Report in which the committee requests to be kept informed of development - Report No 363, March 2012

Case No 2875 (Honduras) - Complaint date: 03-JUN-11 - Closed

Allegations: Anti-union dismissals and impediments to collective bargaining, mainly in various public institutions, and failure to comply with provisions of collective agreements

1. 664. The complaint is contained in a communication from the Unitary Federation of Honduran Workers (FUTH), dated 3 June 2011 and supported by eight Honduran trade unions.
2. 665. The Government sent its observations in communications dated 13 October 2011 and 12 March 2012.
3. 666. 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 complainants’ allegations

1. 667. In its communication of 3 June 2011, FUTH states that its complaint was also being presented by eight affiliated trade unions, namely, the Trade Union of Workers of the National Autonomous University of Honduras, with a legal address in the city of Tegucigalpa, Honduras; the Trade Union of Workers of the National Child Welfare Agency (SITRAPANI); the Trade Union of Workers of the National Registry Office (SITRARENAPE); the Trade Union of Workers of the National Agrarian Institute, Branch No. 3, Aguan (SITRAINA); the Trade Union of Workers of Industria Cementera Hondureña SA, known as Lafarge INCEHSA; the Trade Union of Workers of the Retirement and Pensions Institute for Public Employees and Civil Servants in the executive branch (STRAINJUPEMP), the Trade Union of Workers of the Municipality of Danlí, El Paraíso; and the Trade Union of Workers of the Venus Confectionery Factory.
2. 668. FUTH alleges that, on 24 January 2011, the Chancellor of the National Autonomous University of Honduras arbitrarily dismissed the worker Marco Antonio Moreno, the President of Branch No. 1 of the Trade Union of Workers of the National Autonomous University of Honduras, and in doing so violated the procedure stipulated in the Labour Code. It also alleges that the university authorities consistently refused to negotiate the 15th collective agreement.
3. 669. Furthermore, FUTH alleges that, on 3 November 2011, the President of SITRAPANI, Mr Pedro Elvir, was attacked and followed all the way to his home by unknown persons riding a motorcycle. The persons responsible for planning and perpetrating the attack are unknown. FUTH considers that the reason for the attack was the trade union’s persistent complaints about attempts to privatize the institution.
4. 670. FUTH adds that, on 3 May 2006, the State granted legal personality to SITRARENAPE. However, although it granted legal personality to a trade union of public employees, it also curtailed and restricted its right to collective bargaining by issuing Decree No. 3475, which changed the legal personality of the National Registry Office by curtailing its autonomy and maliciously restricting the right of workers to conclude a collective agreement.
5. 671. Furthermore, FUTH alleges that, on 17 April 2011, 60 workers of the Venus confectionery factory, including the central executive board covered by the legal protection of trade union immunity, were dismissed.
6. 672. On 30 September 2010, one worker, Mr Gerson Daniel Mendoza Martínez, a permanent official of SITRAINA, was dismissed without regard for the procedure stipulated in the collective agreement. This was a violation of due process and the special legal protection afforded by the State to trade union activities.
7. 673. FUTH also states that the Trade Union of Workers of the Retirement and Pensions Institute of Honduras reports repeated violations of the collective agreement and particularly section 20 thereof, in connection with the granting of contracts of indeterminate duration to 100 temporary workers who should, under this section, have acceded to permanent status. As a result, the trade union was forced to initiate administrative and legal proceedings when the contracts of the workers in question were not renewed. One of the workers was even covered by trade union immunity since he was a member of the bargaining committee, in accordance with section 6 of the collective agreement.
8. 674. Lastly, on 4 January 2011, 48 workers of the Municipality of the city of Danlí, El Paraíso, were dismissed without just cause, in violation of the constitutional guarantee of the right to work, the right to trade union immunity and the special legal protection of the State, given that the dismissed workers include members of the full central executive board, members of the honour and discipline committee and trade union officials. Section 7 of the collective agreement was thus also violated.

