Interim Report - Report No 92, 1966

Case No 454 (Honduras) - Complaint date: 20-SEP-65 - Closed

1. 176. The complaint from the Central Federation of Unions of Free Workers of Honduras (FECESITLIH) is contained in a direct communication to the I.L.O dated 20 September 1965. It was transmitted by a letter dated 4 October 1965 to the Government, which sent its observations by a communication dated 26 January 1966.
2. 177. 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. A. The complainants' allegations

• Allegations relating to the Strike by the Rio Lindo Textile Mill Workers' Union
  178. 178 The complainants allege that the Rio Lindo Textile Mill Workers' Union, an affiliate of FECESITLIH, had submitted a draft collective agreement for discussion and signature to the undertaking in January 1963, but that in the subsequent period of over two years the undertaking had prevented the signature of the agreement, and that all the successive procedures for direct negotiation, mediation and conciliation provided for in the Labour Code had been exhausted. In the absence of a satisfactory settlement the union decided on strike action, which began on 11 May 1965. According to the complaint, the undertaking brought pressure to bear upon the authorities to declare the stoppage of work illegal two months later. The complainants enclose copies of various documents, including a communication dated 29 April 1965 notifying the employer of the union's intention to strike. They also attach a copy of the government decision declaring the strike to be illegal and a copy of the appeal against the decision. In the appeal the union maintained that the strike was voted on in accordance with the provisions of the Labour Code, that no collective agreement existed, since the three copies required under section 58 of the Code had not been signed and filed for registration, and that the conciliation procedure had been exhausted before the strike was declared. As to the regularity of the voting procedure, this was attested by a certificate from a notary public duly submitted to the Ministry.
  179. 179 In reply to these allegations the Government states in its communication of 26 January 1966 that the negotiations between the union and the undertaking did not produce positive results at the direct negotiation and mediation stages. The following stage, namely conciliation, did not take place because this was impossible on legal grounds: the union having asked that a conciliation board be set up, for which it had proposed its own representatives, the Ministry required the undertaking to name its representatives. The undertaking entered a statutory appeal for protection before the High Court of Justice against the ministerial decisions establishing the special conciliation board, and the court, by a judgment dated 22 December 1964 (a copy of which the Government enclosed), declared the appeal to be well founded and granted on the basis of section 663 of the Labour Code. This section provides that workers' and employers' representatives on conciliation boards must be appointed at assemblies of workers and employers respectively.
  180. 180 The Government adds that, on the basis of the High Court's decision, it promoted conciliation discussions during January and February 1965 with the consent of the parties and without any proceedings whatever. As a result of the informal talks the entire contents of the draft collective agreement were set out, in 17 separate sections, including a clause giving the duration of the agreement as five years, the initial date being given as 15 February 1965 and, later, at the request of the union, being postponed to 1 March 1965. However, in view of the trade union's opposition, section 58 of the Labour Code was not complied with, i.e. the three copies of the agreement were not signed. On 25 April 1965 the union voted for a strike, and on 30 April it notified the Ministry, which in turn notified the undertaking. On 22 July 1965, by ministerial decision (text of which the Government appends), the collective suspension of work was declared unlawful.
  181. 181 According to the preamble to the decision the minutes of the relevant general meeting held by the union contain no statement as to a secret ballot having been held, or any result of such a ballot; a collective agreement was negotiated and signed, it being impossible to refute the validity in law of the terms of the said collective agreement on the grounds that the copies required by law had not been signed or a copy of the agreement filed with the General Directorate of Labour; and the stoppage of work was declared without the conciliation procedure provided for under the Labour Code having previously been followed as laid down by law.
  182. 182 The Government also annexes a copy of a decision by the High Court of Justice rejecting the appeal by the union against the declaration of illegality. The preamble to the judgment states that, in accordance with section 570 of the Labour Code, " only the appropriate proceedings before the Labour Courts shall be valid " against an administrative decision, and that the recourse of appeal is not valid in cases in which the law allows the parties action of other kinds.
  183. 183 Finally, the Government states that, in order to avoid repetition of such a situation in future, it has presented to Congress a proposal for the amendment of sections 650 and 651 of the Labour Code (relating to the establishment of conciliation and arbitration boards). This was approved by Decree No. 62 of 31 October 1965. The text of the decree, which the Government announced that it was sending, was not received with the texts appended to its communication of 26 January 1966.
  184. 184 The Committee has always applied the principle that allegations relating to the exercise of the right to strike are within its competence in so far-but only in so far-as they affect the exercise of trade union rights, and on many occasions a has pointed out that the right to strike of workers and workers' organisations constitutes a legitimate means of defending their occupational interests.
