Definitive Report - Report No 401, March 2023

Case No 3366 (Honduras) - Complaint date: 09-NOV-18 - Closed

Allegations: The complainant organization alleges the refusal by the Secretariat of Internal Affairs, Justice and Decentralization to register the executive board of the National Association of Public Sector Employees

1. 480. The complaint is contained in communications of 9 November 2018 and 23 May 2019 presented by the Single Confederation of Workers of Honduras (CUTH).
2. 481. The Government of Honduras sent its observations in communications of 31 October 2019, 5 October 2022 and 17 February 2023.
3. 482. 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. 483. In its communication of 9 November 2018, the CUTH alleges the interference by officials of the Secretariat of Internal Affairs, Justice and Decentralization (SGJD) in the internal affairs of its affiliate, the National Association of Public Sector Employees (ANDEPH), based on its rejection of an application for registration of the executive board for the 2018–22 period, concealment of notification of this rejection, request to the members of this board to resign from their positions owing to their disagreement with their election and, subsequently, convocation of a congress of ANDEPH members in order to elect a new executive board.
2. 484. The complainant indicates that, on 13 March 2018, ANDEPH held an ordinary national congress of members in which, independently and in accordance with the applicable legislation and its constitutions, the national executive board for the 2018–22 period was elected. The complainant indicates that an application was made for the board’s registration to the Directorate for the Regulation, Registration and Monitoring of Public Associations of the SGJD in a written communication of 21 March 2018. A copy of the communication is attached to the complaint, showing that the board was chaired by Rubén Matute Sarmiento, with Fredy Nahúm Gómez as General Secretary. In addition, the complainant indicates that the above-mentioned application for registration was ultimately rejected by the SGJD by resolution No. 1465-2018 of 13 September 2018 and that, as the SGJD concealed notification of that resolution, it only came to light on 5 November 2018, when the deadline for filing the corresponding appeal against the decision had passed.
3. 485. The complainant also indicates that, in private meetings, certain SGJD officials requested the members of the executive board elected on 13 March 2018, in an illegal, arbitrary, abusive and ill-intentioned manner, to resign from their positions after expressing disagreement with their election. In addition, the complainant indicates that on 7 November 2018, a congress of ANDEPH members was held in Comayagua, convened by the SGJD in order to appoint a new executive board, the members of which, it indicates, were close to the incumbent SGJD Secretary of State.
4. 486. In its communication of 23 May 2019, the complainant reiterates the above allegations and adds that the challenge it filed against the appointment of the executive board elected on 7 November 2018 was declared inadmissible, and that it subsequently filed an appeal in that respect.
5. 487. In its above-mentioned communications, the complainant states that the situations described above did not allow ANDEPH to develop its operational plans for ten months and that various actions were taken, and several national and international complaints were filed in this regard. These include a note sent on 29 May 2018 to the Secretary of State of the SGJD by the elected Chairperson of ANDEPH, Mr Matute, and the lodging of a complaint with the Human Rights Commissioner of Honduras dated 12 July 2018, both of which are attached to the complaint. In the complaint it is stated that César Chirinos Andrade, Mario Isaac Zelaya and Joel Villalta Romero had illegitimately requested the SGJD to register another executive board, assuming functions not conferred on them, just as they had done in 2014 with the backing of officials of the SGJD.

B. The Government’s reply

1. 488. In its communication of 31 October 2019, the Government provides information on various administrative proceedings that took place in 2018 regarding the applications for registration of the executive board (or board of directors) of ANDEPH, to which the complaint refers.
2. 489. The Government reports that in 2018 various requests were submitted to the SGJD concerning the registration of a new ANDEPH executive board. The Government specifies that:
3. 490. In this respect, the Government indicates that, by resolution No. 1465-2018 of 13 September 2018, the SGJD decided to: (i) refrain from considering the various applications for registration of the ANDEPH executive boards and their corresponding objections, leaving the channels open for, where appropriate, the parties to come before the competent courts to discuss the dispute that had arisen between them; and (ii) refrain from issuing any statement until the said dispute has come before the courts. The Government states that the parties concerned were notified of the above-mentioned resolution on 21 September 2018 by means of a notice posted on the notice board of the relevant office.
4. 491. The Government explains that the decision contained in resolution No. 1465-2018 was based on the fact that the SGJD is not sufficiently competent to hear disputes arising from the election of an executive board or from the objection to the registration of the board and that, therefore, it could not ascertain the veracity or legality of the election process of each of the executive boards that the different parties requested to register. Thus, the Government states that its resolution was based on sections 8 and 9 of agreement No. 441-2016, which approves the procedure for the registration and recording of information concerning the public associations, under which aggrieved parties are entitled to address the court where they object to the election of a board of directors and to its registration.
5. 492. Furthermore, the Government provides information on the previous election of an executive board of ANDEPH, and on its effective registration. In this respect it indicates that:
6. 493. In its communication of 5 October 2022, the Government reports that, despite its request for information in 2022, the incumbent Chairperson of ANDEPH, Edvin Canales, did not provide any information on new developments related to the complaint.
7. 494. Lastly, in its communication of 17 February 2023, the Government indicates that the Directorate for the Regulation, Registration and Monitoring of Public Associations of the SGJD registered the new executive board of ANDEPH for the period 2022–26 by administrative resolution No. 914-2022 of 7 July 2022.

