Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 404, Octobre 2023

1. 401. The complaint is contained in communications dated 20 May 2019 submitted by the Authentic Trade Union Federation of Honduras (FASH).
2. 402. The Government sent its observations in communications dated 21 October 2019 and 13 September 2023.
3. 403. 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 complainant’s allegations

1. 404. In its communications dated 20 May 2019, FASH questions the slowness and ineffectiveness of the Labour Inspectorate in putting an end to the violations of freedom of association, alleging the following:
2. 405. The complainant alleges that, in August 2013, its affiliate, the Union of Hospital, Clinic and Health Centre Workers (SITRAHCYCS), contacted the Labour Inspectorate about violation of the rights of an employee of the enterprise Polyclinic Hospital SA (hereinafter “the enterprise”) who had been suspended without pay for five days. In February 2016, the SITRAHCYCS also requested that the Inspectorate sanction the violation of the enterprise‘s unionized workers‘ rights concerning the applicable collective agreement on working conditions. On 9 October 2013, the Inspectorate ruled in favour of the worker and on 23 January 2017, the enterprise was notified that the Labour Inspectorate had found violations (in relation to wage increase) by the enterprise of the application of the collective agreement in question. The complainant indicates that the enterprise appealed the decision before the Ministry of Labour, but that the latter had yet to take any action as of the filing of the complaint. After being sought on various occasions in 2017 regarding individual situations relating to the violation of the applicable legislation on rest in the radiology department, the Labour Inspectorate finally issued a decision in 2018 that was appealed without further outcome. The complainant condemns this delay, which makes it impossible for the enterprise to correct the violations in question.
3. 406. The complainant alleges that on 28 February 2018, Mr Presentación Vásquez and Mr Carlos Mondragón, respectively the President and General Secretary of the Union of Workers and Employees of the municipality of Choluteca, were unfairly dismissed by the mayor of the municipality because of their union responsibilities (having submitted a list of demands). As the head of the human resources of the mayor ‘s office did not appear, the complainant alleges that on 22 March 2018, the labour inspector verified the reported violations, but that the municipality refused to correct them. It indicates that on 19 April 2018, the regional headquarters of the Labour Inspectorate of Choluteca maintained that workers who are members of the executive committee of a trade union organization, from the time they are elected until six months after the termination of their duties, cannot be dismissed from their jobs without first proving before the labour court judge that there is just cause to terminate the contract. However, according to the complainant, the union leaders were not reinstated in their posts. On the contrary, they were threatened by the mayor, who declared that he did not want any union members on his council and that he wanted to dismiss the other union members.
4. 407. The complainant alleges the unfair dismissal of some 50 unionized municipal employees by the mayor of the municipality of Tela Atlántida since 2015, which was verified by the Labour Inspectorate in May 2017. The complainant alleges that although the Labour Inspectorate ordered the reinstatement of the unionized municipal employees who had been dismissed, that decision was not respected.
5. 408. It also alleges that the municipality has not complied with the collective agreement concluded between the Union of Public Employees of the Municipality of Tela (SIDEPMUT), notably by failing to remit union dues to the union. The municipality was also fined for this infraction by the administrative secretariat of the General Directorate of the Labour Inspectorate.
6. 409. Lastly, the complainant alleges that the municipality was unwilling to negotiate a collective agreement for 2018 and 2019, for which the services of a labour inspector were also requested. The complainant condemns the lack of progress in these matters.

B. The Government’s reply

1. 410. In its communication dated 21 October 2019, the Government indicates that: (i) in all the cases presented in the complaint, the General Directorate of the Labour Inspectorate has issued a ruling and always complied with the corresponding administrative procedures and guaranteed the parties‘ right to defence and due process; (ii) the Ministry of Labour, through the General Directorate of the Labour Inspectorate, has guaranteed the exercise of freedom of association by imposing the relevant sanctions in each specific case and in accordance with the labour legislation in force, specifically the Labour Inspection Act; (iii) the General Directorate of the Labour Inspectorate, in exercising its powers and without prejudice to the sanctions imposed for violations of freedom of association, has formally required the immediate correction of the violations found, including the payment of dues to unions and the reinstatement of dismissed workers; (iv) the certifications of the decisions concluding administrative proceedings have been issued in a timely manner (for example, in the case of the mayor‘s office of Tela) so that the union can claim its legal rights through the courts; and (v) the Ministry of Labour and Social Security has ensured protection of the right to freedom of association for workers and employers, respect for the working conditions agreed collectively, and continuous monitoring to ensure appropriate relations between employers and unions, intervening when necessary and issuing appropriate decisions, always in compliance with the national and international labour legislation in force and tailored to each specific case.
2. 411. In its communication dated 13 September 2023, the Government declares that:
   • As to the enterprise, administrative file IL-130917-0801-145608, whose parties include Ms Katia Mirandes as complainant, is on file without further processing, in accordance with the relevant provisions of the Administrative Procedure Act; and that administrative file IL-160726-0801-97771 concerning the violation of the applicable legislation on rest in the radiology department is with the Office of the Attorney General of the Republic, in accordance with the relevant provisions of the Administrative Procedure Act and the Labour Inspection Act;
   • As to the municipality of Choluteca, administrative file ILN-180305-0601-18901, to which Mr Presentación Vásquez is a party, is with the Office of the Attorney General of the Republic, in accordance with the relevant provisions of the Administrative Procedure Act and the Labour Inspection Act; and
   • As to the municipality of Tela Atlántida, administrative file ILN-170613-0101-03919 is to be sent to the Office of the Attorney General of the Republic so that it may be duly processed under the relevant provisions of the Administrative Procedure Act and the Labour Inspection Act.
3. 412. The Government indicates that the information provided is the result of interinstitutional consultations held with the bodies tasked with hearing and following up on the allegations made by the parties. It states that information was also requested from the General Confederation of Workers (CGT) and FASH, but that no additional information or observations were received regarding the allegations.

