Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

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

The Committee takes note of the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th Session (June 2020). The Committee proceeded with the examination of the application of the Convention on the basis of the supplementary information received from the Government and the social partners this year, as well as the information at its disposal in 2019.

The Committee notes the supplementary observations of the International Trade Union Confederation (ITUC) received on 16 September 2020, and the joint observations of the General Confederation of Workers (CGT) and the Workers’ Confederation of Honduras (CTH), received on 5 October 2020. The Committee also notes the observations of the Honduran National Business Council (COHEP), received on 1 October 2020. The Committee notes the Government’s replies to these various observations, which refer to matters examined by the Committee in the present observation.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 108th Session, June 2019)

The Committee notes the discussion which took place in June 2019 in the Conference Committee on the Application of Standards (hereinafter: the Conference Committee) concerning the application of the Convention by Honduras. The Committee observes that the Conference Committee, after noting with serious concern the allegations of acts of anti-union violence, including the allegations of physical aggression and murders, and the prevailing climate of impunity, and after also noting the ILO direct contacts mission that took place in May 2019 and the resulting tripartite agreement, asked the Government to apply the tripartite agreement, including with respect to: the establishment of a national-level committee by June 2019 to combat anti-union violence; the establishment of a direct line of communication between trade unions and relevant public authorities; the provision of prompt and effective protection to at-risk trade union leaders and members; the prompt investigation of anti-union violence with a view to arresting and charging those responsible, including the instigators; the transparency of the complaints received through biannual reporting; the need for awareness-raising in relation to protective measures available to trade unionists and human rights defenders; the reform of the legislative framework, and in particular the Labour Code and the Penal Code, in order to ensure compliance with the Convention; and the adoption of the operating regulations of the Sectoral Committee for the Handling of Disputes referred to the ILO (MEPCOIT) without prejudice to the complainants’ right to file complaints with the ILO supervisory bodies.

Direct contacts mission of May 2019 and follow-up action

The Committee takes due note of the direct contacts mission that took place in May 2019 on the basis of the conclusions adopted by the Conference Committee in June 2018. The Committee notes with interest the tripartite agreement signed on 24 May 2019 at the end of the mission, covering the three following matters: (i) anti-union violence; (ii) legislative reforms; and (iii) reinforcement of the Economic and Social Council (CES) with regard to freedom of association. In this regard, the Committee also notes the technical assistance mission carried out by the Office in September 2019 with a view to initiating support for the implementation of the tripartite agreement, and the various activities carried out with the assistance of the Office in September 2019 (training workshop on freedom of association and the application of international labour standards in judicial rulings; bipartite and tripartite workshop on Convention 87 and the legislative reforms to the Labour Code; and support workshop for the MEPCOIT).

Trade union rights and civil liberties

In its previous comments, after expressing concern at the high number of reported cases of anti-union violence, in particular the murder of 14 members of the trade union movement, and at the limited progress in the corresponding investigations, the Committee firmly urged the Government to intensify its efforts to: (i) investigate all acts of violence against trade union leaders and members, with the aim of identifying those responsible and punishing both the perpetrators and the instigators of these crimes; and (ii) provide prompt and effective protection to at-risk trade union leaders and members. In this regard, the Committee recalls especially that it urged the Government to take the necessary measures to ensure that all the competent authorities tackle in a coordinated manner, and as a priority, the acts of anti-union violence; that account is fully and systematically taken in investigations of the possible anti-union nature of murders of members of the trade union movement; that the exchange of information between the Public Office of the Prosecutor and the trade union movement is improved; and that the budget is increased for both investigations into acts of anti-union violence and protection schemes for members of the trade union movement.

The Committee notes the information from the Office of the Public Prosecutor supplied by the Government in 2019 concerning 22 cases of alleged anti-union violence, including 16 murders. The Committee observes that this information indicates that: (i) seven cases are being investigated (murders of Sonia Landaverde Miranda, Alfredo Misael Ávila Castellanos, Evelio Posadas Velásquez, Juana Suyapa Posadas Bustillo, Maribel Sánchez, Fredy Omar Rodríguez and Roger Abraham Vallejo); (ii) five cases are before the courts (with regard to the murders of Alma Yaneth Díaz Ortega, Uva Erlinda Castellanos Vigil, José Ángel Flores and Silmer Dionisio George, the corresponding arrest warrants are due to be served; with regard to the murder of Claudia Larissa Brizuela, the perpetrator has been convicted but has appealed against the conviction); (iii) five cases have been shelved or concluded (the judicial proceedings relating to the murders of Manuel Crespo and Ilse Ivania Velásquez Rodríguez have been concluded, while the investigations into the threats against Miguel López, Nelson Nuñez and Víctor Manuel Crespo Murcía have been shelved); and (iv) five cases have not been registered because no legal complaints have been filed in relation to them (deaths of Martin Florencio and Félix Murillo López; alleged abduction of Moisés Sánchez; alleged assault against Hermes Misael Sánchez; and alleged threats against Miguel López).

