Report in which the committee requests to be kept informed of development - Report No 387, October 2018

Case No 3032 (Honduras) - Complaint date: 15-MAY-13 - Follow-up

Allegations: The complainant organizations allege the murder of a female trade unionist, the institution of criminal proceedings, the detention of trade unionists, the declaration of a strike as illegal by the administrative authority, mass dismissals for participation in protests, restrictions on the right to strike and union leave, and other anti-union acts

1. 415. The Committee last examined this case at its June 2016 meeting, when it presented an interim report to the Governing Body [see 378th Report, paras 357–400].
2. 416. The Single Confederation of Workers of Honduras (CUTH) and the General Confederation of Workers (CGT) submitted additional information in a communication dated 6 June 2017.
3. 417. The Government submitted further observations in communications dated 11 August 2016, 3 May 2017 and 4 September 2017.
4. 418. 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. Previous examination of the case

1. 419. At its June 2016 meeting, the Committee made the following recommendations [see 378th Report, para. 400]:
   • (a) The Committee requests the Government to keep it informed of the outcome of the legal proceedings concerning the death of Ms Ilse Ivania Velásquez Rodríguez.
   • (b) Concerning the legal proceedings instituted against 24 teachers for the crimes of sedition and unlawful association, and their subsequent arrest while participating in a peaceful demonstration, the Committee expects that all necessary measures are taken so that the ongoing legal proceedings can be concluded without further delay and that measures for conditional release are provided if the judicial decisions are not taken in the near future. The Committee requests the Government to keep it informed in this regard.
   • (c) As to the suspension of the economic regime set forth in the Honduran Teachers’ Statute, pursuant to article 3 of Decree-Law No. 224-2010 of 28 October 2010, the Committee reiterates its request to the Government and complainant organizations to seek a negotiated solution acceptable to all the parties concerned, in accordance with the principles of freedom of association laid down in the ratified Conventions on freedom of association and collective bargaining. It requests the Government to inform it of the outcome of any negotiations entered into on the matter.
   • (d) Concerning the arbitrary provisions on union dues under Decree-Law No. 267-2013 of 22 January 2014, the Committee requests the Government to send its observations without delay, in particular on the scope of article 4 of the decree in question, to inform the Committee how trade unions’ right to organize their administration is safeguarded.
   • (e) Regarding the sending of an official communication by the National Commission of Banks and Securities in November 2014 mandating the transfer of the union dues accrued by each trade union organization to INPREMA, where teachers had opted for a pension savings account, the Committee requests the complainant organization to provide more detailed information, including a copy of the official communication to which it refers.
   • (f) With regard to the declaration of illegality by the State Secretariat of the Departments of Labour and Social Security which led to the adoption of Executive Decision No. 15575-SE-2012 of 18 October 2012, and the subsequent imposition of the sanctions of salary deductions, temporary suspension or dismissal, as the case may be, affecting hundreds of teachers, the Committee once again requests the Government to take measures to amend the legislation such that the legality or illegality of a strike is declared by an independent body.
   • (g) Concerning the allegations that the State Secretariat of the Department of Education sends inspectors to each lawfully convened assembly, the Committee, recalling that the presence of a representative of the public authorities or of the employer in trade union meetings constitutes an act of interference incompatible with the principle of freedom to hold trade union meetings laid down in ratified Conventions on freedom of association and collective bargaining, once again requests the Government to ensure that such practices do not recur in the future.
   • (h) As to the suppression of protests against the failure to pay salary increments from 2010 to 2013, the Committee once again urges the Government to submit its observations without delay, in particular providing information on the complaints submitted to the competent authorities by the persons who suffered police repression during the protests.
   • (i) Moreover, the Committee requests the complainant organization to provide more detailed information on the allegations concerning: (1) the sending of an official communication by the National Commission of Banks and Securities in November 2014 mandating the transfer of the union dues accrued by each trade union organization to INPREMA, where teachers had opted for a pension savings account; and (2) the restrictions on the right of assembly of teachers’ organizations and the victimization and harassment of teachers’ representatives.

