Informe provisional - Informe núm. 409, Marzo 2025

Caso núm. 3384 (Honduras) - Fecha de presentación de la queja:: 22-ENE-20 - Activo

Allegations: The complainant organization alleges a repeated refusal by the labour administration to register the new central executive committees of the STENEE

1. 233. The complaint is contained in communications from the Union of Workers of the National Electric Company (STENEE) dated 22 January 2020, 11 July 2020 and 25 May 2022.
2. 234. The Government of Honduras sent its observations on the allegations in communications dated 27 July 2020, 5 July 2022, 5 October 2022, 3 February 2023, 10 September 2024 and 9 January 2025.
3. 235. 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. 236. In its communication dated 22 January 2020, the STENEE refers firstly to the period of 2016–17, alleging that: (i) on 13 August 2016, the STENEE held an extraordinary congress at which it was decided to remove its President, Mr Miguel Arturo Aguilar Gámez, and other members of the central executive committee in the wake of mass redundancies carried out by the National Electric Company (“the state-owned company”); (ii) at that congress a new central executive committee to be chaired by Ms Ángela María Reyes Miralda was elected, and notification of those changes was submitted to the General Labour Directorate, which acknowledged them through resolution No. RESOL/DGT/094/2016 of 6 September 2016; (iii) after unsuccessfully exhausting administrative remedies against that resolution, Mr Miguel Arturo Aguilar Gámez lodged an application for amparo [protection of constitutional rights] with the Constitutional Chamber of the Supreme Court of Justice (No. 364-2017) which was declared inadmissible; (iv) however, despite the adverse outcomes of the administrative and judicial actions of Mr Aguilar Gámez, the Ministry of Labour and Social Security failed to comply with the order in RESOL/DGT/094/2016, upheld by the State Secretariat of the Labour and Social Security Departments and the Constitutional Chamber of the Supreme Court of Justice, and did not record the changes in the Register of Social Organizations, allowing Mr Aguilar Gámez to continue illegally as President of the central executive committee; and (v) in September 2016, the state-owned company dismissed all members of the new central executive committee of the STENEE, chaired by Ms Ángela María Reyes Miralda, with the exception of Ms Sue Ellen Maribel González Cubas, without respect for trade union immunity, constituting clear repression against the leaders and other members of the STENEE.
2. 237. The complainant organization then refers to the period of 2017–19, alleging that: (i) on 17 June 2017, Ms Reyes Miralda, as President of the central executive committee, called elections that resulted in the election of a new central executive committee to be chaired by Mr José Luis Matamoros Pineda for the period of June 2017 to June 2019; (ii) on 17 June 2017, Mr Matamoros Pineda provided notification of those changes to the General Labour Directorate, which acknowledged them through resolution No. RESOL/DGT/066/2017; once again, however, the Ministry of Labour and Social Security did not record them in the Register of Social Organizations, thus violating the right to freedom of association; (iii) in turn, Mr Aguilar Gámez, who had been illegitimately elected President of a parallel executive committee, communicated the details of that committee to the General Labour Directorate, which acknowledged them by means of resolution No. RESOL/DGT/060/2017; (iv) both parties lodged administrative appeals, which the Ministry of Labour and Social Security abstained from settling; and (v) on 22 May 2018, lawyers acting for the STENEE executive committee chaired by Mr Matamoros Pineda brought a private prosecution before the Trial Court of the Tegucigalpa Judicial Department, in the Department of Francisco Morazán, against Mr Aguilar Gámez for ongoing misappropriation against the STENEE.