  185. 185 As the Committee has noted on previous occasions a the mere fact that a strike is regarded as unlawful in any country would not be sufficient to cause the Committee to refrain from examining the merits of a case; it would also be necessary for the conditions that had to be fulfilled under the law in order to render a strike lawful to be reasonable conditions and in any event not such as to place a substantial limitation on the means of action open to trade union organisations. In this connection the Committee has recognised in a number of cases ", for example, that prior notification to the administrative authority and utilisation of compulsory conciliation and arbitration in industrial disputes before a strike is called are provided for in the laws or regulations of a considerable number of countries, and that reasonable provisions of this type cannot be regarded as an infringement of freedom of association.
  186. 186 The Committee has also emphasised that, in exercising the right to strike, workers and their organisations must have due regard to temporary restrictions placed thereon, e.g. cessation of strikes during conciliation and arbitration proceedings in which the parties can take part at every stage. In doing so, however, the Committee has stressed that when restrictions of this kind are placed on the exercise of the right to strike the ensuing conciliation and arbitration proceedings should be " adequate, impartial and speedy ".
  187. 187 Section 569, subsection 3, of the Honduras Labour Code ° lays down that a strike is unlawful when the preliminary procedure for a direct settlement or for mediation, conciliation and arbitration has not been followed as laid down by law. Nevertheless, in the case to which the complaint refers, the possibility of having recourse to conciliation procedure does not seem to have existed, since a conciliation and arbitration board competent to hear the case was not established.
  188. 188 As regards the proof of whether the union's decision was taken in accordance with the law, the Committee feels it necessary to recall, as it did in a previous case relating to Honduras, the opinion of the Committee of Experts on the Application of Conventions and Recommendations that the provision in the Labour Code of Honduras, which requires a two-thirds majority vote of the total membership of a union or branch for strike action to be declared lawful, constitutes an intervention by the public authorities in the activities of trade unions which is of a nature to restrict the rights of such organisations, contrary to Article 3 of Convention No. 87.
  189. 189 As regards the question as to whether or not there existed in this particular case voluntary agreement between the parties as regards the signature of the collective agreement, the Committee notes that the statements of the Government and those of the complainants are contradictory. This point does not in itself appear to relate to the exercise of trade union rights, but relates rather to the legal validity of a contract, a matter which should in any case be dealt with by the competent judicial authorities.
  190. 190 In these circumstances the Committee recommends the Governing Body:
       • (a) to draw the attention of the Government once again to the importance which it attaches to the opinion expressed by the Committee of Experts on the Application of Conventions and Recommendations mentioned in paragraph 188 above;
       • (b) to draw the attention of the Government to the importance which it has always attached to the principle that, when temporary restrictions are placed on the right to strike such as, for example, refraining from strikes during conciliation and arbitration proceedings, such proceedings should be adequate, impartial and speedy, and to request the Government to be good enough to furnish the text of the amendments to sections 650 and 651 of the Labour Code relating to the establishment of conciliation and arbitration boards.
  191. Allegations relating to a Strike Called by the Central Federation of Unions of Free Workers of Honduras
  191. 191 The complaint states that, as a result of the strike of the Rio Lindo Textile Mill Workers' Union having been declared illegal, the workers' organisations of Honduras, especially those affiliated to FECESITLIH, called a general strike, which began on 27 July 1965 but was broken up after 14 hours by government armed pickets. It is alleged that the Government then proceeded to destroy various unions almost completely, in particular that of the employees of the Central District Council, who were all dismissed, including a number of members of the union's executive. Bodies such as the National Autonomous Public Water Mains and Sewage Service, the National Electric Power Company and the National Children's Guardianship Board also began to dismiss trade unionists and members of the executives of trade unions. Similar action is alleged to have been taken by private undertakings. The complainants add that the Government has so far done nothing to remedy these grave abuses.
  192. 192 With respect to these allegations the Government states that the general solidarity strike called by FECESITLIH in the capital was unlawful under the Labour Code and that it was broken up by groups of civilians, who removed from their posts workers guarding the entrances to workplaces, which they had padlocked and hung with the national flag. Because of these disturbances the Government, exercising its legal powers, declared a state of siege in the capital. Certain persons, among them Julio César Villalta Matamoros and Carlos Alberto Reyes Pineda, were arrested, and a direct prosecution was made by the Attorney-General before the First Criminal Court of Justice; the reason for arrest was an inquiry into offences against the safety of the State, under the appropriate judicial procedure which safeguards the right of the persons concerned to defence. The arrested men are now at liberty on bail.
