Rapport définitif - Rapport No. 364, Juin 2012

1. 555. The complaint is contained in a communication dated 22 August 2011 from the Unitary Confederation of Workers of Honduras (CUTH), the Workers’ Confederation of Honduras (CTH) and the General Confederation of Workers (CGT).
2. 556. The Government sent its observations in a communication dated 22 November 2011.
3. 557. Honduras has ratified the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87), and the Right to Organize and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants’ allegations

1. 558. In their communication dated 22 August 2011, the CUTH, the CTH and the CGT raise objections to Decree No. 230-2010 of 5 November, which contains the National Hourly Employment Programme (PRONEH), which they consider to be in violation of ILO Conventions Nos 87, 95, 98, 106, 111 and 122 (the Committee will limit itself to examining the alleged violations of Conventions Nos 87 and 98). The complainants add that agreement No. STSS-002-2011 was published on 21 January 2011, and that it contains the regulations of PRONEH, issued by the Ministry, pursuant to the provisions of article 19 of Decree No. 230 2010, which requires the Ministry to work together with a member of the workers’ organizations and a member of the employers’ organizations, designated by the Economic and Social Council, to regulate the application of the abovementioned Decree within 30 days of its publication. The complainants state that no invitation was sent to the workers’ organizations and allege that the Decree, which directly affects workers, was adopted without consultation by the Government with trade unions, and is intended not to promote employment but to further deregulate the labour market, increase job insecurity and violate international labour Conventions, the Constitution and the Labour Code. According to the complainants, the Temporary Hourly Employment Act was adopted in order to legalize temporary work and outsourcing. The complainants point out that the labour market is saturated with temporary workers and those doing outsourced work, and the Act is not needed to hire workers on a temporary basis (the complainants provided the figures for temporary workers in the private and public sectors).
2. 559. The complainants state that, as Decree No. 230-2010 and the corresponding regulations have been adopted without consultation, the workers’ confederations are preparing an appeal against both documents on the grounds that they are unconstitutional and impossible to implement. The appeal is to be submitted to the Constitutional Chamber of the Supreme Court of Justice. The complainants allege that workers’ organizations were not consulted with regard to the adoption of the Decree and regulations, and only the employers’ interests were taken into consideration. They add that the second paragraph of article 7 of the Decree, which states that “it is understood that workers hired under the terms of the Programme are entitled to the fundamental rights set forth in the Labour Code and the eight fundamental ILO Conventions signed and ratified by the State of Honduras, including Conventions Nos 87 and 98, which guarantee the right to organize and collective bargaining, in compliance with the provisions of domestic labour law”, is merely declaratory and perverse since the Decree turns professional activities of the permanent nature exercised by many workers into a temporary activity and, worse still, into hourly employment. They also consider that this paragraph is contradictory since it states that rights and guarantees must be compatible with domestic labour law yet domestic law denies temporary workers the right to organize.
3. 560. The complainants consider that the principal violation lies in the attempt to use a decree to convert labour activities that are permanent per se into temporary hourly work, thereby increasing the number of workers who are denied the right to freedom of association and collective bargaining. According to the complainants, the Decree contains no genuine and effective provisions on the exercise of the right to freedom of association and collective bargaining, and it makes trade union organization and collective bargaining impossible, in practice, for temporary workers, let alone workers hired by the hour or on a non-permanent basis. The complainants state that the option of hiring workers by the hour, and the concomitant job insecurity, can only have adverse effects on freedom of association and make it easier to commit acts of anti-union discrimination. In practice, most enterprises resort to temporary labour with no regulation and no guarantees of fundamental rights.

