Rapport intérimaire - Rapport No. 281, Mars 1992

1. 365. In a communication dated 19 December 1990 the International Confederation of Free Trade Unions (ICFTU), along with the Confederation of Workers of Honduras (CTH), the General Confederation of Workers (CGT), the Coordinating Council of Peasant Organisations of Honduras (COCOH), the Independent Workers' Federation of Honduras (FITH) and the United Federation of Honduran Workers (FUTH), presented a complaint concerning the violation of trade union rights against the Government of Honduras.
2. 366. The Government submitted certain observations in a communication dated 12 June 1991. In a letter of 14 June 1991, the Office requested the Government to supply additional observations giving specific replies to each of the allegations presented. The additional observations have not yet been furnished. The International Confederation of Free Trade Unions (ICFTU) presented fresh allegations in a communication dated 15 November 1991.
3. 367. 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. The complainants' allegations

1. 368. In its communication of 19 December 1990, the International Confederation of Free Trade Unions (ICFTU), along with the Confederation of Workers of Honduras (CTH), the General Confederation of Workers (CGT), the Coordinating Council of Peasant Organisations of Honduras (COCOH), the Independent Workers' Federation of Honduras (FITH) and the United Federation of Honduran Workers (FUTH) voice their concern over the appearance in Honduras of the phenomenon known as "solidarism", alleging that it is undermining the Conventions on freedom of association and violating various provisions of national legislation.
2. 369. The complainants allege that the Government of Honduras has allowed the appearance and unlawful development of solidarist associations. According to the complainants, solidarism is an employers' movement, the exercise of which is directly linked to labour policies which tend towards trade union persecution, the dismissal of union leaders, coercive membership of solidarist associations, an anti-union stance, and encourage the signing of direct settlements (concluded outside the union organisation) in the place of collective agreements.
3. 370. The complainant organisations allege that solidarist associations are encroaching on the area of trade union activities and thus request that they be forbidden to operate and that the Labour Code expressly forbid solidarist associations from engaging in union activities such as collective bargaining.
4. 371. More specifically, the complainant organisations allege that there have been the following violations related to solidarism:
   • - CERVECERIA HONDUREÑA S.A.: At a seminar, the enterprise made moves to establish a solidarist association, offering workers an organisation running parallel to the union, with interference on the part of the employers. According to the statutes of the association, workers may participate only if they do not belong to a union (article 1 states that the Solidarist Association of the Employees of Cervecería Hondureña S.A. is duly established and consists of permanent employees of the enterprise who are non-union members). The statutes also indicate the duties and powers of the executive committee, which include concluding agreements and collective agreements with the enterprise, which in the opinion of the complainants is a violation of Convention No. 98 (section 35 states that the duties and powers of the executive committee are to conclude agreements and collective agreements with the enterprise on behalf of the Association). Similarly, anti-union discrimination takes place in the enterprise against workers who join the union. An example of this discrimination is the dismissal of Mrs. Yelvania del Carmen Girón.
   • - AMERICAN PACIFIC OF HONDURAS S.A.: Organisations that are parallel to the union have been established at the enterprise, including the "Junta de fomento" (solidarist association) and a collective agreement committee (an agreement aimed at regulating working conditions with non-unionised workers on a collective basis), which has led to direct confrontation with the union organisation. The Junta de fomento (solidarist association) includes a financial adviser and a commissary appointed by the enterprise, which shows the level of managerial support for the solidarist organisation, as does the granting by the enterprise to the organisation of company shops, electric, water and security services, as well as an administrator and a secretary. The enterprise also finances travel, per diem and training for personnel in Costa Rica. The Ministry of Labour and Social Welfare has registered the collective agreement made at the enterprise with a group of non-unionised workers.
   • - TEXTILES SAN PEDRO: The Solidarist Association of Employees of the Managerial Group of Handall Industries is in operation at this enterprise and situations similar to those described above have arisen.
   • - POLYMER INDUSTRIAL: The constituent documents of the Solidarist Association (text provided by the complainants) at the enterprise state the aims of the Association to maintain harmonious industrial relations within the enterprise, promote the development of salaried employees and wage-earners, promote and maintain good working conditions, and encourage saving and credit among its members. The statutes of the Association authorise it to negotiate and sign collective agreements (a means by which working conditions are regulated outside the union) and provide for the posts of commissary and administrative adviser, appointed and removed from office by the enterprise. According to the statutes of the Solidarist Association, the permanent posts of commissary and administrative adviser should ensure the smooth operation of the Association. The General Assembly resolves that both positions should be occupied by members of the Association but freely appointed and removed by the Polymer general management. In addition, the Industrial Polymer enterprise, which had initially offered a collective agreement, subsequently recommended, through its most senior solidarist activist, that collective agreements not be negotiated but replaced by individual contracts. Similarly, workers belonging to the enterprise's trade union are suffering anti-union discrimination. Specific reference is made to Messrs. Leonel Perdomo, Miguel Angel Rivera and Santiago Mateo whose usual jobs have been changed, along with Messrs. Roney Moreira and Vitalicio Rodríguez whose contracts of employment have been terminated. Sixty-three workers have also been suspended.
   • - ENTERPRISES IN THE POLYMER GROUP (HONDUFIBRAS AND POLITUBO): A number of workers have been dismissed for attempting to set up a union, and solidarism is gaining ground quite easily since there are no union organisations at these enterprises.
   • - TERMOPLAST S.A.: The Solidarist Association of Termoplast Employees (ASODET) has advised its members that any attempt to join an organisation other than ASODET is a violation of its statutes (to support this, the text of a communiqué sent by ASODET is provided). Similarly, the complainants report that the Collective Agreement of Termoplast Solidarist Association (text enclosed) includes clauses which establish the sole right of the Association to represent workers' interests and to use termination funds. The relevant clauses of the Collective Agreement state that: "Clause 1 - the enterprise recognises the Association as the sole representative of the labour interests of its members and undertakes to negotiate with its executive committee in all individual or collective labour disputes which may arise ... Clause 6 - the enterprise agrees to transfer to the Association up to 5 per cent per month of the basic wage of the worker members provided that they contribute to the Association an equivalent percentage of savings, as laid down in its statutes. This transfer will be by way of trust funds and will be taken from the assets held in reserve by the enterprise for the payment of benefits to the workers."
   • - TELA RAIL ROAD COMPANY: The complainants state that the enterprise refuses to sign a new collective contract, offering instead to extend the current contract and to pay a lump sum. According to the complainants, the ulterior motive behind this action is the intention to introduce solidarism into the enterprise.
5. 372. The complainant organisations state that solidarist organisations exist in other enterprises, thus restricting the freedom of association of the workers and precluding any possibility of negotiating collective agreements. (These enterprises include: Kativo de Honduras S.A., Pinturas Surekota S.A., el Banco del Ahorro, el Banco del Futuro and Empresas Camaroneras del Sur del País, etc.)
6. 373. According to the complainants, the Ministry of the Interior has granted or is considering granting legal personality to various solidarist associations: the Association of Salaried Employees and Wage Earners of Polymer Industrial S.A., the Savings Association of Staff of the Kativo Company and Industrias Surekota S.A., the Solidarist Association of the Grupo Accesorios Eléctricos y Controles S.A. de C.V. (ACEYCO) and various solidarist associations in enterprises dealing in hardware. Similarly, the complainants report the existence of a National Committee of Honduran Solidarist Associations, established with the aim of formulating and carrying out a plan of action which would help strengthen solidarism in Honduras.
7. 374. The ICFTU, in a communication of 15 November 1991, alleges that at the beginning of October 1991, the management of the American Pacific Mining Company (AMPAC) of Canada dismissed 48 workers, including representatives of the union protected by the Labour Code, from the "El Mochito" mine, accusing them of spreading union propaganda at the mine. On 24 October 1991, a group of workers from the enterprise protested against these dismissals by blocking the entrance to the mine. The complainant reports that the managers of the mine requested the army to intervene and there was violent repression of the workers in an effort to remove them. It is reported that the alleged army suppression resulted in the death of Mr. Daniel Carrasco and left more than 20 workers injured. Furthermore, the complainant organisation regards the large-scale dismissal of workers as an indication that the American Pacific enterprise seeks to replace the existing union by a solidarist association, known as the Junta de fomento.

