Observation (CEACR) - adoptée 1998, publiée 87ème session CIT (1999)

The Committee notes that the Government's report does not respond to the Committee's previous comments which referred to:

-- 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-third 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 the petroleum production, refining, transport and distribution services), 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 the petroleum production, refining, transport and distribution services, respectively).

The Committee had noted with interest that the preliminary draft text to reform the Labour Code of December 1995, prepared by the Tripartite Committee had taken the majority of the Committee's comments into consideration, namely:

-- the abolition of 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;

-- the abolition of 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;

-- the reduction of the two-thirds majority vote 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;

-- the abolition of the prohibition of strikes being called by federations and confederations (section 537), section 448 of the preliminary draft;

-- the abolition of the restrictions in respect of the exercise of the right to strike relative to the power of the Minister of Labour and Social Security to end a dispute in the petroleum production, refining, transport and distribution services (section 555(2)), and 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);

-- with regard to compulsory arbitration in the public service (section 820 of the Labour Code), the Committee had noted with interest that, in conformity with sections 521 and 502 of the preliminary draft, arbitration would only be applied in the event of a protracted 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 had regretted to note that the petroleum production, refining, transport, distribution and by-products services (subsection 7), which are not essential services "in the strict sense of the term" were included in the list of essential services;

-- with regard to "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 had considered that the general and broad drafting of these provisions could be interpreted in such a manner as to 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). With regard to the services of vital importance to the economy of the population, the Committee had considered the prohibition of strikes could only be justified in a situation of acute national crisis.

The Committee had also noted with regret that the preliminary draft did not amend section 472 of the Labour Code in force, which prohibits the existence of more than one trade union in a single enterprise, institution or establishment.

In this respect, the Committee had again pointed out 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. In fact, 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 had acknowledged that excessive proliferation of occupational organizations may weaken the trade union movement. None the less, trade union unity imposed by law runs counter to the standards expressly laid down in the Convention (see General Survey, op. cit., paragraph 91).

In this connection, the Committee had considered 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 the recognition of a trade union in an enterprise as the 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 had noted the Government's statement to the effect that the draft reform of the Labour Code is awaiting adoption. In this connection, bearing in mind that a direct contacts mission took place 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 had hoped that the Labour Code had finally been adopted and that it had taken account of all the comments the Committee had been making for many years.

Moreover, the Committee recalls that the imposition of a precondition which provides that the establishment of a trade union requires 90 per cent of its members to be Honduran nationals (sections 475 and 500 of the Labour Code) is incompatible with the Convention. The Committee had also noted that whilst Decree No. 760 of May 1979 had amended the legislation in this respect, the above sections, which are contrary to the Convention, have been included in the Labour Code Bill of 1992. The Committee therefore requests the Government to adopt the necessary measures to repeal the above provisions.

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

[The Government is asked to report in detail in 1999.]