C. The Committee’s conclusions

1. 413. The Committee notes that the present case mainly concerns allegations of non-compliance with a collective agreement in an enterprise in the health sector, anti-union dismissals in two municipalities in the country, as well as the slowness and ineffectiveness of the Labour Inspectorate in putting an end to the reported violations of freedom of association.
2. 414. The Committee observes that the complainant, in the allegations on specific cases (relating to the suspension without pay of a worker of the enterprise or to failure to respect rest periods in the radiology service), has not established any link to a possible violation of union rights. The Committee wishes to recall in this regard that its mandate consists in determining whether any given legislation or practice complies with the principles of freedom of association and collective bargaining laid down in the relevant Conventions [see Compilation of Decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 9]. Recalling the importance of the complainants‘ communication of relevant information and specific facts in order to enable it to reach a determination in full knowledge of the facts, the Committee observes that the complainant has not indicated how the union rights of the workers concerned have been violated and will therefore not pursue its examination of these allegations.
3. 415. Moreover, the Committee notes that the complainant alleges failure to comply with certain clauses of the applicable collective agreement on working conditions, which was confirmed by the Labour Inspectorate in a decision dated 23 January 2017 (in particular in relation to wage increase), but which has not yet been corrected in practice. The Committee notes that, according to the complainant, the enterprise appealed the decision before the Ministry of Labour, but that the latter had yet to take any action as of the filing of the complaint. The Committee also observes that, contrary to the other issues raised by the complainant concerning the enterprise, the Government has not provided any information on the processing of the file by the Office of the Attorney General of the Republic.
4. 416. The Committee wishes to recall that mutual respect for the commitment undertaken in collective agreements is an important element of the right to bargain collectively and should be upheld in order to establish labour relations on stable and firm ground, and that failure to implement a collective agreement, even on a temporary basis, violates the right to bargain collectively, as well as the principle of bargaining in good faith [see Compilation, paras 1336 and 1340]. In the light of the above, the Committee requests the Government to provide information on the measures taken to ensure that the members of the SITRAHCYCS are able to fully exercise their right to bargain collectively and that the collective bargaining agreement signed by the union and the enterprise is effectively applied, and to provide information on the action taken by the Office of the Attorney General of the Republic and the outcome of the applicable sanctions.
5. 417. The Committee observes that cases of anti-union dismissals have been brought to its attention in the case of the two above-mentioned municipalities and will therefore be examined together.
6. 418. The Committee notes that the complainant alleges that: (i) on 28 February 2018, Mr Presentación Vásquez and Mr Carlos Mondragón, respectively the President and General Secretary of the Union of Workers and Employees of the municipality of Choluteca, were unfairly dismissed by the mayor because of their union responsibilities (having submitted a list of demands); (ii) the labour inspector verified the reported violations on 22 March 2018, but the municipality refused to correct them; and (iii) although the regional headquarters of the Labour Inspectorate of Choluteca maintained on 19 April 2018 that workers who are members of the executive committee of a trade union organization, from the time they are elected until six months after the termination of their duties, cannot be dismissed from their jobs without first proving before the labour court judge that there is just cause to terminate the contract, the union leaders were not reinstated in their posts.
7. 419. The Committee also notes that the complainant alleges that: (i) some 50 unionized municipal employees have been unfairly dismissed by the mayor of the municipality of Tela Atlántida since 2015 in an attempt to destabilize SIDEPMUT, which was verified by the Labour Inspectorate in May 2017; and (ii) the Labour Inspectorate‘s decision ordering the reinstatement of the dismissed unionized municipal employees was not respected.
8. 420. The Committee notes that the Government indicates in both cases that the Labour Inspectorate did indeed find the violations reported, that the mayors refused to comply with the corresponding decisions and that the respective files are (as of September 2023) with the Office of the Attorney General of the Republic, in accordance with the relevant legal provisions. The Committee notes in this respect the Government‘s indication that the certifications of the decisions concluding administrative proceedings have been issued in a timely manner so that the union can take legal action.
