Observation (CEACR) - adoptée 1996, publiée 85ème session CIT (1997)

The Committee notes the Government's report and recalls that its previous comments concerned:

- the exclusion from the scope of the Labour Code of workers in certain agricultural or stock-raising enterprises (section 2(1));

- the prohibition of more than one trade union in a single enterprise, institution or establishment (section 472);

- the requirement that trade union officers must be Honduran and be engaged in the corresponding activity (sections 510(a) and (c) and 541(a) and (c), respectively);

- restrictions on the right to strike, sections 495 and 563 (requirement of a two-thirds majority of the votes of the total membership of the trade union organization in order to call a strike), 537 (ban on strikes being called by federations and confederations), 555(2) (the power of the Minister of Labour and Social Security to end disputes in services for the production, refining, transport and distribution of petroleum), 558 (the need for government authorization for any suspension or stoppage of work in public services that do not depend directly or indirectly on the State), and sections 820 and 826 in conjunction with section 554(2) and (7) (which establishes compulsory arbitration without the possibility of calling a strike for as long as the arbitration award is in force (two years), for collective disputes in public services which are not essential in the strict sense of the term, such as transport services in general, and services for the production, refining, transport and distribution of petroleum, respectively).

The Committee notes with interest that the preliminary draft (December 1995) of the reform of the Labour Code prepared by the Tripartite Committee takes account of most of its comments:

- it eliminates the exclusion from the scope of the Labour Code of workers in certain agricultural or stock-raising enterprises (section 2(1)), section 2 of the preliminary draft;

- it eliminates the requirement that trade union officers must be engaged in the corresponding occupation, and allows foreigners who have been resident in the country for at least five years to stand for election to trade union office (sections 510(a) and 541(c)), section 431(a) of the preliminary draft;

- it reduces the two-thirds majority of the votes of the total membership of the trade union organization required to declare a strike (sections 495 and 563) to a simple majority of the workers in the enterprise or trade union assembly section 517(c) of the preliminary draft;

- it eliminates the ban on strikes being called by federations and confederations (section 537), section 448 of the preliminary draft;

- it eliminates the restrictions on the right to strike constituted by the power of the Minister of Labour and Social Security to end a dispute in services for the production, refining, transport and distribution of petroleum (section 555(2)), and by the requirement that any suspension or stoppage of work in public services that do not depend directly or indirectly on the State is subject to government authorization or six months' notice (section 558);

- as concerns compulsory arbitration in the public service (section 820 of the Labour Code), the Committee notes with interest that, in conformity with sections 521 and 502 of the preliminary draft, arbitration will only be applied in the cases where there is a dispute between workers and employers in the public services covered by section 529 of the preliminary draft, which, in the opinion of the executive power, are of vital importance to the life and safety of the population (subsection 9). Nevertheless, the Committee regrets to note that included among the services in question are those for the production, refining, transport and distribution of petrol and its by-products (subsection 7), which are not essential services "in the strict sense of the term";

- as concerns the services under all branches of activity of the public authority and any other branches which, in the opinion of the executive power, are of vital importance to the economy of the population, upon declaration of the President (subsections 1 and 9), the Committee considers that the general and broad drafting of these provisions is susceptible to being interpreted in a manner which would unduly restrict the right to strike. The Committee is of the opinion that the prohibition of the right to strike in the public service should be limited to public servants exercising authority in the name of the State (see General Survey on freedom of association and collective bargaining, 1994, paragraph 158). Finally, as concerns services of vital importance to the economy of the population, the Committee is of the opinion that strike bans can only be justified in situations of acute national crisis.

The Committee also notes with regret that the preliminary draft does not amend section 472 of the existing Code, which bans the existence of more than one trade union in a single enterprise, institution or establishment.

The Committee wishes to point out once again in this connection that although it is not the purpose of the Convention to make trade union diversity an obligation, it does require this diversity to remain possible in all cases. There is a fundamental difference between a trade union monopoly established or maintained by law on the one hand and, on the other, voluntary groupings of workers which occur because they wish to strengthen their bargaining position. The Committee has acknowledged that excessive proliferation of occupational organizations can weaken the trade union movement. None the less, trade union unity imposed by law runs counter to the standards expressly laid in the Convention (see General Survey, op. cit., paragraph 91).

In this connection, the Committee believes that legislative provisions establishing the concept of the most representative trade unions are not in themselves contrary to the principle of freedom of association, provided that the determination of such organizations is based on objective and pre-established criteria so as to avoid any possibility of bias or abuse. Furthermore, the distinction should generally be limited to the recognition of certain preferential rights - for example, for such purposes as collective bargaining and consultation by the authorities. Where legislation provides for recognition of an enterprise union as an exclusive bargaining agent, certain safeguards should be attached, such as the election of the representative organization by a majority vote of the employees in the bargaining unit concerned, the right of an organization, which in a previous election failed to secure a sufficiently large number of votes, to request a new election after a stipulated period (see General Survey, op. cit., paragraph 240).

Furthermore, the Committee notes the Government's indication that the draft reform of the Labour Code is awaiting adoption. In this connection, bearing in mind the direct contacts mission carried out in 1986, the discussions in a number of sessions of the Conference Committee and the Office's technical assistance to the Government and the social partners in the preparation of the preliminary draft of the Labour Code, the Committee hopes that the Code will now be adopted and that it takes account of all the comments the Committee has been making for many years.

The Committee again requests the Government to keep it informed of any developments in this connection and to send a copy of the new Code as soon as it has been adopted.