Report in which the committee requests to be kept informed of development - Report No 294, June 1994

Case No 1568 (Honduras) - Complaint date: 19-DEC-90 - Closed

1. 204. The Committee has examined this case on two occasions (see 281st and 283rd reports of the Committee, paragraphs 365 to 383 and 257 to 268, approved by the Governing Body at its 252nd and 253rd Sessions (March and May-June of 1992)), when it reached interim conclusions. Subsequently, the Government sent its observations in a communication dated 2 February 1994.
2. 205. Honduras has ratified the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87) and the Right to Organize and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the Case

1. 206. The pending allegations refer to the dismissal of workers and trade unionists at the "El Mochito" mine, the subsequent repression by the army of a strike held at the same mine, as well as various acts of anti-trade union discrimination at different enterprises and the need for legislative measures to prohibit solidarist associations from exercising trade union activities. In this respect, the Committee made the following recommendations (see 283rd report, paragraph 268):
   • The Committee deeply deplores the death of Mr. Daniel Carrasco and the physical attacks perpetrated in the course of the labour dispute following the dismissal of workers and trade union representative at the "El Mochito" mine. In view of the inadequacy of the Government's explanation the Committee requests the Government to take measures, if it has not already done so, to set up a judicial investigation to clarify the facts, determine responsibility and punish the guilty parties, and to keep the Committee informed of the outcome of the investigation. The Committee also requests the Government to provide further details on the reasons which led the army to intervene in the labour dispute.
   • The Committee requests the Government to supply information on the re-instatement proceedings concerning the workers who were dismissed during the dispute in the "El Mochito" mine and to indicate whether they have in fact been re-instated.
   • The Committee regrets that the Government has not responded to the remaining allegations and therefore reiterates the recommendation it made at its March 1992 Meeting, as follows:
     • - the Committee requests the Government to send its observations on the allegations concerning discrimination on the part of some employers against workers who are members of unions, specifically in the cases of changes in jobs of Messrs. Perdomo, Rivera and Mateo (Polymer Industrial enterprise), the suspension of workers from the Polymer enterprise, the dismissal of Mrs. Girón (Cervería Hondureña enterprise), and Messrs. Moreira and Rodríguez (Polymer Industrial enterprise) and the stipulation of non-union membership as a prerequisite for joining a solidarist association (statutes of the solidarist association at the Cervería Hondureña and Polymer enterprises);
     • - the Committee also requests the Government to indicate the protection afforded to workers under existing national legislation against acts of anti-union discrimination, as well as the measures it intends to take to redress the anti-union dismissals which have been identified in ten enterprises and which are recognized by the Government (Kativa de Honduras, Pinturas Surekota S.A., Textiles San Pedro, Polytubo, Hondufibras, Polyproductos S.A., Termoplast, Banco del Ahorro Hondureño, Banco Futuro and Grupo de Empresas Camaroneras del Sur del País);
     • - the Committee requests the Government urgently to take the legislative and other measures necessary to prohibit solidarist associations from exercising trade union activities, particularly collective bargaining, and asks to be kept informed in this respect.

B. The Government's reply

1. 207. As regards the request by the Committee for an explanation of the reasons why the army intervened in the dispute at the "El Mochito" mine (24 October 1991), the Government states in its communication of 2 February 1994 that on 24 October 1991 a military contingent on its way to the Las Vegas municipality was suddenly attacked by certain individuals at the time of the dispute and that the members of the army responded to the attack. The criminal court of Las Vegas initiated proceedings to determine the reasons and authors of the incidents which occurred in which nine workers and 11 soldiers were injured or suffered bruises and of one person who was not an employee of the enterprise was killed.
2. 208. As regards the dismissals in the "El Mochito" mine, the Government reviews in detail the circumstances of the dismissals, including in some cases the procedural aspects, and encloses a number of annexes. According to this information, on 4 October 1991 the enterprise dismissed 43 workers (four of whom enjoyed trade union immunity - and thus according to the legislation, the enterprise was required to pay them one month's wages - and another four who accepted the full payment of their benefits). As a result of these dismissals, a group of 48 workers occupied the entrance to the mine between 7 and 12 October 1991. After several attempts at conciliation by the Ministry of Labour, an agreement was reached by the parties on 26 October for the reinstatement of the 43 workers initially dismissed and the examination by a supernumerary judge of the case of 27 other workers who had been dismissed but who had not requested payment of their legal benefits but rather re-instatement in their workplaces. During the judicial proceedings, all the workers reached agreements with the enterprise, except four, who after several judicial refusals for their re-instatement, subsequently lodged a final appeal with the Supreme Court of Justice, an appeal which was not receivable because of a procedural error by the proxy of these workers (failure to evaluate the amount of the claim).
3. 209. As regards the allegations concerning the Cervería Hondureña enterprise, the Government denies that Mrs. Yelbania del Carmen Girón of the Cervería Hondureña enterprise was dismissed; on the contrary she was even recently promoted (the Government provides certification). As regards the Polymer Industrial enterprise, the Government states that Messrs. Santiago Mateo, Leonel Perdomo and Miguel Angel Rivera (amongst those whose jobs were allegedly changed) were never members of the trade union; that Mr. Roney Moreira was dismissed for not following the security measures indicated to him and that Mr. Vitalicio Rodríguez (product supervisor) was suspended for eight days for failing to carry out an order based on the collective agreement and the work regulations of the enterprise. The Government also denies that the Polymer Industrial enterprise dismissed 63 workers. The Government provides labour inspection certificates to substantiate its observations.
4. 210. The Government also states that on 6 November 1991 it signed a special agreement with the workers' central organizations to submit a preliminary Bill to the National Congress to prohibit recognition of the solidarist movement ("solidarismo"). This preliminary Bill was submitted on 3 December 1991 by the Ministry of Labour and the workers' central organizations. However, the National Congress did not discuss the reform because the text had not been agreed on with employers and without their participation the Congress believed it could be accused of infringing the principle of tripartism.
5. 211. The Government provides a copy of the statutes of the solidarist association of the Cervecería Hondureña enterprise (article 6 of which prohibits trade union members from joining the solidarist association), although it points out that the collective agreement signed in February 1993 contains a clause in which the enterprise undertakes not to conclude pacts or agreements with organizations of non-unionized workers.
6. 212. The Government recognizes however that the Polymer solidarist association negotiates collective pacts with the enterprise, in accordance with section 72 of the Labour Code which applies to non-unionized workers. The trade union, however, engages in collective bargaining. The Government has not received denunciations from any of the parties.