B. Additional information from the complainants

1. 420. In its communication of 6 June 2017, two of the complainant organizations, the CUTH and the CGT, provided additional information related to the recommendations made by the Committee in its previous examination of the case.
2. 421. With regard to recommendation (a) relating to the death of Ms Ilse Ivania Velásquez Rodríguez on 18 March 2011 while she was participating in a peaceful demonstration, the complainant organizations attach a report drawn up on 18 January 2017 by the Committee of the Families of Detained and Disappeared Persons in Honduras (COFADEH) (an organization providing legal representation to Ms Velásquez Rodríguez’s relatives), which notes that that no progress has been made in the case pending before the Office of the Special Prosecutor for Human Rights, and that the case continues to be met with impunity.
3. 422. Concerning recommendation (b) (with regard to the legal proceedings instituted against 24 teachers for the crimes of sedition and unlawful association, and their subsequent arrest while participating in a peaceful demonstration), the complainant organizations attach a copy of the Supreme Court of Justice ruling dated 5 May 2016 ordering the dismissal of the proceedings against, and the unconditional release of, Mr Edgardo Antonio Casaña Mejía, Mr César Agusto Ramos Cáceres, Mr Alfonso López Gillen, Mr José Alejandro Ventura and Mr René Recarte Barahonda, who had been charged with abuse of authority against the public administration.
4. 423. As to recommendation (c) (relating to the suspension of the economic regime set forth in the Honduran Teachers’ Statute), the complainant organizations note that teachers have seen the purchasing power of their salaries fall as a consequence of the Government’s failure to make the adjustments agreed in the Honduran Teachers’ Statute and of the Government’s historical debt.
5. 424. Concerning recommendation (e) (relating to an official communication sent by the National Commission of Banks and Securities in November 2014), the complainant organizations attach a copy of Circular No. 039/2014 of the National Commission of Banks and Securities dated 10 April 2014, which refers to Decree-Law No. 267-2013, which provides that the rights of those teachers who hold insurance policies through teachers’ organizations shall be preserved or enhanced through the National Pension Institute for Teachers (INPREMA), provided that said teachers have requested and authorized the deduction of the corresponding premium from the pension savings account.
6. 425. Concerning recommendation (f) (declaration of the strikes as illegal by the administrative authority), the complainant organizations attach a copy of the ruling of the Administrative Disputes Court of 10 December 2013 ordering the reinstatement of, and the payment of compensation and damages to, 26 teachers who had been temporarily suspended from their jobs in light of the strike being declared illegal by the State Secretariat for Labour and Social Security. The complainant organizations note that said ruling has yet to be applied.
7. 426. Concerning recommendation (i) (relating to the restrictions on the right of assembly of teachers’ organizations and the victimization and harassment of teachers’ representatives), the complainant organizations attached a copy of an official communication sent by the State Secretariat for Education on 9 March 2015 to the departmental directors of education, in which it is stated that the use of school premises for meetings of political parties or teachers’ organizations is prohibited.
8. 427. Furthermore, with reference to an allegation examined by the Committee in previous reports (the denial of the requests for renewal of union leave), the complainant organizations note that disciplinary proceedings were instituted against those teachers whose requests for renewal of union leave had been denied, and that some of them had already been dismissed. The complainant organizations attach a number of documents relating to the disciplinary proceedings instituted against the following teachers: Mr Elías Muñoz Varela, Mr Jaime Atilio Rodríguez, Mr Edwin Emilio Oliva, Mr Eulogio Chávez Doblado, Mr Orlando Mejía Velásquez, Mr Armando Gómez Torres and Mr Jury Heny Hernández Troches. According to the attached documents: (i) the disciplinary proceedings were instituted because the teachers whose requests for renewal of union leave had been denied refused to return to work, and (ii) some of these proceedings remain pending.