C. The Committee’s conclusions

1. 495. The Committee notes that the complainant alleges the interference in 2018 by SGJD officials in the internal affairs of its affiliated body, ANDEPH.
2. 496. In this regard, the Committee notes that the complainant alleges that: (i) by resolution No. 1465 2018 of 13 September 2018, the SGJD rejected the application of 21 March 2018 requesting the registration of the ANDEPH executive board chaired by Rubén Matute Sarmiento with, as General Secretary, Fredy Nahúm Gómez, who had been elected for 2018–22 at an ordinary national congress of members held on 13 March 2018; (ii) the SGJD concealed the notification of the aforementioned resolution, which only came to light on 5 November 2018, which prevented the corresponding appeal from being filed as the deadline to do so had passed; (iii) in private meetings, certain SGJD officials requested the members of the said executive board to resign from their positions after expressing disagreement with their election; (iv) on 7 November 2018, at a national congress of members convened by the SGJD, a new ANDEPH executive board composed of persons close to a senior SGJD official was elected for 2018–22; (v) the challenge filed against the appointment of this board was declared inadmissible, which led to the subsequent filing of an appeal; and (vi) the situations described above prevented ANDEPH from developing its operational plans, and various actions were taken and several national and international complaints were filed in this respect.
3. 497. In addition, the Committee notes the Government’s observations according to which: (i) in 2018, the SGJD received applications for the registration of more than one ANDEPH executive board, including the application of 21 March 2018 concerning the registration of the committee chaired by Rubén Matute Sarmiento, to which the complaint refers; additionally, the SGJD also received requests to reject the above applications for registration; (ii) after considering that there was an internal dispute regarding the election and registration of the executive board in question, based on the provisions of agreement No. 441-2016 approving the procedure for the registration and recording of information concerning public associations, the SGJD issued resolution No. 1465-2018 of 13 September 2018, by which it decided to refrain from considering the aforementioned registration applications and requests for their refusal, and also from issuing any statement in this respect until the dispute arising between the parties involved was resolved by the courts of justice; (iii) the aforementioned resolution was notified on 21 September 2018 to the parties concerned by means of a notice posted on the notice board of the relevant office; (iv) subsequently, further to a request submitted on 1 November 2018, the SGJD convened an ordinary congress of ANDEPH members on 7 November 2018 at the Comayagua Bar Association to elect new leaders of the national executive board; (v) acting on a request of 13 November 2018, the SGJD issued, by resolution of 20 December 2018, the registration for a four-year term of an ANDEPH executive board, chaired by Fredy Nahúm Gómez, with César Chirinos as General Secretary, and the corresponding certificate; and (vi) the Directorate for the Regulation, Registration and Monitoring of Public Associations, the competent department of the SGJD, carried out the registration of the board in question.
4. 498. The Committee notes that from the above information it is clear that there was an internal dispute within ANDEPH regarding the election of the national executive board for 2018–22, which led to the SGJD, as the competent department, receiving both applications for the registration of various boards for that period, and requests to reject such applications and that, as a result of the foregoing, it decided to refrain from considering them and from issuing statements in this respect until the dispute in question was resolved by the courts of justice, under resolution No. 1465-2018 of 13 September 2018.
5. 499. In this respect, the Committee recalls that when internal disputes arise in a trade union organization they should be resolved by the persons concerned (for example, by a vote), by appointing an independent mediator with the agreement of the parties concerned, or by intervention of the judicial authorities and that, specifically, when two executive committees each proclaim themselves to be the legitimate one, the dispute should be settled by the judicial authority or an independent arbitrator, and not by the administrative authority [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, paras 1621 and 1620].
6. 500. In the light of the foregoing, the Committee is struck by the Government’s indication that, two months after the adoption of resolution No. 1465-2018, the SGJD decided to process a new application for registration of an ANDEPH executive board and finally issued its registration for a four-year period by resolution of 20 December 2018. In this respect, the Committee: (i) notes that such registration was, according to information of the complainant, subject to various challenges; and (ii) regrets that it was not informed of these actions, which, it is hoped, have followed their usual course and have been duly resolved. Based on the above, the Committee requests the Government to ensure that, in the absence of a solution identified by the interested parties themselves, the resolution of internal disputes within a trade union organization effectively falls to the judicial authority or an independent mediator agreed by the parties, and not to the administrative authority. Finally, the Committee notes that the mandate of the ANDEPH executive board for 2018–22, to which the complaint refers, has come to an end, and thus the mandate of the corresponding board for the 2022–26 term has entered into force, recognized by administrative resolution No. 914-2022 of 7 July 2022. In these circumstances, the Committee considers that this case is closed and does not call for further examination.

The Committee’s recommendations

1. 501. 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 ensure that, in the absence of a solution identified by the interested parties themselves, the resolution of internal disputes within a trade union organization effectively falls to the judicial authority or an independent mediator agreed by the parties, and not to the administrative authority.
   • (b) The Committee considers that this case is closed and does not call for further examination.