The Committee also notes that, in its 2019 report, Government emphasized that the tripartite agreement of May 2019 provided for the establishment, within the CES, of a Committee on Anti-Union Violence comprising representatives from the authorities of the Secretariat-General for Government Coordination, the Ministry of Labour and Social Security and the Secretariat of Human Rights, and social partners represented in the CES, with actors in the judicial system also invited to participate. The Committee observes that, according to the tripartite agreement, the main functions of the Committee on Anti-Union Violence are to: (i) establish a direct line of communication between the trade unions and the State regarding anti-union violence; (ii) ensure the participation of trade unions in mechanisms for the protection of human rights defenders; and (iii) promote effective support for investigations into acts of anti-union violence. The Committee also observes that the tripartite agreement, signed on 24 May 2019, provided for a period of 30 days to establish the Committee on Anti-Union Violence, which would provide a status report to the CES. The Committee notes that in its supplementary report the Government indicates that the Committee on Anti-Union Violence was formally established on 18 September 2019, and that on 25 February 2020 it issued its first report on the establishment and action undertaken by this Committee of the CES. The Government also provides information on the various activities undertaken by the Committee, including: (i) two meetings with workers’ representatives to discuss the mechanism for the protection of human rights defenders; (ii) a meeting with representatives of three unions at risk to review and prioritize the action of the protection mechanism; and (iii) the holding of extraordinary meetings to examine the murder of the trade union leader Jorge Acosta and the situation of other unionists whose physical safety is endangered, and to ensure that the necessary investigations are carried out by the competent institutions.

With regard to the protection measures for at-risk members of the trade union movement, the Committee recalls that in its 2019 report the Government indicated that: (i) a tripartite workshop was held within MEPCOIT on the National Protection System, which provides protection to all human rights defenders in the country, with the aim of publicizing it among the social partners; (ii) since 2015, a total of 427 requests for protection measures have been processed; (iii) 210 persons are currently under the responsibility of the Directorate-General for the National Protection System; and (iv) four trade unionists have been the recipients of protection measures (Miguel Ángel López, Moisés Sánchez, Nelson Geovanny Núñez (who are currently out of the country) and Martha Patricia Riera (whose case file has now been shelved)).

The Committee notes the ITUC’s indications in its 2019 observations that: (i) the Network against Anti-Union Violence verified the occurrence of 109 acts of anti-union violence in Honduras between January 2015 and February 2019; (ii) 38 acts of violence against trade unionists, including 11 death threats, were recorded in 2018 alone; (iii) the use of violence by the authorities has increased, as shown by the deployment of the armed forces in a crackdown on protests by teachers and doctors in June 2019; (iv) with regard to the numerous reported murders of members of the trade union movement, only one conviction is known to have been handed down, and this is currently the subject of an appeal; (v) the Office of the Public Prosecutor has not taken any action to formalize mutual cooperation to ensure that these cases are investigated; and (vi) the trade union movement is not represented on the National Council for the Protection of Human Rights Defenders, which is the body responsible for formulating preventive national policies for the protection of the life and integrity of at-risk population groups, including trade unionists.

The Committee notes with deep concern that in its supplementary observations the ITUC reports the murder of Jorge Alberto Acosta, leader of the Workers’ Union of the Tela Railroad Company (SITRATERCO) on 16 November 2019, and its allegations that the National Protection Mechanism for human rights defenders, journalists, social communicators and actors in the justice system is not effective and that, despite the reiterated calls by the trade unions, the Mechanism has not investigated threats or provided adequate protection measures for trade unionists who are under threat. The ITUC also denounces the judicial persecution of the Secretary General of the Union of Workers in Agroindustry and Allied Trades (STAS), who had previously been abducted, and emphasizes that since 2019 he has once again received death threats. The Committee further notes the supplementary observations of the CGT and the CTH in which they indicate that, despite the fact that the Committee on Anti-Union Violence has held some information and follow-up meetings on various subjects, it has not made any progress in implementing practical solutions, which raises questions about its effectiveness.

