture and equipment, the application of regulatory procedures to staff, job stability and so forth. The Government points out that there is little substance in these allegations and if they were true, this would require intervention or the permanent closing of the Institute.
8. 534. The Government also states that the complainant has not exhausted all administrative remedies concerning the allegations. Concerning the application of clause 98 of the collective agreement that was challenged by a series of temporary workers claiming such clause as the basis for recognition of their status as fixed-term workers, the Constitutional Chamber of the Supreme Court of Justice ruled in favour of the Institute, dismissing the case against the Institute.
9. 535. With regard to the alleged non-compliance with the clause of the sixth collective agreement guaranteeing the administrative and managerial freedom of the Institute with respect to the necessary resources for achieving its ends, without further obligations or constraints than those set out in the Constitution of Honduras, in the laws, in the regulations and in the present collective agreement, the Government states that despite giving timely notification to some temporary workers of the termination of their contracts, the administration of the Institute lawfully and repeatedly advised the former workers to claim amounts to which they could be found legally entitled in terms of acquired rights. As ordered and instructed by the union leaders, the workers refused to do so, causing significant prejudice to their own interests, since articles 864 and 867 of the Labour Code exclude the possibility of making any legal claims to employment rights two months after their agreements have been terminated.
10. 536. The Government states that the trade union eventually acknowledged that the Institute’s senior management had on the one hand dismissed staff and, on the other hand, recruited others. However, what the signatories of the agreement do not indicate is that many people lacking the proper qualifications for their posts were under contract at the Institute. As a result, it was necessary to replace part of them with qualified staff, social workers, psychologists and physicians to carry out the difficult work of the Institute, that is to say, to provide care for children at social risk or for juvenile offenders of criminal law.
11. 537. The Government stresses that SITRAIHNFA has been responsible for constant abuse, causing prejudice not only to the Institute and the children. The union carried out 17 illegal work stoppages (amounting to 120 working days), which in some cases lasted 15 or 17 days, bring the Institute’s work to a halt.

