Report in which the committee requests to be kept informed of development - Report No 325, June 2001

Case No 2100 (Honduras) - Complaint date: 18-AUG-00 - Closed

Allegations: Refusal to grant workers the right

to establish organizations of their own choosing

• without previous authorization and obstruction
• of trade union pluralism
  414. 414 The complaint in this case is contained in a communication from the International Textile, Garment and Leather Workers’ Federation (ITGLWF) dated 18 August 2000. The Government provided its response in a communication of 8 January 2001.
  415. 415 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. 416. In its communication of 18 August 2000, the International Textile, Garment and Leather Workers’ Federation (ITGLWF) states that the Government of Honduras refused to grant official recognition to one of its members, the Trade Union of Assembly and Allied Industries Workers of Honduras (SITRAIMASH). This industrial trade union was founded in July 1999 with more than 500 members employed in two factories: Yoo Yang and Kimi. The complainant states that the latter factory, which is now closed after having transferred its production to Guatemala, at that time already had a trade union, which on no occasion entered into competition with SITRAIMASH and strongly supported the establishment of an industrial trade union.
2. 417. The decision to establish an industrial trade union reflected the commitment of SITRAIMASH to consolidate worker representation both inside and outside the industrial estate, by enabling workers to unionize themselves without having to rely on the recognition of a new trade union in each factory. Therefore, on 16 August 1999, SITRAIMASH submitted its request for legal recognition to the Ministry of Labour. However, on 9 September 1999, that is, four days after the deadline had passed for assessing this request for legal recognition, the trade union sent a trade unionist, Ms. Enma Leal, to the Ministry of Labour to ascertain what stage had been reached in processing its request. The official responsible for social organizations informed Ms. Enma Leal that the request contained serious defects and persuaded her to withdraw it. The complainant organization indicates that the Ministry acted in violation of section 482 of the Labour Code, which states that the request should have remained in the legal system until the trade union had made the relevant amendments.
3. 418. Therefore, on 22 November 1999, the trade union once again submitted its request for legal recognition. On 6 December 1999, and 17 and 24 January 2000, the trade union’s lawyer, Mr. Féliz Suazo, travelled to Tegucigalpa to inquire about the status of the request, but was persistently refused any kind of information. On 25 February 2000, the trade union and ITGLWF wrote to the Minister of Labour, Ms. Rosa Miranda de Galo, requesting her intervention in the matter. On 6 March 2000, the Secretary-General of the State Department for the Labour and Social Security Offices wrote to the Minister of Labour in response to the letter from the trade union, and recommended that legal recognition of the trade union be refused for three reasons: a lack of documentation, discrepancies between the founding documents and the by-laws, and the fact that two trade unions could not exist at the same time at Kimi.
4. 419. On the same day, that is, almost three months after the statutory deadline, the Director of Legal Services of the Ministry of Labour notified the trade union that its request had been rejected for not having followed the established legal procedure (by allowing the creation of an industrial trade union in one of the plants covered by a factory trade union which already existed) and that it was not appropriate for all of the 125,000 assembly industry workers of Honduras to be represented by the workers from two factories, given that 45 legally recognized trade unions already existed in that sector.
5. 420. On 26 April 2000, SITRAIMASH lodged a remedy of appeal to the Ministry of Labour, requesting that the relevant body revoke its decision; the Ministry has yet to reply. Furthermore, the complainant organization states that, even though section 476 of the Labour Code prohibits simultaneous membership of several trade unions of the same kind, or involved in similar activities, in this case, SITRAIMASH and the Trade Union of Workers of Kimi Enterprise of Honduras, S.A (SITRAKIMI) belong to two different categories (one is a factory trade union and the other an industry trade union). In any event, the former does not include members of the latter.

B. The Government’s reply

1. 421. According to the Government, the official recognition of SITRAIMASH was refused under the following circumstances. On 16 August 1999, the provisional executive committee of SITRAIMASH submitted a request for recognition and the registration of legal personality before the General Directorate of Labour of the State Department for the Labour and Social Security Offices. However, the request to the Directorate-General of Labour was withdrawn with the endorsement of Ms. Magdalia Erazo Palma in her capacity as General Secretary of the new trade union’s provisional executive committee, given that in accordance with section 508 of the Labour Code, “legal representation of the trade union shall be the function of the president of the executive committee and, in his or her absence, of the general secretary”. The Government stresses that the aforementioned observations show that the file was voluntarily withdrawn by the General Secretary of the trade union organization, not as a result of informal or unofficial action.
2. 422. However, on 22 November 1999, the new trade union submitted a new request through its representative. In January 2000, having assessed and studied the request, the Department of Social Organizations of the General Directorate of Labour issued the respective ruling in which it recommended the outright refusal of this request on the basis of sections 471, 472 (under which it is primarily for enterprise or primary trade unions to represent members in all labour relations), 481, 483, 2nd paragraph, and 510 of the Labour Code. The General Directorate of Labour approved this ruling on 31 January 2000, and the proceedings were sent to the Secretariat of Labour and Social Security for the corresponding legal formalities. On 9 February 2000, the Secretariat ordered the transfer of the proceedings concerning the request for recognition and the registration of legal personality of SITRAIMASH to the Directorate of Legal Services for the purposes of the ruling. It should be noted that the applicants’ legal representative should have been personally informed of this decision and should, therefore, have known of the ruling issued by the Department of Social Organizations, so that the respective amendments could be made. However, the representative did not respond in this manner. Indeed, one of the main causes of the delay in dealing with the file was the lack of acknowledgement given by this representative of the decision made by the Secretariat of Labour.
3. 423. This alleged violation of the right of defence can clearly be dismissed given that the time allowed for such action was not used, thus leading to the official notification to avoid a delay in the proceedings. On 3 March 2000, the Secretariat of Labour and Social Security issued a decision declaring that the request was unfounded since it was not in accordance with the law owing to errors of form, and because it sought to form this industrial trade union with workers from two enterprises, one of which (Kimi), at that time already had a registered trade union. The Government adds that this decision was made available to the legal representative for a period of one month, and, in view of the lack of action on his part, it made an official notification on 3 April 2000.
4. 424. In accordance with the law, the Secretariat of Labour has two days in which to notify the applicants’ legal representative of its definitive decision, when unfavourable to the parties involved, but, to their benefit, this was not done within the given period in order to make it easier for the trade union organization to lodge a relevant appeal. According to the law on administrative procedures, only a remedy of reconsideration would have been an appropriate response to the Secretariat’s decision, not a remedy of appeal, which was wrongly pursued by the legal representative, and declared to be inadmissible.
5. 425. Lastly, on 27 July 2000, the same applicants submitted a request for the recognition and registration of legal personality of the Trade Union of Workers of the Yoo Yang Enterprise, S.A. This request was processed and approved on 16 November 2000. The Government states that all workers who requested the establishment of the SITRAIMASH trade union enjoy the right of freedom of association through membership of the Yoo Yang Enterprise Trade Union (STEYY) or of the Trade Union of Workers of Kimi Enterprise of Honduras, S.A. (SITRAKIMI).

