Report in which the committee requests to be kept informed of development - Report No 335, November 2004

Case No 2330 (Honduras) - Complaint date: 09-MAR-04 - Closed

Allegations: Prohibition of teachers’ organizations from holding meetings and demonstrations classifying such activities as offences: imposition of fines for alleged illegal acts by the teachers’ organizations; application by the Public Prosecutor’s Office for suspension of the legal personality of two teachers’ organizations; suspension of the deduction of trade union dues of members of the teachers’ organizations thus impairing members’ social protection; prosecution of 12 trade union officials on charges of arson and damage to property, and of one of those leaders for alleged slander, libel and defamation; refusal by the authorities to recognize the right of the teachers’ organizations to represent their members; violation of collective bargaining and the Honduran Teachers’ Statute in salary matters

1. 857. The complaint is set out in a joint letter from the Association of Secondary Teachers of Honduras (COPEMH) and the Professional Association of School Teachers of Honduras (COPRUMH) of 9 March 2004. In a letter of 22 March 2004, Education International (EI) supported the complaint. The Government sent its observations in a letter of 16 August 2004.
2. 858. 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 complainants’ allegations

1. 859. In their letter of 9 March 2004, the Association of Secondary Teachers of Honduras (COPEMH) (affiliated to the United Confederation of Workers of Honduras, which is in turn a member of the Inter-American Regional Organization of Workers, to the International Confederation of Free Trade Unions and Education International) and the Professional Association of School Teachers of Honduras (COPRUMH) (a member of Education International) allege that the Secretariat of State in the Ministry of Education and other state institutions initiated a series of acts of repression, discrimination and interference in trade union affairs in order to circumvent and eliminate the Honduran Teachers’ Statute which is the legal instrument equivalent to a collective agreement, and the product of many years of struggle, contained in Decree-Law No. 136-97 of 11 November 1997 and approved by the Honduran National Congress.
2. 860. These acts of repression, discrimination and interference in trade union affairs consist of:
   • (a) Prohibition of COPEMN and COPRUMH and their president from organizing trade union activities and events, such as meetings and demonstrations, classifying such activities as a criminal offence. This prohibition was ordered by the Secretary of State for Education in a resolution of 22 August 2002.
   • (b) Imposition of economic sanctions (fines) on the said organizations by the Secretariat of State in the Ministry of Education without any legal authority. This was done by summons dated 9 October 2002, requiring the president of COPEMH to pay to the General Treasury of the Republic within 24 hours a fine of 500 lempiras in respect of alleged illegal acts committed by the organization. Likewise, by summons dated 28 August 2002 COPEMH and COPRUMH were required through their presidents to pay to the General Treasury of the Republic within 24 hours a fine of 1,000 lempiras, which fine was imposed according to the Secretariat for renewed acts in contravention of the resolution of 22 August 2002. All of this is a manoeuvre to force the organization and its members to conform to government guidelines and policies, in contempt and in violation of the right freely to organize activities and formulate a programme of action set out in ILO Convention No. 87, and also contained and developed in the Honduran Teachers’ Statute and the constitutions of the teachers’ associations.
   • (c) An application to suspend the legal personality submitted by the Public Prosecutor’s Office to the labour court of first instance, announced on 17 May 2003 in the national newspapers.