C. The Committee’s conclusions

1. 538. The Committee takes note of the allegations relating to the Institute and observes that they refer to the dissolution of the Institute and its replacement by a Children’s Ombudsman Office with new staff. It also takes note of the allegation of the Institute’s failure to comply with various clauses of the 2009 collective agreement, impediments by the authorities to the negotiation of a new collective agreement, oral and written dismissals and the failure to recognize the union as the representative of all the workers.
2. 539. The Committee notes that the Government states the following: (1) the negotiation of the new agreement was faced with the impossibility of offering any wage increases in virtue of the executive orders issued by the Council of Ministers in view of the domestic and international financial crisis limiting budgetary resources; (2) a bill has been introduced to establish the National Children’s Ombudsman Office, and SITRAIHNFA’s Central Board of Directors has been given the opportunity to present its initiatives, observations and proposals, which are pending discussion in the legislative branch; therefore, the complainants’ accusation of “doing business with NGOs” is defamatory. The replacement of the Institute by the National Children’s Ombudsman Office is not a decision of the executive branch alone, since the bill was drafted by a group of representatives of organizations engaged in international cooperation, such as UNICEF, and numerous organizations dealing with children’s issues, such as the Juvenile Prosecutor; (3) the purpose of replacing the Institute with the National Children’s Ombudsman Office is to extend human rights coverage to 3.8 million children and to decentralize functions through the municipalities (currently the Institute is oriented solely towards children at social risk or criminal law offenders and only covers 36 of the 298 municipalities in Honduras); (4) the collective agreement expressly guarantees that the future employer will recognize the trade union as a legitimate representative of its members in the new institution; (5) the employment issues covered in the complaint have resulted in mediation between the parties by the Secretariat of Labour, and the trade union has made 17 work stoppages that have paralysed the work of the Institute for 120 working days; (6) in the issues contained in the complaint, the complainant has failed to exhaust all administrative remedies; (7) as regards the alleged violation of the collective agreement by staff dismissals, the judicial authority has in a certain number of cases ruled against the trade union; the trade union also claimed that temporary workers, who have received timely notification of the termination of their contracts, should be recognized as fixed-term staff; lastly, the Institute had to replace a certain number of people lacking the necessary qualifications for the posts concerned to fill them with skilled personnel (social workers, physicians, psychologists and so forth) in order to meet the aims of the Institute (provision of services for children at social risk and juvenile criminal law offenders); and (8) in the administrative procedures for dismissal, the trade union was granted a hearing by the Institute’s Human Resources Department.
3. 540. The Committee observes that the present case between the trade union and the Institute is related mainly to the likely replacement of the Institute by another institution (according to the complainants, with new staff) on the one hand, and to collective bargaining issues on the other (impossibility of pay raises because of the financial crisis, according to the Government, and failure to observe certain clauses of the collective agreement in force, according to the complainants; and dismissals of short- or fixed-term workers).
4. 541. In view of the contradictory versions of the parties, the Committee considers that it is not in a position to determine whether or not the terms of the agreement in force have been breached. Taking into account the number of strikes carried out, the Committee requests the Government to take measures so that the Institute, in agreement with the complainant, set up an independent mechanism for the settlement of disputes on the application of the terms of the collective agreement. The Committee expresses the hope that this mechanism can be included in the next collective agreement. The Committee considers that this mechanism should be able to deal with issues of interpretation of the collective agreement, including in relation to the provisions on dismissal. Concerning the impossibility of negotiating wage increases because of the domestic and international financial crisis, as argued by the Government, the Committee wishes to highlight the principle whereby if, as part of its stabilization policy, a government considers that wage rates cannot be settled freely through collective bargaining, such a restriction should be imposed as an exceptional measure and only to the extent that is necessary, without exceeding a reasonable period, and it should be accompanied by adequate safeguards to protect workers’ living standards [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 1024]. The Committee requests the Government to ensure respect for this principle and expresses the hope that collective bargaining on wage issues can be taken up again in the very near future.
5. 542. With regard to the likely replacement of the Institute by the National Children’s Ombudsman Office for the reasons and aims mentioned by the Government, the Committee observes that, according to the Government, the relevant bill was submitted for consultation with the trade unions concerned once it had been introduced to the legislature and that in this context, the trade unions have presented their observations and proposals. The Committee regrets nonetheless that in drafting the bill such trade unions were not consulted, despite the fact that the bill deals with an issue that has a direct impact on their members. The Committee expresses the hope that, as announced by the Government, the legislative branch will duly consider the trade unions’ viewpoint and proposals and will give them a voice in the legislative process.
6. 543. Lastly, the Committee regrets to observe that the Government has not responded to the allegations concerning the company Casa Comercial Mattews Cemcol Comercial y Similares and requests it to send its observations without delay.

The Committee’s recommendations

1. 544. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) With regard to the allegations concerning the Institute, the Committee requests the Government to take measures so that the Institute, in agreement with the complainant, set up an independent mechanism for the settlement of disputes on the application of the terms of the collective agreement and expresses the hope that this mechanism can be included in the next collective agreement. The Committee considers that this mechanism should also be able to deal with the interpretation of the collective agreement, including in relation to the provisions on dismissal.
   • (b) Concerning the impossibility of negotiating wage increases due to the financial crisis, the Committee draws the Government’s attention to the principle contained in the conclusions on the economic stabilization measures in times of financial crisis and requests it to ensure respect for such principle; at the same time the Committee expresses the hope that collective bargaining on wage issues can be taken up in the very near future.
   • (c) The Committee expresses the hope that, as announced by the Government, the legislative branch will duly consider the point of view and proposals of the trade unions and will give them a voice in the process of drafting the bill on the National Children’s Ombudsman Office.
   • (d) Lastly, the Committee regrets to observe that the Government has not responded to the allegations concerning the company Casa Comercial Mattews Cemcol Comercial y Similares and requests it to send its observations without delay.