The Committee notes that, in its 2019 and 2020 observations, the COHEP indicates, with reference to the measures adopted concerning anti-union violence, that: (i) the Committee on Anti-Union Violence was not established within the 30-day period following the signature of the agreement; (ii) despite the fact that the Committee on Anti-Union Violence provided for the participation of several institutions, including the Office of the Public Prosecutor, the Office of the Attorney General of the Republic and the National Commissioner for Human Rights, their participation has been limited and certain institutions, and particularly the Office of the Public Prosecutor, have not attended the meetings despite their invitations to do so; (iii) up to now, there has been no formal exchange of information between the Office of the Public Prosecutor and the social partners; and (iv) no information has yet been received on the coverage by the National Protection System of members of the trade union movement. The COHEP considers that, to improve the operation of the Committee on Anti-Union Violence, it is necessary to implement the ILO’s recommendations, particularly with regard to the training of officials who receive complaints of anti-union violence in the Office of the Public Prosecutor, the rules of procedure of the Committee on Anti-Union Violence and the tripartite determination of anti-union practices. The COHEP urges the Government to investigate whether the acts of violence referred to previously were committed for anti-union reasons and to increase the budget allocated to investigations of acts of anti-union violence.

The Committee notes the Government’s indication, in reply to the supplementary observations of the ITUC, that since 25 April 2018, Mr Acosta and ten other members of the executive committee of SITRATERCO benefited from protection measures, which were regularly reassessed. The Committee notes the Government’s indication that, following the murder of the trade unionist, the Secretariat of Labour and the Committee on Anti-Union Violence called on the Office of the Public Prosecutor, the Investigator General, the Secretary of State for Security and the Human Rights Secretariat to undertake an investigation to elucidate the facts, punish those responsible and ensure the protection of the other members of the executive committee of the SITRATERCO. With regard to the trade union leader Moisés Sánchez, the Government indicates that both he and his brother, the trade unionist Misael Sánchez, as well as the President of SINTRASEMCA, Ms Lucidia Isela Juárez, are currently covered by various protection measures and that priority is being given to the investigation of the death threats that they have received.

The Committee notes that the Government, in its reply to the supplementary observations of the COHEP, CGT and CTH, recognizes the great challenge that it is facing in relation to violence against trade unionists, and emphasizes that the Committee on Anti-Union Violence is in the process of being established and structured, and the Government further indicates that over a short period it has taken significant action and while it acknowledges that it has faced and continues to face significant limitations, its efforts in relation to the violence will gradually be strengthened.

The Committee takes due note of the various items of information supplied by the Government and the social partners. The Committee expresses deep concern at the murder of Jorge Acosta, the persistent allegations of numerous acts of anti-union violence and also at the very low number of judicial convictions up to now for murders of members of the trade union movement.

The Committee recalls that in its comment the previous year, noting the report of the direct contacts mission and the establishment of the Committee on Anti-Union Violence, it emphasized the urgent need for the various State institutions to finally respond to the situation of anti-union violence that reigns in the country by undertaking the coordinated and priority action that the gravity of the situation requires. In this regard, the Committee requested the Government to take specific and rapid measures in relation to the following six points: (i) ensure due compliance with all elements in the tripartite agreement concerning action against anti-union violence; (ii) ensure the active involvement of all the relevant authorities in the Committee on Anti-Union Violence, especially the Secretariat of Human Rights, the Office of the Public Prosecutor and the judiciary; (iii) institutionalize and make effective the participation of the representative trade unions in the National Council for the Protection of Human Rights Defenders; (iv) draw up a special investigation protocol to enable the Office of the Public Prosecutor to examine systematically and effectively any anti-union motives behind the acts of violence affecting members of the trade union movement; (v) ensure that the criminal courts give priority treatment to cases of anti-union violence; and (vi) ensure adequate and prompt protection for all at-risk members of the trade union movement. The Committee observes that, since the establishment of the Committee on Anti-Union Violence, meetings have been held with workers’ representatives to discuss the protection mechanism for human rights defenders, dialogue has been promoted between the representatives of trade unions that are at risk and the Committee on Anti-Union Violence on improving the effectiveness of the protection measures, and meetings have been held to discuss the cases of trade unionists who are at risk and the murder of the trade union leader Jorge Acosta.