   • (d) Suspension of the deduction of trade union dues of members of COPEMH and COPRUMH. Having failed to achieve the subjection of the teachers’ organizations to its policies, the Secretary of State for Education informed them in a letter, ref: 027 SE-03 of 7 January 2003, that with effect from December 2002, the Secretariat of State for Education would not make deductions from teachers’ salaries for their contributions or dues to their organization (trade union dues). This is in breach of article 10, paragraph 2, of the Honduran Teachers’ Statute and article 20, paragraph 1, of the General Teachers’ Regulations. The deductions had been made from the inception of both organizations up to the date when the Minister notified that he would no longer do so. Thus, the life insurance policy was suspended, as a result of which the teachers were left without protection. The hospital health insurance policy was suspended, as a result of which teachers and their dependents are not entitled to the medical care provided by that insurance. The medical and funeral expenses insurance was suspended. The survivors insurance for survivors of pensioners was suspended. Personal loans to members were suspended, forcing them to resort to moneylenders to the detriment of the family budget.
   • (e) Prosecution of officials and members of the organization. In October 2002 several of the organization’s officials were prosecuted: Professor Eulogio Chávez Doblado (president at that time), Carlos Alberto Murillo, Andrés Martínez, Ricardo Pastrana, Joel Núñez Medina, Nelson Edgardo Cálix (president of the organization for the period 2004-05), Carlos Alberto Lanza and Luis Alonzo Sosa, of COPEMH and Professors Jorge Alberto Franco (president of the organization at that time), German Yobany Hernández, Fátima Mercedes Andino, Carlos Roberto Leal and Angel Octavio Martínez (president of the organization for the period 2004-05). They were indicted by the Public Prosecutor’s Office in the Tegucigalpa Lower Criminal Court, charged with arson and damage to property belonging to the State of Honduras and offences committed by individuals who exceeded their duties in the exercise of the rights guaranteed them under the Constitution. However, as they were innocent, they were acquitted by the Court.
3. 861. Subsequently, the Minister of Education, Mr. Carlos Avila Molina, instituted proceedings against the current president of the organization, Professor Nelson Edgardo Cálix, accusing him of slander, libel and defamation for denouncing acts of interference by the Secretariat of State for Education to control the teachers’ organization and seeking to install candidates supportive of the Government. The Court acquitted Professor Nelson Edgardo Cálix of the offences in its judgement of 21 October 2003, but the Minister of Education lodged an appeal which is to be heard by the Supreme Court of Justice, with the risk that he may be imprisoned and thus prevented from carrying out his duties as president of the organization.
4. 862. The complainant organizations add that their right to represent their members and provide them with legal defence is being impeded and denied. On 10 December 2002, these organizations applied for an injunction against the State of Honduras seeking its compliance with the economic arrangements set out in articles 46-53 of the Honduran Teachers’ Statute and articles 161 and 162 of the General Regulations of the Statute and against the substitution of those arrangements by an act concluded between the State and some of the teachers’ organizations on 5 July 2002. In this case, the Administrative Disputes Court and the Administrative Disputes Appeal Court in that city, on application by the Public Prosecutor’s Office, in January 2004, denied the right of members under the Constitution to be represented by the organization. At the present time an appeal for protection of constitutional rights is pending before the Supreme Court of Justice against the decisions that deny the organization’s right to represent its members.
5. 863. In addition, the complainants continue, the right of collective bargaining has been denied. From 1 January 2002, the salaries of members of the complainant organizations were paid in accordance with the act (contract) signed by the government authorities and other teachers’ organizations on 5 July 2002, totally ignoring the economic arrangements established in the Honduran Teachers’ Statute. In January 2004, Decree No. 220-2003 of 19 December 2003, published in the official journal of 12 January 2004 came into force. It contains the law on the restructuring of the central government salary system which abolishes the Honduran Teachers’ Statute, at the same time violating and diminishing the agreement of 5 July 2002 between the State and the other trade unions. These actions are in violation of Article 4 of Convention No. 98.