C. The Government’s reply

1. 428. In its communications of 11 August 2016, 3 May 2017 and 4 September 2017, the Government conveyed the following information.
2. 429. With regard to recommendation (a), the Government reports that on 18 March 2011, the Office of the Special Prosecutor for Offences Against Life instituted ex officio proceedings against Mr Carlos Eduardo Zelaya Ríos on charges of culpable homicide. In these proceedings, it was determined that the death of the teacher, Ms Ilse Ivania Velásquez Rodríguez, while participating in a violent protest on 11 March 2011 resulted from her being run over by a vehicle, by the accused Mr Ríos, who was working for HCH media at the time, and who was convicted of culpable homicide on 17 August 2015 (the case is currently before the enforcement court under case file No. 747-2015-J4).
3. 430. As to recommendation (b), the Government reports that information on the judicial proceedings instituted against 24 teachers remains outstanding, since not all of the accused had their cases dismissed.
4. 431. Concerning recommendation (c), the Government recalls that, in accordance with the Act on Fiscal and Financial Emergencies, contained in Decree-Law No. 18 of 28 March 2010, the country was declared to be in a state of fiscal emergency, and that the automatic salary increase provided for in the economic regime under the Honduran Teachers’ Statute was therefore deemed financially unsustainable. The Government notes that, while it is correct that said Decree-Law was valid for a period of one year, it has been extended. It also notes that it was not only the economic regime of the Honduran Teachers’ Statute that was put on hold, but also the economic regimes linked to all the various professional statutes. Nevertheless, the Government reports that in September 2016, the central Government approved a salary increase of 800 Honduran lempiras (HNL), and of an additional HNL1,000 in September 2017, bringing the total increase to HNL1,800 within one year.
5. 432. With regard to recommendation (f) (declaration of the strike as illegal by the administrative authority), the Government indicates that this matter was referred to the State Secretariat for Labour and Social Security because the laws and regulations governing the employment relationship between the State and the national public education system do not include provisions on a procedure for declaring a strike illegal. Nevertheless, the Government notes that currently it has not had to have recourse to such measures.
6. 433. Concerning recommendation (h), the Government notes that there was no suppression whatsoever of the protests against the failure to pay salary increments from 2010 to 2013, and that the State Secretariat for Education does not have any record on file of any complaint that would provide evidence of acts of repression against the teachers.
7. 434. As regards the disciplinary proceedings against and dismissals of the teachers whose requests for renewal of union leave had been rejected, the Government notes that: (i) the requests for renewal of paid union leave were rejected because they exceeded the time limits provided for in the statute of the relevant teachers’ organization; (ii) said union officials were entitled to request leave without pay; and (iii) the other teachers who were members of the executive committees were indeed granted paid union leave. The Government notes that disciplinary proceedings had been instituted against the teachers Mr Edwin Emilio Oliva, Mr Orlando Mejia Velásquez, Mr Armando Gómez Torres, Mr Jaime Atilio Rodríguez, Mr Jury Hernández Trochez and Mr Eulogio Chávez Doblado because, after having been notified that their requests for renewal of leave had not been approved, they did not report for work, thereby abandoning their posts. The Government also notes that a number of those proceedings remain pending.