Nevertheless, the Committee observes that both workers’ organizations and employers express concern regarding: the absence of practical solutions in the Committee on Anti-Union Violence to bring an end to violence against trade unionists; the limited participation of actors in the justice system (the Office of the Public Prosecutor and the judicial authorities) and other institutions in the Committee on Anti-Union Violence; and the lack of adequate and rapid protection measures for members of the trade union movement. Expressing deep concern at the low number of trade unionists who have benefited from protection measures in comparison with the very high number of acts of anti-union violence reported by national and international trade unions, the ineffectiveness of the protection measures, the persistence of acts of anti-union violence and the lack of progress in their investigation, the Committee once again urges the Government and all the competent authorities to take the necessary measures in the near future, including budgetary allocations, to give effect to the six points the Committee had enumerated in its previous comment and has reiterated above. Aware of the efforts made by the Government and the additional obstacles resulting from the COVID-19 pandemic, the Committee recalls that the Office has made its technical assistance available to the Government and it requests the Government to report any progress achieved in this respect.

The Committee also requests the Government to continue providing detailed information on criminal investigations and proceedings relating to acts of violence against members of the trade union movement, including the murder of the trade unionist Jorge Acosta.

Legislative issues

Articles 2 et seq. of the Convention. Establishment, autonomy and activities of trade unions. The Committee recalls that it has been requesting the Government for many years to amend the following provisions of the Labour Code to bring them into conformity with the Convention:

• -the exclusion from the rights and guarantees of the Convention of workers in agricultural and stock-raising enterprises which do not permanently employ more than ten workers (section 2(1));
• -the prohibition of more than one trade union in a single enterprise (section 472);
• -the requirement of at least 30 workers to establish a trade union (section 475);
• -the requirement that the officers of a trade union must be of Honduran nationality (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 prohibition on strikes called by federations and confederations (section 537);
• -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 authority of the competent minister to end disputes in oil industry services (section 555(2));
• -government authorization or a six-month period of notice for any suspension of work in public services that do not depend directly or indirectly on the State (section 558); and
• -the referral 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 that are not essential in the strict sense of the term (sections 554(2) and (7), 820 and 826).

The Committee notes that the tripartite agreement of 24 May 2019 provides that “in the context of the CES and on the basis of the relevant pronouncements of the ILO supervisory bodies”, the tripartite constituents in the country “shall agree to undertake a broad process of discussion and tripartite consensus which, subject to the existence of appropriate conditions, will make it possible to align the labour legislation with the Convention”. The Committee also notes that, in its report, the direct contacts mission observed that “some aspects of the reforms called for by the ILO supervisory bodies raise issues for one or other of the social partners”.

The Committee also notes the observations of the social partners concerning the process of the revision of the labour legislation in order to bring it into line with the Convention. In the first place, the Committee notes COHEP’s indication that: (i) it is in favour of amending sections 2, 472, 475, 510 and 541 of the Labour Code, as requested by the Conference Committee in June 2018; (ii) it is still waiting for a reform proposal from the Government; (iii) account should be taken of the content of the discussions on the comprehensive reform of the Labour Code held between 1993 and 1995 with the support of the Office and which gave rise to broad consensus (except on the right to strike and solidarity associations); (iv) any reform should be the subject of tripartite dialogue and supported by technical assistance from the Office; and (v) expresses its view that, in the context of social dialogue, the need must be recognized for a Labour Code which adapts industrial relations to the modern and future world of work.

The Committee further notes the ITUC’s indication that: (i) there is a total absence of effective social dialogue in the country and this obstructs the reaching of tripartite consensus on legislative reform; and (ii) the situation described above raises fears among the national trade unions that the process of reforming the Labour Code may lead to the adoption of legislation which represents a backward step in terms of labour rights and freedom of association.

The Committee finally notes the Government’s indication that: (i) it is seeking ways to achieve tripartite consensus on the reform of the Labour Code; (ii) to this end, a tripartite workshop was held in the CES on 11 September 2019; (iii) on 26 September 2019, the Government asked the social partners to specify their official position regarding the legislative reforms by 25 October 2019, but only received a reply from the employers; and (iv) the discussions on the reform of the Labour Code have been taken up again since February 2020.

Recalling its observation in its previous comment that the establishment of tripartite social dialogue on the reform of the labour legislation, as envisaged in the tripartite agreement of May 2019, would call for a special effort in terms of building trust between the parties, the Committee notes with regret the absence of tangible progress in this respect. While it is aware of the obstacles that the COVID-19 pandemic may have raised in this regard, the Committee firmly expects the Government to move forward as rapidly as possible, with the technical support of the Office, in the implementation of the process of tripartite discussions envisaged in the agreement of May 2019 so that it will be able to report progress in the preparation of the reforms that have been requested for many years.