B. The Government’s reply

1. 864. In its communication of 16 August 2004, the Government states with respect to an alleged prohibition by the Secretariat for Education of the teachers’ associations (COPEMH and COPRUMH) from organizing trade union activities and events (meetings, demonstrations) that on 22 August 2002 the Secretariat for Education issued a resolution requiring the teachers’ organizations to “cease their acts of disobedience and calls to secondary education teachers to disobedience, ill-timed suspension of work and walkouts, participation in acts of contempt and breach of public order and actions which affect the free movement of persons, goods and services, either by inciting or participating in them, and also to cease making public pronouncements and statements which offend and demean the image of the institution and its representatives”. This resolution was based specifically on Article 8, paragraph 1, of Convention No. 87 which states: “In exercising the rights provided for in this Convention workers and employers and their respective organizations, like other persons or organized collectivities, shall respect the law of the land.” The latter is precisely the purpose of the resolution, i.e. that the exercise of the principle of trade union independence is circumscribed by the legal framework ruling in the country. What happened overstepped the bounds of the country’s legal framework when members of the teachers’ associations engaged in violent demonstrations using clubs, homemade bombs (molotov cocktails), stones, burning tyres, setting fire to a vehicle, causing damage to state property (destruction of the railings surrounding the National Congress Building), blocking roads, preventing the free movement established in the Constitution of the Republic. In no way and at no point was there a ban on exercising the principle of trade union independence nor did the State engage in “acts of interference” as stated in the complaint. In this respect, it should be clearly understood that the concept of act of interference contemplated in paragraph 2, of Article 2, of Convention No. 98 in no way covers the matters to which the complaint refers. The decision in question led to the teachers’ association seeking to have it nullified, which was declared inadmissible.
2. 865. As to the alleged imposition of economic sanctions (fines) on the teachers’ organizations by the Secretariat of Education without allegedly any legal provision to allow that, the Government states that the fines mentioned by the complainants were ordered by virtue of the illegal acts committed by the trade union organizations mentioned above. The legal basis was article 500, paragraph 2(a), of the Labour Code which states that “Any violation of the provisions of this Title (Freedom of Labour) shall be subject to the following sanctions: 2(a) fines of up to five hundred lempiras (Lps 500.00) for the first offence; …”. It is not true that the fine was imposed to “force the organization and its members to conform to government guidelines and policies, in contempt and in violation of the right freely to organize activities and formulate a programme of action set out in ILO Convention No. 87”. The fines were imposed for violent acts and ill-timed strikes which constituted a breach of the peace.
3. 866. As regards the application to the Court for the suspension of the legal personality of the teachers’ organizations, COPEMH and COPRUMH, by the Public Prosecutor’s Office, the Government says that this was a case of a legitimate act by the Public Prosecutor’s Office. The action was not taken on grounds of repression of the organizations in question for supposedly demanding compliance with the Honduras Teachers’ Statute. The application for suspension was due to the unreasonable and violent behaviour of the two teachers’ organizations which chose to unleash public demonstrations at national level, involving roadblocks, occupation of streets and public buildings, setting fire to vehicles, looting and destruction of school furniture, expression of insults through the media, homemade incendiary bombs (molotov cocktails), use of clubs, stones and bricks, all of which caused injury to members of the public and the police, and, of course, suspension at national level of their teaching duties, leaving the entire school population without education. At the root of all of this was the agreement concluded with the Government through the bipartite committee consisting of representatives of the Administration and four teachers’ organizations. Under this agreement, the Act of 5 July 2002 was concluded for the application of the Honduran Teachers’ Statute to teachers’ pay claims and the times at which increases would occur. This Act was approved by Legislative Decree No. 347-2002, published in the official journal on 4 December 2002. This agreement was rejected in the manner described above by the leadership of the two teachers’ associations, COPEMH and COPRUMH. Even when their members received the benefit of the salary increase, none of them returned that payment, nor did they make any claim or reservation in respect of the pay received, thereby consenting to the agreements from which they derived benefits. Faced with disorder and anarchy at national level, where there was a total disruption of public order, the Public Prosecutor’s Office took action, seeking the suspension of legal personality.