B. The Government’s reply

1. 675. In its communications dated 13 October 2011 and 12 March 2012, the Government refers to the case of the National Autonomous University of Honduras, in which the institution’s trade union reported the dismissal of Mr Marco Antonio Moreno, the President of Branch No. 1, alleging violations of Conventions Nos 87 and 98 because of a lack of due process and a failure to follow the procedure set forth in the Labour Code, as well as the refusal by the employer party to negotiate the 15th collective agreement.
2. 676. In this regard, the Government states that: (a) the National Autonomous University of Honduras turned to the labour courts in Francisco Morazán to seek the lifting of the trade union immunity of Mr Marco Antonio Moreno, and the case is now awaiting a ruling following an extraordinary appeal for amparo lodged by the abovementioned trade union leader with the Supreme Court of Justice; and (b) bargaining began on 14 February 2001 between the National Autonomous University of Honduras and the trade union of workers of that institution over a collective agreement on working conditions; at present, after two rounds of negotiations, it was agreed to enter the conciliation stage.
3. 677. As regards the case of SITRAPANI, it is stated in the complaint that on 3 November 2010, Mr Pedro Elvir, the President of the trade union was attacked and followed all the way to his home by unknown persons riding a motorcycle. The location of the persons responsible for planning and perpetrating the attack is unknown. It is alleged that the reason for the attack was the trade union’s persistent complaints about attempts to privatize the institution.
4. 678. In this regard, the Government states that there is no record of any complaint about the alleged attack on Mr Pedro Elvir being lodged with the institutions responsible, in Honduras, for investigating citizens’ reports of offences committed (the Directorate of criminal investigation (DGIC) and the Public Prosecutor’s Office). Routine enquiries have uncovered no complaint involving the abovementioned attack on Mr Pedro Elvir.
5. 679. As regards the allegation concerning SITRARENAPE and the restriction on the right to collective bargaining resulting from changes to the legal personality of the National Registry Office, the Government states that: (a) the State of Honduras, acting through the Ministry of Labour and Social Security, recognized the abovementioned legal personality and approved the statutes of the trade union, as a trade union of public employees, in a decision dated 19 April 2005; (b) subsequently, the abovementioned Ministry responded to a written application by Ms Ana Julia Arana Canales, the President of the trade union, by adopting, pursuant to a decision dated 24 November 2006, a comprehensive reform of the statutes of the trade union as a trade organization; (c) on 25 April 2011, following another application by the President of the trade union, a further reform of the statutes was adopted but the trade union’s status as a trade organization remained unchanged; and (d) the National Registry Office is now an autonomous institution with its own legal personality, and the status of that institution’s trade union as a trade organization remains unchanged. The Government adds that, in light of the above, the State of Honduras has not acted to curtail or restrict the right to collective bargaining of SITRARENAPE, and that any amendment that was approved was made at that trade union’s request.
6. 680. As regards the case of the Venus confectionery and chewing gum factory, it is claimed that 60 workers, including the central executive board of the trade union, were dismissed on 17 April 2010, and that the right to job security and the right to freedom of association were correspondingly violated. The Government states that: (a) on 23 March 2010, an application for the recognition and registration of legal personality was filed with the Ministry of Labour by the Trade Union of Workers of the Venus Confectionery and Chewing Gum Factory; (b) the Ministry issued a decision on 20 April 2010 in which it recognized and granted the requested legal personality, which was made public on 23 April 2010 and is recorded in the register of trade union organizations; (c) the full executive board continues to be made up of six trade union officers; and (d) the General Labour Inspectorate in the Ministry of Labour carried out an inspection in the factory on 12 July 2010 and placed on record its observations on instances of intimidation and violations of the legislation, specifically: the dismissal of a