Rapport définitif - Rapport No. 30, 1960

1. 70. In accordance with Resolution No. 474A (XV) adopted on 9 April 1953 by the Economic and Social Council, the Secretary-General of the United Nations transmitted to the Director-General of the I.L.O a communication dated 28 July 1958, from the Honduras Brewery and Aerated Waters Workers' Union, San Pedro Sula, containing allegations of infringements of the exercise of trade union rights by the Government of Honduras.
2. 71. The complaint was communicated to the Government which forwarded its observations thereon in a letter dated 28 October 1958.

A. A. The complainants' allegations

• Allegations relating to the Proclamation of the Illegality of the Strike
  72. 72 In a communication dated 28 July 1958, the complaining organisation states that it has been the victim of arbitrary measures on the part of the Government of Honduras because it made use of the right to strike guaranteed by article 112 (12) of the Political Constitution. According to the complainants, the Minister of Labour obliged them, in January 1958, to sign a disadvantageous compromise undertaking with the Honduras Brewery Company. Subsequently, the union tried to get the conditions of this compromise changed because of the considerable increase in the cost of living. The undertaking, it is alleged, dismissed two workers and this caused a strike to be called on 23 July. The strike was declared illegal. According to the complainants, the Government applied section 25 of the Mediation, Conciliation and Arbitration Act, No. 59, 1955, in violation of article 341 of the Constitution.
  73. 73 In a letter dated 20 October 1958 the Government admits that the present economic situation of the country is difficult, but it denies having forced the complainants to sign the compromise agreement referred to above. The agreement in question resulted from an intervention by the Minister, which was in favour of the workers. The terms of the compromise included provisions extending the application of an agreement of August 1957 until August 1959, an obligation for the workers not to have recourse to strikes without having exhausted the legal remedies available and an obligation on the part of the undertaking to grant an increase of wages. Nevertheless, on 23 July, a minority group of 40 workers called a strike; 200 other workers opposed this action and wrote a letter on the subject to the Ministry, the text of which is annexed to the Government's reply. The strike was declared illegal.
  74. 74 The Government declares in its reply that the strikers violated the compromise agreement which they had signed and also section 25 of the Mediation, Conciliation and Arbitration Act and sections 17 (f) and 18 of the Trade Unions Act. According to the Government the conditions laid down in these legislative provisions were not observed by the complainants, who could not claim that, by declaring the strike illegal, the Government had violated articles 112 (12) and 341 of the Constitution. While article 112 of the Constitution guarantees the right to strike, it provides that its exercise will be regulated by law. No such law having been promulgated, the provisions cited above constitute a partial regulation. Article 341 stipulates that enactments in force at the date of the promulgation of the Constitution will remain in force so far as they do not conflict with the Constitution or are not repealed or amended. This provision, declares the Government, does not mean that sections 25, 17 (f) and 18 are no longer applicable.
  75. 75 The Committee considers that it is not competent to decide whether or not the Constitution of a country renders null and void legal standards laid down by the domestic law of that country.
  76. 76 The present case relates not to a prohibition of the right to strike but to an obligation to have recourse to certain procedures before exercising the right to strike. The Committee has taken the view in the past that allegations relating to prohibitions of the right to strike are not outside its competence in so far as such prohibitions affect the exercise of trade union rights. In other cases, the Committee has expressed the view that the right to strike of workers and workers' organisations constitutes an essential means of promoting and defending their occupational interests. The Committee has also emphasised in this connection that, although a strike may be temporarily restricted by law, until existing facilities for negotiation, conciliation and arbitration can be brought to bear, such limitation or counteraction should be accompanied by adequate, impartial and speedy conciliation and arbitration proceedings in which the parties concerned can take part at every stage.
  77. 77 It would appear from the information furnished by the Government that, before having recourse to a strike, those concerned must follow the procedure laid down in Legislative Decree No. 59 respecting mediation, conciliation and arbitration. This law establishes a system of compulsory conciliation and voluntary arbitration, the purpose of which is to reach a settlement between the parties in dispute. When direct negotiations achieve no results or the efforts of the mediator fail, conciliation boards are set up, either at the request of the parties or ex officio by the Labour Department. The employers and workers are represented on these boards. In the event of the parties refusing to accept the conciliation proposed by a board of this kind, they are invited to submit the dispute to arbitration. The representatives of both parties participate in the appointment of the arbitrator.
  78. 78 The Committee also notes the fact that, according to the legislation referred to by the Government (Trade Unions Act, 1955) only the General Assembly of a trade union is competent to declare a strike and this decision must be taken by secret ballot (section 17 (f)) and by a majority of two-thirds of the members of the trade union organisation or section (section 18).
  79. 79 The Committee is of opinion that the Government has not denied the right to strike of the complainants but that the legislation merely requires certain procedures to be applied before the right to strike is exercised. It would seem, according to the provisions in the legislation of Honduras referred to above, that this limitation of the exercise of the right to strike is accompanied by conciliation and arbitration procedures which are in accordance with the principle followed by the Committee and referred to in paragraph 76 above.
  80. 80 In these circumstances the Committee considers that the complainants have not offered sufficient evidence to show that the legislation relating to strikes violates the general principles applicable with respect to freedom of association and, therefore, recommends the Governing Body to decide that this aspect of the case does not call for further examination.
• Allegation relating to Intervention by the Security Forces
  81. 81 The complainants maintain that, after the strike had been called, police officers picketed the doors of the undertaking and that the workers were forced in a threatening manner to resume work within a very short time, following which the armed forces might intervene. The complainants allege that the Political Governor was ordered to denounce agitators to the police.
  82. 82 In its reply, the Government declares that a minority group of strikers prevented other workers from entering the undertaking. The Government declares that the public authorities confined themselves to maintaining an attitude of vigilance in order to ensure public order and protection of private property. The Government also communicates the text of a message addressed to various public authorities, from which it would appear that these authorities were called upon to ensure freedom to work, public order and protection of private property, to urge strikers to resume work and to see that the armed forces carried out the instructions set forth in the message. Finally, on 30 July, states the Government, a crowd of persons opened the doors of the undertaking, which had been kept closed by the strikers, in order to resume work.
  83. 83 The Committee observes that in certain respects the versions of events given by the complainants and by the Government are contradictory. In a number of previous cases the Committee has recommended the dismissal of allegations of intervention by security forces when the facts have shown that such intervention was required by circumstances and limited to the maintenance of public order and did not restrict the legitimate exercise of the right to strike, but it implied in these cases that it would have regarded the use of police for strike-breaking purposes as an infringement of a trade union right. The Committee has taken the view that, where an essential public service is interrupted by an unlawful strike, a government may have to assume the responsibility of ensuring its maintenance, in the interests of the community, and, to this end, may consider it expedient to call in persons from the armed forces or other sources to perform the duties which have been suspended and to take the necessary steps to enable such persons to be installed in the premises where such duties are performed.,