Report in which the committee requests to be kept informed of development - Report No 350, June 2008

Case No 2558 (Honduras) - Complaint date: 26-MAR-07 - Closed

Allegations: Failure of the enterprise Cervecer?a Hondureña SA de CV to give effect to rulings ordering the reinstatement of dismissed union members

1. 913. The complaint is contained in communications of 26 and 30 March 2007 of the Union of Workers of the Drink and Allied Industries (STIBYS). The Government sent its observations in a communication dated 28 February 2008.
2. 914. 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. 915. In its communications of 26 and 30 March 2007, the Union of Workers of the Drink and Allied Industries (STIBYS) alleges that the enterprise Cervecería Hondureña SA de CV in the cities of La Ceiba and Tegucigalpa was ordered in final rulings to reinstate various workers in their posts, pay the wages that they had not received between the date of termination of their contract of employment and their reinstatement and to pay their other entitlements in accordance with the collective labour agreement. The persons concerned in the city of La Ceiba are Fredy Dueñas and Leonel Afgueta Moreno, dismissed despite their right to trade union immunity as members of the central executive board of the STIBYS and, in Tegucigalpa, in accordance with the ruling of the Second Labour Court, Oscar Ramón Vallejo Montoya, Luis Alonso Valladares, José Javier Núñez Duarte, Julio César García Ayala, Hugo Francisco Varela Valladares, Olman Antonio Sierra Ortez and Jorge Adolfo Carranza. The enterprise is not complying with these orders.
2. 916. The complainant organization indicates that, despite the fact that these workers were reinstated in their posts by court order at the premises of the enterprise in Tegucigalpa on 9 February 2007 and in La Ceiba on 12 February 2007 following legal proceedings for the enforcement of the ruling, in practice the enterprise is not allowing these workers to enter the workplace, nor has it issued them with their workbooks or assigned them to jobs, which constitutes the offence of disobedience as set out in section 346 of the Penal Code.
3. 917. Despite this ill-treatment, the reinstated workers have complied with their hours of work since their reinstatement (9 and 12 February 2007). The complainant attaches the rulings of the two labour courts of La Ceiba and Tegucigalpa and of the Supreme Court of Justice, and the report by the labour judge who was prevented from entering the premises of the Cervecería Hondureña SA de CV.
4. 918. Under the terms of the collective agreement applicable to the enterprise Cervecería Hondureña SA, “The enterprise hereby affirms that if it were to be decided to separate or divide its current operations while the present collective labour agreement remains in force, compliance with the corresponding obligations contained in the collective agreement that is in force shall be guaranteed in this enterprise and in the new enterprise.” In view of the above, the STIBYS considers it appropriate to denounce the State of Honduras so that it can be reprimanded for not compelling the enterprise Cervecería Hondureña SA de CV to comply with the Constitution, section 113 of the Labour Code and ILO Conventions Nos 87 and 98 in so far as they relate to employment stability, and accordingly to comply with the final rulings handed down by the courts in these cases. According to the rulings, the dismissals occurred after the enterprise invoked the need for an adjustment of its staff, but without complying with the termination procedure envisaged in the collective agreement.