  193. 193 Although the Government does not state on what provisions of the Labour Code the unlawfulness of the strike called by FECESITLIH is founded, the Committee observes that under section 537 of the Code federations and Confederations of trade unions may not call strikes. In this respect the Committee refers to the view expressed by the Committee of Experts on the Application of Conventions and Recommendations when examining the application by Honduras of Convention No. 87. The Committee pointed out that the provisions of section 537 were not compatible with Article 6 of the Convention, which applies, Article 3 of the Convention with respect to the functioning of federations and Confederations. According to Article 3, trade union organisations shall have the right " to organise their administration and activities and to formulate their programmes ", while the public authorities shall refrain " from any interference which would restrict this right or impede the lawful exercise thereof"
  194. 194 As regards the removal of strikers guarding the entrances to workplaces, of which the complainants accuse the Government and which the Government states was carried out by groups of private individuals, the Committee would be grateful if the Government would let it know whether the inquiry referred to in paragraph 192 above is intended also to clarify the facts in question and establish responsibilities, and if it would communicate the results of such inquiry.
  195. 195 As regards the arrest and trial of the persons to whom the Government's reply refers, a point to which the complaint does not expressly allude, the Committee would be grateful if the Government would inform it whether the persons mentioned are trade unionists and, if so, would request it to be good enough to let it know the precise reasons for their arrest and to communicate the text of the judgments given in their case, together with the grounds therefor.
  196. 196 Finally, the Government's reply contains no reference to the allegations mentioned in paragraph 191 above, according to which a number of trade unions were destroyed and trade unionists dismissed from public bodies and private industry because of their participation in the strike called by FECESITLIH.
  197. 197 In these circumstances the Committee recommends the Governing Body to draw the Government's attention to the importance which it attaches to the opinion expressed by the Committee of Experts on the Application of Conventions and Recommendations mentioned in paragraph 193 above, and to request the Government to be good enough to supply the additional information mentioned in paragraphs 194 and 195 above and to reply to the allegations mentioned in paragraph 196.
• Allegations relating to the Annulment of the Resolutions of a Trade Union Assembly
  198. 198 The complainants allege that the Government has pronounced the Seventh Federal General Assembly of FECESITLIH, held in May 1965, to be null and void, declaring the whole of its proceedings invalid and leaving the Federation without leadership.
  199. 199 In its reply the Government states that from 29 to 31 May 1965 the Seventh Ordinary General Assembly of the complainant federation elected its Federal Executive Committee, - the list being headed by Mr. Carlos H. Reyes. Objections to the registration of the elected members of the Federal Elective Committee were made before the General Directorate of Labour by two workers. By a decision dated 11 August 1965 the Directorate declared null and void the election of the Executive Committee and other bodies elected by the assembly, refused registration and ordered the unions belonging to the Federation to convene a new assembly.
  200. 200 According to the text of the decision, which is appended to the Government's reply, it was found that the meeting had been attended-and votes cast-by representatives of two associations, the Association of National Lottery Ticket Sellers and the Association of Merchants of the San Isidro Market-civil organisations which have legal personality granted by the Ministry of Home Affairs and Justice but have been refused registration as trade union organisations because their members are not covered by the provisions of the Labour Code. Mr. Roberto Félix Ruiz, the representative of the first of the organisations mentioned, had been elected Vice-President of the Executive Committee by the assembly. Although under a previous decision of the Secretariat for Labour and Social Welfare the regulations of FECESITLIH were amended by a clause according to which " there may belong to the Federation associations of workers with legal personality recognised by the Ministry of Home Affairs and Justice, which pursue the same ends as trade union organisations but which by their nature cannot be constituted as trade unions ", the General Directorate of Labour, in settling the matter, considered that the amendment to the regulations was unlawful in that it infringed provisions of the Constitution and the Labour Code, and that it should be disregarded.
  201. 201 Still according to the information supplied by the Government, FECESITLIH appealed against the Directorate's decision, but the High Court of Justice, in a decision dated 8 October 1965, rejected the appeal on the grounds that the resources normally available under the Code of Administrative Procedure against decisions of the General Directorate of Labour-the implementing body or authority for labour laws in the first instance, as far as administration is concerned-had not been exhausted. From 15 to 17 October 1965 an extraordinary general meeting of FECESITLIH was held, and new elections took place. As a result two separate lists were presented to the General Directorate of Labour for registration as the Executive Committee of the Federation, and the General Directorate received objections to both. These objections were settled, and the procedure began for the registration of the Executive Committee presided over by Mr. Eulalio López Amaya.