D. The Committee’s conclusions

1. 435. The Committee recalls that the present case is part of a long-running dispute between teachers’ organizations and the Government, which gave rise to protests and strikes during the period from 2010 to 2013, caused by the suspension of the economic regime set forth in the Honduran Teachers’ Statute and the delays in the payment of salaries in arrears, among other factors. Further, the Committee recalls that the allegations that had remained pending in this case relate to: (1) the death of a trade unionist on 18 March 2011, while she was participating in a peaceful demonstration; (2) the legal proceedings instituted against 24 teachers for the crimes of sedition and unlawful association, and their arrest while participating in a peaceful demonstration; (3) the suspension of the economic regime set forth in the Honduran Teachers’ Statute, and its de-indexation from the minimum salary (preventing the continuing use of the minimum salary as a reference for the automatic and direct increase of salaries); (4) the failure to pay salary increments from 2010 to 2013 and the suppression of the protests to which this gave rise; (5) the declaration of the protests as illegal by the administrative authority and the resulting sanctions imposed on more than 600 teachers; (6) the suspension of the deductions of union dues for teachers’ organizations; and (7) restrictions on the right of assembly of teachers’ organizations and the victimization and harassment of teachers’ representatives.
2. 436. As regards recommendation (a), relating to the death of Ms Ilse Ivania Velásquez Rodríguez on 18 March 2011 while she was participating in a peaceful demonstration, the Committee notes that, although the complainant organizations indicate that no progress has been made on the case, which is pending before the Office of the Special Prosecutor for Human Rights, and that the case continues to be met with impunity, the Government indicates that it was determined in the ex officio judicial proceedings instituted on 18 March 2011 by the Office of the Prosecutor for Offences Against Life that the death of the teacher, Ms Ilse Ivania Velásquez Rodríguez, resulted from her being run over by Mr Carlos Eduardo Zelaya Ríos, who was working for HCH media at the time and who was convicted of culpable homicide on 17 August 2015, and that his sentence is currently before the enforcement court. The Committee takes note of this information relating to the regrettable event, and, recalling the importance of imposing effective sanctions on those found guilty, it requests the Government to supply a copy of the verdict and to provide updated information on the enforcement of the sentence.
3. 437. Concerning recommendation (b), relating to the legal proceedings instituted against 24 teachers for the crimes of sedition and unlawful association, and their subsequent arrest while participating in a peaceful demonstration, the Committee takes note of the fact that, while the complainant organizations attached a copy of the ruling of the Supreme Court of Justice dated 5 May 2016 ordering the dismissal of the proceedings against, and the unconditional release of, Mr Edgardo Antonio Casaña Mejía, Mr César Agusto Ramos Cáceres, Mr Alfonso López Gillen, Mr José Alejandro Ventura and Mr René Recarte Barahonda, who had been charged with abuse of authority against the public administration, the Government indicates that information on the judicial proceedings instituted against 24 teachers remains pending, since not all of the accused had their cases dismissed. Taking note of the information provided by the complainant organizations, the Committee requests the Government and the complainant organizations to indicate which judicial proceedings remain pending and trusts that, pending final judgement, those persons who were accused have been released. Noting with concern that the imprisonment of the 24 teachers took place in 2011, the Committee once again urges the Government to take all necessary measures to ensure that the ongoing legal proceedings can be concluded without further delay. The Committee requests the Government to provide information in this regard as soon as possible.
4. 438. As to recommendation (c) relating to the suspension of the economic regime set forth in the Honduran Teachers’ Statute, the Committee takes note, firstly, that the complainant organizations state that teachers have seen the purchasing power of their salaries fall as a consequence of the non-payment of the salary increments agreed under said Statute. The Committee also notes the fact that the Government reports that: (i) in 2010, in the context of a fiscal and financial crisis, Decree-Law No. 224-2010 of 28 October 2010 was issued, which suspended not only the economic regime of the Honduran Teachers’ Statute, but also that of the statutes governing all the various professions; (ii) this suspension has been extended over the years (in its previous reports, the Committee took note of the explanations provided by the Government on this matter); and (iii) nevertheless, in September 2016, the central Government approved a salary increment of 800 Honduran lempiras (HNL), and of an additional HNL1,000 in September 2017, amounting to a total of HNL1,800 (the equivalent of US$75) within one year. The Committee notes, however, that the Government does not indicate whether or not said increments resulted from wage negotiations. Recalling that Decree-Law No. 224-2010 provides that salary adjustments shall be determined through negotiations with union organizations, the Committee reiterates its request to the Government and the complainant organizations that they seek a negotiated solution acceptable to all the parties concerned, in accordance with the principles of freedom of association. It requests the Government to inform it of the outcome of any negotiations entered into on the matter.
5. 439. The Committee notes that the Government has not sent its observations in relation to recommendation (d), regarding the scope of article 4 of Decree-Law No. 267-2013 of 22 January 2014, which prohibits the State Secretariat for Education, the State Secretariat for Finance and private schools from making any type of deductions payable to teachers’ organizations that deviate from or are in excess of those established in the preceding article (article 3 of the Decree-Law provides that teachers may contribute a maximum of 0.5 per cent of their salary to teachers’ organizations). In this regard, the Committee recalls that matters relating to the financing of trade union and employers’ organizations, as regards both their own budgets and those of federations and confederations, should be governed by the by-laws of the organizations, federations and confederations themselves, and therefore, constitutional or legal provisions which require contributions are incompatible with the principles of freedom of association [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 687]. Accordingly, in order to ensure that trade unions’ right to organize their own administration is safeguarded, the Committee requests that the Government take the steps necessary to amend Decree-Law No. 267-2013 in order to stipulate that the amount of the union dues of teachers’ organizations shall be determined in accordance with their own by-laws. The Committee requests the Government to keep it informed of the action taken in this regard.