B. The Government’s reply

1. 561. In its communication of 22 November 2011, the Government states that, in their explanation of the violations, the trade union confederations state that they are preparing an appeal on grounds of unconstitutionality because they consider that the Constitution and Conventions Nos 87, 95, 98, 106 and 122 are being violated. According to the allegations, Honduran workers would allegedly be left without protection as a result of the violation of their right to job security, greater job insecurity, and the loss of collective bargaining and trade union rights. However, to date, nobody has lodged an appeal against the National Hourly Employment Programme Act (Decree No. 230-2010), nor is there any record, in the Inspectorate, of any complaint relating to the violation of the labour rights of workers under the Programme.
2. 562. As regards the alleged violation of job security, PRONEH rules out any possibility of violating this right, firstly because it prohibits the dismissal of permanent workers for the purpose of replacing them with workers hired under and covered by the Hourly Employment Programme, and secondly because employers will be allowed to hire temporary workers in numbers equal to 40 per cent of the workforce, but this percentage is calculated on the basis of the overall workforce of permanent staff, meaning that if a permanent staff member is dismissed, the number of permitted temporary employees will be reduced accordingly. With regard to the alleged violations of trade union and collective bargaining rights, it should be noted that article 7, paragraph 2, of Decree No. 230-2010 stipulates that “it is understood that workers hired under the terms of the Programme are entitled to the fundamental rights set forth in the Labour Code and the eight fundamental ILO Conventions, including Conventions Nos 87 and 98, which guarantee the right to organize and collective bargaining, in compliance with the provisions of domestic law”.
3. 563. With regard to the allegation that workers’ organizations were not consulted before PRONEH was adopted, the Government states that, before adopting the Act, the Honduran Congress held public information meetings for the sectors concerned, and the Ministry of Labour and Social Security (STSS), acting through the Economic and Social Council, subsequently invited workers’ and employers’ representatives to draw up the Act’s regulations, but only the employers’ representatives attended. The Honduran Congress organized a series of meetings and awareness-raising events with the various sectors before adopting the Act (these facts have been checked against graphical records). During monitoring of the implementation of the Programme, concerned sectors have also been invited but the only persons who participated as observers on behalf of workers were Mr Alfredo Ponce and Mr Roberto Sevilla from the CTH. The aim was to monitor and check the Programme and determine whether or not it was necessary for the Programme’s legal technical unit to propose changes to enhance the implementation of Decree No. 230 2010.
4. 564. With regard to the allegation that PRONEH has failed to promote employment and that one of its purposes is to legalize temporary work, the Government states that PRONEH was devised within the framework of the Government’s plan for 2010–14 as a temporary strategic programme for reducing and eradicating poverty. Its main objectives include increasing work opportunities and thereby enable the people to live with dignity, preserve existing jobs and avert an increase in the rates of unemployment and underemployment. It is not the purpose of the Programme to legalize temporary work. Indeed, article 5, points 1 and 4, read as follows : “(1) production or service units shall not hire workers under the terms of the Programme to perform duties considered, in accordance with the Labour Code, to be temporary or seasonal”, for the simple reason that those workers are regulated and protected by the Labour Code (article 347 of the Labour Code); “(4) production or service units performing duties that may be specific to their trade but are not ongoing because they are dependent on production contracts involving predetermined volumes with specific due dates for occasional customers, meaning that when the delivery is made or the due date is reached the work to be done comes to an end, as well as those tasks that increase seasonally or during certain periods of the year or at certain dates and thus require a temporary increase in the workforce, may avail themselves of the Programme and hire employees under the terms thereof”; this provision makes it possible for employers to create jobs by hiring staff to meet seasonal demand. Staff hired under the hourly employment regime have the advantage of benefiting from all labour benefits, such as the guaranteed payment of thirteenth and fourteenth months’ wages and leave for each hour worked, paid for in the form of non-routine compensation, which is the equivalent of adding an extra 20 per cent onto the agreed base salary, which shall not be lower than the minimum wage (see the paragraph on non-routine compensation in article 6).
5. 565. Any enterprise wishing to hire staff under the terms of PRONEH must register with the Directorate-General for Employment of the STSS, draw up an individual written contract along the lines of the model developed by the Ministry of Labour and Social Security (in order to ensure that the labour rights of workers are protected), register the signed contracts with the Directorate-General for Employment (article 15, paragraphs 1 and 2 of the Act), comply with domestic and international labour legislation in the areas of child labour and the worst forms thereof (article 5(3) of the Act), hire workers from vulnerable groups in compliance with the legally established percentages (article 4, paragraphs 6 and 7 of the Act), register the workers on the monitoring or registration list with the Honduran Social Security Institute (article 8, paragraph 1, of the Act), give preference to persons covered by the Programme when filling vacant permanent staff posts (article 5(2)), sign agreements with the Honduran Social Security Institute to provide workers covered by the Programme with social security services or, where appropriate, sign agreements with private clinics, company medical systems and insurance companies (article 9 of the Act), extend to workers covered by the Programme the same benefits as those of permanent staff in terms of health plans, insurance policies and other social security benefits, in areas where the Honduran Social Security Institute does not have a presence (article 8, paragraph 2, of the Act), and provide the Directorate-General for Employment and the General Labour Inspectorate with the information they need to assess the Programme (article 12 of the Act and article 14 of the Regulations).
6. 566. The Government reports that, nationwide, 311 enterprises using the Programme are currently registered with the STSS. The number of PRONEH contract registration transactions has increased, leading to better control and monitoring of the rights of workers hired under the Programme; the results are such that no complaints have yet been lodged with the STSS via the Inspectorate. This demonstrates that no exploitation is taking place.
7. 567. The vast majority of the PRONEH contracts are for half days (four or five hours) or full days (six, seven or eight hours), depending on the tasks performed by the employee in the workplace. Hiring an employee for a full day’s work ensures that he or she will earn more than the 2011 minimum wage and increases his or her chances of becoming a permanent employee. Finally, the Government states that it should be noted that, nearly one year after PRONEH was adopted, it has generated 272,626,471.90 lempiras (HNL) in earned wages, and the control, registration and monitoring work done by the STSS has generated real data on the economic impact of the Programme and its contribution to the gradual decrease in the unemployment and poverty rates in Honduras. If current trends continue, Decree No. 230-2010 will have generated around HNL500 million or more by the end of 2014.