  202. 202 Article 3 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), provides that workers' and employers' organisations shall have the right to elect their representatives in full freedom, to organise their administration and activities and to formulate their programmes, and that the public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof. As already mentioned, the provisions of Article 3 of the Convention are applied to federations and Confederations by Article 6.
  203. 203 In a previous case of a similar nature, also relating to Honduras, in which allegations were made regarding the executive committee elected by a trade union, the Committee observed that by reason of the measures of an administrative nature adopted by the General Directorate of Labour the union was for some time deprived of ruling bodies and of representatives of the organisation. The Committee referred to the opinion that it had already expressed on other occasions, namely that the removal by an administrative authority of a person from his office in a trade union is a procedure that might lead to abuses or to the violation of the generally recognised right which organisations possess of electing their representatives in full freedom and organising their own administration and activities. Since the suspension of the results of an election procedure may have similar effects to the suspension of the organisation itself, the Committee referred to what it had already pointed out previously, namely that when the measures of suspension are adopted by the administrative authority there is a risk that they may appear arbitrary even when they are provisional and temporary and even when they are followed by judicial action. The Committee considered that the principles established in Article 3 of Convention No. 87 did not prevent supervision or control of the internal acts of a trade union if those internal acts did not violate legal provisions or rules, but nevertheless considered that, in order to guarantee an impartial and objective procedure, control should be exercised by the relevant judicial authority.
  204. 204 On the other hand, in view of the fact that the results of the new election held by the complainant federation in October 1965 had also been challenged and that the Executive Committee had not been registered by the date of the communication from the Government, the Committee, before continuing its examination of this aspect of the case, would be grateful if the Government would inform it as soon as possible as to the present situation.
  205. 205 In these circumstances, while again drawing the Government's attention to the principle that, when it is necessary to control the internal acts of a trade union, it is of maximum importance that, in order to guarantee an impartial and objective procedure, such control should be exercised by the relevant judicial authority, the Committee recommends the Governing Body to request the Government to inform it as soon as possible as to the present situation with regard to the procedure for the registration of the Executive Committee of FECESITLIH, and to enclose the text of any decisions which may have been issued, together with the grounds therefor.
• Appointment of a Commission of Inquiry
  206. 206 Finally, the complainants request the I.L.O to appoint a commission of inquiry to visit Honduras and verify the facts complained of, with the aim of securing respect for the national and international standards which it considers to have been violated.
  207. 207 Taking into account the considerations set forth in paragraphs 178 to 205 of the present report, the Committee feels it would be premature to discuss this matter at the present stage of examination of the case.

The Committee's recommendations

1. 208. With regard to the case as a whole the Committee recommends the Governing Body:
   • (a) in respect of the allegations relating to the strike by the Rio Lindo Textile Mill Workers' Union:
   • (i) to draw the attention of the Government once again to the importance which it attaches to the opinion expressed by the Committee of Experts on the Application of Conventions and Recommendations mentioned in paragraph 188 above;
   • (ii) to draw the attention of the Government to the importance which it has always attached to the principle that, when temporary restrictions are placed on the right to strike such as, for example, refraining from strikes during conciliation and arbitration proceedings, such proceedings should be adequate, impartial and speedy, and to request the Government to be good enough to furnish the text of the amendments to sections 650 and 651 of the Labour Code relating to the establishment of conciliation and arbitration boards;
   • (b) in respect of the allegations relating to the strike called by FECESITLIH, to draw the Government's attention to the importance which it attaches to the opinion expressed by the Committee of Experts on the Application of Conventions and Recommendations, namely that the provision of the Labour Code denying the right to strike to federations and Confederations is not compatible with Article 6 of Convention No. 87, and to request the Government to be good enough to supply the additional information mentioned in paragraphs 194 and 195 above and to reply to the allegations mentioned in paragraph 196;
   • (c) in respect of the allegations relating to the annulment of the resolutions of a trade union assembly, while again drawing the Government's attention to the principle that, when it is necessary to control the internal acts of a trade union, it is of maximum importance that, in order to guarantee an impartial and objective procedure, such control should be exercised by the relevant judicial authority, the Committee recommends the Governing Body to request the Government to inform it as soon as possible as to the present situation with regard to the procedure for the registration of the Executive Committee of FECESITLIH, and to enclose the text of any decisions which may have been issued, together with the grounds therefor;
   • (d) to take note of the present interim report, it being understood that the Committee will submit a further report when it has received the information requested of the Government in subparagraphs (a) (ii), (b) and (c) above.