3. 238. The complainant organization then refers to the period of 2019–20, alleging that: (i) on 1 June 2019, new elections were held for both the executive committee chaired by Mr Matamoros Pineda and the committee illegally chaired by Mr Aguilar Gámez, with details of both being communicated to the General Labour Directorate, which issued two separate resolutions of acknowledgement; (ii) both executive committees lodged administrative appeals against those resolutions, which the Ministry of Labour and Social Security abstained from settling; (iii) after exhausting all administrative remedies, the central executive committee chaired by Mr Matamoros Pineda lodged a complaint (case file No. 384–2019) requesting the Administrative Disputes Court to nullify resolution No. RESOL/DGT/072/2019 notifying the changes to the executive committee chaired by Mr Aguilar Gámez; (iv) subsequently, Mr Aguilar Gámez notified the General Labour Directorate of new changes to the central executive committee, which were the result of an illegal extraordinary congress in which the same persons notified previously through resolution No. RESOL/DGT/072/2019 were re-elected. Through resolution No. RESOL/DGT/155/2019, the Ministry of Labour and Social Security again notified the executive committee chaired by Mr Aguilar Gámez that it was processing a new, separate complaint, rather than adding it to the existing case file, which had been the subject of a complaint lodged with the Administrative Disputes Court. Following the notification, the executive committee chaired by Mr Gámez was recorded in the Register of Social Organizations, in violation of Convention No. 87; (v) articles 489 and 510 of the Labour Code, which establish the procedure and requirements for the election of a trade union’s executive committee, were violated by the State in that it failed to follow the legally established procedure and to fulfil its role of guarantor of the process of electing the trade union’s central executive committee.
4. 239. In its communication dated 11 July 2020, the STENEE states that: (i) the Inter-American Commission on Human Rights, during its visit to the country in August 2018, verified on the ground the constant harassment against different trade union leaders as well as several cases of unjustified dismissal and suspension from work; (ii) the fact that there are just 605 trade unions for an economically active population of 4.2 million persons, equivalent to 14.33 trade unions per 100,000 inhabitants, points clearly to a de facto state policy that limits freedom of association; (iii) the violations of Convention No. 87 are systematic and persistent, encompassing threats, harassment, murders and the refusal to recognize legally and legitimately elected executive committees, as in the case at hand; (iv) although the administrative and judicial procedure set out in law for the legal recognition of the STENEE’s legitimate executive committee was initiated and concluded, that recognition has not been granted on at least three separate occasions; (v) according to the 2019 annual report of the Supreme Court of Justice, administrative dispute proceedings take an average of 38 months, while the mandate of the STENEE’s executive committee lasts just two years. Therefore, any pending appeal highlighted by the State to resolve the legal situation is ineffective and does not fulfil the requirement for appropriate and effective remedies; and (vi) under national administrative procedure law, changes to the central executive committee must be officially recorded in the Register of Social Organizations for the committee to be legally recognized, which was not done.
5. 240. In its communication dated 25 May 2022, the STENEE states that: (i) on 26 July 2021, the Ministry of Labour and Social Security issued interim resolution No. 134-2021 establishing the committee chaired by Mr Miguel Arturo Aguilar Gámez as the STENEE’s central executive committee; (ii) the Ministry has issued no decision on the application for special judicial review of that interim resolution; (iii) in its ruling No. 06-2022 of 26 January 2022, the Third Chamber of the Trial Court of the Department of Francisco Morazán sentenced Mr Miguel Arturo Aguilar Gámez to 11 years and 11 months’ imprisonment, as well as ancillary orders of suspension of citizenship and absolute disqualification for that period for the crime of continued aggravated fraud against the STENEE for having misappropriated funds from the contributions of the permanent workers belonging to the trade union; and (iv) Mr Aguilar Gámez should not, therefore, hold public office, and much less elected office, according to articles 57 and 58 of the Criminal Code.

B. The Government’s reply

1. 241. In a communication dated 27 July 2020, the Government states that: (i) resolution No. RESOL/DGT/094/2016 of 6 September 2016 through which the General Labour Directorate acknowledged the composition of the executive committee chaired by Ms Ángela María Reyes Miralda was the subject of an appeal lodged on 21 September 2016, rendering the Department of Social Organizations of the Ministry of Labour and Social Security unable to comply with the resolution’s provisions since an internal dispute was identified within STENEE that must be resolved within the trade union, in line with the principle of autonomy, or brought before the courts; (ii) with respect to the dismissals of members of the executive committee chaired by Ms Reyes Miralda, the General Labour Directorate provided conciliation services so that administrative remedies could be exhausted, guaranteeing due process and the right to access to justice for the workers; (iii) in the case of the appeals lodged by both consecutive executive committees concerning the election processes that took place between 2017 and 2019, the Secretary of State adopted the aforementioned approach.