number of workers for having stated their intention to establish a trade union under the protection of the State, the failure to allow a number of workers to go on leave, the failure to pay a 13th month’s wages as a bonus to a number of workers, and the withholding of a fourteenth month’s wages as social compensation for 2009; to date, the Department of Conciliation, Mediation and Arbitration has processed 13 applications for conciliation from workers of the factory who have fully utilized this body and instead referred their case to the judicial authorities. According to the Government, its actions have been consistent with its duty to protect trade union immunity, the right to job security and the right to freedom of association.
7. 681. Regarding the allegation that, on 30 September 2010, one worker, Mr Gerson Mendoza Martínez, a permanent official of Branch No. 3 of the Trade Union of Workers of the National Agrarian Institute, was dismissed without regard for the procedure set forth in the collective agreement, thereby violating due process and trade union immunity, the Government states that the worker in question referred his case to the Labour Court on the grounds that he had been illegally dismissed because he was entitled to trade union immunity; he was reinstated in compliance with a judicial order and is currently working at the Institute. The employer lodged an appeal against the reinstatement order, but the appeal was dismissed.
8. 682. Regarding the complaint by the STRAINJUPEMP concerning the violation of section 20 of the collective agreement that entered into force on 1 January 2009, as a result of the indefinite extension of the temporary contracts of 100 workers, including the dismissal of one worker who was entitled to trade union immunity because he was a member of the bargaining committee under section 6 of the collective agreement, the Government states, with regard to the complaint about the violation of section 20 of the collective agreement currently in force, that the section in question stipulates the following: “Temporary contracts. The Institute shall conduct an analysis to determine the need for posts and approach the relevant bodies with a view to granting permanent status to all non-permanent employees (12,100).” It is clear from the wording of the section that, after having conducted the analysis, the Institute will decide whether or not posts need to be created in order to absorb staff on temporary contracts and grant them permanent status, while taking into consideration the institution’s needs and financial resources; furthermore, the STRAINJUPEMP has taken legal action through the Labour Court in Francisco Morazán to secure compliance with section 20, and the Retirement and Pensions Institute for Public Employees and Civil Servants in the executive branch (INJUPEMP) will respect, in other words comply with, the ruling of that judicial body in a spirit of respect for the principle of legality and the rule of law.
9. 683. Regarding the dismissal of a member of the bargaining committee negotiating the new collective agreement, the Government states that the dismissal of Mr Nerli Gonzales Baquedano did have a just cause and did not take place until negotiations in the direct settlement stage had been exhausted. Notwithstanding the above, the worker used the legal mechanisms provided by the State and referred his case to the Labour Court on 16 March 2011, applying for reinstatement. For this reason, the ordinary courts of the Republic of Honduras will determine the correct outcome in accordance with the law, and the INJUPEMP, as a State institution, will fully comply with the court order.
10. 684. Regarding the alleged dismissal without explanation of 48 workers of the Municipality of the city of Danlí, El Paraíso, on 4 January 2011, in violation of the right to trade union immunity, because the dismissal of the members of the central executive board, members of the honour committee and trade union officials violated section 7 of the collective agreement, the Government states that as a result of the dismissals denounced by the workers, the Ministry of Labour and Social Security, acting through the Directorate-General for Labour, intervened with the intention of securing a conciliatory settlement that protected the workers’ rights, but no such conciliatory settlement was achieved and as a result the workers referred their case to the Labour Court in Francisco Morazán. The proceedings are now at the evidentiary stage and if the court rules in favour of the workers, the Municipality of Danlí, El Paraíso, will be obliged to comply.

