Observation (CEACR) - adopted 2018, published 108th ILC session (2019)

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

The Committee notes the observations of the International Trade Union Confederation (ITUC), received on 1 September 2018, which refer to the issues examined by the Committee in this comment, and the Government’s replies.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 107th Session, May–June 2018)

The Committee notes the discussion held in June 2018 in the Conference Committee on the Application of Standards (hereinafter, the Conference Committee) concerning the application of the Convention by Honduras. The Committee notes that the Conference Committee, deploring the serious allegations of acts of anti-union violence, called upon the Government to: (i) take without delay all the necessary measures to ensure that the investigations into the murders are carried out promptly in order to determine the persons responsible and to punish those guilty of these crimes; (ii) provide rapid and effective protection to all trade union leaders and members who are under threat to ensure that the lives and physical integrity of persons are effectively protected and to implement measures to prevent further cases of trade union murders and violence; (iii) immediately conduct competent investigations into acts of anti-union violence and prosecute the persons responsible for those crimes; (iv) ensure that the relevant authorities have sufficient resources and personnel to undertake this work effectively; and (v) take all the necessary measures to create an environment in which workers are able to exercise their right of freedom of association without the threat of violence or other violations of their civil liberties. In addition, referring to the legislative provisions of the Labour Code that are incompatible with the Convention, the Conference Committee requested the Government, in consultation with the social partners, to amend the legislation with respect to the following issues: (i) the exclusion of workers’ organizations in agricultural and stock-raising enterprises which do not permanently employ more than ten workers (section 2(1)); (ii) the prohibition of more than one trade union in a single enterprise (section 472); (iii) the requirement of more than 30 workers to establish a trade union (section 475); and (iv) 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)).

On the occasion referred to above, the Conference Committee urged the Government to accept a direct contacts mission before the next International Labour Conference and to avail itself of ILO technical assistance. In this respect, the Committee duly notes that the Government: (i) extended an official invitation to the Office in relation to the direct contacts mission and requested the Office’s technical assistance in relation to the application of the Convention; and (ii) a mission preparing for the direct contacts mission was conducted by the Office between 23 and 26 October 2018. The Committee also notes the setting up on 10 September 2018, within the Economic and Social Council, of the Sectoral Committee for the Handling of Disputes referred to the ILO (MEPCOIT), a tripartite body the mandate of which covers not only the resolution of occasional disputes, but also the revision of the labour legislation and protection from anti-union violence. The Committee welcomes the initiatives taken by the Government and trusts that the upcoming direct contacts mission will lead to significant progress with regard to freedom of association in the country.

Trade union rights and civil liberties

In its previous comments, the Committee expressed deep concern at the large number of anti-union crimes, including many murders and death threats, committed since 2010. The Committee firmly urged the Government to take without delay all the necessary measures: (i) to ensure that the investigations into the murders are carried out promptly in order to determine the persons responsible and to punish those guilty of these crimes; and (ii) to provide prompt and effective protection to all trade union leaders and members who are at risk. Regarding cases of murders of trade union leaders and members, the Committee notes the Government’s indications that: (i) the murders of Ms Sonia Landaverde Miranda, Ms Maribel Sánchez Garcia and Ms Juana Suyapa Bustillo, and Mr Alfredo Misael Ávila Castellanos, Mr Fredis Omar Rodríguez, Mr Martin Florencio Rivera Barrientos, Mr Roger Abraham Vallejo and Mr Félix Murillo López are under investigation; (ii) the murder of Mr Evelio Posadas Velázquez is being examined to decide on a request for proceedings or the extension of the investigation; however, to date, there is no information proving that the motive for the murder is related to his union activities; (iii) regarding the murders of Ms Alma Yaneth Díaz Ortega and Ms Uva Erlinda Castellanos Vigil, the arrest warrant to which the Government referred in its previous observations still has not been executed; (iv) regarding the murder of Ms Claudia Larissa Brizuela, two defendants have been convicted and have lodged an appeal, which is still pending; and (v) regarding the murders of trade union leader Mr José Ángel Flores, who was the beneficiary of protection measures, and trade union member Mr Silmer Dionisios George, on 22 November 2016 the Public Prosecutor’s Office initiated the prosecutions of two persons and both arrest warrants still have not been executed.

With respect to the kidnapping of Mr Moisés Sánchez and the physical assault of his brother, Mr Hermes Misael Sánchez, who is also a union member, the Committee notes the Government’s assertion that both cases were presented to the National Human Rights Committee, but the perpetrators have not been identified and the Government does not know whether the two men are covered by specific protection measures. Regarding the allegations of death threats examined in its previous comments, the Committee notes the Government’s indications that: (i) the complaint of Mr Miguel Ángel López Murillo, trade union leader and recipient of protective measures, is under investigation; however, in order for the Public Prosecutor’s Office to bring public criminal proceedings, criminal law requires the authorization of the victim, which has not been granted; (ii) regarding trade union leader Mr Nelson Geovanny Núñez Chávez, a protective mechanism was implemented for him as a result of threats but he left the country; and (iii) regarding the situation of trade union leader Ms Patricia Rivera, the Public Prosecutor’s Office does not have any record of her complaint and, under current legislation, cannot act on its own initiative.

