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

Case No 3287 (Honduras) - Complaint date: 16-MAY-17 - Follow-up

Allegations: Violation of the right to collective bargaining and freedom of association by the Ministry of Labour and Social Security (STSS); dismissals of and attacks against trade unionists in reprisal for their union activity

1. 448. The complaint is contained in a communication from the Single Confederation of Workers of Honduras (CUTH) of 6 June 2017.
2. 449. The Government sent its observations in a communication of 28 November 2017.
3. 450. 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 complainant’s allegations

1. 451. In its communication of 6 June 2017, the CUTH alleges that there was a violation in three cases of the right to collective bargaining and freedom of association of the Union of Agroindustrial and Allied Workers (STAS) – which is part of the Federation of Unions of Agroindustrial Workers (FESTAGRO), which in turn is affiliated to the complainant organization – by the Ministry of Labour and Social Security (STSS).

First case: STAS branch in a banana company

1. 452. The complainant organization alleges that, in violation of the provisions of Honduran legislation and the ILO Conventions ratified by Honduras, the STSS failed to recognize the right of the STAS branch in the agricultural company Bananera Santa Rita SA (hereinafter the banana company) to bargain collectively and that this right was accorded instead to trade union organizations that undermine the economic, labour and social conditions of the workers through their negotiations. In this regard, the complainant organization states that, on 5 May 2014, both the banana company and the regional office of the STSS in the municipality of El Progreso were notified of the establishment of a branch of the STAS and of the election of its executive board. The complainant organization adds that, on 9 June 2014, the STAS formally submitted to both entities a list of demands with a view to concluding a collective agreement on working conditions.
2. 453. The complainant organization maintains that, even though the STAS had formally notified both the STSS and the company of its list of demands, three months later, between 29 September and 4 October 2014, and at the request of the company, the General Labour Inspector, without first consulting the company’s trade union organizations – the STAS and the Union of Workers of the Agricultural Company Bananera Santa Rita SA (SITRAEBASAR) – conducted investigations in order to determine which union was the most representative and the one with which the company was expected to negotiate the collective agreement. The complainant organization alleges that the General Labour Inspector did not take into consideration the submission by the STAS of 142 union membership forms signed by workers of the company – a company in which 145 workers were employed on a permanent basis at the time. In addition, it states that the General Labour Inspector’s final report of 21 October 2014 (copy attached) indicates that the STAS has only 53 members and makes no reference to the submission of documentation by SITRAEBASAR that would prove how many members that union has. The complainant organization alleges that the STSS did not follow due process as established in Honduran labour legislation and that its reports were factually incorrect.
3. 454. The complainant organization encloses with its communication a copy of a written statement issued on 26 November 2014 by the Finance Secretary of FESTAGRO on behalf of the STAS to the General Labour Inspector at the STSS office in El Progreso. In the statement, the Finance Secretary of FESTAGRO indicates that days earlier, on 24 November, he had been to the STSS offices to confirm that the executive board of SITRAEBASAR had not reported to those offices for interview or to present the record of the executive board election and the record of the submission of its list of demands.

Second case: STAS branch in subsidiaries of a sugar company

1. 455. The complainant organization reports that the STSS is unlawfully favouring the Union of Azucarera del Norte and Agroindustrial Workers (SITRAZUNOSAGS) in subsidiaries of Azucarera del Norte SA (AZUNOSA, hereinafter “the sugar company”), thereby preventing the exercise of collective bargaining by the STAS sub-branch in the welding and metal working company SODEMEM, which is also a subsidiary of the sugar company.
2. 456. The complainant organization states that, on 18 November 2014, SODEMEM and the STSS office in El Progresso were notified of the establishment of an STAS sub-branch. The complainant organization maintains that, on 2 March 2015, the STAS formally submitted to both entities a list of demands for the negotiation of a collective agreement on working conditions. The complainant organization alleges that although the notification of the SITRAZUNOSAGS branch in the subsidiaries of the sugar company was submitted on 8 April 2015, the STSS tampered with the dates of the notifications so that the documents issued by the STSS indicate that they were submitted on 28 October 2014.
3. 457. The complainant organization further alleges that the notification of the SITRAZUNOSAGS branch in the sugar company and in its subsidiaries by the STSS office in San Pedro Sula was a violation of the principle of geographical jurisdiction as, according to that principle, the notification should have been issued by the STSS office in El Progreso. The complainant organization further alleges that the STSS did not take into consideration the fact that there was already a union in the subsidiaries to the sugar company, namely the STAS branch, which had a membership of 19 out of a total of 35 workers who were employed at that time in those companies.