2. 242. With regard to the allegations relating to the registration of the executive committee chaired by Mr Miguel Arturo Aguilar Gámez for the 2019–21 period, the Government states that: (i) since no appeal was lodged within 15 working days against resolution No. RESOL/DGT/155/2019 of 23 October 2019 through which the Ministry of Labour and Social Security acknowledged the composition of the executive committee chaired by Mr Aguilar Gámez, the General Labour Directorate proceeded to close the time frame for appeals granted under the procedure, providing notification of that fact on 15 November 2019, and the Department of Social Organizations subsequently entered the record in the Register of Social Organizations on 18 November 2019; (ii) the appeal lodged by Mr José Luis Matamoros Pineda on 21 November 2019 was dismissed owing to its late submission since it related to a definitive resolution.
3. 243. The Government also states that: (i) the notifications made by social organizations to the Ministry of Labour and Social Security through the General Labour Directorate serve only to communicate changes to executive committees, in line with article 489 of the Labour Code; (ii) the register maintained by the Department of Social Organizations is for the sole purpose of internal monitoring, with no effect on third parties, and is used to keep track of changes to trade union executive committees; (iii) this process is governed by the principle of autonomy, allowing organizations to draw up their constitutions freely and manage their administration in accordance with the law, without the General Labour Directorate restricting or removing their rights; (iv) the Ministry of Labour and Social Security cannot make decisions on the legitimacy of an executive committee in cases of disputes since ILO Conventions prohibit external intervention by any authority, employer or third party that does not belong to the trade union; and (v) in the case at hand, the decision of the Secretary of State has been to refrain from intervening and to refer the parties to the courts, with the General Labour Directorate responsible only for archiving and preserving documentation relating to the proceedings.
4. 244. In its communication dated 5 July 2022, the Government states that: (i) interim resolution No. 134-2021 of 26 July 2021 issued by the Ministry of Labour and Social Security establishing as central executive committee the committee chaired by Mr Miguel Arturo Aguilar Gámez does not exist, but the records of the Ministry of Labour and Social Security do contain a request from the legal representative of the executive committee chaired by Mr Aguilar Gámez that the Ministry provisionally register the executive committee chaired by him; (ii) the legal representative stated that Mr Aguilar Gámez has not been sentenced for the crime of continued misappropriation against the STENEE. A legal opinion on the case is currently being drawn up so that the corresponding resolution may be issued; and (iii) there are annexed cases and elements linked to the complaint lodged by the STENEE that the General Labour Directorate is refraining from considering since the public authorities are prohibited from intervening in social organizations’ internal matters or hindering their trade union activity; it instead urges the STENEE to resolve the matter internally or, in any case, before the competent courts.
5. 245. In its communication dated 5 October 2022, the Government reports the dismissal of the application lodged by Mr José Luis Matamoros Pineda for special judicial review of interim resolution No. 134-2021 through which the central executive committee of the STENEE chaired by Mr Miguel Arturo Aguilar Gámez was registered. The Government also reports that the lawyer acting for Mr Matamoros Pineda notified the Ministry of Labour and Social Security of changes to positions within the STENEE executive committee.
6. 246. In its communications dated 3 February 2023 and 10 September 2024, the Government provides information on the administrative appeals that were lodged by both executive committees in 2022 and subsequently dismissed, in relation to which the Ministry of Labour and Social Security urges the parties to resolve their dispute through consensus by means of the social dialogue inherent to collective labour law or, if that is not possible, to take the case to the competent courts to exercise their rights.
