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

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

The Committee takes note of the observations of the Honduran National Business Council (COHEP), received on 31 August 2021, and of the Government’s reply. It also takes note of the observations of the International Trade Union Confederation (ITUC), received on 1 September 2021, relating to matters examined in the present observation.

Trade union rights and civil liberties

The Committee recalls that: (i) the Committee on the Application of Standards examined the application of the Convention in 2018 and 2019 and noted with serious concern the allegations of anti-union violence, in particular physical aggression and murders, as well as the absence of convictions against the perpetrators of the offences, which created a situation of impunity that heightened the climate of violence and insecurity; (ii) in May 2019, a direct contacts mission took place and a tripartite agreement was signed which, inter alia, provided for the creation of a national committee to combat anti-union violence; and (iii) in September 2019, the Office carried out a technical assistance mission to support the implementation of the agreement and on 18 September 2019 the Committee on Anti-Union Violence was established.

In its previous comment, having expressed its deep concern at the low number of trade unionists who have benefited from protection measures in comparison with the very high number of acts of anti-union violence, the ineffectiveness of such protection measures, the persistence of acts of anti-union violence and the lack of progress in their investigation, the Committee once again urged the Government and all the competent authorities to: (i) comply fully with all elements in the tripartite agreement concerning action against anti-union violence; (ii) ensure the active involvement of all the relevant authorities in the Committee on Anti-Union Violence, especially the Ministry of Human Rights, the Office of the Public Prosecutor and the judiciary; (iii) institutionalize and make effective the participation of the representative trade unions in the National Council for the Protection of Human Rights Defenders; (iv) draw up a special investigation protocol to enable the Office of the Public Prosecutor to examine, systematically and effectively, any anti-union motives behind the acts of violence affecting members of the trade union movement; (v) ensure that the criminal courts give priority treatment to cases of anti-union violence; and (vi) ensure adequate and prompt protection for all at-risk members of the trade union movement.

The Committee notes the information provided by the Government in respect of progress in investigations and prosecutions relating to specific cases of murders of members of the trade union movement. The Committee observes that: (i) seven cases remain under investigation (the murders of Sonia Landaverde Miranda, Alfredo Misael Ávila Castellanos, Evelio Posadas Velásquez, Juana Suyapa Posadas Bustillo, Glenda Maribel Sánchez, Fredy Omar Rodríguez and Roger Abraham Vallejo) and (ii) five cases remain before the courts (the arrest warrants for the murders of Alma Yaneth Díaz Ortega, Uva Erlinda Castellanos Vigil, José Ángel Flores and Silmer Dionisio George remain to be issued and the conviction against the perpetrator of the murder of Claudia Larissa Brizuela is under appeal). The Government also points to the investigations carried out by the Special Prosecutor for Crimes against Life to shed light on the murder, on 17 November 2019, of Jorge Alberto Acosta Barrientos. The Committee notes with concern the slow progress in the investigations of murders committed almost a decade ago, and the low number of judicial convictions to date. The Committee emphasizes that justice delayed is justice denied.

Furthermore, the Committee notes the Government’s reiteration that the investigations and legal proceedings relating to the other cases of alleged anti-union violence have been completed and that it therefore provided no new information in this respect.

The Committee notes that, according to the ITUC, impunity continues to prevail since the Government has not been able to provide prompt and adequate protection to trade unionists who received death threats, nor were proper investigations carried out to find and prosecute the perpetrators of anti-union crimes. The Committee notes with deep concern the ITUC report of the murder of Oscar Obdulio Turcios Fúnes, an activist member of the Workers’ Union of the National Autonomous University of Honduras (SITRAUNAH), who died on 13 July 2020 after demanding payment of delayed salaries and overtime.

The Committee also notes the concern expressed by the COHEP in respect of the scant impact of the Committee on Anti-Union Violence and the lack of proactivity on the part of the State authorities in this regard. The COHEP indicates that the Committee on Anti-Union Violence has held only four meetings: one in 2019, two in 2020 and one in 2021, and that, although some agreed points were achieved (such as the exchange of information on protection measures taken in respect of members of the trade union movement who are at risk, and proposals on how to improve the mechanism), the Committee’s rules of procedure and the road map remained to be approved. The COHEP condemns the acts of violence against members of the trade union movement and indicates that it has not received an update on the criminal investigations and proceedings.

