Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Honduras (Ratification: 1956)

Other comments on C098

Observation

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Comments from workers’ and employers’ organizations. The Committee notes the comments of 4 August 2011 by the International Trade Union Confederation (ITUC), referring to pending legislative issues already raised, and in particular the lengthy procedures to secure the reinstatement of workers dismissed for carrying out trade union activities. The Committee, underlining the seriousness of these issues, requests the Government to send its observations thereon and on the ITUC’s comments of 2009 regarding the preparation of a draft Act which might result in collective bargaining being permitted only for unions that represent more than 50 per cent of the total number of employees in the enterprise, as well as the allegations of: (1) anti-union practices in the export processing zones and in various enterprises in the cement and bakery industries; (2) the slow judicial proceedings in cases of anti-union practices; (3) failure to comply with court orders to reinstate trade unionists and (4) the setting up of parallel organizations by employers.

The Committee also notes the comments from the General Confederation of Workers (CGT), the Single Confederation of Workers of Honduras (CUTH) and the Confederation of Workers of Honduras (CTH), dated 30 March and 22 August 2011, objecting to Decree No. 230-2010 setting out the national programme of hourly employment, which, in the view of these organizations, has a negative impact on freedom of association, collective bargaining, employment, wages and weekly rest. The Committee further notes the comments of 30 September 2011 by the CUTH on the application of the Convention. Lastly, the Committee notes the Government’s reply to these comments by communications dated 9 and 22 November 2011.

In addition, the Committee recalls that the Honduran National Business Council (COHEP) submitted comments on the application of the Convention in 2009. The Committee requests once again the Government to send its observations thereon.

Legislative issues. Articles 1 and 2 of the Convention. Protection against acts of discrimination and interference. The Committee points out that for many years it has referred in its comments to:

– the lack of adequate protection against acts of anti-union discrimination, since the penalties established in section 469 of the Labour Code for persons who interfere with the right to freedom of association, ranging from 200 to 10,000 lempiras (200 lempiras being roughly equivalent to US$12), are clearly inadequate and a mere token. The Committee notes that in its report the Government states that protection against any act of discrimination liable to undermine freedom of association in the sphere of employment is guaranteed by the provisions of: (1) article 128(14) of the Constitution of the Republic, which confers the right to freedom of association both on employers and on workers; (2) section 517 of the Labour Code, which grants special state protection to workers when they notify to their employers their intention of forming a union and which provides that, from the date of such notification and until receipt of the notice of legal personality, none of the notifying workers may be dismissed or transferred or suffer any impairment of their working conditions without due cause as defined previously by the competent authority; and (3) by the provisions of the Code that impose the penalties indicated by the Committee. The Committee recalls that in its previous observation it noted that section 321 of Decree No. 191-96 of 31 October 1996 establishes penalties for cases of discrimination, but it has received no reply. The Committee again requests the Government to indicate specific cases in which this provision has been used to impose penalties for acts of anti-union discrimination. It makes this request because, where criminal law sets evidentiary requirements that are demanding, this often results in the non-application of penalties in cases of anti-union discrimination. The Committee also requests the Government to take the necessary measures, in consultation with the social partners, to amend the penalties laid down in section 469 of the Labour Code so as to make them dissuasive; and
– the lack of adequate and full protection against all acts of interference, and of sufficiently effective and dissuasive sanctions against such acts. The Committee notes that in reply the Government’s states that the legislation does contain provisions to provide workers’ organizations with adequate protection against all acts of interference by employers, citing as an example section 511 of the Labour Code which bars from membership of executive committees of enterprise unions or first-level unions or from appointment to trade union office members who, on account of their duties in the enterprise, represent the employer or hold management posts or positions of trust or who are able easily to exercise undue pressure on their colleagues. The Committee points out in this connection that the protection afforded by Article 2 of the Convention is broader than that of section 511 of the Labour Code and that, in order to ensure that effect is given to Article 2 of the Convention in practice, the legislation must make express provision for sufficiently dissuasive remedies and sanctions against acts of interference by employers against workers and their organizations. The Committee requests the Government, in consultation with the social partners, to take the necessary steps in this regard.

Article 6. Right of public servants who are not engaged in the administration of the State to bargain collectively. The Committee noted in its previous comments the Government’s statement that public servants have duties that are limited by law (section 534 of the Labour Code), including the right to submit “respectful statements” containing requests of interest to all members in general, and that section 536 of the Code states that unions of public employees may not submit lists of claims or sign collective agreements but that other official workers’ unions are on a par with any others in terms of powers and the filing of claims. The Committee again points out that a system in which public employees may only submit to the authorities “respectful statements” which shall not be the subject of any negotiation, particularly with regard to conditions of employment, is not consistent with the Convention. It points out that, although Article 6 of the Convention allows public servants engaged in the administration of the State to be excluded from the Convention’s scope, other categories of workers must be able to enjoy the guarantees laid down in the Convention and hence to undertake collective bargaining for their conditions of employment, including pay. The Committee requests the Government to take the necessary steps to amend the legislation to take account of the abovementioned principles.

Lastly, the Committee notes the Government’s statement that: (1) in order for the Convention to be applied effectively, the country needs to devise and implement a national strategy for the promotion and dissemination of the rights laid down in the Convention, so as to advocate respect for fundamental principles; (2) improved dialogue between the main players in industrial relations is of vital importance to reaching the necessary agreements for harmonizing the national legislation with the standards of the Convention; and (3) the Secretariat of State for Labour and Social Security has been holding workshops and producing handbooks on collective bargaining techniques for workers belonging to trade unions and the public at large in order to promote collective bargaining and freedom of association. The Committee emphasizes in this connection that the problems referred to have persisted for many years and suggests to the Government that it seek technical assistance from the Office in aligning its legislation with the Convention.