C. The Committee’s conclusions

1. 568. The Committee observes that in this case the complainant organizations raise objections to Decree No. 230-2010 of 5 November, which contains PRONEH, which the complainants consider to be in violation of ILO Conventions Nos 87 and 98, and state that the workers’ confederations are planning to appeal against both documents on the grounds that they are unconstitutional and impossible to implement. The appeal is to be submitted to the Constitutional Chamber of the Supreme Court of Justice. The complainants allege that workers’ organizations were not consulted with regard to the Decree and regulations, the Decree converts permanent labour activities into temporary hourly ones, thereby increasing the number of workers excluded from the exercise of freedom of association and collective bargaining, and article 7, paragraph 2, of the Decree stipulates that “it is understood that workers hired under the terms of the Programme are entitled to the fundamental rights set forth in the Labour Code and the eight fundamental ILO Conventions signed and ratified by the State of Honduras, including Conventions Nos 87 and 98, which guarantee the right to organize and collective bargaining, in compliance with the provisions of domestic labour law”, is merely a declaratory paragraph and is contradictory since the Labour Code (domestic labour law) denies temporary workers the right to organize.
2. 569. The Committee takes note that the Government states that: (1) to date, nobody has lodged an appeal against the National Hourly Employment Programme Decree, nor is there any record, in the Inspectorate, of any complaint relating to the violation of the labour rights of workers under the Programme; (2) regarding job security, the Act prohibits the dismissal of permanent workers for the purpose of replacing them with workers covered by the Programme; (3) regarding violations of collective bargaining and trade union rights, article 7 of the Decree has been quoted (see the previous paragraph); (4) regarding the failure to consult workers’ organizations before adopting the Act, and contrary to the allegations, the Honduran Congress held public information meetings for the sectors concerned before the Act was adopted, the STSS, acting through the Economic and Social Council, subsequently invited workers’ and employers’ representatives to draw up the regulations, but only the employers’ representatives attended, and during the monitoring of the implementation of the Programme, concerned sectors were invited but representatives of the CTH were the only ones who participated; (5) any enterprise wishing to hire staff under the terms of the Programme must register with the Directorate-General for Employment of the STSS and further register the contracts it signs; (6) 311 enterprises using the Programme are registered and the number of contract registration transactions has increased, leading to better control and monitoring of the rights of workers; and (7) to date, nobody has lodged an appeal with the Inspectorate, proving that there have not been mass dismissals.
3. 570. The Committee observes firstly that Decree No. 230-2010 of 5 November, which contains PRONEH, does not regulate trade union affairs and therefore does not contain provisions that are incompatible per se with the principles of freedom of association (far from it, article 7 states that it is understood that workers hired under the terms of the Decree are entitled to the fundamental rights enshrined in ILO Conventions, with particular reference to Conventions Nos 87 and 98).
4. 571. With regard to the alleged lack of consultation in the process of adopting the abovementioned Decree and regulations, the Committee takes note of the contradictory arguments advanced by the complainants and the Government regarding the prior consultation that took place and the participation of the worker party therein (the complainants state that they were not consulted and the Government states that the sectors concerned were consulted but the worker party, with few exceptions, failed to attend the meeting organized through the Economic and Social Council for the purpose of drafting the regulations).
5. 572. With regard to the concern expressed by the complainants about the impact of the Decree on the trade union rights of workers, the Committee wishes to refer to the findings of the General Survey of the Committee of Experts on the fundamental Conventions on labour rights in the light of the ILO Declaration on Social Justice for a Fair Globalization, paragraph 935, in which it is indicated that: “the Committee observes that one of the main concerns expressed by trade union organizations is the adverse impact of insecure forms of employment on trade union rights and the protection of workers’ rights, especially in the case of repeatedly renewed short-term temporary contracts; outsourcing, which is used even by some governments in their own public services to perform legally mandated ongoing tasks; and the non-renewal of contracts for anti-union reasons. Some of these modalities often deprive workers of access to freedom of association and collective bargaining, especially when they conceal a genuine and ongoing labour relationship. Some forms of job insecurity can also deter workers from joining trade unions. The Committee wishes to emphasize the importance of examining, within a tripartite framework, the impact of these forms of employment on the exercise of trade union rights in all member States.” The Committee underlines that such dialogue could take place if necessary.
6. 573. Finally, with regard to the allegation that domestic legislation excludes temporary workers from trade union organizations (the complainants cite the Labour Code in so far as it refers to the requirement that a person must be regularly employed before being able to join a trade union’s executive board, and the definition of a trade union as a permanent organization of workers), the Committee observes, firstly, that the Government refers to article 7 of the Decree, which mentions the need to comply with fundamental Conventions (with particular reference to Conventions Nos 87 and 98), and states that no complaints have been lodged with the Inspectorate, and secondly, that the complainants have failed to supply examples of specific cases in which the implementation of the Decree has led to violations of the collective bargaining and trade union rights of temporary workers. That being so, the Committee, welcoming the reference in Decree No. 230-2010 to the protection of the fundamental trade union rights of temporary workers, and noting that no judicial appeal has been lodged against the Decree, the Committee will not pursue the examination of this case.