The Committee notes the Government’s indication that, while it is aware of the commitment made with the Committee on Anti-Union Violence and is confident that it will deliver meaningful results in the near future, the COVID-19 pandemic has delayed activities. It also indicates that on 13 July 2021, a meeting was held to reinvigorate the Committee on Anti-Union Violence, for which purpose a road map was presented in respect of which it was agreed that the worker and employer sectors would make comments and suggestions. The Government also indicates that a meeting was held on 3 August 2021 in order to present an annual report on documented cases of anti-union violence and that at that meeting, it was decided, inter alia, to request technical assistance from the ILO in order to present the experience of Guatemala with regard to anti-union violence. While taking due note of the Government’s indication that the pandemic has delayed the activities of the Committee on Anti-Union Violence, the Committee regrets that, three years since its establishment, the Committee on Anti-Union Violence has been unable to make progress towards practical solutions to the serious violations of the Convention which have been observed for many years. The Committee recalls that on various occasions it has underscored the urgent need for the various State institutions to provide the coordinated and priority response required by the situation of anti-union violence prevailing in the country. The Committee emphasizes the essential role that the Committee on Anti-Union Violence can and must play in order to carry out specific tripartite activities relating to anti-union violence and impunity. The Committee considers that the fact that the Committee on Anti-Union Violence is composed of representatives of the Secretariat-General for Government Coordination, the Ministry of Labour and Social Security, the Ministry for Human Rights and social partners represented on the Economic and Social Council (CES) and that actors in the judicial system are invited to participate should allow the Committee on Anti-Union Violence to foster the necessary synergies among the various institutions and facilitate dialogue with representatives of trade union organizations at risk. The Committee takes due note of the Government’s indication of its intention to request technical assistance and hopes that this will be provided as soon as possible.

Furthermore, the Committee regrets that no information has been received from the Government relating to protection measures taken in respect of members of the trade union movement who are at risk. The Committee notes that, according to the COHEP, on 20 May 2021 the Sectoral Committee for the Handling of Disputes referred to the ILO (MEPCOIT) convened a session to discuss and adopt the work plan and boost the protection mechanism for trade union members and leaders whose physical integrity and life are threatened.

Expressing deep concern at the persistence of acts of anti-union violence and the lack of sufficient progress in taking specific and rapid measures in this regard, the Committee once again urges the Government and all the competent authorities to: (i) take specific and rapid measures, including budgetary measures, to comply fully with all elements in the tripartite agreement concerning action against anti-union violence, giving the Committee on Anti-Union Violence the necessary and vital impetus for it to succeed in the performance of its functions, ensuring the active involvement of all relevant authorities; (ii) institutionalize and make effective the participation of the representative trade unions in the National Council for the Protection of Human Rights Defenders; (iii) draw up a special investigation protocol to enable the Office of the Public Prosecutor to examine, systematically and effectively, any anti-union motives behind the acts of violence affecting members of the trade union movement; (iv) ensure that the criminal courts give priority treatment to cases of anti-union violence; and (v) ensure adequate and prompt protection for all at-risk members of the trade union movement. The Committee also requests the Government to continue providing detailed information on criminal investigations and proceedings relating to acts of violence against members of the trade union movement, including in relation to the murder of Jorge Alberto Acosta Barrientos and of Oscar Obdulio Turcios Fúnes.

Legislative issues

Articles 2 et seq. of the Convention. Establishment, autonomy and activities of trade unions. The Committee recalls that it has been requesting the Government for many years to amend the following provisions of the Labour Code to bring them into conformity with the Convention:

• -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));
• -the prohibition of more than one trade union in a single enterprise (section 472);
• -the requirement of at least 30 workers to establish a trade union (section 475);
• -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));
• -the prohibition on strikes called by federations and confederations (section 537);
• -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);
• -the authority of the competent minister to end disputes in oil industry services (section 555(2));
• -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
• -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).

In its previous comments, the Committee observed that the establishment of tripartite social dialogue on the reform of the labour legislation, as envisaged in the tripartite agreement of May 2019, would call for a special effort in terms of building trust between the parties, and noted with regret the absence of tangible progress in this respect. Aware of the obstacles that the COVID-19 pandemic might have raised, the Committee trusted that the Government, with the technical support of the Office, would move forward as soon as possible with holding tripartite discussions and make progress in the preparation of the reforms that have been requested for many years.