Third case: STAS sub-branch in agricultural companies

1. 458. The complainant organization points out that, on 9 February 2016, the company Sur Agrícola de Honduras SA de CV (SURAGROH, hereinafter the agricultural company) and the regional office of the STSS in Choluteca were notified of the establishment of the executive board of the STAS sub-branch in the company. The complainant organization alleges that the aforementioned executive board was detained in the company offices by the company’s administrative staff. The complainant organization further alleges that the members of the executive board of the STAS sub-branch were dismissed without justification, contrary to the provisions of section 516 of the Labour Code, which stipulates that the members of executive boards cannot be dismissed for at least six months after ceasing to perform their union duties without first verifying with the appropriate court that there is just cause to terminate the contract.
2. 459. The complainant organization alleges that, in response to a request by the agricultural company to cancel the notification of the establishment of the executive board of the STAS sub-branch, the Directorate of Legal Services and General Labour Inspectorate of the STSS of Tegucigalpa issued a decision dated 23 September 2016, cancelling the notification without justification. The decision also invalidated the report of intimidation issued by the General Labour Inspectorate of Choluteca on 24 February 2016, which stated that the agricultural company had violated the right to freedom of association when it had handed the members of the executive board their notice. In this regard, the complainant organization alleges that: (i) by cancelling the notification of the establishment of the executive board of the STAS sub-branch, the STSS violated Conventions Nos 87 and 98; and (ii) by invalidating the aforementioned report of intimidation through an unjustified decision, the STSS acted in violation of the provisions of Honduran law relating to trade union immunity and those establishing that the justification of administrative actions is mandatory.
3. 460. The complainant organization indicates that, on 20 October 2016, the STAS filed an appeal against the STSS decision of 23 September 2016 with the General Labour Inspector of the STSS of Tegucigalpa. In addition, the complainant organization provides a copy of the complaint of 17 November 2016 submitted by the STAS President to the Office of the National Commissioner for Human Rights (CONADEH), calling for an investigation into and analysis of the unfair and unlawful action of the STSS in relation to, among other things, the aforementioned decision of the STSS.
4. 461. Lastly, the complainant organization reports that, on 13 April 2017, Mr Moisés Sánchez Gómez, General Secretary of the STAS sub-branch in the company MELEXSA (hereinafter the melon company) and Mr Misael Sánchez Gómez, a member of that union, were the victims of a criminal attack for their trade union activity in Choluteca, with the latter sustaining serious injuries to his face caused by a machete. According to the complaint filed on 19 April 2017 by Mr Moisés Sánchez Gómez to the Police Investigation Directorate of the Ministry of Security (copy attached), both workers were attacked by a group of people in hoods who threatened them with firearms and machetes and stole the mobile phone of Mr Moisés Sánchez Gómez, which contained information on his union activities. The complainant organization recalls that the union’s adviser in that area, Mr Nelson Núñez, had previously been threatened for his trade union work, but the Public Prosecutor’s Office had not taken the acts seriously.

