Individual Case (CAS) - Discussion: 2015, Publication: 104th ILC session (2015)

Labour Inspection Convention, 1947 (No. 81) - Honduras (Ratification: 1983)



A Government representative described the progress made by the Government in relation to the observations of the Committee of Experts. Regarding the function of inspectors in labour disputes, he said that they no longer carried out conciliation or mediation duties, which were now undertaken by a specialized service. On the adequacy of human, financial and material resources, the Government was implementing an action plan to strengthen inspection, which included a strategy, instruments and logistics to reinforce the inspection plan in line with the requirements of the Convention. A further 94 inspectors would be added by 2016 to the current number of 141. Concerning vehicles, although they were not for the exclusive use of the inspectorate, they were utilized on a priority basis to carry out these actions, and the action plan provided for the strengthening of this logistical aspect. With regard to the need to ensure appropriate conditions of service, employment stability and independence of inspectors, the job security of inspectors had been guaranteed, with over 50 per cent having worked for the inspectorate for between ten and 25 years. Moreover, a system was in place which divided inspectors into three categories, new inspectors, senior inspectors and inspection supervisors, and the provisional draft of the new legislation provided for selection criteria including competitive examinations, educational qualifications and seniority. Regarding independence from improper influences, several instruments were applicable, such as inspection protocols and the Civil Service Act. With respect to adequate and effectively enforced penalties, the planned legislative reform provided for the strengthening of enforcement capacities to prevent violations of labour laws. The obstruction of labour inspection was considered very serious, and the offending enterprise was penalized on the basis of the minimum wage and of the number of workers affected. Violations of labour legislation recorded by inspectors had totalled 3,082 in 2014, and exceeded 5,357 in the first quarter of 2015 alone. As labour inspection was an essential component of the Government’s efforts to ensure compliance with labour law, it had requested ILO technical assistance in 2014 to conduct an audit of the performance of the labour inspectorate, and the first meeting had been held with the consultant appointed by the Office in May 2015, which had led to the start of a general planning phase. The audit, which was scheduled to begin in the last week of June 2015 and for which a technical support committee had been established, would be based on the rigorous work of a group of ILO experts. He reiterated the Government’s commitment to reinforce the labour inspectorate through an action plan introduced within the framework of the tripartite monitoring and follow-up commission, within a time frame of 2015–16 and budget already approved by the Office of the President. The action plan, which took into account the observations of the Committee of Experts and the need to strengthen the inspectorate, comprised seven main areas and over 15 activities to be carried out in 12 months. The outcomes and progress achieved would be included in the 2016 report on the application of the Convention.

The Worker members considered that Honduras had failed at all levels to guarantee compliance with the Convention owing to a series of problems in law and practice, which had left workers with no protection and without any effective remedy for the violation of their rights. This had been confirmed in February 2015 by a report of the United States Department of Labor in response to a complaint submitted by 26 Honduran trade unions and civil society organizations. The report revealed that for some years the Government had been failing to enforce labour legislation through labour inspection and the justice system. The Worker members therefore concluded that the Government had little political will to ensure the effective implementation of labour laws. There were several key areas of non-compliance with the Convention. The number of inspectors (119 full-time employees) was insufficient and was concentrated in the capital and the country’s main business centre. Inspectors were frequently prevented from entering factories, they rarely sought the assistance of the police, and the Ministry of Labour did not resort to the tribunals to oblige employers to authorize their entry. Penalties were not adequate (employers who prevented inspectors from carrying out their tasks were subject to a fine of only between US$2.40 and $240), fines were rarely imposed and the penalties had not been reviewed since 1980 (for example, the fine for not paying the minimum wage was between $4.80 and $48, and the figure was not multiplied by the number of workers concerned), and where fines were imposed and paid, the file was closed without investigating whether the cause had been rectified (for example, an agricultural undertaking, due to not paying the minimum wage, owed a total of $129,818, a fine of $240 had been assessed and following payment the file had been closed regardless of the fact that salaries were still being paid below the minimum wage). When inspections were conducted, the follow-up through second inspections was very weak, and there was no review of the violations identified in the initial inspection. Moreover, inspectors did not have the necessary material resources, such as vehicles and petrol, and the performance of inspections even depended on whether workers paid the transport and costs, which constituted a major obstacle to the performance of inspections in a country where 60 per cent of the population lived below the poverty threshold, with the situation in rural areas being even worse. In conclusion, the labour inspection system did not guarantee the fulfilment of the legal provisions relating to working conditions and the protection of workers when carrying out their work. This was not because of a lack of resources, as the Government had benefited from various international cooperation projects, particularly two regional projects financed by the United States, for which several million US dollars had been spent. It appeared that the Government had taken a clear decision not to establish an adequate labour inspection system to protect workers with the aim of creating a favourable climate for trade and investment based on the exploitation of a cheap workforce. The case was particularly serious. Effective measures needed be taken to ensure that Honduras achieved compliance with the Convention as soon as possible.