The Committee notes the Government’s indication that: (i) on 4 February 2020, the Ministry of Labour and Social Security sent a note to the President of the MEPCOIT requesting that the discussions relating to the reform of the Labour Code be resumed as soon as possible; (ii) the coordinator of the MEPCOIT replied on 25 February 2020, stating that a meeting would be convened for that purpose in the coming days; and (iii) although the state of emergency made it impossible to continue with the activities, the Government was mindful of the commitments made and would be taking up the pending issues as soon as possible.

The Committee also notes the observations of the social partners concerning the labour legislation revision process. The Committee observes the insistence of the ITUC on the need for the Government to take immediate steps to amend the provisions of the Labour Code to bring them into line with the Convention. The COHEP, for its part, recalls that the position of the employer sector has already been expressed repeatedly and indicates that on 20 May 2021, the MEPCOIT held a session to discuss and adopt the work plan and, inter alia, to discuss the harmonization of the Labour Code with the Convention. The Committee also notes from the report of the COHEP that on 24 June 2021 the private sector assumed the presidency of the CES for a term of one year, and welcomes its commitment to creating the necessary spaces for dialogue to reach agreements that reflect the Committee’s recommendations.

The Committee regrets that there has been no progress in the tripartite discussion process envisaged in the agreement of 2019. The Committee reiterates that, while it is aware of the obstacles that the COVID-19 pandemic may have created in this regard, the Committee firmly hopes that the Government will move forward as rapidly as possible with the tripartite discussions, with the technical support of the Office, and report progress in the preparation of the reforms that have been requested for many years. The Committee encourages the development of agreements in the framework of the CES that reflect the recommendations of the Committee. The Committee requests the Government to provide information in this respect.

New Penal Code. The Committee recalls that on 25 June 2020, a new Penal Code entered into force and that, in view of the broad scope of certain offences, it requested the Government, in consultation with the most representative organizations of employers and workers, to assess the impact of the provisions of the Penal Code on the free exercise of trade union activities. The Committee notes that the Government attached a copy of a note sent by the Secretary of State for Labour and Social Security to workers’ federations and the COHEP on 4 May 2021 in order for them to designate a representative to take part in the assessment of the provisions of the Penal Code. It also takes note of the COHEP’s indication that it received the aforementioned note and that on 14 May 2021, it indicated that it would send a letter to the employer organizations in order to ascertain positions in this regard and thus consolidate the position of the private sector. For its part, the ITUC emphasizes that the provisions of the new Penal Code considerably limit the right to peaceful assembly and criminalize protests and public assemblies with penalties of up to 30 years’ imprisonment. The Committee welcomes the fact that the Government has initiated the consultation process on the impact of the provisions of the Penal Code on the free exercise of trade union activities and hopes that these consultations will take place as soon as possible. It requests the Government to provide information in this regard.

Application of the Convention in practice. In its previous comment, the Committee expressed the hope that once the obstacles created by the COVID-19 pandemic were overcome, the MEPCOIT would shortly start its industrial relations dispute settlement activities so that it could examine alleged violations of freedom of association in practice, including allegations relating to the agro-export and education sectors. The Committee takes note that, although the health emergency did not allow the MEPCOIT to meet its commitments, it would be resuming them at the earliest opportunity. The Committee further notes that, according to the COHEP, on 20 May 2021 the MEPCOIT held a session to discuss and approve its work plan, and for its reactivation and strengthening of its technical and political powers to intervene in the settlement of disputes. While it is aware of the obstacles that the COVID-19 pandemic may have created in relation to the operation of the MEPCOIT, the Committee emphasizes the essential role that the MEPCOIT can and must play in the resolution of industrial disputes and firmly hopes that it will resume its activities at the earliest possible opportunity. The Committee requests the Government to provide information in this respect.

The Committee requests the Government to take, as soon as possible, the necessary measures to bring its legislation and practice into conformity with the Convention. The Committee recalls that the technical assistance of the Office is at its disposal and expresses the firm hope that the Government will provide information in its next report on any progress made with regard to the issues raised.

[The Government is asked to reply in full to the present comments in 2023.]