6. 440. Concerning recommendation (e), the Committee had requested that the complainant organizations provide it with more detailed information as well as a copy of the official communication by the National Commission of Banks and Securities of November 2014 which, according to the complainant organizations, mandated the transfer of the union dues accrued by each trade union organization to INPREMA, for those teachers who held a pension savings account. On this matter, the Committee notes that the complainant organizations only sent a copy of a circular of the National Commission of Banks and Securities dated April 2014, but not of the official communication of November 2014. In addition, the Committee notes that the attached circular of April 2014 refers to Decree-Law No. 267-2013, which provides that the rights of those teachers who possess insurance policies through the teachers’ organizations shall be preserved or enhanced through INPREMA, provided that said teachers have requested and authorized the deduction of the corresponding premium from the pension savings account. In this respect, recalling that in its previous examination of the case, the Committee took note of the Government’s indication of the voluntary nature of the pension savings account, the Committee will not proceed with the examination of this allegation.
7. 441. With reference to recommendation (f), specifically in relation to the fact that the strike was declared illegal by the State Secretariat for Labour and Social Security, the Committee regrets that the Government merely indicates that this is explained by the fact that the laws and regulations governing the employment relationship between the State and the national public education system do not include provisions on a procedure for declaring a strike illegal. The Committee recalls that responsibility for declaring a strike illegal should not lie with the Government, but with an independent body which has the confidence of the parties involved [see Compilation, op. cit., para. 907]. The Committee hence requests that the Government take the steps necessary to ensure that the responsibility for declaring a strike as legal or illegal lies not with the Government, but with an independent and impartial body.
8. 442. Moreover, with respect to the suspension of teachers from their duties as a result of the strike being declared illegal by the State Secretariat for Labour and Social Security, the Committee notes with concern that, according to the complainant organizations, the ruling of the Administrative Disputes Court of 10 December 2013 ordering the reinstatement of, and payment of compensation and damages to, the 26 teachers who had been temporarily suspended from their jobs has yet to be applied. The Committee requests the Government to send detailed information on all the steps taken to ensure the effective implementation of the court ruling, including the reinstatement of the teachers in question.
9. 443. As to recommendation (h), relating to the suppression of protests against the failure to pay salary increments from 2010 to 2013, the Committee notes that, according to the Government, there was no suppression whatsoever of the protests, nor does the State Secretariat for Education have any record of any complaints that would provide evidence of acts of repression against the teachers. Accordingly, and considering that the complainant organizations did not provide specific information in this regard, the Committee will not proceed with the examination of this allegation.
10. 444. As regards recommendation (i), specifically in relation to allegations of restrictions on the right of assembly, the Committee notes that the complainant organizations attached a copy of an official communication sent by the State Secretariat for Education on 9 March 2015 to the departmental directors of education, in which it is stated that the use of school premises for meetings of political parties or teachers’ organizations is prohibited. In this regard, the Committee draws the Government’s attention to the Workers’ Representatives Recommendation, 1971 (No. 143), concerning the protection and facilities to be afforded to workers’ representatives in the undertaking, which provides that the management should make available to workers’ representatives such material facilities and information as may be necessary for the exercise of their functions. The Committee also recalls that the Labour Relations (Public Service) Convention, 1978 (No. 151) lays down in Article 6 that such facilities shall be afforded to the representatives of recognized public employees organizations as may be appropriate in order to enable them to carry out their functions promptly and efficiently, both during and outside their hours of work, and that the granting of such facilities shall not impair the efficient operation of the administration or service concerned. [see Compilation, op. cit., paras 1581 and 1584]. The Committee requests the Government to invite the teachers’ organizations concerned and the authorities of the State Secretariat for Education to conduct negotiations with a view to reaching an agreement on arrangements for exercising the right of assembly.
11. 445. In addition, the Committee notes that, in their communication, the complainant organizations refer to an allegation that was examined in previous reports, concerning the rejection of the requests for renewal of union leave. Specifically, the complainant organizations indicate that those teachers whose requests for renewal of union leave had been rejected between 2013 and 2016 had had disciplinary proceedings instituted against them and had been dismissed.
12. 446. On this matter, firstly, the Committee recalls that in its previous reports, it had taken note of the Government’s statements affirming that, between 2011 and 2015, union leave continued to be granted for trade union affairs whenever the applicants were entitled to it. Secondly, the Committee takes note of the fact that, according to information in the documents attached by the complainant organizations, and according to the Government, the disciplinary proceedings had been instituted against the teachers because, after being notified that their requests for renewal of leave had not been approved, the teachers did not report for work, thereby abandoning their posts. That is to say, the disciplinary proceedings resulted from the serious misconduct arising from the abandonment of post. In addition, the Committee notes that, according to the Government: (i) the requests for renewal of paid union leave had been rejected on grounds that the teachers had exceeded the time limits under the statutes of the relevant teachers’ organizations (the Government does not indicate, however, what time limits are stipulated in those statues and to what extent they were exceeded); (ii) said union officials were entitled to request leave without pay; and (iii) the other teachers who were members of executive committees were granted paid leave. Taking account of the fact that, according to the documents attached by both the complainant organizations and the Government, some of the disciplinary proceedings remain pending, the Committee requests the Government and the complainants to keep it informed of developments in these proceedings.