C. The Committee’s conclusions

1. 685. Regarding the allegations relating to the National Autonomous University of Honduras (refusal by the university authorities to negotiate the 15th collective agreement, and the dismissal of trade union officer Marco Antonio Moreno), the Committee notes the Government’s statements to the effect that: (1) negotiation of the collective agreement has started and has entered the conciliation stage, and (2) the University authorities have initiated legal proceedings to seek the lifting of the trade union immunity of Mr Marco Antonio Moreno, and the case is now awaiting a ruling from the Supreme Court of Justice following an extraordinary appeal for amparo. The Committee requests the Government to inform it of the amparo ruling and of the outcome of the legal proceedings initiated by the National Autonomous University to seek the lifting of the trade union immunity of Mr Marco Antonio Moreno, and to send it information on the progress of collective bargaining – currently in the stage of conciliation – between the University and the trade union.
2. 686. Regarding the alleged restriction of collective bargaining at the National Registry Office arising from Decree No. 3475, which allegedly curtailed the freedom of that institution to bargain collectively, the Committee notes the Government’s statements according to which: (1) the National Registry Office is an autonomous institution with a legal personality; (2) no action has been taken to curtail the right to collective bargaining; and (3) the trade union continues to have the status of a trade organization, and the amendments to the trade union’s statutes were adopted at the trade union’s request. The Committee considers that FUTH has failed to explain how Decree No. 3475 restricts the right to collective bargaining at the National Registry Office, and will not pursue its examination of this allegation unless FUTH provides new evidence.
3. 687. Regarding the alleged attack on Mr Pedro Elvir, the President of SITRAPANI, who was followed by unknown persons, allegedly because of the trade union’s complaints about attempts to privatize the institution, the Committee takes note of the Government’s statements, from which it is clear that trade union officer Mr Pedro Elvir has not lodged a complaint with the authorities concerning this incident. The Committee invites the complainants to report the incident to the national authorities responsible for criminal prosecutions, and requests to be kept informed in this regard.
4. 688. Regarding the dismissal, on 17 April 2010, of 60 workers of the Venus confectionery and chewing gum factory, including the members of the central executive board of the trade union, the Committee takes note of the Government’s statements, according to which: (1) the General Labour Inspectorate has placed on record, among other violations of the legislation, the dismissal of a number of workers for having stated their intention to establish a trade union; and (2) the administrative authorities have processed 13 conciliation applications submitted by workers who then referred their case to the judicial authorities once they had exhausted their options with that body. The Committee observes that the Government does not recognize that 60 workers have been dismissed but indicates that the inspection revealed dismissals of many workers and that only 13 conciliation applications have been submitted. The Committee expresses its concern over the alleged dismissal of all the members of the central executive board of the trade union, and over the fact that there has been no judicial ruling since the dismissals occurred (in April 2010). The Committee firmly expects that the judicial authorities will hand down their decision without delay and requests the Government to keep it informed of the eventual ruling. The Committee requests the Government and the complainant to indicate whether there have been other dismissals which have not yet been addressed and to provide information in this regard.
5. 689. Regarding the dismissal on 30 September 2010 of Mr Gerson Mendoza Martínez, a trade unionist in the Trade Union of Workers of the National Agrarian Institute, without regard for the procedure stipulated in the collective agreement, the Committee notes the Government’s statement according to which the abovementioned trade unionist was reinstated in compliance with a judicial order within the framework of the legal proceedings he had initiated.
6. 690. Regarding the alleged violations by the INJUPEMP of the collective agreement in force and particularly section 20 thereof, which jeopardized 100 workers with temporary contracts who should have been granted contracts of indeterminate duration and currently have no contracts (including a trade union representative who, as a member of bargaining committee, is also protected by section 6 of the collective agreement), the Committee observes that the Government indicates that the granting of permanent status to temporary workers under section 20 of the collective agreement is subject to an analysis of the institution’s needs and financial resources. The Committee also notes that the Government confirms that the trade union initiated legal proceedings and that the trade union representative in question, Mr Nerli Gonzales Baquedano, has also filed a legal application for reinstatement, even though the Government states that the dismissal did have a just cause and did not take place until negotiations in the direct settlement stage had been exhausted. The Committee requests the Government to inform it of the rulings made by the judicial authorities.
7. 691. The Committee observes that in this case, allegations have been made on the basis of problems with the interpretation of certain sections of collective agreements. The Committee suggests that the Government should take the necessary steps to ensure that the examination of these problems is entrusted to an independent commission trusted by both parties, or take measures to encourage parties to collective bargaining to include voluntary mechanisms for resolving conflicts over the interpretation of collective agreements.
8. 692. Regarding the allegation that, on 4 January 2011, 48 workers of the Municipality of the city of Danlí, El Paraíso, were dismissed without just cause, in violation of the collective agreement, and that the dismissed workers included members of the central executive board, members of the honour and discipline committee and trade union representatives, the Committee notes that the Government indicates that the administrative authorities did intervene, albeit unsuccessfully, in an attempt to arrive at a conciliatory settlement, and that as a result, the workers concerned took legal action. The Committee requests the Government to inform it of the eventual rulings.
9. 693. In general, the Committee observes that in two of the cases in this complaint, entire trade union councils have been dismissed. The Committee wishes to express its concern with regard to this situation and recall the principle that no person should be dismissed or prejudiced in employment by reason of trade union membership or legitimate trade union activities, and it is important to forbid and penalize in practice all acts of anti-union discrimination in respect of employment [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 771], as well as the fact that rapid and effective protection against anti-union discrimination is particularly necessary in the case of trade union officials.

