Rapport intérimaire - Rapport No. 87, 1966

1. 243. This case was examined by the Committee at its meeting in November 1964, when it submitted an interim report in paragraphs 172 to 184 of its 79th Report, which was approved by the Governing Body at its 161st Session (March 1965).
2. 244. Honduras has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

1. 245. The complaining organisation, representing 10,000 workers and peasants, alleges that the Head of the Government has infringed freedom of association by refusing to grant it legal personality, although the necessary legal requirements have been complied with and the Ministry of Labour and Social Welfare has given its approval.
2. 246. At its meeting in November 1964 the Committee had before it a communication from the Government dated 31 August 1964, in which the Government stated that legal personality had not been accorded to the organisation because of errors and omissions appearing in the documents submitted with its application for registration and recognition and that the organisation had been granted two months in which to make good such errors and omissions and thus comply with the requirements of the Labour Code.
3. 247. The Government listed ten requirements with which the organisation had been called upon to comply. The Committee took the view that seven of these requirements, listed in detail in paragraph 176 of its 79th Report, were formal requirements which a government could properly lay down without this implying a violation of the principles of freedom of association.
4. 248. The other three items with respect to which the complaining organisation was called upon to take remedial action were- (a) infringement of the provisions of section 495 of the Labour Code in connection with the special majority votes prescribed for the adoption of certain resolutions; (b) prior verification by the General Inspectorate of Labour of observance by the constituent unions of the complaining federation of the legal quorums referred to in section 495 of the Labour Code; (c) elimination or replacement by other means of the boycott tactics referred to in its by-laws, such a procedure being an illegal act under the Penal Code.
5. 249. With regard to the last of the three points referred to above, the Committee decided to request the Government to be good enough to inform it of the specific penal provisions in force in Honduras under which the boycott is considered to be an illegal act.
6. 250. In a communication dated 13 September 1965 the Government states that the boycott is not specified under general penal law, but that it must be regarded, in the light of the system underlying the legislation of Honduras, as an unlawful act. The Government states that by a boycott it means " any act or procedure contrary to free competition in production, industry, commerce or a public service " and therefore harmful to the public economy. In the light of this definition it considers that a boycott is at variance with article 252 of the Constitution whereby the State recognises and guarantees freedom of consumption, saving, investment, occupation, initiative, commercial, enterprise and other freedoms which may tend to strengthen the system of free trade and competition within the national territory. The Government adds that if these freedoms are guaranteed it is logical to suppose that any act which offended them would call for sanction and, specifically, that in civil law their infringement would justify applying for an injunction in relief.
7. 251. Article 3 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), ratified by Honduras, guarantees the right of workers' organisations to draw up their Constitutions and rules without any interference by the public authorities which would restrict this right or impede the lawful exercise thereof, while Article 8 of the Convention provides that, while such organisations shall respect legality in exercising their rights, the law of the land shall not be such as to impair, nor shall it be so applied as to impair, the guarantees provided for in the Convention. The question at issue with regard to boycotts turns not so much on Article 3 as on Article 8 of the Convention because, although there is some doubt as to precisely which legal provisions render them unlawful, the Government maintains that boycotts-a particular aspect of strike action-are prohibited by the law of the land. If such prohibition does not constitute a violation of Article 8 of the Convention, clearly an organisation cannot claim the right, under Article 3, to provide for something in its rules which contravenes that prohibition.
8. 252. The Committee has always applied the principle that allegations relating to the right to strike are not outside its competence in so far as they affect the exercise of trade union rights. It has also pointed out that the right of workers and their organisations to strike as a legitimate means of defending their occupational interests is generally recognised.
9. 253. The evidence before the Committee relates to the legal prohibition of only one particular aspect of strike action-the boycott. The complainants themselves have made no direct reference to it at all. The Committee observes, however, that the question of boycotts, whether primary or secondary, has led to considerable divergency in the legislation of several countries in which, as in Honduras, strike action in the general sense of a stoppage of work is not as such illegal. The boycott, in other words, is a very special form of action which in some cases may involve a trade union whose members continue their work and are not directly involved in the dispute with the employer against whom the boycott is imposed. In such circumstances the prohibition of boycotts would not appear necessarily to involve an interference with trade union rights. In the absence of any evidence from the complainants in the present case as to the nature of the boycotts objected to by the Government as being illegal, the Committee considers that the complainants have furnished no proof that their legal prohibition involves an infringement of Article 8 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), or, consequently, that any infringement of Article 3 of the Convention results from the refusal of the registering authorities to accept the provisions on this matter written into its Constitution by the complaining organisation.