C. The Committee's conclusions

1. 213. As regards the acts of violence which occurred during the labour dispute in the "El Mochito" mine, the Committee notes the explanations furnished by the Government on the participation of the army (which had allegedly been attacked by strikers when it was moving through the area of the dispute) and that the judicial authorities are carrying out an inquiry into the acts of violence against workers and soldiers. Once again the Committee deplores these acts of violence and asks the Government to keep it informed of the outcome of the inquiry.
2. 214. The Committee also notes that the subject of the dismissals in the "El Mochito" mine was dealt with in an agreement between the parties which included the reinstatement of 43 workers, the payment of benefits to workers who had so requested (14 workers) or recourse to the judicial authorities to settle the respective dismissals (27 workers). (In the end, 23 of these 27 workers accepted the payment of benefits during the judicial proceedings; the other four workers lost their case for re-instatement on procedural grounds.) In this respect, the Committee believes that it is not competent to comment on the content of the agreement reached by the parties since this was the result of free negotiations between them, and it notes that the terms of the agreement were carried out. However, the Committee requests the Government to do its utmost to obtain the reinstatement of the four workers who could not be reinstated in their jobs for procedural reasons, and to keep it informed in this respect.
3. 215. As regards the acts of discrimination in the Cervecería Hondureña and Polymer Industrial enterprises, the Committee notes the certificates issued by the labour inspectorate certifying the existence of faults of a professional nature or the non-unionization of the workers concerned or the non-existence of dismissals or alleged suspensions. As regards the other allegations of anti-union discrimination, the Committee observes that neither the complainant nor the Government has given the names of the dismissed workers, although the latter recognized in general the existence of dismissals (see 281st Report, paragraphs 369 and 376). Since most of these occurred in enterprises in which solidarist associations existed, the Committee refers to the conclusions contained in the following paragraph on solidarism.
4. 216. The Committee notes that the Government, in agreement with the trade unions central organizations, presented on 3 December 1991 a preliminary Bill to the National Congress prohibiting recognition of solidarism. The Committee notes that the National Congress did not discuss the preliminary Bill in order not to violate the principle of tripartism, since the text had not been agreed upon with the employers. The Committee observes furthermore that the Government recognizes the legal possibility of concluding collective pacts with non-unionized workers and that solidarist associations in fact conclude collective pacts. In this respect, the Committee repeats the conclusions of its first examination of this case (see 281st Report, paragraphs 380 and 381):
   • The interference of solidarist associations in trade union activities including collective bargaining, through direct settlements signed between an employer and a group of non-unionized workers even when a union existed in the undertaking, does not promote collective bargaining as set out in Article 4 of Convention No. 98 which refers to the development of negotiations between employers or their organizations and workers' organizations. The Committee also considers that, since solidarist associations are financed partly by employers, are comprised of workers but also of senior staff or personnel having the employers' confidence and are often started up by employers, they cannot play the role of independent organizations in the collective bargaining process, a process which should be carried out between an employer (or an employers' organization) and one or more workers' organizations totally independent of each other. This situation therefore gives rise to problems in the application of Article 2 in the Convention No. 98 which sets out the principle of full independence of workers' organizations in carrying out their activities. ... The Committee expresses the hope that the Government will urgently take the legislative and other measures necessary to prohibit solidarist associations from exercising trade union activities, particularly collective bargaining.
   • In these circumstances, the Committee requests the Government to consult immediately the most representative employers' and workers' organizations with a view to submitting to the National Congress and having adopted by it, a Bill that would ensure that solidarist associations cannot exercise trade union functions and that would guarantee adequate protection against acts of anti-union discrimination.

The Committee's recommendations

1. 217. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) Deploring once again the acts of violence which occurred in the "El Mochito" mine, the Committee requests the Government to keep it informed of developments in the inquiry under way.
   • (b) The Committee requests the Government to consult immediately the most representative employers' and workers' organizations with a view to submitting to the National Congress and having adopted by it, a Bill that would ensure that solidarist associations cannot exercise trade union functions and that would guarantee adequate protection against acts of anti-union discrimination.
   • (c) The Committee requests the Government to do its utmost to obtain the reinstatement of the four workers of the "El Mochito" mine who could not be reinstated in their jobs for procedural reasons, and to keep it informed in this respect.
   • (d) The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspects of this case, which refer to the application of Articles 1 and 2 of Convention No. 98 respecting protection against anti-union discrimination and interference in trade union activities.
   • (e) Noting that the Government wishes to review the labour legislation, the Committee recalls that the technical services of the ILO are available to provide it with assistance in the drafting of such legislation.