Definitive Report - Report No 384, March 2018

Case No 3152 (Honduras) - Complaint date: 27-MAY-15 - Closed

Allegations: The complainant organization alleges the failure to deduct union dues from all workers in the enterprise

1. 346. The complaint is contained in a communication from the Trade Union of Postal Workers of Honduras (SITRAHONDUCOR) dated 25 May 2016.
2. 347. The Government sent its observations in communications dated 2 March and 28 August 2017.
3. 348. 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. 349. In its communication dated 25 May 2016, the complainant organization indicates its decision to withdraw the allegations contained in two previous communications. It also states that, on 23 November 2015, representatives of the Directorate of Legal Services of the Ministry of Labour and Social Security (STSS), of the Post Office of Honduras (HONDUCOR, hereinafter the Enterprise), of SITRAHONDUCOR and of the Workers’ Confederation of Honduras (CTH) signed a special accord in which they agreed, among other things, that the director of the Enterprise would request the STSS to issue an opinion on the dues to be deducted from the workers of the Enterprise, on the basis of Decree-Law No. 30 of 15 March 1973 and clause 27 of the prevailing collective agreement, and would make those deductions for all employees, with the exception of employees in a position of trust. The opinion in question concerns the deductions payable by non-unionized workers benefiting directly from a collective agreement on working conditions in force, for a sum equal to the ordinary union dues. The documents provided by the complainant organization include legal opinion No. 225/DSL/2015 of 4 November 2015 from the Directorate of Legal Services of the STSS, which concluded that “if an employee wishes to voluntarily leave the trade union association to which he or she belongs and if the individual directly enjoys the labour gains achieved by the trade union, he or she should also pay the percentage equivalent to the ordinary dues already established by the trade union, as per article 60-A of the Labour Code in force, as the enjoyment of those labour gains or rights brings with it obligations for the individual with the trade union association”.
2. 350. The complainant organization alleges that, in 2015, the salary deductions that should have been made of an amount equivalent to 1 per cent of the monthly salary did not cover all the workers benefiting from the prevailing collective agreement on working conditions and that, consequently, they should contribute an amount equal to the ordinary dues paid by the workers affiliated to the organization. It adds that the amounts that were deducted from the workers’ salaries by the Enterprise management as union dues were not transmitted to SITRAHONDUCOR and that, in February 2016, the sums in question were reimbursed to the employees.

B. The Government’s reply

1. 351. The Government sent its observations in response to the complainant organization’s allegations in communications dated 2 March 2017 and 28 August 2017.
2. 352. In its communication dated 2 March 2017, the Government confirms that the Enterprise requested the STSS to issue an opinion on deducting 1 per cent from the salary of all employees. The Directorate of Legal Services of the STSS stated that trade unions are associations that individuals are free to join and to leave and that, if workers benefit from the collective agreement, they should pay the 1 per cent but there should be an option of not having the amount deducted if the individual does not benefit from the labour gains.
3. 353. The Government explains, secondly, that the SITRAHONDUCOR has ignored all requests to provide the necessary documentation for the deduction of union dues, in accordance with article 526 of the Labour Code. The provision in question states: “In order to proceed with the deduction of union dues, the trade union must submit the following documents to the enterprise: (a) a copy of the relevant excerpt of the union’s general assembly minutes in which authorization was given to deduct the dues, by a majority vote of the total number of members; the copy of the document must be provided with a list of all the participants; (b) the payroll, in duplicate, certified by the president, the secretary and the legal adviser, of all the members registered at the time of the authorization, who will have their union dues deducted even if they have voted against the authorization or have expressed their wish to no longer have their dues deducted; and (c) for individuals who join the union at a later date, notifications of new membership, certified as per the previous clause”. It also indicates that over 400 employees of the Enterprise requested the enterprise’s highest authorities not to deduct the 1 per cent of their monthly salary for union dues. The Government adds that, owing to the problems between employees of the Enterprise and SITRAHONDUCOR members, the Enterprise’s legal advisory department, through the General Labour Inspectorate, requested the STSS to appoint a mediator. It states that, in the Enterprise, the rights to freedom of association and to organize have always been respected, there have been no violations of the provisions of a treaty or international Convention, and every attempt has been made to maintain order and a healthy working environment.
4. 354. In its communication dated 28 August 2017, the Government states that the Enterprise, which is attached to the Ministry of Infrastructure and Public Services (INSEP), was instructed to deduct the union dues. The Government sends a copy of a communication dated 21 August 2017, in which the Director-General of the Enterprise states that SITRAHONDUCOR was requested to provide the information relating to the Integrated Financial Administration System (SIAFI) to be able to proceed with the transfers.

C. The Committee’s conclusions

1. 355. The Committee observes that the allegations relate to the non-deduction, in 2015, of the amounts equivalent to ordinary trade union dues from all workers benefiting from the prevailing collective agreement on working conditions (with the exception of employees in a position of trust); they also relate to the reimbursement to the employees, in February 2016, of the amounts retained by the Enterprise
2. 356. The Committee notes that, according to the Government: (i) a worker can voluntarily leave the trade union association to which he or she belongs and only those non-unionized workers benefiting from the collective agreement on working conditions have an obligation to pay the trade union; (ii) the complainant organization has ignored all the requests for the documentation required by law in order to proceed with the deduction of the union dues; and (iii) the suspension of salary deductions coincided with complaints by employees of the Enterprise.
3. 357. The Committee also observes that, in the legal opinion dated 4 November 2015, in response to a request relating to the contributions to be deducted from workers of the Enterprise, the Directorate of Legal Services of the Ministry of Labour and Social Security (STSS) concluded that there is an obligation to contribute when the employee directly enjoys the labour gains achieved by the trade union, on the basis, among others, of clause 27 of the prevailing collective agreement between the Enterprise and SITRAHONDUCOR, and the relevant provisions of the Labour Code.
4. 358. Finally, the Committee observes that the situation appears to be close to being resolved, as in its most recent communication the Government states that the Enterprise has been ordered to deduct the trade union dues, with the complainant organization having been requested to provide the necessary information to make the bank transfer.
5. 359. With regard to the collection of the trade union dues and their management, the Committee recalls that the withdrawal of the check-off facility, which could lead to financial difficulties for trade union organizations, is not conducive to the development of harmonious industrial relations and should therefore be avoided. It should also be recalled that trade union dues do not belong to the authorities, nor are they public funds, but rather they are an amount on deposit that the authorities may not use for any reason other than to remit them to the organization concerned without delay. The Committee also recalls that when legislation admits trade union security clauses, such as the withholding of trade union dues from the wages of non-members benefiting from the conclusion of a collective agreement, those clauses should only take effect through collective agreements [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, paras 475, 479 and 480].
6. 360. The Committee trusts that, once the necessary information has been obtained to order the bank transfer, the Government will proceed without delay to pay back to the complainant organization the amounts retained, either as trade union dues or as contributions by non affiliated workers benefiting from the prevailing collective agreement on working conditions.

The Committee’s recommendation

1. 361. In light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • The Committee trusts that, once the necessary information has been obtained to order the bank transfer, the Government will proceed without delay to pay back to the complainant organization the amounts retained, either as trade union dues or as contributions by non-affiliated workers benefiting from the prevailing collective agreement on working conditions.