The Committee also notes the general information provided by the Government with regard to the measures designed to ensure that investigations into crimes against trade unionists are carried out promptly and to provide prompt and effective protection to the trade unionists at risk. The Committee notes that the Government emphasizes first of all that there is no state policy of persecution and violence and that violence and insecurity are deep-seated issues with serious consequences for Honduran society. The Government adds that it devotes a great deal of effort to combating this phenomenon and reducing impunity, actions that have contributed to a marked reduction in the murder rate in recent years. In relation to specific initiatives to ensure prompt investigations, the Government asserts that: (i) it increased the budget of the Public Prosecutor’s Office, leading to the establishment of new departments, including the complaints reception unit, the strategic unit for criminal prosecution and a special human rights unit in the city of Tocoa; (ii) under the strategic institutional framework (2015–22) of the Ministry of Security, measures were adopted to support the work of the Criminal Investigation Police, including the acquisition of new laboratories and the training of police officers; (iii) the budget of the judiciary was increased and the Special Act on Judicial Bodies with National Territorial Jurisdiction was reformed, establishing special courts with national jurisdiction to hear cases of corruption and extortion; (iv) the National Plan for the Eradication of Judicial Delays was approved and sections 127-A and 127-B were added to the Code of Criminal Procedure, thereby facilitating virtual hearings; and (v) in the framework of the Nation Plan of Action for Human Rights (PNADH), in January 2018, the State Secretariat at the Human Rights Office was established.

The Committee also notes the information provided by the Government regarding protection measures for at-risk trade union members, indicating that: (i) between 15 May 2015, the date of entry into force of the Act for the Protection of Human Rights Defenders, Journalists, Social Communicators and Justice Workers, and 30 April 2018, a total of 293 requests for protection measures were received and 193 were granted, of which seven were for trade unionists; (ii) in 2018, a monitoring system was established with the aim of obtaining up-to-date information and following up on the recommendations made to the Government by the various regional and international organizations; (iii) on 15 March 2017, Decree No. 178 2016 entered into force, section 90(2) of which established a fine of 300,000 lempiras (some US$12,000) for “any person who, using violence or threats, infringes in any way the right to organize and to freedom of association”; and (iv) the recently established MEPCOIT will enable the establishment of an information exchange channel between the trade union movement, the Public Prosecutor’s Office, the Ministry of Human Rights and the Ministry of Labour and Social Welfare.

The Committee duly notes the detailed information provided by the Government. While welcoming the general initiatives taken to tackle the general situation of violence and impunity in the country and the progress in strengthening institutions with regard to men and women human rights defenders, the Committee notes with concern that: (i) of the 14 murders of leading members of the trade union movement reported to the Committee to have taken place between 2010 and 2016, so far only one case has resulted in a conviction, which is currently awaiting an appeal; (ii) no progress has been reported in the investigations into threats against members of the trade union movement; (iii) the information provided on the investigations into the alleged murders does not specify the manner in which possible links between the murders and the victims’ trade union activities are explored; and (iv) with the exception of the establishment of an administrative fine under Decree No. 178-2016, the reported initiatives target violence in general and do not include specific actions focusing on anti-union violence.

In this regard, the Committee emphasizes that trade union activities, which are by their very nature related to the resolution of economic and social disputes, can be disproportionately affected by the existence of a general context of violence and therefore require special attention and protection from the authorities. In light of the above, the Committee firmly urges the Government to intensify its efforts to: (i) 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 (ii) provide prompt and effective protection to at-risk trade union leaders and members. The Committee requests the Government to provide detailed information on all complaints brought and administrative fines levied under Decree 178-2016, as well as any prosecutions resulting from or related to proceedings under the Decree. Duly noting the Government’s indication that, through the recently established MEPCOIT, it will establish a channel for information exchange between the authorities and the trade union movement with regard to anti-union violence, the Committee particularly urges the Government to take all the necessary measures to ensure that: (i) all the competent authorities, especially the police force, the Public Prosecutor’s Office and the judiciary, tackle in a coordinated and prompt manner the violence suffered by members of the trade union movement; (ii) when establishing and conducting investigations, account is fully and systematically taken of the possible anti-union nature of murders of members of the trade union movement and the possible links between the murders of members of the same trade union, and that the investigations target both the perpetrators and the instigators of the crimes; (iii) information exchange between the Public Prosecutor’s Office and the trade union movement is improved; and (iv) 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 trusts that the high-level mission due to take place soon in the country will be able to make significant progress in this respect. The Committee requests the Government to provide information on any progress made in this regard and to continue providing up-to-date information on the status of the ongoing investigations.