The Employer members expressed their deep concern at the inadequate application of the Convention in Honduras and emphasized the importance of maintaining an effective system of inspection. They took note of the observations of the Committee of Experts and the Government’s replies concerning in particular: measures taken to ensure that inspectors did not find themselves acting as both judge and interested party; inadequate human and financial resources that limited the capacity for routine inspections or might give rise to improper influence; difficulties regarding the imposition of adequate penalties; and problems relating to transport and the conduct of inspections in commercial and industrial workplaces. The labour inspectorate had been established in 1959, and no changes had been made to it since then. There were deficiencies in the selection and training of inspectors. Inspectors were exposed to acts of corruption and did not act with due independence. Routine inspections were very rare. Since transport for inspectors had to be paid for by the parties concerned, workers who lacked such means had no access to the inspection services. Inspectors’ salaries were the lowest in the public administration, and their categories had not been reviewed for years. The number of inspectors was insufficient for the needs of the country, most of them were located in major cities and there was no thematic specialization. In addition, with regard to occupational safety and health, the function of labour inspection was confused with the work of the officials of the Honduran Social Security Institute. The country’s private sector agreed with the need to reform the Labour Code and modernize labour inspection to make it efficient and adapt it to current needs. Following the example of a recent tripartite meeting in Honduras, the Employer members emphasized the need to make progress in improving labour inspection in consultation with the social partners, including the representative business sectors, with a view to ensuring the relevance of the reform and due compliance with the aims of the Convention. Finally, the Employer members recalled the importance of conducting labour inspection in both the formal and informal sectors, with a view to creating the appropriate conditions for formalizing the latter.

The Worker member of Honduras said that labour inspection was a fundamental means of guaranteeing the free exercise of the rights enshrined in international Conventions and domestic labour law, and that the Government should take the appropriate steps to ensure compliance with the law by employers. With regard to the authority of inspection services to impose penalties, the Ministry of Labour and Social Security was failing to exercise the power to impose administrative penalties for violations of labour legislation provided for in section 625 of the Labour Code. When levied, fines were not commensurate with the offence committed. The maximum fine was 5,000 lempiras, equivalent to US$228. He emphasized that penalties should serve as an example. The total number of inspectors was too low, as there was only one inspector for approximately 24,000 workers. Furthermore, inspection activities focused mainly on complaints, and much less on routine inspection. In general, inspection activities were confined to carrying out poor investigations without imposing penalties on employers. No priority was given to full inspections at workplaces that would give the State a real overview and allow it to address labour violations that workers were usually afraid to report for fear of losing their jobs. For example, in maquila enterprises, export processing zones did not allow labour inspection by threatening to close down and lay off thousands of workers. Notwithstanding section 624 of the Labour Code, which provided that an inspector could not abandon an investigation without higher level authorization, workers were frequently left with their labour disputes unresolved. Moreover, inspectors would request workers to pay inspection costs, including transport, as a condition for dealing with their complaints. Workers were also charged for receiving any official record of the action taken by inspectors in relation to their complaints, in violation of the principle that labour inspection should be free. There were allegations that inspectors encouraged workers to drop their complaints and that they received incentives from employers to be lax in carrying out effective investigations, although such conduct was prohibited by law. Nevertheless, the competent authorities did not bring disciplinary proceedings against inspectors. Employers frequently denied access to workplaces, as had been done in the case of a large sugar enterprise. Inspectors almost never made use of their authority to request the police to provide them with access to the workplace, and in many cases even the police declined to use their powers of enforcement. The Ministry of Labour rarely fined employers who refused inspections, and when attempts were made to bring criminal charges, the Office of the Public Prosecutor did not accept them, as it did not know how to proceed. The Government must comply with the Convention and with domestic law.