B. The Government's reply

1. 375. The Government, in its communication of 12 June 1991, states that it respects Conventions Nos. 87 and 98 and that the Secretariat of State and the Labour Inspectorate monitor their implementation. The Government reports that faced with the allegations presented, the General Directorate of the Regional Office of San Pedro Sula (a region where solidarism has a stronghold and the location of enterprises in which the alleged violation of trade union rights have taken place) carried out the appropriate investigation.
2. 376. The Government adds that the General Directorate of the aforementioned Office reported that legally established unions were in existence in the Cervecería Hondureña S.A., American Pacific S.A., Polymer Industrial S.A. and Tela Rail Road Company, with a collective labour contract governing relations between employers and workers. Furthermore, it states that in the other enterprises (Kativo de Honduras, Pinturas Surekota S.A., Textiles San Pedro, Polytubo, Hondufibras, Polyproductos S.A., Termoplast, Banco del Ahorro Hondureño, Banco Futuro and the Grupo de Empresas Camaroneras del Sur del País) trade unions did not exist, since these enterprises have used various methods to avoid being notified by trade union branches of their constituent resolutions and regard all contracts of employment with employees who participate in setting up such branches as terminated.
3. 377. As regards the solidarist associations, the Government points out that according to the General Directorate such organisations do exist in some of the aforementioned enterprises, and it indicates that these movements have not gathered enough strength to undermine the existing union organisations. Similarly, it states that investigations at various enterprises (not named) show that violations of freedom of association have not been proven.

