Rapport définitif - Rapport No. 33, 1960

1. 28. The complaint is contained in a document addressed jointly by the two complaining organisations, on 4 November 1958, to the United Nations and transmitted to the I.L.O by the Secretary-General of the United Nations. The Government of Honduras forwarded its observations on the complaint in a communication dated 10 January 1959.

A. A. The complainants' allegations

• Allegations relating to the Employers' Attitude to Collective Bargaining
  29. 29 It is agreed between all parties concerned in this case that in July 1958; the existing collective agreement being about to expire, direct negotiations concerning a new agreement began between the Tela Railroad Company and the three unions representing its employees-the Union of Workers of the Tela Railroad Company (SITRATERCO), and the two complaining organisations. Throughout the negotiations and the ensuing mediation procedure, allege the complainants, the employers adopted an inflexible attitude, refusing to yield any concessions that would increase production costs. Much of the complaint consists of statistics concerning wages, the cost of living and the financial position of the Company, which are apparently adduced to show that the Company should have been more compromising. The Government does not comment directly on the attitude of the employers during the procedures which preceded the subsequent collective agreement.
  30. 30 In Case No. 107 relating to Burma it was contended that certain employers were so unco-operative in their attitude to the workers' demands that they wrecked attempts to conciliate a dispute through a mediation board. Noting that no question as to the exercise of freedom of association or as to union recognition was in issue, the dispute concerning the payment of allowances and a number of other matters, the Committee expressed the view that, in the case of a dispute over such issues as appeared to have formed the subject of the dispute in that case, " the question as to whether one party adopts an amenable attitude or an uncompromising attitude towards the demands of the other party is a matter for negotiation between the parties within the law of the land ", and concluded that insufficient proof had been offered to show that the alleged " unco-operativeness " of the employers involved any infringement of trade union rights. As there is no suggestion that either freedom of association or union recognition was in issue in the present case, the Committee has come to a similar conclusion for the same reasons.
• Allegations relating to Pressure Exercised by a Mediator
  31. 31 Again the parties are all agreed that the negotiations referred to in paragraph 2 above having reached a deadlock early in August 1958, the services of a Mediator were requested by the trade unions, pursuant to the Legislative Decree of 14 March 1955 respecting mediation, conciliation and arbitration. A Mediator and two assessors were appointed. Negotiations continued until finally, in October 1958, a collective agreement was drawn up which SITRATERCO and the Company signed, but which the complaining organisations refused to sign. It is alleged that SITRATERCO, which appears to represent well over 90 per cent of the workers, and the Mediator have both exerted pressure on the complaining organisations to make them sign the agreement. To this the Government replies that the two minority organisations are being disruptive and trying to sabotage the good relations achieved by the conclusion of the agreement between SITRATERCO and the Company. It stresses the integrity, qualifications and impartiality of the Mediator in helping to promote the reaching of an agreement after over three months' negotiations, and reproduces the text of a bulletin issued on 14 October 1958 by the Mediator in which he notified the leaders of the complaining organisations that SITRATERCO was signing the agreement and invited them to do everything possible to sign the same day, in default of which he trusted that they would attend and adhere to the agreement by 20 October. The Government concludes that the charges of partiality against the Mediator arose out of the fact that he and the assessors, having also long-term public interests in mind, had persuaded SITRATERCO and the Company, who had wished for a four years' and a two years' agreement respectively, to compromise by entering into an agreement for three years. Previous agreements had also been negotiated for three years at a time in 1952 and 1955.
  32. 32 The Committee observes that the complainants adduce no specific evidence as to the kind of pressure alleged to have been exercised. The Committee considers that, in these circumstances, there is no evidence before it to show that SITRATERCO, the overwhelmingly representative organisation, took any steps to infringe the independence of the minority trade unions, or that the Mediator exceeded his statutory duty to endeavour to persuade all the parties concerned to unite in an agreement which would terminate the dispute. In these circumstances, the Committee recommends the Governing Body to decide that, in respect to the matters which form the subject of these particular allegations, the complainants have not offered sufficient evidence to show that any infringement of trade union rights occurred.
• Allegations relating to the Refusal of the Office of the Secretary of Labour to Set Up a Conciliation Board