B. The Government’s reply

First case: STAS branch in a banana company

1. 462. In its communication of 28 November 2017, the Government reports that an application was submitted by the international consultant of the trading company Tela Railroad Company (a company belonging to the same parent company as the banana company) requesting the presence of the STSS in the banana company with a view to determining the most representative trade union in that company, as the company had two union organizations and it wanted to negotiate a collective agreement with the most representative one. The Government adds that these trade union organizations were the STAS, classified as an industry union, and SITRAEBASAR, classified as an enterprise or first-level union.
2. 463. The Government indicates that, in order to determine which union was the most representative, between 29 September and 3 October 2014, an official inspection was conducted in the banana company, which included meetings with Mr Miguel Armando Zapata, Labour Relations Manager for Honduras; Mr Germán Edgardo Zepeda, President of FESTAGRO; and Mr Tomás Membreño, President of the STAS; as well as with members of the Trade Union Federation of National Workers of Honduras (FESITRANH) on behalf of SITRAEBASAR. The Government informs that, in order to determine the union membership of the workers, individual interviews were carried out during the inspection, not in the presence of the employer, but in the presence of representatives of the STAS and SITRAEBASAR, who ensured that the process was carried out without any form of coercion. The Government states that 137 workers were interviewed out of a total of 145 permanent workers in the company at that time. The Government points out that, pursuant to section 54 of the Labour Code, which provides that “if there are several unions within the same company, the collective agreement must be concluded with the one with the largest number of workers in the negotiation” and pursuant to Article 4 of Convention No. 98, and based on the investigations that were conducted, it was concluded that the union with which the company should negotiate the collective agreement was SITRAEBASAR, since of the 137 workers who were interviewed, 77 said that they were members of SITRAEBASAR and 53 said that they were members of the STAS.
3. 464. With regard to the allegation that the reports of the General Labour Inspectorate were factually incorrect, the Government indicates that, although during the inspection the STAS presented membership forms signed by the workers, it was found that 37 of these membership forms did not contain the worker’s fingerprint, but only their signature, and that neither did they indicate the date on which the worker had joined the union. Consequently, as inconsistencies had been found in the membership forms submitted by the STAS, the General Labour Inspector issued a report dated 21 October 2014 concluding that SITRAEBASAR was the most representative trade union and the one with which the company should negotiate the collective agreement.
4. 465. Lastly, the Government provides a copy of a statement issued on 20 August 2015 by the company’s legal representative, Mr Fuad Alberto Giacoman Hasbun, to the Regional Coordinator of the General Labour Inspectorate of El Progresso, announcing the conclusion of a collective agreement with SITRAEBASAR.

Second case: STAS branch in subsidiaries of a sugar company

1. 466. In response to the allegations made by the complainant organization regarding the tampering with the dates in the records of the notifications of the SITRAZUNOSAGS branch, the Government indicates that, although formal notification of the establishment of an STAS branch in SODEMEM was given on 18 November 2014, the fact is, as was placed on record, that SITRAZUNOSAGS had previously notified subsidiaries of the sugar company of the establishment of union branches in that company. Accordingly, the Government informs that the General Labour Inspectorate of El Progreso was established in subsidiaries of the sugar company in compliance with the order of 28 October 2014, the objective of which was to carry out the request made by Mr Julio Figueroa, Regional Coordinator of the General Confederation of Workers (CGT), the organization to which SITRAZUNOSAGS is affiliated.
2. 467. With regard to the allegation concerning the violation of the principle of geographical jurisdiction by the STSS, the Government indicates that it was the STSS of El Progreso, and not the STSS of San Pedro Sula, which issued the notification of the SITRAZUNOSAGS branch, as shown by the signature and stamp on the record (copy attached).

Third case: STAS sub-branch in agricultural companies

1. 468. With regard to the allegations made by the complainant organization concerning the dismissal of members of the executive board of the STAS sub-branch, the Government refers to the decision of 23 September 2016 by the STSS of Tegucigalpa cancelling the notification of the establishment of the executive board of the STAS sub-branch and invalidating the report of the General Labour Inspectorate of 24 February 2016 stating that freedom of association had been violated by the agricultural company when it had dismissed the members of the executive board. The invalidated report stated that members of the executive board are afforded special protection by the State and cannot be dismissed without a court order. The Government indicates that the STSS decision of 23 September 2016 complies with legal requirements, as section 516 of the Labour Code concerning trade union immunity is applicable only to the members of the central executive board, and therefore the members of executive boards at the branch level do not have trade union immunity.
2. 469. In relation to the criminal attacks against the General Secretary of the STAS sub-branch, Mr Moisés Sánchez Gómez, and his brother, union member Mr Misael Sánchez Gómez, the Government informs that on 20 April 2017, the General Labour Inspectorate of the STSS of Choluteca responded to the complaint filed by Mr Moisés Sánchez Gómez and his legal representative. The Government adds that, as a result, on that same day, the General Labour Inspector visited the premises of the melon company, where he interviewed the human resources manager, who stated that he was unaware of the alleged attacks, that Mr Moisés Sánchez Gómez did not work for the company and that Mr Misael Sánchez Gómez had worked there only on a temporary basis, between 21 November 2016 and 3 March 2017. The Government concludes that the STSS took appropriate action within the scope of its authority in response to the complaint that was filed in connection with the aforementioned attacks.