The Committee’s recommendations

1. 694. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to inform it of the rulings handed down in the legal proceedings initiated by the National Autonomous University to seek the lifting of the trade union immunity of trade union official Mr Marco Antonio Moreno and in the appeal proceedings for amparo recently initiated by the trade union leader before the Supreme Court of Justice, as well as to provide information on the progress of collective bargaining between the University and the trade union.
   • (b) Regarding the alleged attack on Mr Pedro Elvir, the President of the Trade Union of Workers of the National Child Welfare Agency, who was followed by unknown persons, allegedly because of the trade union’s complaints about attempts to privatize the abovementioned institution, the Committee invites the complainant organizations to report the incident to the authorities responsible for criminal prosecutions, and requests to be kept informed in this regard.
   • (c) Regarding the allegations of anti-union dismissals, on 17 April 2010, at the Venus confectionery and chewing gum factory, the Committee expresses its concern at the dismissal of 13 workers, including, according to the allegations, all of the members of the central executive board of the trade union, and that there has been no judicial ruling since the dismissals occurred (in April 2010). The Committee firmly expects that the judicial authorities will hand down their decision without delay and requests the Government to keep it informed of the eventual ruling. The Committee requests the Government and the complainant to indicate whether there have been other dismissals which have not yet been addressed and to provide information in this regard.
   • (d) The Committee requests the Government to inform it of the rulings made by the judicial authorities in the ongoing proceedings concerning the dismissal of trade unionist Mr Nerli Gonzales Baquedano and the failure to renew the contracts of 100 workers of the INJUPEMP, who should have been granted contracts of indeterminate duration under the relevant provision of the collective agreement in force.
   • (e) The Committee observes that in this case, allegations have been made on the basis of problems with the interpretation of certain sections of collective agreements. The Committee suggests that the Government should take the necessary steps to ensure that the examination of these problems is entrusted to an independent commission trusted by both parties, or take measures to encourage parties to collective bargaining to include voluntary mechanisms for resolving conflicts over the interpretation of collective agreements.
   • (f) Regarding the allegation that, on 4 January 2011, 48 workers of the Municipality of the city of Danlí, El Paraíso, were dismissed without just cause, in violation of section 7 of the collective agreement, and that the dismissed workers included members of the central executive board, members of the honour and discipline committee and trade union representatives, the Committee requests the Government to inform it of the eventual rulings.
   • (g) In general, the Committee observes that in two of the cases in this complaint, entire trade union councils have been dismissed, and the Committee wishes to express its concern with regard to this situation and recall the principle that no person should be dismissed or prejudiced in employment by reason of trade union membership or legitimate trade union activities, and it is important to forbid and penalize in practice all acts of anti-union discrimination, a protection that is particularly necessary and should be rapid and effective in the case of trade union officials.