  33. 33 The complainants allege that the aforesaid Legislative Decree respecting mediation, conciliation and arbitration provides that, if mediation fails, any of the parties may, within three days, request the Ministry of Labour to appoint a Conciliation Board. They refer also to article 123 of the Constitution of Honduras, which places the State under the obligation of promoting conciliation and arbitration for the peaceful settlement of labour disputes. The complainants accordingly requested the appointment of a Conciliation Board in October 1958, after they had refused to adhere to the collective agreement concluded by SITRATERCO, but, they allege, their request was arbitrarily refused in violation of the principles laid down in the relevant legislation and in the Constitution.
  34. 34 The Government contends that SITRATERCO, representing at least 7,000 employees, had concluded an agreement with the Company which contained a number of new benefits for the workers and represented a definite step forward in their struggle for improved living conditions. In the view of the Government it was not reasonable that two unions which represent together only 400 workers should be allowed to upset this successful outcome of three months' negotiation and mediation. The Government also questions whether a genuine majority vote of the members of these two unions against acceptance of the agreement was ever obtained. Further the Government denies their good faith, stating that certain amendments put forward by them during the negotiations were embodied in the agreement which they later refused to sign, for the sole reason, declares the Government, that the agreement is to be in force for three years, as were the two successive agreements which preceded it. Finally, the Government points out, if the complaining organisations considered that the resolution issued by the President of the Republic refusing conciliation was illegal they could have appealed to the Supreme Court, but they did not do so.
  35. 35 Section 9 of the Legislative Decree of 1955 respecting mediation, conciliation and arbitration provides that " if the attempt at mediation is unsuccessful either party may, within the three days following the closing of the mediation procedure, petition the Office of the Secretary of Labour to set up a conciliation board. If neither party does so the Office shall itself set up the board." It is clear that the two complaining organisations made such a request and that it was refused. But it is not clear from the text of section 9, read in conjunction with the following sections, whether the Office of the Secretary of Labour has a discretion as to whether to accede to such a request or not, having regard to all the circumstances prevailing with respect to the dispute, or whether the request must legally be granted when made by any party concerned, in the event of mediation having failed to settle the dispute in so far as it relates to that party.
  36. 36 In the first hypothesis the Committee considers that, an agreement having been concluded in respect of some 7,000 of the 7,400 workers involved in the dispute, after over three months of protracted negotiation, with the aid of a Mediator and two assessors, it would be unreasonable to expect a Ministry to allow the whole dispute to be reopened in such circumstances. The Committee considers, therefore, that there is no evidence to show that the discretion exercised, if the law permits such discretion, was exercised other than in accordance with the Government's duty under the Constitution to promote the peaceful settlement of disputes.
  37. 37 If, on the other hand, the Government was under a legal obligation to grant a request for the setting up of a conciliation board in the circumstances subsisting in the present case, as the complainants allege, the complainants could, states the Government, have challenged the legality of the decision not to initiate conciliation proceedings by taking the case before the Supreme Court. This statement, in fact, is confirmed by the provisions of the Constitution of Honduras of 1957. Article 112 of the Constitution declares that all laws regulating employer-employee relations are laws the application of which cannot be waived (orden público). Article 232 (7) of the Constitution provides for the jurisdiction of the Supreme Court in respect to cases of alleged wrongful application or non-application of such laws. In a number of previous cases the Committee has drawn attention to the fact that, where there is provision for national remedies before a court or an independent tribunal and such remedies have not been pursued with respect to the matters raised in a complaint, the Committee must have regard to this fact when examining the merits of the complaint. Where such a remedy has not been pursued in respect of a matter turning on the interpretation of a legal provision, as in the present case, which could have been referred by the complainants to the highest judicial tribunal in Honduras, the Committee considers that it would be inappropriate for it to attempt to place its own interpretation on the provision in question, and that, having failed to exercise the national remedy available in this particular instance, the complainants have not offered sufficient evidence to show that the refusal of the authorities in Honduras to act in accordance with the complainants' own interpretation of their legal duty constituted an infringement of trade union rights.