The Employer member of Honduras said that national labour legislation dated back to 1959 and there had been no substantial reform of the provisions respecting labour inspection since then, even though the country had ratified the Convention in 1983. However, it was a governance Convention that was being examined by the three social partners in Honduras, which had asked for ILO collaboration for an audit of its labour inspection system. The findings of the audit would be communicated to the social partners through the Economic and Social Council. The employers of Honduras were committed to a complete overhaul of the Labour Code and were in favour of the revision and adoption of a new Labour Inspection Act, that should guarantee the professionalism of labour inspectors, their multi-tasking and their specialization according to the economic areas or activities, as well as the creation of a career in labour inspection. The reform would have to clarify inspection procedures and ensure that the penalties imposed on those who violated the labour legislation were commensurate with the type of infraction committed and were established objectively and with due regard for the right to legal defence and protection for all the parties concerned. Even taking into account Honduras’ economic problems, the number of labour inspectors, of approximately 112 for a population of 8 million, was still low. A graduated budget should therefore be introduced as from 2015 that guaranteed not just the payment of salaries, but also the necessary logistical support for inspectors to travel in official vehicles, instead of private vehicles belonging to those who requested their services. Honduran employers were determined to work with their tripartite partners to bring about a legal instrument that could guarantee their objectives in compliance with the roadmap that had been approved. The new instrument would be adopted in Honduras’ Economic and Social Council, before being submitted to the National Congress.

The Government member of Mexico, speaking on behalf of the Group of Latin American and Caribbean countries (GRULAC), noted the technical assistance that Honduras was receiving from the ILO for an audit of the national labour inspectorate, as well as the action plan for the consolidation of the inspectorate, the legislative reforms and the effective cooperation and efforts of all the sectors concerned. The action plan was a joint undertaking by the Government and the social partners, with ILO assistance, with the objective of achieving the targets that had been set for 2016. The action plan had the financial support of the Office of the President for the 2016 budget. GRULAC emphasized its commitment to the consolidation of the labour inspectorate and trusted that the Government would continue creating, improving and implementing policies to improve the effectiveness of labour inspection.

The Worker member of Guatemala said that the proper functioning of labour inspection was key to the enforcement of labour standards. The inspection service was part of the state system of law enforcement and the mode of operation of the inspectorate reflected how much attention was given to labour rights by the State. There were serious problems in the operation of labour inspection in Honduras, as emphasized by the Committee of Experts. Even though it was necessary to strengthen the inspectorate with material resources and an increased number of inspectors, it was not sufficient to improve the service. Other aspects had to be taken into consideration, some of which were covered by the report of the Committee of Experts. For example, it was prejudicial for the functions of mediation and conciliation to be combined with those of supervision and inspection, since that could result in the negotiation of minimum conditions of work for the workers. It was also necessary for the labour inspection system to have adequate powers to impose penalties for non-compliance with labour standards and for such penalties to be applied effectively. Accordingly, it was unacceptable that inspectors asked the workers to pay their expenses for tasks that inspectors were required to perform by law. Moreover, employers frequently denied inspectors entry into workplaces and, even though such conduct was illegal, it was not penalized. Consequently, it was essential for the labour inspection service to be reformed and for effective and dissuasive penalties to be established. For that reason, it was important that the Government take full account of the observations of the Committee of Experts.

The Government member of Nicaragua endorsed the statement by GRULAC and called on Nicaragua to give high priority to the international standards that it had ratified. For those standards to be properly implemented, account nevertheless needed to be taken, not only of the resources required, but also of specific national circumstances. Honduras’ commitment to respect workers’ rights and the positive steps taken relating to labour inspection, such as the action plan for its consolidation, were encouraging. She also emphasized the technical assistance provided by the ILO for an audit of the functioning of the labour inspectorate, which she hoped would have a positive effect. Although the State was primarily responsible for protecting workers’ rights, the spirit of the Organization was tripartite participation. Honduras should be encouraged to continue its efforts on behalf of the people, and the Conference Committee should take a favourable view of the steps that were being taken to give effect to the Convention.