7. 247. In its communication of 9 January 2025, the Government submitted information on the additional administrative appeals lodged in relation to the case. First, the Government refers to the remedies after the 2021 decision of the labour administration to provisionally register the executive committee chaired by Mr Miguel Arturo Aguilar Gámez. The Government indicates in this respect that: (i) through opinion No. USL-288-2021 of 14 July 2021, the Legal Services Unit decided to grant the interim measure requested by the lawyer acting for Mr Aguilar Gámez for his executive committee to be registered pending a final administrative decision in the main case; (ii) the interim measure may be granted where the interested party faces serious danger or irreparable harm while the dispute is pending resolution, as in the present case, in which it was found that the internal union dispute could cause irreparable harm to the STENEE and its members; (iii) in its resolution No. 134-2021 of 26 July 2021, the Ministry of Labour and Social Security upheld the admissibility of the interim measure and dismissed the objection filed by the lawyer acting for Mr José Luis Matamoros Pineda, as he did not provide sufficient legal evidence demonstrating that the measure would cause irreparable harm; (iv) the application for special judicial review filed on 13 January by Mr Matamoros Pineda against resolution No. 134-2021 was dismissed by resolution No. 171 2022 of 15 July 2022 due to the lack of sufficient or valid evidence provided to amend the previous decision, and the validity of the interim measure was upheld in favour of Mr Aguilar Gámez.
8. 248. The Government also refers to the decisions taken by the labour administration on the various actions and remedies that both parties continued to file to prevent the registration of the executive committee of the other party and register their own: (i) through resolution No. 403 2021 of 29 December 2021, the Ministry of Labour and Social Security dismissed the appeals filed by the lawyers acting for Mr Miguel Arturo Aguilar Gámez and Mr José Luis Matamoros Pineda against resolution No. DGT/096/2021 of 2 August 2021 declaring the notification and acknowledgement of both executive committees null and void; and (ii) both parties’ applications for reconsideration of resolution No. 403-2021 were rejected through resolution No. 170-2022 of 15 July 2022, urging them to resolve the dispute through dialogue or the courts.
9. 249. The Government further indicates that a series of appeals are still pending resolution: (i) the application for absolute annulment of the notification of changes to the executive committee chaired by Mr José Luis Matamoros Pineda filed on 12 June 2023 by the lawyer acting for Mr Miguel Arturo Aguilar Gámez, alleging a lack of standing; (ii) the application for registration of the executive committee chaired by Mr Aguilar Gámez submitted on 28 June 2023 on the basis of RESOL/DGT/155/2019, according to which his executive committee had been registered in 2019; (iii) the application submitted on 16 May 2024 by the lawyer acting for Mr Matamoros Pineda for a legal opinion on the union’s lack of an executive committee since June 2021; (iv) the application submitted on 25 September 2024 by the same lawyer for the interim measure granted to Mr Aguilar Gámez to be revoked, arguing a lack of standing and the STENEE’s lack of an executive committee, and requesting confirmation of opinion No. USL 206 2022 and various records issued by the administrative secretariat of the General Labour Directorate; and (v) case files Nos DGT-JD-105-2022 and DGT-JD-039-2024, concerning the notification of changes to the executive committee of Mr Matamoros Pineda, and case file No. DGT JD 041 2024, concerning the notification of changes to the executive committee of Mr Aguilar Gámez. Lastly, the Government refers to the administrative request of 29 October 2024 by the Legal Services Unit to the Ministry’s general secretariat for a new delegation of authority order, as the general secretary had been recused and could not hear the case.

C. The Committee’s conclusions

1. 250. The Committee notes that, in this case, the complainant organization alleges, on one hand, the repeated refusal between 2016 and 2021 by the Ministry of Labour and Social Security to register the central executive committees democratically elected by the members of the STENEE and, on the other, the dismissal in 2016 of several members of the recently elected executive committee.