9. 421. The Committee notes, on the one hand, that the national legislation provides for measures to protect trade unionists and trade union leaders against discrimination and, on the other hand, that the competent authorities have carried out the appropriate investigations to remedy the consequences of the acts of anti-union discrimination, but that there are still significant difficulties surrounding implementation in practice, insofar as, according to the information available, the decisions of the Labour Inspectorate have allegedly not been enforced.
10. 422. The Committee recalls in this respect that no one should be subjected to anti-union discrimination because of legitimate trade union activities and that the remedy of reinstatement should be available to those who are victims of anti-union discrimination [see Compilation, para. 1163]. In addition, observing that there are reportedly still no rulings in the enforcement actions initiated against the dismissals that took place in February 2018, the Committee recalls that cases concerning anti-union discrimination should be examined rapidly, so that the necessary remedies can be really effective; an excessive delay in processing such cases constitutes a serious attack on the trade union rights of those concerned [see Compilation, para. 1139]. In the light of the foregoing, the Committee requests the Government to provide information on the action taken by the Office of the Attorney General of the Republic in this respect. In addition, the Committee requests the Government, as well as the complainant, to provide information on any legal proceedings initiated in relation to the dismissals mentioned above and trusts that any such proceedings will be resolved without delay in accordance with freedom of association.
11. 423. Regarding the alleged threats against union leaders Mr Presentación Vásquez and Mr Carlos Mondragón, the Committee notes that the complainant specifically alleges that, instead of being reinstated in their posts, they were threatened by the mayor, who stated that he did not want any union members on his council and that he wanted to dismiss the other union members. Recalling that the rights of workers‘ and employers‘ organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of these organizations, and that it is for governments to ensure that this principle is respected [see Compilation, para. 84], the Committee urges the Government to take without delay the necessary measures to investigate the complainant‘s allegations. The Committee requests the Government to keep it informed in this respect.
12. 424. The Committee further notes that, in the case of the municipality of Tela Atlántida, according to the complainant, the municipality failed to give SIDEPMUT the union dues that had been deducted from the salaries of the affiliated employees. The Committee notes that the complainant alleges that the municipality was fined for this infraction by the administrative secretariat of the General Directorate of the Labour Inspectorate, but that this sanction does not appear to have had any effect. Recalling that a considerable delay in the administration of justice with regard to the remittance of trade union dues withheld by an enterprise is tantamount in practice to a denial of justice [see Compilation, para. 702], the Committee requests the Government to provide information in this regard, so as to ensure that the amounts withheld have been paid to the union in question.
13. 425. Moreover, the Committee notes that the complainant reports the unwillingness of the municipality of Tela Atlántida to negotiate a collective bargaining agreement for 2018 and 2019 with SIDEPMUT, indicating that it requested the services of a labour inspector in this regard and regretting the lack of progress on these issues, without providing further details. Recalling that both employers and trade unions should bargain in good faith and make every effort to come to an agreement, and that satisfactory labour relations depend primarily on the attitudes of the parties towards each other and on their mutual confidence [see Compilation, para. 1329], the Committee requests the Government to take the necessary measures to ensure that the members of SIDEPMUT are able to fully and effectively exercise their right to bargain collectively, and to keep it informed in this respect.
14. 426. Finally, as to the allegations concerning the slowness and ineffectiveness of the Labour Inspectorate in putting an end to the violations of freedom of association in the situations mentioned above, the Committee notes that, according to the information available, the Labour Inspectorate has issued decisions requiring the correction of the violations found to remedy violations of freedom of association, as in the case of the unjustified dismissals.
15. 427. While duly noting the progress made in the Labour Inspection Act of 2017, observed by the Committee of Experts on the Application of Conventions and Recommendations (CEACR) in supervising the application of Convention No. 98, the Committee observes the particularly lengthy nature of the administrative procedures described in the present case, which would deprive those concerned of effective protection, taking into account that the unjustified dismissals date back to 2018 in the case of the municipality of Choluteca, and even to 2015 in the case of the municipality of Tela Atlántida. The Committee trusts that the competent authorities will take the necessary measures to ensure the prompt application of sanctions and remedial measures, applicable to the situations presented in this case. The Committee draws the attention of the CEACR to the aspects of this case concerning the application in practice of the Labour Inspection Act, so that it can take them into consideration in supervising the application of Convention No. 98.