C. The Committee’s conclusions

First case: STAS branch in a banana company

1. 470. The Committee observes that, in the present case, the complainant organization alleges that the STSS fraudulently disregarded the most representative status of the STAS branch in a banana company, thereby preventing the branch in question from bargaining collectively.
2. 471. The Committee notes in particular that the complainant organization alleges that, on 9 June 2014, the STSS and the mentioned company were formally notified of the submission of a list of demands for the negotiation of a collective agreement on working conditions. The Committee observes that the complainant organization alleges that, despite the formal notification of the list of demands by the STAS, more than three months later, between 29 September and 3 October 2014, the General Labour Inspectorate of the STSS of El Progreso conducted investigations, at the request of the company and without first consulting the trade union organizations in the company, to determine which trade union was the most representative. The Committee notes that the complainant organization indicates that, after conducting its investigations, the General Labour Inspectorate established that the most representative union with which the company should negotiate a collective agreement was SITRAEBASAR. The complainant organization reports that the General Labour Inspectorate presented information that was factually incorrect in its final report. Specifically, the complainant organization maintains that, although the STAS submitted 142 union membership forms signed by workers of the company (in which 145 workers were employed on a permanent basis at the time), in his final report the General Labour Inspector makes reference to only 53 membership forms. Furthermore, according to the complainant organization, the report makes no reference to the submission of documentation by SITRAEBASAR that would prove how many members that union has. In addition, the Committee observes that, according to the written statement issued by the Finance Secretary of FESTAGRO to the STSS, SITRAEBASAR did not report to the STSS to present the record of the election of its executive board or the record of the submission of its list of demands.
3. 472. The Committee notes that the Government, for its part, states that the General Labour Inspector in the aforementioned report determines that 37 of the membership forms submitted by the STAS did not contain the worker’s fingerprint, but only their signature, and neither did they indicate the date on which the worker had joined the union. The Government states that, in view of such inconsistencies, the General Labour Inspectorate decided to hold individual interviews with the workers, in the presence of representatives of the STAS and SITRAEBASAR and not in the presence of the employer, to determine which union they belonged to. The Government concludes that, based on the information obtained during the interviews, the General Labour Inspectorate established that the most representative union with which the company should negotiate the collective agreement was SITRAEBASAR, as of the 137 workers interviewed, 77 said that they belonged to that union, while 53 said that they belonged to the STAS.
4. 473. The Committee observes that in this case there are differences of view between the trade union organizations that claim their greater representativeness in the banana company. The complainant organization challenges the decisions of the General Labour Inspectorate in relation to the following points: (i) the number of membership forms submitted by the STAS and the validity of these forms under Honduran legislation; (ii) the non-submission of the membership forms by SITRAEBASAR; (iii) the criteria used by the General Labour Inspectorate to determine the validity of the STAS membership forms, in particular because the workers’ signatures were considered to be insufficient and their fingerprints were necessary; and (iv) the basis for the methodology used by the General Labour Inspectorate on this occasion to determine which union was the most representative. In this regard, the Committee recalls that “in order to encourage the harmonious development of collective bargaining and to avoid disputes, it should always be the practice to follow, where they exist, the procedures laid down for the designation of the most representative unions for collective bargaining purposes when it is not clear by which unions the workers wish to be represented. In the absence of such procedures, the authorities, where appropriate, should examine the possibility of laying down objective rules in this respect” [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 1382].
5. 474. In the light of the above and in the absence of information on whether or not an appeal has been filed against the General Labour Inspectorate’s decision, and in order to be in a position to pursue its examination of this matter, the Committee requests the Government and the complainant to indicate whether an appeal has been filed. If so, it requests the Government to provide information on its outcome.