4. 867. As regards the allegation of suspension by the Secretariat for Education of the deduction of the contribution paid by members of COPEMH and COPRUMH, the Government states that the decision by the Secretariat for Education not to make deductions of contributions of members of COPEMH and COPRUMH was purely due to economic reasons. On the one hand, there was no legal requirement for the Secretariat to make such deductions, and on the other, the operation involved very high administrative costs. It is not true that the Secretariat for Education was in breach of paragraph 2, of article 10, of the Honduran Teachers’ Statute, since this provision does not require the Secretariat of State to make such deductions. The actual text of the provision states as follows: “Make voluntary, legal and judicial deductions from the teacher’s salary and pay them promptly to the corresponding institutions”. In addition, article 30 of the constitution of the Association of Secondary Teachers of Honduras (COPEMH) states in paragraph (d): “Demand and collect the agreed ordinary and extraordinary dues”, and the constitution of the Professional Association of School Teachers of Honduras (COPRUMH), article 25, paragraph (c), provides that the duties of the organization’s finance secretary include “collecting the association’s income and making legally authorized payments”.
5. 868. It is clear from the foregoing that the Secretariat of Education is under no obligation to deduct contributions by teachers to their respective teachers’ associations and that in view of the administrative constraints to which the Secretariat of Education is subject, it was necessary to reduce its costs. Moreover, as teachers’ organizations have an obligation under their respective rules to collect dues from their members, it is not clear why the non deduction be them causes injury to their members. Appropriate legal appeals were lodged by COPEMH and COPRUMH against the decision of the Secretary of Education not to continue making the deduction of members’ dues, and the litigation is in progress (the matter was settled by conciliation on 10 July 2004, as described below).
6. 869. As to the prosecution of officials and members of the teachers’ associations, the Government states that in view of the acts of vandalism committed by the teachers’ leaders and members, totally outside the law, the Prosecutor-General, as legal representative of the State of Honduras, indicted the leaders of the teachers’ associations for wounding, arson and damage against the State of Honduras and its internal public order during the events of 24 and 25 October 2002. The towns of Tegucigalpa were witness to these lamentable events. It should be noted that the charge of slander, libel and defamation by Mr. Nelson Edgardo Cálix against the Minister of Education, Mr. Carlos Avila Molina, was the subject of a personal action and the law which assists anyone to have access to the courts as laid down in article 82 of the Constitution of the Republic. Mr. Cálix was the subject of a criminal indictment and the case is still in progress in the courts. It should be clearly understood that all the actions instigated against teachers’ members and leaders have nothing to do with trade union activities under the principle of trade union freedom.
7. 870. As regards the complainants’ allegation that supposedly “their right to represent their members and provide them with legal defence is being impeded and denied”, the Government points out that the teachers’ associations applied for an injunction to set aside the administrative act consisting of Legislative Decree No. 347-2002, which approves the resolution of 5 July 2002 on salary adjustments with which they did not agree. On 19 May 2003, the Administrative Disputes Court declared the application inadmissible, since it had been submitted by a person with legal capacity who was not properly represented and not authorized since neither the constitution of COPEMH nor that of COPRUMH contains any provision allowing them to act as legal representative of their members. The argument advanced by the teachers’ organizations is that this decision denies “the right of members to be represented by the organization conferred by the Constitution”. This argument, firstly, has nothing to do with the Secretariat of Education, since it is a decision by the judicial authority and, secondly, it is not stated which part of the decision contains this assertion.
8. 871. Concerning the alleged breach of the right of collective bargaining, the Government indicates that the complainants argue that Decree No. 220-03 of 19 December 2003, which contains the law on the restructuring of the central government salary system derogates from the regime established in the Honduran Teachers’ Statute, violates and diminishes the agreement of 5 July 2002 between the State and the other trade unions. This assertion is based on Article 4 of ILO Convention No. 98 and Articles 3, 8 and 10 of ILO Convention No. 87.
9. 872. In this respect, the growth in the salary account of central government and decentralized institutions in recent years has had no relation to inflation and economic growth, limiting the ability of the Honduran State to meet, from its own resources, the needs of the most vulnerable social groups and those who live in conditions of poverty, as well as its capacity for investment.
10. 873. With respect to the foregoing, it should be noted that the law on the restructuring of the central government salary system applies to all public servants generally, without any distinction whatsoever.
11. 874. Lastly, the Government states that on 10 July 2004, the Government ended the teachers’ dispute through a conciliation commission which heard the complaint by COPEMH and COPRUMH. Thus, as the parties to the dispute reached an agreement with the title “Proposed solution to the education problem”, the causes underlying the dispute disappeared and the dispute was settled. The settlement document, which includes salary and remuneration clauses, and a commitment by the Government to deduct the arrears of members’ dues to the complainant organizations, is attached. For their part, the organizations undertake to make up all the days lost to strikes. The settlement includes clauses on social security, training, provision of materials, improvement of building and maintenance programmes, etc. The Government also undertakes not to take any kind of reprisals against the teachers for their actions during the campaign and the teachers undertake to return to their classes immediately.