The Committee’s recommendations

1. 447. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to supply a copy of the verdict of 17 August 2015 relating to the homicide of the teacher Ms Velásquez Rodríguez and to provide updated information on the enforcement of the sentence.
   • (b) The Committee requests the Government and the complainant organizations to indicate which of the judicial proceedings instituted against the 24 teachers remain pending and trusts that, pending final judgement, those persons who were accused have been released. The Committee once again urges the Government to take all necessary measures to ensure that any ongoing legal proceedings against teachers can be concluded without further delay. The Committee requests the Government to provide information in this regard as soon as possible.
   • (c) As to the suspension of the economic regime set forth in the Honduran Teachers’ Statute pursuant to article 3 of Decree-Law No. 224-2010 of 28 October 2010, the Committee reiterates its request to the Government and to the complainant organizations to seek a negotiated solution acceptable to all the parties concerned, in accordance with the principles of freedom of association. It requests the Government to inform it of the outcome of any negotiations entered into on the matter.
   • (d) The Committee requests the Government to take the steps necessary to amend Decree-Law No. 267-2013 of 22 January 2014 in order to stipulate that the amount of the union dues of teachers’ organizations shall be determined in accordance with their own by-laws. The Committee also requests the Government to keep it informed of the action taken in this regard.
   • (e) The Committee requests that the Government take the steps necessary to ensure that the responsibility for declaring a strike legal or illegal lies not with the Government, but with an independent and impartial body.
   • (f) The Committee requests the Government to submit detailed information on all the steps taken to ensure the effective implementation of the ruling of the Administrative Disputes Court of 10 December 2013 ordering the reinstatement of, and payment of compensation and damages to, the 26 teachers who had been temporarily suspended from their jobs as a result of the strike being declared illegal.
   • (g) The Committee requests the Government to invite the teachers’ organizations concerned and the authorities of the State Secretariat for Education to conduct negotiations with a view to reaching an agreement on the arrangements for exercising the right of assembly, including on the venue for trade union meetings.
   • (h) The Committee requests the Government and the complainants to keep it informed of the disciplinary proceedings instituted against the teachers whose requests for renewal of union leave were denied.