Second case: STAS branch in subsidiaries of a sugar company

1. 475. The Committee observes that the complainant organization alleges unlawful actions by the STSS involving the tampering with the dates in the records of the General Labour Inspectorate and the violation of the principle of the geographical jurisdiction in order to favour SITRAZUNOSAGS in subsidiaries to the sugar company and thereby prevent the STAS sub branch in SODEMEM, also a subsidiary of the sugar company, from engaging in collective bargaining. The Committee notes that the Government for its part maintains that the notification of the SITRAZUNOSAGS branch in subsidiaries to the sugar company was made prior to the notification of the STAS branch in SODEMEM, as shown by the records of the STSS of El Progreso. While noting the differences between the account of the complainant organization and that of the Government regarding the exact date on which the notification of the SITRAZUNOSAGS branch in subsidiaries to the sugar company was issued, the Committee observes that it does not have the necessary information to be able to ascertain in this case whether or not there was a violation of the principles of freedom of association and collective bargaining. Noting further that the complainant organization does not refer in its allegations to the filing of an appeal in this respect, the Committee will not pursue its examination of this allegation.

Third case: STAS sub-branch in agricultural companies

1. 476. The Committee observes that the present complaint concerns alleged actions taken and omissions made by the STSS between September 2016 and April 2017, consisting of: (i) the cancellation of the notification of the establishment of the executive board of an STAS sub branch; (ii) the invalidation of the report of the General Labour Inspectorate of Choluteca which stated that there had been a violation of freedom of association by an agricultural company when it had dismissed the members of that executive board; and (iii) the absence of an investigation into the criminal attack against Mr Moisés Sánchez Gómez, General Secretary of the STAS sub-branch in the melon company, and Mr Misael Sánchez Gómez, a member of that union.
2. 477. With regard to the allegation concerning the cancellation of the notification of the establishment of the executive board of the STAS sub-branch, the Committee notes that neither the complainant organization, which claims simply that there was a violation of Conventions Nos 87 and 98, nor the Government provide any information on the circumstances and reasons for the aforementioned cancellation. The Committee notes that, according to the information provided by the complainant organization, the STAS filed an appeal against the STSS decision of 23 September 2016 and a complaint with CONADEH, in which it alleged that the action of the STSS in this regard had been unfair and unlawful. Underlining the importance of these appeals being examined as soon as possible, the Committee requests the Government to inform it of the reasons for the cancellation of the notification of the establishment of the executive board of the STAS sub-branch and the outcome of the ongoing procedures.
3. 478. With regard to the allegation concerning the dismissal of the members of the executive board of the STAS sub-branch, the Committee observes that the decision of 23 September 2016 by the STSS of Tegucigalpa, provided by the Government, refers to the dismissal of workers who were members of the executive board of the STAS sub-branch and states that union immunity was not applicable because the dismissals concerned the executive board of a sub branch of a union, and not a central executive board, and that, therefore, the dismissal of several members of the executive board of the sub-branch of a union was, in this respect, in accordance with the law. The Committee notes that an appeal was lodged by the STAS on 20 October 2016 with the STSS and a complaint dated 17 November 2016 was filed with CONADEH, calling for an investigation into and analysis of the unfair and illegal action of the STSS in this regard. Recalling that, “where cases of alleged anti-union discrimination are involved, the competent authorities dealing with labour issues should begin an inquiry immediately and take suitable measures to remedy any effects of anti-union discrimination brought to their attention” [see Compilation, op. cit., para. 1159], the Committee requests the Government to take the necessary measures to ensure that, in the context of the aforementioned proceedings, the possibility that the dismissals of the executive board members were of an anti-union nature will be examined. The Committee requests the Government to keep it informed in this respect.
4. 479. In relation to the allegation concerning the criminal attacks against the General Secretary of the STAS sub-branch, Mr Moisés Sánchez Gómez, and his brother, union member Mr Misael Sánchez Gómez, the Committee notes that, according to the information provided by the complainant organization, both workers were attacked by a group of people in hoods who threatened them with firearms and machetes and stole the mobile phone of Mr Moisés Sánchez Gómez, which contained information about his union activities. Furthermore, as a result of this attack, Mr Misael Sánchez sustained serious injuries to his face caused by a machete. The Committee notes that Mr Moisés Sánchez Gómez filed a complaint in relation to these acts with the Police Investigation Directorate of the Ministry of Security.
5. 480. The Committee notes that the Government, for its part, states that the STSS, within the framework of its competences, took appropriate action within the scope of its authority in response to the complaint filed by Mr Moisés Sánchez Gómez and his legal representative. In particular, the Government indicates that, on 20 April 2017, the General Labour Inspectorate of Choluteca visited the premises of the melon company and interviewed the human resources manager in order to shed light on the facts. In its reply, the Government simply sends the information provided by the Human Resources Manager, who stated that only Mr Misael Sánchez Gómez had worked for the company and only on a temporary basis prior to the incident. The Committee expresses its deep concern at these serious acts of violence and at the limited reply by the Government. The Committee observes that on 1 May 2017 the Inter-American Commission on Human Rights (IACHR) issued a press release condemning these acts and urged the Government to take the necessary measures to guarantee that union leaders can carry out their work of denunciation, monitoring and protection, free from attacks or acts of violence. In this regard, the Committee recalls that the rights of workers’ and employers’ organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of these organizations, and it is for governments to ensure that this principle is respected. The Committee also wishes to stress that the killing, disappearance or serious injury of trade union leaders and trade unionists requires the institution of independent judicial inquiries in order to shed full light, at the earliest date, on the facts and the circumstances in which such actions occurred and in this way, to the extent possible, determine where responsibilities lie, punish the guilty parties and prevent the repetition of similar events [see Compilation, op. cit., paras 84 and 94]. In this regard, while noting the inspections conducted by the STSS, the Committee observes with concern that the Government has not provided any information on the complaint filed with the Police Investigation Directorate or on any other criminal investigation. The Committee therefore urges the Government to ensure that criminal investigations are conducted as soon as possible into the attacks against Mr Moisés Sánchez Gómez and Mr Misael Sánchez Gómez to determine where the responsibilities lie for these attacks and punish the guilty parties. The Committee requests the Government to keep it informed in this respect. The Committee also urges the Government to ensure that Mr Moisés Sánchez Gómez and Mr Misael Sánchez Gómez are receiving adequate protection to fully guarantee their safety. The Committee requests the Government to keep it informed in this respect.