The Worker member of the United States said that it was not possible to comply with the commitments under a trade agreement to protect workers’ rights without a functioning labour inspectorate. Yet, this was what Honduras and the United States had done since the Central American Free Trade Agreement (CAFTA) had entered into force in 2006. He recalled that unions in Honduras and the United States had filed a complaint in 2012 concerning the failure of Honduras to enforce its labour laws and ILO commitments under CAFTA. The United States had not formally responded to the complaint for three years, despite ongoing documentation of violations and failures relating to inspection. The Government of the United States had finally responded to the complaint, found “serious concerns” and announced a series of technical cooperation programmes to increase the labour inspectorate’s capacity, but no unions had been consulted in designing the programmes. After years of inaction, the Government of Honduras had made a series of announcements concerning its intentions to comply, with descriptions of programmes and legislative proposals that were being launched. Those announcements were welcome, but had been made before. As in the Guatemalan case, it seemed that three years of complete inaction was acceptable. Meanwhile, mechanisms to defend the interests of investors and multinational corporations adopted decisions that included remedies in dozens of cases each year. The Conference Committee should note with concern the Government’s ineffectiveness in defending workers’ rights through the use of ILO Conventions in trade agreements. He recalled that the Committee had heard the case of Honduras two years ago, and his organization’s remarks at that time had focused on the same employer violations that continued today. The Government had failed to take note of the documented intransigence and had failed to enforce laws or ensure the compliance of the trade agreement with the ILO Conventions that it had ratified. And yet Honduras, and the company in question, continued to enjoy trade benefits. There were also employers in the country which complied with obligations regarding labour inspection and, in the same way as those in violation, such companies should be recognized. Many workplaces in Honduras, especially in the agricultural sector, were privately inspected and certified. That presented a conflict of interest, as the auditor profited by providing services to suppliers, and wanted more business opportunities. In a country such as Honduras, these private compliance initiatives further perpetuated the governance gap.

The Government member of El Salvador endorsed the statement of GRULAC and recognized the Government’s efforts and its momentum in strengthening the labour inspection, including through the action plan. She emphasized that the inspection was one of the fundamental pillars of the State and trusted that the Government of Honduras would continue its efforts to improve the efficiency and effectiveness of the inspection system.

The Worker member of Spain said that in Honduras melon production represented 11 per cent of agricultural exports, and this work was carried out mainly by women, representing two-thirds of the workforce in the country. They were mainly young women without family support, with four or five children, and employed in temporary jobs. Women workers were paid 70 per cent less than the national minimum wage, were not paid overtime and had long working hours. Although accidents at work and health problems caused by the intensive use of agrochemicals were common, most workers lacked access to social security protection, including health services, and there was no response to the numerous requests to inspect these violations. The critical situation in the field of labour inspection in Honduras directly affected the human rights of workers and their families. The Government was not responding to the needs of inspecting compliance with labour legislation, particularly in the agricultural sector.

The Government member of the United States said that the Government of the United States had been working closely with the Government of Honduras under the labour chapter of CAFTA to strengthen the protection of internationally recognized workers’ rights in the country. In February 2015, they had jointly pledged to work together to address issues of labour law enforcement, including the establishment and implementation of a monitoring and action plan. Her Government was encouraged by the political will of the Government of Honduras, and encouraged it to fully implement the planned reforms, including through the allocation of sufficient resources to the inspectorate to conduct regular and thorough inspections of workplaces and apply effectively dissuasive penalties for non-compliance with the labour legislation, in accordance with the Convention. Her Government was committed to continued collaboration with the Government of Honduras, particularly for the implementation of the planned reforms on labour law enforcement.

