Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Honduras (Ratification: 1956)

Articles 1 and 2 of the Convention. Protection against acts of discrimination and interference. The Committee recalls that its comments have referred for many years to:

–      the lack of adequate protection against acts of anti-union discrimination, since the penalties provided for in section 469 of the Labour Code for persons who interfere with the right to freedom of association, ranging from 200 to 10,000 lempiras (HNL) (200 lempiras being roughly equivalent to US$12), were deemed inadequate. The Committee notes the Government’s statement that section 321 of Decree No. 191-96 of 31 October 1996 establishes penalties for cases of discrimination. The Committee requests the Government to indicate specific cases in which this provision has been used to impose penalties for acts of anti-union discrimination; and

–      the lack of adequate and full protection against any acts of interference, and of sufficiently effective and dissuasive sanctions for such acts. The Committee notes the comments from the Honduran National Business Council (COHEP) of 22 May 2008, according to which the Secretariat of State decided, by means of a decision of 2 July 2002, to prohibit any opposition by employers to the recognition and registration of the legal personality of workers’ organizations, or from workers with regard to employers’ organizations, in order to guarantee adequate protection against acts of interference.

The Committee notes that the Government, in reply to the comments from the ITUC of 28 August 2005 concerning the dismissal of numerous trade union officials and members following the founding of a trade union, indicates that the mass dismissal of the members of a union executive committee is a rare and isolated measure and has not been the subject of complaints to the competent institutions. The Government adds that there have been no legislative amendments in connection with the application of the Convention which relate to anti-union discrimination and interference. The Government points out that it has been impossible to hold discussions on the reform of the Labour Code because of the strong opposition of the three major workers’ federations operating in the country. The Government adds that the Directorate of Labour of the Secretariat of Labour and Social Security has held various training workshops in the major cities of the country for leaders of workers’ organizations, aimed at informing and educating them with regard to the legal framework for collective bargaining. This body also undertakes activities to promote and disseminate the rights contained in the Convention through the publication of a “Guide to the exercise of freedom of association and collective bargaining”, and also flyers and leaflets on the exercise of those rights. The Committee recalls that the Government has the responsibility to ensure the application of freely ratified international labour Conventions relating to freedom of association. The Committee requests the Government to take the necessary steps to include provisions in the national legislation for adequate and full protection against any acts of anti-union discrimination or interference, establishing sufficiently effective and dissuasive penalties for such acts.

The Committee requests the Government to send its comments on the observation from the ITUC dated 26 August 2009 concerning alleged anti-union practices in export processing zones, delays in the administration of justice in cases of anti-union practices (the Government indicates the possibility of a summary judgement in cases of unfair dismissals but the Committee considers that more information is needed), failure to comply with court orders for the reinstatement of trade unionists (according to the Government, reinstatement is only requested by the worker in isolated cases in practice) and the creation of parallel trade unions by employers (the Government merely states that these are not specific allegations). The Committee requests the Government to hold tripartite discussions on this matter and keep it informed in this respect.

Article 4. Promotion of collective bargaining. The Committee also notes the new comments from the ITUC dated 26 August 2009 which refer to the application of the Convention and, in particular, the drawing up of a draft Act which could limit collective bargaining only to unions which represent more than 50 per cent of the total number of employees in the enterprise, the setting up of parallel organizations by employers with which they undertake collective bargaining, and numerous anti-union dismissals in various enterprises in the export processing (maquila), cement and bakery industries. The Committee requests the Government to send its observations in this respect.

Article 6. Right of public servants not engaged in the administration of the State to bargain collectively. The Committee notes the Government’s reply to the comments from the ITUC dated 28 August 2007 (many of them similar to those sent in previous years), alleging that public employees are forbidden to sign collective labour agreements. The Government points out that public officials have legally imposed limits on their duties (section 534 of the Labour Code), including the right to submit “respectful statements” containing requests of interest to all members in general. Section 536 states that unions of public employees may not submit lists of claims or sign collective agreements, but other official workers’ unions have the same powers as any others to deal with claims on equal terms. The Government refers to a number of state enterprises and municipalities with high population density which have signed collective agreements and points out that official workers do have the right to collective bargaining. The Committee recalls that a system in which public employees may only submit to the authorities “respectful statements” which will not be the subject of any negotiation, particularly with regard to conditions of employment, is not in conformity with the Convention. The Committee recalls that, even though Article 6 of the Convention allows public servants engaged in the administration of the State to be excluded from its scope of application, other categories of workers must be able to enjoy the guarantees provided for by the Convention, and therefore be able to undertake collective bargaining with respect to their conditions of employment, including pay. The Committee requests the Government to take the necessary legislative measures to guarantee the full application of the Convention.

The Committee reminds the Government that the problems referred to above have persisted for many years and that it can seek technical assistance from the Office.

Finally, the Committee requests the Government to send its observations on the comments made by the COHEP dated 6 October 2009 (including information on protection against anti-union dismissals in the public sector and the corresponding legislation).