2. 251. The Committee notes that the complainant organization alleges, firstly, that between 2016 and 2021 the Ministry of Labour and Social Security denied several requests to register the central executive committee of the STENEE. The complainant organization states that those denials prevented the official recognition of its legitimate leaders, allowing an illegal committee to remain in place under the leadership of Mr Miguel Arturo Aguilar Gámez, who has been convicted of the criminal offence of continued aggravated fraud against the STENEE. The complainant organization alleges specifically that: (i) although the General Labour Directorate was notified of the change to the STENEE’s central executive committee, which was chaired by Ms Ángela María Reyes Miralda from 2016 to 2017 following elections, it did not register it, allowing Mr Aguilar Gámez, the former President, to continue acting in that capacity; (ii) the Ministry of Labour and Social Security also failed to register changes to the executive committee chaired by Mr José Luis Matamoros Pineda following elections on three occasions – in 2017, 2019 and 2021 – while in 2019 it did record as President Mr Miguel Arturo Aguilar Gámez, who was elected through an illegal extraordinary congress, in the Register of Social Organizations, thereby allowing him to continue to hold the presidency, despite the appeals lodged by the STENEE’s legitimate executive committee; (iii) on 26 July 2021, the Ministry of Labour and Social Security adopted an interim resolution (No. 134-2021) establishing as the STENEE’s central executive committee the committee chaired by Mr Aguilar Gámez, and, although there was a request for special judicial review of that interim resolution, the Ministry has not issued an opinion on the matter; and (iv) the Third Chamber of the Trial Court of the Department of Francisco Morazán convicted Mr Aguilar Gámez of continued aggravated fraud against the STENEE on 26 January 2022, sentencing him to 11 years and 11 months’ imprisonment, together with ancillary orders of suspension of citizenship and disqualification. The Committee notes that the complainant organization also alleges a lack of access to effective judicial remedies that allow for the recognition of the executive committee appointed as a result of elections held on four occasions, indicating that any judgment would be unable to achieve its purpose if there is a requirement to first exhaust administrative proceedings, since, according to the Supreme Court of Justice, that process takes an average of 38 months, while the mandate of the STENEE’s executive committee lasts just two years.
3. 252. The Committee further notes the information provided by the Government according to which the Department of Social Organizations of the Ministry of Labour and Social Security did not follow up the requests to register the STENEE’s executive committee because it received such requests, as well as administrative appeals, from two parallel executive committees, leading the Ministry to identify an internal dispute within the STENEE that should have been resolved within the trade union organization or before the courts. The Committee notes that the Government states specifically that the executive committee chaired by Mr Miguel Arturo Aguilar Gámez was recorded in the Register of Social Organizations on 18 November 2019 after no appeals were lodged within the time frame set out in law and that the authorities dismissed the application for special judicial review made by Mr José Luis Matamoros Pineda against interim resolution No. 134-2021 registering, through an interim measure, the central executive committee of the STENEE chaired by Mr Aguilar Gámez. The Committee notes that, lastly, the Government indicates that: (i) the notifications made by social organizations to the Ministry of Labour and Social Security through the General Labour Directorate serve only to communicate changes to executive committees, in line with article 489 of the Labour Code, and the process is governed by the principle of autonomy; (ii) the Ministry of Labour and Social Security cannot make decisions on the legitimacy of an executive committee and, in the case of disputes, refrains from intervening, instead referring the parties to the courts, in line with the principle of autonomy; and (iii) a series of administrative appeals lodged by both parties as part of this internal union dispute are still pending resolution.
4. 253. The Committee takes due note of this information which, it observes, reveals that from 2016 to date there were repeated internal disputes within the STENEE regarding the election of its central executive committee and Mr Miguel Arturo Aguilar Gámez’s continued holding of its presidency. The Committee observes that each of these disputes led to parallel notifications by two opposing executive committees and to appeals and counter-appeals from both sides. The Committee observes that, in most cases, the labour administration refrained from registering the conflicting committees, indicating that the trade union’s internal dispute should be resolved by the organization itself or in the courts. The Committee observes, however, that in 2019 the Ministry of Labour and Social Security registered the executive committee chaired by Mr Aguilar Gámez in the Register of Social Organizations after he submitted a new request that was not challenged within the time frames stipulated by the opposing party. The Committee also observes that in 2021, in the midst of the ongoing internal union dispute, the Ministry of Labour and Social Security adopted an interim measure to maintain, provisionally, the executive committee chaired by Mr Aguilar Gámez for the entire duration of the administrative proceedings.
5. 254. In the light of the foregoing, the Committee observes that the internal union dispute at issue in this case has been ongoing before the labour administration since 2016 and that, since 2021, the STENEE has been chaired by the union’s outgoing President on the basis of an interim administrative decision.