The Worker member of Brazil said that the situation in Honduras was urgent. Although the Convention was technical, its importance was immeasurable and it was closely related to other Conventions. If a country violated the present Convention, there was a danger that it would fail to observe all of the others. The report of the Committee of Experts described the seriousness of the situation: the number of inspectors was insufficient; inspectors lacked the material resources to perform their duties; and penalties were inadequate and inefficiently applied. In addition to a very limited number of inspectors, other obstacles hampered the performance of their functions, as was evident in the report of the Committee of Experts. Workers had to pay for inspectors’ transport in order for them to perform their assigned duties. That illustrated the level of negligence, indifference and fragility of the labour inspection system in Honduras. There were many more complaint-based inspections than routine inspections. That implied that labour inspection was adopting a reactive rather than a preventive approach. Lastly, employers who denied entry to labour inspectors were not effectively penalized.

The Government member of Guatemala endorsed the statement made by GRULAC and recognized that Honduras attached significance to the aim of strengthening labour inspection as a fundamental pillar of the State, to be realized through activities with ILO support, of which the technical assistance was essential. She praised the action plan to strengthen inspection, which had been adopted on a tripartite basis and with ILO assistance and had already received budgetary support for its implementation. She encouraged the Government to continue working on strengthening its labour institutions and, under tripartite leadership, to continue building an effective labour inspection.

An observer representing the World Federation of Trade Unions (WFTU) noted with deep concern the violation of the Convention by Honduras, its inability to cope with the situation and the lack of budgetary resources. He called on the ILO to supervise rigorously the implementation of the Convention and expressed solidarity with Honduran workers.

The Government representative indicated that the Ministry of Labour and Social Security had prepared an action plan for inspection which aimed to substantially improve labour inspection. This plan had established priorities, including increased assistance for workers and employers regarding the consultations and requests submitted; powers of the inspectors to enter workplaces; prompt processing of inspection requests, in accordance with procedural protocols by sector relating both to the working conditions and to occupational safety and health; monitoring and conclusion of the inspection administrative procedure with enforcement measures and the imposition of penalties for offences; and monitoring of the safety and confidentiality networks relating to inspectors’ activities. The action plan had the technical and political support of the highest Governmental bodies and a draft budget was being prepared for 2016. The social partners actively participated in the plan by means of a tripartite committee for follow-up and monitoring. Furthermore, the Ministry of Labour and Social Security was finalizing the bill on the General Inspection Act, which proposed substantial changes to inspection procedures and provided, inter alia, for the strengthening of inspectors’ powers, a new penalty system for socio-labour offences and a review of the profile and working conditions for labour inspectors in the civil service. In this context, ILO technical services would conduct an audit of labour inspection to determine and analyse the current situation of inspection in all areas and in different regional offices with a view to identifying priorities and formulating recommendations within an action plan which the Ministry of Labour and Social Security was resolutely determined to implement in the short, medium and long term. The audit would encompass the legislative, procedural and administrative aspects of labour inspection, as well as technological development, administrative organization, organic structure and links with public and private institutions. The focus of the audit was based on the notion of an inspection system in conformity with the Convention which should integrate in a coordinated manner all of its elements, including human resources, and material, legislative, administrative and logistic resources, with the participation of workers and employers in order to provide an effective inspection service. The audit was due to commence at the end of the month, and its detailed results would be provided in a special report and would be included in the detailed report on the Convention for 2016. He thanked the ILO for the technical assistance provided and recognized the efforts of the Worker and Employer members, and their commitment to the action plan to achieve these ambitious objectives, which corresponded with the observations of the Committee of Experts. Lastly, he reiterated his Government’s commitment to continue complying with the Convention by developing, improving and implementing policies to ensure the full effectiveness of labour inspection.