C. The Committee’s conclusions

1. 875. The Committee observes that in this complaint the complainant organizations have presented the following allegations mostly concerning 2002 and 2003 and that they are set against a background of a salary dispute in the teaching sector: ban on teachers’ organizations from organizing meetings and demonstrations classifying such activities as offences; imposition of fines for alleged illegal acts by the teachers’ organizations; application by the Public Prosecutor’s Office for suspension of the legal personality of two teachers’ organizations; suspension of the deduction of trade union dues of members of the teachers’ organizations, thus impairing members’ social protection; prosecution of 12 trade union officials, on charges of arson and damage to property (the court later acquitted them) and one of the leaders for alleged slander, libel and defamation, and refusal of the authorities to recognize the right of the teachers’ organizations to represent their members. The complainant organizations also allege that the Government breached collective agreements and the Honduran Teachers’ Statute by issuing Decree No. 220 2003 which came into force on January 2004 and which, according to the complainants, violates the Honduran Teachers’ Statute and an act (contract) concluded by the authorities and other teachers’ organizations on 5 July 2002 containing salary-related clauses.
2. 876. As regards the last allegation, and the suspension of deduction of members’ dues to the complainant organizations, the Committee notes with interest the conciliation settlement of 10 July 2004, concluded between the Government and the teachers’ organizations (including the complainants in this case) which includes salary and remuneration clauses, and a commitment by the Government to deduct the arrears of members’ dues to the complainant organizations. For their part, the organizations undertake to make up all the days lost to strikes. The settlement includes clauses on social security, training, provision of materials, improvement of building and maintenance programmes, etc. The Government also undertakes not to take any kind of reprisals against the teachers for their actions during the campaign and the teachers undertake to return to their classes immediately. The Committee recalls in this respect that the withdrawal of the check-off facility, which could lead to financial difficulties for trade union organizations, is not conducive to the development of harmonious industrial relations and should therefore be avoided [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 435].
3. 877. As regards the allegations relating to 2002 and 2003, the Committee notes the Government’s statements that: (1) in 2002 there were violent demonstrations by teachers in which members of the complainant organizations used clubs, homemade bombs (molotov cocktails), stones, destroyed public and private property and blocked roads, committing offences of injury (against members of the public and police) arson and damage to property which had nothing to do with trade union activities. In this connection, the Secretariat of Education issued a call in the form of a resolution to cease the disruption and breach of the peace and ill-timed suspension of work and walkouts and to cease making public pronouncements and statements which offended and demeaned the image of the institution and its representative; (2) fines were imposed for acts of violence and ill-timed strikes which breached the peace; (3) application for suspension of the legal personality of the organizations was a result of the acts of violence mentioned above and the suspension by teachers of their duties at national level which left the entire school population without education; (4) the prosecution of officials and members of the complainant organizations was a consequence of the abovementioned offences (the complainants pointed out that the persons in question were acquitted by the courts); the lawsuit for slander, libel and defamation committed by the president of the teachers’ organization (Mr. Nelson Edgardo Cálix) was filed by the Minister of Education as a personal action; (5) as regards the salary adjustment signed by other organizations on 5 July 2002, no legal provision authorizes the complainant organizations to engage in legal representation of their members; the salary question, as indicated, was the subject of a conciliation settlement with the participation of the complainant organizations.
4. 878. The Committee deplores the acts of violence which occurred arising out of the salary dispute in late 2002. The Committee recalls that trade unions should respect legal provisions which are intended to ensure the maintenance of public order; the public authorities should, for their part, refrain from any interference which would restrict the right of trade unions to organize the holding and proceedings of their meetings in full freedom [see Digest, op. cit., para. 144]. The Committee observes that the conciliation settlement of 10 July 2004, signed by the complainant organizations, contains a clause on non-reprisal against teachers for their actions during the campaign (dispute). The Committee requests the Government to indicate whether by virtue of that non-reprisal clause the sanctions (fines) on the president of COPEMH and against COPEMH and COPRUMH and the application for suspension of these organizations’ legal personality have been abandoned or set aside. The Committee also requests the Government to keep it informed of the result of the lawsuit by the Minister of Education against the official Nelson Edgardo Cálix for slander, libel and defamation.
5. 879. Finally, the Committee requests the Government to keep it informed of the result of the application for protection of constitutional rights entered by the complainant organizations against the judgements which, it is alleged, deny the right of these organizations to represent their members.

The Committee's recommendations

1. 880. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) While noting with interest the settlement reached on 10 July 2004 between the Government and the complainant organizations and in particular its clauses on salaries and deduction of trade union dues, the Committee requests the Government to indicate whether by virtue of that non-reprisal clause the sanctions (fines) on the president of COPEMH and against COPEMH and COPRUMH and the application for suspension of these organizations’ legal personality have been abandoned or set aside.
   • (b) The Committee also requests the Government to keep it informed of the result of the lawsuit by the Minister of Education against the official Nelson Edgardo Cálix for slander, libel and defamation.
   • (c) Finally, the Committee requests the Government to keep it informed of the result of the application for protection of constitutional rights entered by the complainant organizations against the judgements which, it is alleged, deny the right of these organizations to represent their members.