6. 255. The Committee also notes that, in the nine years since the start of the dispute, the two executive committees have filed a large number of administrative appeals, while the complainant organization indicates that over the same period it has brought only one action before the administrative dispute courts and one criminal action (on which the Government has provided no information). With regard to the criminal action, the Committee observes that, according to publicly available information, the conviction handed down by the Francisco Morazán Sentencing Court against Mr Miguel Arturo Aguilar Gómez was annulled by the Supreme Court of Justice in a cassation judgment of 22 September 2022 on the grounds that the facts proven in the initial judgment were insufficient to classify the conduct as fraud.
7. 256. With regard to the settlement of this dispute through judicial remedies, the Committee observes that: (i) the complainant organization alleges that such remedies cannot settle the dispute owing to their excessive length; and (ii) while indicating that, as set out in numerous administrative decisions, the trade union organization itself or the courts should settle the dispute, the Government has not submitted its comments on the complainant organization’s allegation regarding the ineffectiveness of the judicial remedies available. The Committee notes at the same time that the dispute has been ongoing before the labour administration for nine years, which considerably exceeds the average time to resolve administrative dispute cases, as mentioned by the complainant organization.
8. 257. The Committee recalls that when internal disputes arise in a trade union organization they should be resolved by the persons concerned (for example, by a vote), by appointing an independent mediator with the agreement of the parties concerned, or by intervention of the judicial authorities and that, specifically, when two executive committees each proclaim themselves to be the legitimate one, the dispute should be settled by the judicial authority or an independent arbitrator, and not by the administrative authority [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, paras 1620 and 1621]. In the light of the facts and proceedings described above, and in particular the Ministry of Labour and Social Security interim decision of 2021 according to which the executive committee chaired by the outgoing President of the STENEE remains active, the Committee requests the Government to ensure that, in the absence of a solution identified by the interested parties themselves, the resolution of internal disputes within the STENEE effectively falls to the judicial authority or an independent mediator agreed by the parties, and not to the administrative authority. The Committee additionally requests the administrative authority to respect and give timely effect to the union democratic processes. It further requests the Government to ensure that timely judicial remedies and effective mediation options are available to the parties and to expedite processes to accelerate resolution of this matter. The Committee requests the Governments to keep it informed in this regard.
9. 258. With regard to the allegation that in September 2016 all the members of the STENEE’s new central executive committee, chaired by Ms Ángela María Reyes Miralda, with the exception of Ms Sue Ellen Maribel González Cubas, were dismissed by the state-owned company, without respect for trade union immunity, the Committee notes, on the one hand, that the Government limits itself to stating that the General Labour Directorate provided conciliation services so that administrative remedies could be exhausted, guaranteeing due process and the right to access to justice for the workers. The Committee notes, on the other hand, that it has not received information on any legal actions taken with regard to the aforementioned dismissals or the current work situation of the dismissed workers. The Committee recalls that the dismissal of workers on grounds of membership of an organization or trade union activities violates the principles of freedom of association [see Compilation, sixth edition, 2018, para. 1104]. The Committee expects that, if the relevant legal actions have been launched, these would have been resolved in accordance with freedom of association. The Committee requests the Government and the complainant organization to provide information in this regard.

The Committee’s recommendations

1. 259. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to ensure that, in the absence of a solution identified by the interested parties themselves, the resolution of internal disputes within the Union of Workers of the National Electric Company (STENEE) effectively falls to the judicial authority or an independent mediator agreed by the parties, and not to the administrative authority. The Committee additionally requests the administrative authority to respect and give timely effect to the union democratic processes. The Committee requests the Government to keep it informed in this regard.
   • (b) The Committee requests the Government to ensure that timely judicial remedies and effective mediation options are available to the parties and to expedite processes to accelerate resolution of this matter. The Committee requests the Governments to keep it informed in this regard.
   • (c) The Committee expects that, if legal actions have been launched against the dismissals alleged in the present case, these would have been resolved in accordance with freedom of association. The Committee requests the Government and the complainant organization to provide information in this regard.