10. 254. The two other reasons for which the Constitution and rules of the complaining organisation have not been accepted by the competent authorities involve questions of greater substance. The question at issue, as the Committee observed at its meeting in November 1964, is whether the fact that the requirements of section 495 of the Labour Code with respect to special majority votes and quorums for the adoption of specific resolutions must be complied with in the Constitution and rules of a trade union in order for it to be granted legal personality are compatible with the said Convention No. 87. Article 7 of the Convention provides that the acquisition of legal personality by an organisation shall not be made subject to conditions of such a character as to restrict the application, among other things, of the provision in Article 3 of the Convention according to which workers' organisations shall have the right to draw up their Constitutions and rules without interference by the public authority.
11. 255. Section 495 of the Labour Code requires that, for the approval of union rules and amendments thereto, the fixing of contributions, and decisions regarding expulsion of members, the majority vote shall be two-thirds of the members present at the general meeting; decisions regarding amalgamation, federation and dissolution need a majority vote of two-thirds of the total membership; the majority vote required for calling a strike shall be two-thirds of the total membership of the union or branch concerned.
12. 256. In Case No. 179 relating to Japan the Committee observed that the law and practice of a number of countries require absolute majorities of a union's membership -at least on a first ballot-for certain matters which affect the basic existence of a union (changes of Constitution and rules, dissolution, etc.), but that it is not the normal practice to require such majorities in the case of matters relating to the ordinary functioning of a trade union, such as elections. In cases of the latter kind it is the normally accepted principle that, provided all the members in good standing are enabled freely to exercise their right to vote, a simple majority of the votes cast shall, subject to any contrary rule voluntarily adopted by the union itself, be sufficient; any departure from this principle would mean that, in the absence of a system of compulsory voting, a union's activities would be paralysed unless an exceptionally high vote were cast on every occasion in order for a decision to be taken, a situation in which the law of the land would be such as to impair the rights accorded to organisations under Article 3 of Convention No. 87.
13. 257. It was in accordance with these considerations that the Committee, when examining the present case at its meeting in November 1964, concluded, with respect to the majority votes required by section 495 of the Labour Code for certain matters other than strike action (see paragraph 255 above), that the requirements laid down did not imply interference by the authorities contrary to the Convention.
14. 258. With regard to the requirement of a two-thirds majority vote of the total membership for strike action, however, non-compliance with which might even entail the penalty of dissolution of a union by administrative authority, the Committee recalled the conclusions of the I.L.O. Committee of Experts on the Application of Conventions and Recommendations concerning the application of Convention No. 87 by the Government of Honduras to the effect that the legal provisions involved constitute " an intervention by the public authorities in the activities of trade unions which is of a nature to restrict the rights of such organisations, contrary to Article 3 of the Convention ".
15. 259. Since the Committee formulated that conclusion, further comments on the matter have been made by the Government in its communication dated 13 September 1965.
16. 260. In its communication dated 13 September 1965 the Government contends that the requirements as to special majorities do not imply " previous authorisation " for the formation of an organisation or interfere with its right to draw up its Constitution and rules.
17. 261. In the same communication the Government refers to the provision in section 571 of the Labour Code to the effect that a union concerned in an unlawful stoppage of work may be " ordered to be dissolved if the authority or official issuing the declaration " that the stoppage is unlawful " so decides ". The Government states that this does not mean that a union can be dissolved by administrative decision, because, under section 500, it lies with the Minister of Labour and Social Welfare to decide whether resort shall be had to the provisions of section 500 (2) (d), according to which " application may be made to the labour court to cancel the union's legal personality and to dissolve and liquidate the union itself "; the competence of the labour court in this respect is also set forth in section 665. However, states the Government, there is some discrepancy between section 500 (2) (c) of the Code, which permits the suspension of an organisation's legal personality by administrative action, and Article 4 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), according to which workers' organisations shall not be liable to be dissolved or suspended by administrative authority. But, the Government explains, as the decree approving the ratification of the Convention was promulgated prior to the Code of 1959 and has not been repealed, the provisions of the Convention are applicable and there has been no case in which the Ministry has, in fact, suspended the legal personality of any trade union.
18. 262. In this connection the Committee recalls that the I.L.O. Committee of Experts on the Application of Conventions and Recommendations, when examining these provisions in the legislation of Honduras, observed that section 500 (2) (c) of the Code was incompatible with Article 4 of the Convention.