The Committee notes the new allegations of the ITUC asserting that: (i) on 9 March 2018, a violent police crackdown ended a strike organized by the workers of a transnational agricultural enterprise, giving rise to the torture of several trade union members and the issuing of 34 arrest warrants; and (ii) in 2017, the president of the Union of Star Workers (SintraStar) was subjected to threats and, in February 2018, Mr Lino Hernández, a leader of the same union, resigned from his position following alleged death threats against him and his family. Regarding the alleged police crackdown, the Committee notes the Government’s assertion that the labour inspectorate closely monitored the strike, which began on 26 September 2017 and is yet to be resolved. Noting with concern that the Government has not referred to the alleged police violence or the arrest warrants, the Committee requests the Government to provide information in this respect. Regarding the alleged death threats against the SintraStar president, the Committee notes the Government’s indication that it has requested information from the competent authority but has not yet received a response. The Committee requests the Government to provide information on the protection granted to Mr Lino Hernández and the investigations in relation to the death threats of which he was allegedly a victim.

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 with respect to the following issues:

• (a) 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));
• (b) the prohibition of more than one trade union in a single enterprise (section 472);
• (c) the requirement of more than 30 workers to establish a trade union (section 475);
• (d) 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));
• (e) the prohibition on strikes called by federations and confederations (section 537);
• (f) 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);
• (g) the authority of the competent ministry to end disputes in oil industry services (section 555(2));
• (h) 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
• (i) 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 recalls that, in its previous comments, it noted with regret that the progress made in 2014 has not been given effect in practice in relation to the discussion and adoption of a draft reform to bring the Labour Code into conformity with the Convention. In this regard, the Committee notes the Government’s indication that, with a view to bringing the Labour Code into conformity with Convention No. 87 and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98): (i) the Ministry of Labour and Social Security is formulating a new reform bill that will serve as a basis for tripartite discussion within the CES; (ii) the CES has tasked the recently established MEPCOIT with reviewing and issuing a technical option in relation to the draft reform to the Labour Code and the MEPCOIT will present its initial progress report at the next meeting of the CES; and (iii) the Government has requested the technical assistance of the Office to support this process. The Committee welcomes the resumption of tripartite consultations to bring the legislation into conformity with the Convention. The Committee trusts that the high-level mission due to take place soon in the country will be able to make significant progress in this process and that the Government will soon be able to report the adoption of a bill addressing the various comments made by the Committee for many years.

2017 amendment to section 335 of the Penal Code. The Committee notes the ITUC’s indication that, in 2017, an amendment to the Penal Code was adopted that criminalized a wide range of activities as acts of terrorism, so that a trade union leader may be accused of terrorism if his or her trade union participates in a social protest that is later declared by a public prosecutor to be a subversion of constitutional order. The Committee notes the Government’s indication that: (i) section 335 of the Penal Code establishes that a person commits a terrorist offence if he or she performs any act intended to cause death or serious bodily injury, fire or other damage against a civilian or his or her property … when the purpose of such an act or event by its nature or context is to intimidate or cause a state of terror in the population or to compel a government or an international organization to perform or refrain from performing any act; and (ii) the above amendment to the Penal Code has the sole purpose of ensuring the safety of the population and guaranteeing the rights enshrined in the Constitution and international Conventions. Noting that some of the acts specified in section 335 of the Penal Code are broadly defined, the Committee requests the Government to take the necessary measures to ensure that the application of this section by the competent authorities does not restrict the right of trade unions to protest and strike in a peaceful manner. The Committee requests the Government to provide any information on the possible impact of section 335 of the Penal Code on trade union activities.

Application of the Convention in practice. The Committee notes the Government’s indication that legal personality was granted to 23 trade unions (13 of which were in the export processing (maquila) sector) between January 2014 and May 2017, and to two trade unions between May 2017 and March 2018. The Committee also notes the Government’s indication that, since the entry into force of the Inspection Act, undeniable improvements have been made in relation to the number of inspections conducted, and compliance with the penalties imposed has improved by 81 per cent. The Committee duly notes this information and requests the Government to continue providing detailed information on new registrations of trade unions, as well as on inspections conducted and penalties complied with.

Taking due note of the initiatives taken by the Government as a result of the discussion in the Committee on the Application of Standards, the Committee hopes that the high-level mission due to take place soon in the country will be able to make significant progress in the resolution of the serious violations of the Convention that have been observed for several years.

[The Committee requests the Government to reply in full to the present comments in 2019.]