The Worker members welcomed the fact that, in the light of the recent report of the United States Department of Labor, the Government of Honduras had developed an action plan and accepted technical assistance of the United States, which would be overseen by a tripartite committee. They also welcomed the fact that the Government was planning to draft a new general labour inspection act. They hoped that those initiatives would succeed in overhauling the labour inspection services, which had failed to implement labour legislation effectively due to corruption and indifference. While endorsing the need for technical assistance, the Worker members emphasized that it must be supported by political will and that the Government must give the labour inspection services a sense of a mission to be undertaken with professionalism and respect for the rule of law. In order to ensure that workplaces were inspected as regularly and thoroughly as necessary to ensure the effective application of legislation, the Worker members urged the Government to substantially increase the number of labour inspectors, particularly in areas that were currently grossly neglected, and to ensure that they had the material resources needed to carry out their work, including vehicles; to formulate a proactive labour inspection plan targeting sectors where there were serious and systematic labour legislation violations, including the maquila, agricultural and other sectors; to ensure that labour inspectors received the relevant training and take all necessary steps to guarantee their independence; to increase fines for violations of the law immediately and review the method used to calculate them to ensure that they were sufficiently dissuasive; and to introduce procedures for labour inspectors to carry out repeat inspections in order to verify that orders were complied with and enforce their implementation. The ILO should offer, and the Government of Honduras should accept a direct contacts mission to assess the current situation, verify technical capacity needs and help in coordinating the various initiatives.

The Employer members noted that the Government of Honduras was not complying with the Convention principally due to its lack of political will. They recognized that labour inspection was important to ensure compliance with labour legislation and to protect workers’ rights. An adequate inspection system that complied with the Convention would have the additional positive effect of combating informality in Honduras. The reform of the Labour Code was therefore essential, as was the adoption of a new Act on inspection. Any legislative reform on inspection should unfold in consultation with the most representative workers’ and employers’ organizations, in line with the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144). Further to consultation with those organizations, the draft text should be analysed by the Committee or by the International Labour Standards Department in order to guarantee its conformity with the Convention. The legislative reform should ensure the progressive professionalization, specialization and multi-tasking of the labour inspectorate. The number of inspectors and the frequency of routine inspections should also be increased. These reforms would require budgetary and logistical solutions. Furthermore, penalties should be more dissuasive, progressive and objective in order to ensure the right of defence. The Employer members requested the Government to present detailed information to the Committee of Experts and to accept the technical assistance of the Office.

Conclusions

The Committee noted the oral information provided by the Government representative on the issues raised by the Committee of Experts and the discussion that ensued relating to the strengthening of the labour inspection system, including through: the legal reform; the availability of sufficient financial, human and material resources, including transport facilities; the conduct of a sufficient number of routine inspection visits throughout the country; the establishment of targeted inspection plans; the capacity building and training of labour inspectors; the need to grant labour inspectors adequate conditions of service, including sufficient remuneration to ensure their impartiality and independence from any improper external influences; the need to give effect in practice to the principle of free access of labour inspectors to workplaces; and the need to increase the penalties for labour law violations, including the obstruction of labour inspectors, and ensure their application through effective enforcement mechanisms.

The Committee noted the information provided by the Government relating to a plan of action to strengthen the labour inspection system. The plan had been approved in a tripartite forum and included several initiatives, such as increasing the number of labour inspectors to 200 by 2016, and improving the financial and material resources of the regional labour inspection services. The Committee further noted the proposed reform of the Labour Code and the proposed adoption of a new general labour inspection law governing the career structure and recruitment of labour inspectors, and providing for increased fines for labour law violations, including the obstruction of labour inspectors in their duties. The Committee also noted the information on the initiation of ILO technical assistance in late June 2015 in the form of an audit of the functioning of the labour inspection system further to a request by the Government.

The Committee noted the Government’s intention, in consultation with the most representative workers’ and employers’ organizations, to reform the Labour Code, to enact a general labour inspection law, and to undertake an audit of the labour inspection system which would be carried out by the ILO. Taking into account the discussion, the Committee requested the Government to:

• consider including the following among its planned reforms: professionalizing labour inspection staff; making inspection tasks more specialized; pursuing a multidisciplinary approach; increasing the wage budget and improving logistics; and ensuring that penalties for breaking the law are increased so as to be dissuasive and are determined through pre-established, objective procedures that guarantee all parties the right to a fair hearing;
• substantially increase the number of inspectors, particularly in areas which are underserved at present, and ensure that they are provided with the material resources needed to carry out their work;
• develop a proactive inspection plan to focus on sectors where there are regular violations of labour legislation, including the informal sector, agriculture and maquilas;
• continue receiving technical assistance from the ILO in order to overcome the remaining legal and practical obstacles to applying the Convention; and
• submit a detailed report on the application of the Convention to the next session of the Committee of Experts.