C. The Committee's conclusions

1. 378. The Committee notes that the complainant organisations allege:
   • - discrimination on the part of some employers against workers who are members of unions, in the form of changes in jobs, suspensions and dismissals of an anti-union nature following the establishment of solidarist associations;
   • - the involvement of solidarist associations in union activities such as collective bargaining;
   • - the dismissal of 48 workers including representatives of the union protected by the Labour Code, from the "El Mochito" mine who were accused of spreading union propaganda within the mine; and the violent army suppression of the strike called at the mine following these dismissals, in the course of which Mr. Daniel Carrasco died and more than 20 persons were injured.
2. 379. The Committee strongly regrets that, despite the length of time which has elapsed since the complaint was submitted in December 1990, the Government has not sent a reply to the very detailed allegations in spite of repeated requests to do so by the Committee and the Office. As regards the alleged discrimination on the part of some employers against union members, in the form of suspensions, changes in jobs, dismissals, and the use of threats to ensure participation in solidarist associations, the Committee observes that the complainant organisations have made specific reference to the following cases: (1) the dismissal of Mrs. Yelvania del Carmen Girón, from the Cervecería Hondureña enterprise; (2) the change in jobs affecting Messrs. Leonel Perdomo, Miguel Angel Rivera and Santiago Mateo at the Polymer enterprise; (3) the termination of the employment contracts of Messrs. Roney Moreira and Vitalicio Rodríguez at the Polymer enterprise; (4) the suspension of 63 workers at the Polymer enterprise; and (5) the criterion of non-union membership as a prerequisite for belonging to a solidarist association (statutes of the solidarist associations of the Cervecería Hondureña enterprise and the Polymer enterprise). Given that the Government has not offered specific observations on these allegations, the Committee requests that it send its reply and indicate the protection afforded to workers under existing national legislation against acts of anti-union discrimination. At the same time, the Committee notes that the Government clearly recognises that in ten enterprises where solidarist associations exist, workers who have tried to set up a union have been dismissed. In these circumstances, the Committee draws the Government's attention to the fact that under Article 1 of Convention No. 98, "workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment". It calls upon the Government to indicate the measures it intends to take to redress the acts of anti-union discrimination found by the authorities at the ten enterprises in question. It also recalls the importance that it attaches to the principles contained in Article 2 of Convention No. 98 which establishes the total independence of workers' organisations from employers in the exercise of their activities.
3. 380. As regards the solidarist associations' alleged involvement in union activities, the Committee notes that the Government has limited itself to declaring that solidarist associations do not interfere in union activities. The Committee must point out, however, that the statutes of various solidarist associations provided by the complainants indicate that, at least in some cases, they are authorised to conclude agreements and collective agreements with enterprises (statute of the solidarist association in Cervecería Hondureña, and statute of the solidarist association in Polymer Industrial). Similarly, the Committee observes that at the American Pacific enterprise, where a union is in existence, industrial relations (wages, working conditions, etc.) are governed by a collective agreement negotiated in the framework of the solidarist association. Furthermore, the Committee observes that the statutes of the solidarist associations at the Polymer Industrial and American Pacific enterprises provide for the posts of commissary and financial administrator, appointed by the enterprise, and that the complainant organisations have pointed out - and the Government has not denied - that the American Pacific enterprise has granted considerable facilities and advantages to the solidarist association. Finally, the Committee observes that the Ministry of Labour has registered collective agreements made in the framework of solidarist associations (for example, in the case of the American Pacific and Termoplast enterprises). The Committee therefore concludes that at certain enterprises solidarist associations are carrying out what are specifically union activities, particularly in the area of collective bargaining. In this regard, the Committee repeats the conclusions it made at its May 1991 meeting relating to another case involving solidarism, in which it stated:
   • The interference of solidarist associations in trade union activities including collective bargaining, through direct settlements signed between an employer and a group of non-unionised workers even when a union existed in the undertaking, does not promote collective bargaining as set out in Article 4 of Convention No. 98 which refers to the development of negotiations between employers or their organisations and workers' organisations. The Committee also considers that, since solidarist associations are financed partly by employers, are comprised of workers but also of senior staff or personnel having the employers' confidence and are often started up by employers, they cannot play the role of independent organisations in the collective bargaining process, a process which should be carried out between an employer (or an employers' organisation) and one or more workers' organisations totally independent of each other. This situation therefore gives rise to problems in the application of Article 2 of Convention No. 98 which sets out the principle of full independence of workers' organisations in carrying out their activities. (See 278th Report, Case No. 1483 (Costa Rica), para. 188.)
4. 381. In these circumstances, the Committee expresses the hope that the Government will urgently take the legislative and other measures necessary to prohibit solidarist associations from exercising trade union activities, particularly collective bargaining.
5. 382. As regards the recent allegations concerning the dismissal of 48 workers from the "El Mochito" mine, and the violent army suppression of the strike called there, in the course of which Mr. Daniel Carrasco died and more than 20 persons were injured, the Committee notes that the Government has not sent observations on this matter. The Committee observes that these are recent allegations and requests the Government to reply as soon as possible.