The Committee’s recommendations

1. 481. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) In the light of the elements in this case, the Committee requests the Government and the complainant to indicate whether an appeal has been filed against the decision of the General Labour Inspectorate in relation to the determination of the most representative trade union organization, and if so, to provide information on its outcome.
   • (b) The Committee requests the Government to inform it of the reasons for the cancellation of the notification of the establishment of the executive board of the STAS sub-branch in the agricultural company and of the outcome of the appeal filed with the STSS and the complaint submitted to CONADEH by the STAS in this respect.
   • (c) With regard to the allegations concerning the dismissal of members of the executive board of the STAS sub-branch in the agricultural company, the Committee requests the Government to take the necessary measures to ensure that, in the context of the ongoing proceedings, the possibility that the dismissals of the executive board members were of an anti-union nature will be examined. The Committee requests the Government to keep it informed in this respect.
   • (d) With regard to the allegations of criminal attacks against the General Secretary of the STAS sub-branch in the melon company, Mr Moisés Sánchez Gómez, and his brother, union member Mr Misael Sánchez Gómez, the Committee urges the Government to ensure that criminal investigations are conducted as soon as possible in this regard to determine where the responsibilities lie for these attacks and punish the guilty parties. The Committee requests the Government to keep it informed in this respect. The Committee also urges the Government to ensure that Mr Moisés Sánchez Gómez and Mr Misael Sánchez Gómez are receiving adequate protection to fully guarantee their safety. The Committee requests the Government to keep it informed in this respect.