B. The Government’s reply

1. 919. In its communication dated 28 February 2008, the Government states that at no time did the enterprise Cervecería Hondureña SA de CV fail to give effect to a final ruling or order handed down by the judicial authorities of the Republic of Honduras, as recorded in the proceedings of the courts of the Republic.
2. 920. The Government observes in relation to Oscar Ramón Vallejo Montoya, Luis Alonso Valladares, José Javier Núñez Duarte, Julio César García Ayala, Hugo Francisco Varela Valladares, Olman Antonio Sierra Ortez and Jorge Adolfo Carranza that, based on the ordinary application to demonstrate justified reason for termination of employment, the Second Labour Court in its final judgement of 24 November 2004 found in favour of the plaintiff and convicted the enterprise to: (a) the payment in damages of the unpaid wages until reinstatement is effective, as well as the payment of acquired entitlements; and (b) enforcement of the ruling in the event that the employer is unwilling to carry out reinstatement.
3. 921. The Government indicates that the ruling was appealed to the Labour Appeal Court of the Department of Francisco Morazán, which set aside the appeal in a final judgement of 21 January 2005 and confirmed the ruling of the court of first instance. The legal representative of the employer then lodged an extraordinary appeal in cassation with the Administrative Labour Disputes Chamber of the Supreme Court of Justice which, in a decision of 10 March 2006, set aside the appeal and sent the case back to the Labour Appeal Court in May 2006. The Government attaches a copy of the ruling of the Court of Cassation.
4. 922. The Government adds that after the order referred to above requiring the reinstatement of the workers was handed down by the Second Labour Court of the Department of Francisco Morazán, the Cervecería Hondureña SA de CV in good faith and, in compliance with the proposed ruling “(b) enforcement of the ruling in the event that the employer is unwilling to carry out reinstatement”, accepted and reinstated the workers concerned in accordance with the reinstatement order (attached by the Government), which was signed by the legal representative of the STIBYS, as certified on the copy of the order dated 23 March 2007, which was authorized by the judge and clerk of the Second Labour Court.
5. 923. In relation to the allegations that the unpaid wages have not been received, the Government attaches the internal document and a copy of the communication sent to the Prosecutor Tito Vásquez detailing the cheques corresponding to the unpaid wages, dated 30 March 2007, which were received by each of the workers.
6. 924. The Government indicates that Leonel Argueta Moreno, the only member of the union’s executive board who was dismissed and who accordingly benefited from trade union immunity, was reinstated in his post on 4 April 2007. Argueta Moreno continues to work in the enterprise, as agreed between the STIBYS and the enterprise Cervecería Hondureña SA de CV. The Government attaches documentation demonstrating compliance with the reinstatement order and the ruling.
7. 925. In view of the above, in relation to the information requested, and as the enterprise Cervecería Hondureña SA de CV has given effect to the rulings, the Government calls for the case to be closed. The Government attaches the following: (1) certification of the ruling in cassation handed down by the Labour Chamber of the Supreme Court of Justice dated 10 March 2006; (2) the record of the proceedings before the Second Labour Court of the Department of Francisco Morazán dated 23 March 2007; (3) the communication sent to Prosecutor Tito Vásquez containing the details of the cheques for the unpaid wages issued to José Javier Núñez Duarte, Luis Alonso Valladares, Olman Antonio Sierra, Oscar Ramón Vallejo, Jorge Adolfo Carranza, Julio César García Ayala and Hugo Francisco Varela; (4) the internal electronic mail detailing the cheques for the entitlements of the dismissed workers; and (5) a copy of the contract of employment of Leonel Argueta Moreno.

C. The Committee’s conclusions

1. 926. The Committee notes that in the present case the complainant organization alleges that, following the dismissal of Fredy Dueñas and Leonel Argueta Moreno, both members of the central executive board of the STIBYS, and seven other workers, all of whom obtained final reinstatement orders, the enterprise Cervecería Hondureña SA de CV is preventing the return of these workers to their workplaces and refuses to assign them to jobs. The judgements found that these dismissals, for which the enterprise cited the need for staff adjustment, were decided upon without complying with the procedure envisaged in the collective agreement.
2. 927. The Committee notes the Government’s reply denying that the workers in the enterprise have been victims of any violation of their rights and the attached documents: (1) the certification of the ruling in cassation handed down by the Labour Chamber of the Supreme Court of Justice dated 10 March 2006; (2) the record of the proceedings before the Second Labour Court of the Department of Francisco Morazán dated 23 March 2007; (3) the communication sent to Prosecutor Tito Vásquez containing the details of the cheques for unpaid wages issued to José Javier Núñez Duarte, Luis Alonso Valladares, Olman Antonio Sierra, Oscar Ramón Vallejo, Jorge Adolfo Carranza, Julio César García Ayala and Hugo Francisco Varela; (4) the internal electronic mail detailing the cheques for the entitlements of the dismissed workers; and (5) a copy of the contract of employment of Leonel Argueta Moreno (reinstated on 4 April 2007, that is a few days after the complaint was presented to the Committee).
3. 928. The Committee understands, based on the Government’s statements, that effect has been given to the reinstatement orders handed down by the courts and that the unpaid wages of the seven trade union members and of the trade union leader Leonel Argueta Moreno have been received by them. The Committee nevertheless observes that the Government has not referred to the dismissal or reinstatement of Fredy Dueñas (member of the central executive board of the STIBYS according to the complainant organization) and requests it to indicate without delay whether the latter has been effectively reinstated in his post in compliance with the reinstatement order handed down by the courts.

The Committee's recommendations

1. 929. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • The Committee understands that effect has been given to the reinstatement orders handed down by the courts and that the unpaid wages of the seven trade union members and of the trade union leader Leonel Argueta Moreno have been received by them. The Committee nevertheless observes that the Government has not referred to the alleged dismissal or the reinstatement of Fredy Dueñas (member of the central executive board of the STIBYS according to the complainant organization) and requests it to indicate without delay whether the latter has been effectively reinstated in his post in compliance with the reinstatement order handed down by the courts.