Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Honduras (Ratification: 1956)

The Committee notes the Government’s report. It recalls that it has been commenting for many years on the following points:

-  the exclusion from the scope of the Labour Code, and thus from the rights and guarantees of the Convention, of workers in certain agricultural or stock-raising enterprises (section 2(1));

-  the prohibition of more than one trade union in a single enterprise, institution or establishment (section 472);

-  the requirement of more than 30 workers to constitute a trade union (section 475);

-  the requirement that the officers of a trade union, federation or confederation must be Honduran (sections 510(a) and 541(a)), be engaged in the corresponding activity (sections 510(c) and 541(c)) and be able to read and write (sections 510(d) and 541(d));

-  restrictions on the right to strike, namely:

▪  the requirement of a two-thirds majority of the votes of the total membership of the trade union organization in order to call a strike (sections 495 and 563);

▪  the ban on strikes being called by federations and confederations (section 537);

▪  the power of the Ministry of Labour and Social Security to end disputes in the petroleum production, refining, transport and distribution services (section 555(2));

▪  the need for government authorization or a six-month period of notice for any suspension or stoppage of work in public services that do not depend directly or indirectly on the State (section 558); and

▪  the submission to compulsory arbitration, without the possibility of calling a strike for as long as the arbitration award is in force (two years), of collective disputes in public services which are not essential in the strict sense of the term (sections 554(2) and (7), 820 and 826).

Exclusion from the scope of the Labour Code, and thus from
the rights and guarantees of the Convention, of workers in
certain agricultural or stock-raising enterprises (section 2(1))

The Committee observes that, according to the Government, the exclusion provided for in the Labour Code applies only to farms which do not regularly employ more than ten workers. The Government nevertheless states that it is aware of the need to reform the law so as to cover all workers, including those employed on farms with fewer than ten regular workers. The Committee recalls that Article 2 of the Convention lays down the right for all workers to form free and independent organizations.

Prohibition of more than one trade union in a single enterprise
institution or establishment (section 472)

The Committee notes that the Government once again indicates that the workers’ and employers’ organizations are of the view that for national legislation to allow the establishment of more than one union in an enterprise or institution is inappropriate since it detracts from the legitimacy of trade union representation and creates economic conflicts in the enterprise and the trade unions. The Committee points out, however, that Article 2 of Convention 87 states that workers and employers have the right to establish "organizations of their own choosing". This means that the law must not institutionalize a de facto monopoly. Furthermore, even in a situation where at some point all workers have agreed to have only one union, they should still remain free to form unions outside the established structures should they so wish.

Requirement of 30 workers to constitute a trade union (section 475)

The Committee notes that, according to the Government, both the workers and the Government are of the view that this provision allows regular changeover in trade union office and ensures that trade union organizations are representative. The Government nevertheless indicates that this provision will be examined in tripartite consultations in the forthcoming reform of the Labour Code. The Committee points out that to require a minimum membership in order to create an organization is not in itself incompatible with the Convention, but the number set must remain within reasonable limits so as not to obstruct the formation of organizations. In the Committee’s view, a minimum requirement of 30 workers is not conducive to the formation of trade unions in small and medium-sized enterprises.

Requirement that the officers of a trade union, federation, or confederation
must be Honduran (sections 510(a) and 541(a)), be engaged in the
corresponding activity (sections 510(c) and 541(c)) and be able
to read and write (sections 510(d) and 541(d))

The Committee notes that, according to the Government, the requirements laid down in the law ensure that trade union officials are able to carry out their functions vis-à-vis the other members and the organization. With regard to the requirement of Honduran nationality, the Committee requests the Government to indicate whether Decree No. 760 of 25 May 1979, which abolished the restriction that 90 per cent of trade union members must be Honduran, is still in force. It points out once again that where provisions on the nationality of trade union officials are too strict, they run the risk of depriving some workers of the right to elect their representatives in full freedom. In the Committee’s view, national laws and regulations should allow foreign workers access to trade union office, at least after a reasonable period of residence in the host country. As regards the requirement that they must be engaged in the corresponding activity, the Committee reiterates that this provision may impair the right of organizations to elect their representatives in full freedom. It also involves the risk that employers might dismiss trade union officers, which would deprive them of their trade union office. It would be desirable to make the legislation more flexible, for example by admitting as candidates persons who have previously been employed in the occupation concerned, or by exempting from the occupational requirement a reasonable proportion of the officers of an organization (see General Survey of 1994 on freedom of association and collective bargaining, paragraphs 117 and 118).

Restrictions on the right to strike:

-  With regard to the ban on strikes being called by federations and confederations (section 537), the Committee recalls that, in accordance with Articles 3, 5 and 6 of the Convention, workers’ organizations, as well as the federations and confederations that they have established or joined, have the right to organize their activities and to formulate their programmes.

-  With regard to the requirement of a two-thirds majority of the votes of the total membership of the trade union organization to call a strike (sections 495 and 563), the Committee notes that the Government again states its intention to hold tripartite consultations in the context of the forthcoming reform of the Labour Code.

-  With regard to the power of the Minister of Labour and Social Security to end disputes in petroleum production, refining, transport and distribution services (section 555(2)), the need for government authorization or a six-month period of notice for any suspension or stoppage of work in public services that do not depend directly or indirectly on the State (section 558) and the submission to compulsory arbitration, without the possibility of calling a strike for as long as the arbitration award is in force (two years), of collective disputes in public services which are not essential in the strict sense of the term (sections 554(2) and (7), 820 and 826), the Committee notes the Government’s statement that the above provisions have been submitted to tripartite consultation in the context of the reform of the labour legislation.

The Committee expresses the firm hope that the tripartite consultations will be held soon and that, in the very near future, the necessary steps will be taken to amend the abovementioned provisions in order to bring the legislation into line with the Convention. The Committee also requests the Government to send a copy of any preliminary draft legislation and to inform it in its next report of any developments in this regard. The Committee reminds the Government that it may call upon the technical assistance of the Office.