New Penal Code. The Committee recalls that in its previous comments it noted the repeal of section 335B of the Penal Code concerning the advocacy, glorification or justification of terrorism and, observing that the direct contacts mission had been informed of the adoption of a new Penal Code, it requested the Government to provide information on the entry into force of the new Penal Code and on any amendments made to the definition of the crime of terrorism. The Committee notes that, in its supplementary information, the Government reports the entry into force of the new Penal Code on 25 June 2020, as set out in Legislative Decree No. 130-2017. In this regard, the Committee notes that, in his 2019 report on his visit to Honduras, the Special Rapporteur on the situation of human rights defenders, while noting the repeal of section 335B of the Penal Code, expressed concern regarding certain penal provisions respecting association for terrorist purposes, unlawful occupation, unlawful assembly and demonstration, slander and libel which, as they are broad in scope, could result in the criminalization of human rights defenders and have a dissuasive effect on their activities (A/HRC/40/60/Add.2). The Committee also notes that the Office of the United Nations High Commissioner for Human Rights, in its 2020 report on the situation of human rights in Honduras, expresses concern at the negative impact that the Penal Code could have on freedom of expression and assembly, and calls for the implementation of an open, transparent and comprehensive consultation process to review the provisions of the Penal Code that do not comply with international and regional human rights norms and standards (A/HRC/43/3/Add.2). In light of the concerns raised in relation to the scope of certain crimes, including the crime of terrorist association, and the impact of certain provisions of the new Penal Code on freedom of expression and assembly, which are fundamental for the effective exercise of freedom of association, the Committee requests the Government, in consultation with the most representative organizations of employers and workers, to assess the impact of the provisions of the Penal Code on the free exercise of trade union activities. The Committee requests the Government to provide information in this respect.

Application of the Convention in practice. The Committee notes the Government’s indication that: (i) legal personality was granted to seven trade union organizations in 2017 (three in the public sector, four in the private sector), eight in 2018 (seven in the private sector, one in the public sector), and eight between January and August 2019 (all in the private sector); and (ii) pursuant to the Labour Inspection Act adopted on 23 January 2017, a total of 13 fines for violations of freedom of association were imposed between 1 January 2018 and August 2019 (out of an overall total of 261 fines). The Committee also notes that: (i) the CGT and the CTH state in their observations that the Labour Inspection Act is still not being applied in a satisfactory manner on account of the inaction of the Office of the Attorney-General in this regard; (ii) the COHEP indicates in its supplementary observations that the Office of the Attorney-General has issued a preliminary report on the cases in which fines are being collected, that an inter-institutional agreement has been signed between the Office of the Attorney-General and the Ministry of Labour and Social Security, and that there is a pilot proposal to commence a process of the collection of fines focussing on the application of the Labour Inspection Act; and (iii) the direct contacts mission indicates in its report that it received from trade union federations numerous allegations of violations of freedom of association in practice, especially in the agri-export and education sectors.

Lastly, the Committee notes that the tripartite agreement of May 2019, in its section on strengthening the CES with regard to freedom of association, provides for the operation of the MEPCOIT as the dispute settlement body in the area of labour relations, and for the promotion of the good practices of the bipartite committee for the maquila (export processing) sector in other sectors of the economy. The Committee observes in this regard that a technical assistance mission of the Office carried out in September 2019 enabled an exchange of experience with the moderator of the conflict resolution body of Panama. The Committee notes in this regard that, in its supplementary observations, the COHEP regrets that, since the meetings held in September 2019 in the MEPCOIT, there has been no further significant progress.

Noting the supplementary information provided, the Committee once again requests the Government, in the process of applying in practice the Labour Inspection Act, to pay special attention to respect for trade union rights in the agri-export and education sectors. The Committee requests the Government to provide specific information in this regard. While it is aware of the obstacles that may have been raised in this respect by the COVID-19 pandemic, the Committee once again hopes that the MEPCOIT will start its dispute settlement activities in the very near future, so that it can examine the alleged violations of freedom of association reported by the trade union federations to the direct contacts mission. The Committee requests the Government to provide information on this subject and on the promotion of the good practices of the bipartite committee for the maquila sector in other sectors of the economy.

Recalling that in its previous comment it welcomed the commitments made in the tripartite agreement signed at the end of the direct contacts mission and that it took due note of the technical assistance provided by the Office to contribute to its implementation, the Committee hopes that it will soon be able to note significant progress in the resolution of the serious violations of the Convention which have been recorded for a number of years.