C. The Committee’s conclusions

1. 426. The Committee notes that this case relates to allegations of refusal to grant workers the right to establish organizations of their own choosing without previous authorization, and the obstruction of trade union pluralism. The Committee takes note that in this regard the Government of Honduras received the request for legal personality of SITRAIMASH, submitted on 16 August 1999, which was withdrawn on 9 September 1999 by a member of the trade union, and then resubmitted on 22 November 1999.
2. 427. The Committee observes that, according to the Government, the first application had not been processed when the General Secretary of the trade union prematurely withdrew it, whereas according to the complainant organization it was withdrawn, after the processing deadline had expired, by a trade union activist who was influenced by the official responsible for registration. The Committee takes note of these divergences, but notes that, in any event, the executive committee of the trade union submitted a second request.
3. 428. The Committee takes note that this new request for recognition and registration was rejected on the grounds of lack of form (missing documents and discrepancies between the registration of the founding instrument and the by-laws) and of content (the existence of a primary trade union and a trade union at the branch level at the same time).
4. 429. With regard to the errors of form, the Committee notes that there is a lack of evidence to make a judgement, but emphasizes that if the rejection of this request is based on a few formal errors that are difficult to correct, and if the conditions for the granting of registration are tantamount to obtaining previous authorization from the public authorities for the establishment or functioning of a trade union, this would undeniably constitute an infringement of Convention No. 87. This, however, would not seem to be the case when the registration of trade unions consists solely of a formality where the conditions are not such as to impair the guarantees laid down by the Convention [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 259].
5. 430. As for the substantive error invoked by the authorities to refuse legal recognition, namely the existence of a primary trade union and a trade union at the branch level at the same time, the Committee is bound to recall that under section 472 of the Labour Code even if it is primarily for enterprise or primary trade unions to represent members in all labour relations, this should not mean that an enterprise cannot have various trade unions of different levels at the same time. Indeed, the Committee recalls that workers should be able, if they so wish, to join trade unions at the branch level as well as the enterprise level at the same time [see Digest, 4th edition, 1996, para. 317]. Similarly, the Committee emphasizes that the free exercise of the right to establish and join unions implies the free determination of the structure and composition of unions, and that all workers should be free to decide whether they prefer to establish, at the primary level, a works union or another form of basic organization, such as an industrial or craft union [see Digest, 4th edition, 1996, paras. 275 and 279].
6. 431. Finally, the Committee notes that on 27 July 2000 the applicants who had made the aforementioned request asked the relevant authorities to recognize the Trade Union of Workers of the Yoo Yang Enterprise, S.A. and to grant it legal personality. This request was processed and accepted on 16 November 2000. The Committee also notes that, according to the Government, all workers who requested the establishment of the SITRAIMASH trade union enjoy the right of freedom of association through membership of the YOO YANG Enterprise Trade Union (STEYY) or of the Trade Union of Workers of Kimi Enterprise of Honduras, S.A. (SITRAKIMI). However, bearing in mind the right of workers to join a trade union at the branch level and at enterprise level at the same time, the Committee requests the Government to amend its legislation to bring it into conformity with Conventions Nos. 87 and 98, and so that it guarantees that workers have the right to form and join organizations of their own choosing. Moreover, the Committee requests the Government in this case, to inform it of the course of action adopted by the labour administration in response to any new requests submitted by the complainant for legal personality.

The Committee's recommendations

1. 432. In light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to take into account the following principles:
   • (i) the free exercise of the right to establish and join trade unions implies the free determination of the structure and composition of unions; and
   • (ii) workers should be free to decide whether they prefer to establish, at the primary level, a works union or another form of basic organization, such as an industrial or craft union.
   • (b) The Committee requests the Government to amend its legislation to bring it into conformity with Conventions Nos. 87 and 98, and so that it guarantees that workers have the right to form and join organizations of their own choosing.
   • (c) The Committee requests the Government, considering the foregoing, to inform it of the course of action adopted by the labour administration in response to any new requests submitted by SITRAIMASH for legal personality.