Informe provisional - Informe núm. 79, 1965

1. 172. The complaint is contained in a communication of 15 July 1964 addressed directly to the I.L.O by the Authentic Trade Union Federation of Honduras (F.A.S.H.). It was forwarded by the I.L.O to the Government, which submitted its observations in a communication dated 31 August 1964.
2. 173. 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. 174. In their communication the complainants, who state that they represent 10,000 workers and peasants, accuse the Head of the Government of infringing freedom of association by refusing to grant legal personality to F.A.S.H, although the legal requirements have been complied with and the Ministry of Labour and Social Welfare has given its approval.
2. 175. In its reply the Government states that the reasons for which legal personality has not been granted to F.A.S.H are purely legal, since the organisers of the Federation have not complied with the requirements and conditions laid down in the Labour Code. In this connection the communication of the Government reproduces a decision of the Secretariat of State for Labour and Social Welfare, setting forth the reasons for which legal personality has not yet been granted to the Federation. According to this communication the Federation has been granted two months in which to make good the errors and omissions appearing in the documents submitted with its application for registration and recognition.
3. 176. According to the Secretariat of State referred to the observations made to the Federation relate to the following items:
   • (a) omissions consisting in the absence of the numbers of the decisions recognising the legal personality of the affiliated unions and the numbers and dates of the issues of the official gazette in which they were published;
   • (b) omission to record in the minutes the authorisations of the general meetings empowering the representatives of the affiliated unions to establish the Federation;
   • (c) failure to comply with the requirement to submit a list of the provisional managing committee, showing personal data relating to its members;
   • (d) omission to submit the certified copies of the articles of association and copies of the by-laws;
   • (e) the use in the by-laws of the term " Executive Committee " instead of the term " Managing Committee " prescribed by the Labour Code;
   • (f) infringement of the provisions of section 495 of the Labour Code in connection with the special majority votes required for the adoption of specific resolutions;
   • (g) the term " competent magistrate " must be replaced by the term " Ministry of Labour and Social Welfare " where it refers to the authority empowered by the Labour Code to appoint a liquidation committee in the event of the dissolution of a trade union;
   • (h) the elimination or replacement by other means of the boycott tactics referred to in the by-laws, since such a procedure comes within the scope of the Penal Code as an illegal act;
   • (i) prior verification by the General Inspectorate of Labour of observance by the constituent organisations of F.A.S.H of the legal quorums referred to by section 495 of the Labour Code;
   • (j) verification of the keeping by F.A.S.H of a register of members, minutes of the general meeting, minutes of the managing committee, inventories and balance sheets and income and expenditure accounts, as prescribed by the Labour Code.

B. B. The Committee's conclusions

1. 177. With regard to the observations contained in items (a), (b), (c), (d), (e), (g) and (j), the Committee considers that they appear to relate to formal requirements that must be complied with by the Federation in its application for registration and the granting of legal personality, requirements that the Government can properly lay down without this implying a violation of the principles of freedom of association. In fact, although Article 2 of Convention No. 87 provides that workers and employers shall have the right to establish organisations " without previous authorisation ", this does not free the founders of an organisation from the duty of " observing formalities as to publicity or other similar formalities which may be prescribed in certain countries, either generally in respect of all associations or specifically in respect of trade unions ", as the I.L.O. Committee of Experts on the Application of Conventions and Recommendations has stated, though these formalities must not be such as to be equivalent, in practice, to previous authorisation or to constitute a serious obstacle to the establishment of an organisation.
2. 178. With regard to the requirements contained in items (f) and (i) the Committee considers that they relate not to matters of mere form, but directly to the right of the organisations " to draw up their Constitutions and rules " in accordance with Article 3 of Convention No. 87. These requirements refer to the legal obligation of trade unions to make provision for a specific majority and quorum for the adoption of their decisions, in accordance with section 495 of the Labour Code. It is prescribed that resolutions of the general meeting shall be adopted by a simple majority vote; but that in the cases of approving the by-laws and any amendments thereto, fixing the contributions and wages to be paid and deciding on the expulsion of members, the majority vote shall be two-thirds of the members present; in the cases of amalgamation of unions and affiliation with, or withdrawal from, a federation or Confederation and of the dissolution of the union, the majority vote shall be two-thirds of the total number of members of the union; and finally, in the case of a strike, the majority vote shall be two-thirds of the total number of members of the union or branch concerned.
3. 179. The Committee observes that Article 3, paragraph 2, of Convention No. 87 lays down that the public authorities shall refrain from any interference which would restrict or impede the lawful exercise of the right of the organisations " to draw up their Constitutions and rules ", and that in accordance with Article 7 the acquisition of legal personality by an organisation shall not be made subject to conditions of such a character as to restrict the application of such provisions of the Convention as those contained in Article 3.
4. 180. On one occasion the Committee considered that legislation minutely regulating the procedure for internal trade union elections, the composition of its principal organs and the days of their meetings, the precise date for the annual assembly and the date when the terms of office of the officers should come to an end, was incompatible with the rights of the trade unions recognised by Convention No. 87. On another occasion the Committee admitted the Government's merely making specimen Constitutions available to organisations in process of creation without requiring them to accept an obligatory model, stating that this did not involve any interference with the right of organisations to draw up their Constitutions and rules in full freedom.
5. 181. In the present case the legal prescription of certain majority votes for the adoption of resolutions by the assembly of a trade union relates to a question of the highest importance for the life of the organisation and the rights of its members. The Committee considers that, in cases like this, involving basic matters relating to the existence and structure of a union and the fundamental rights of its members, the regulation by law of the majority votes for the adoption of the decisions involved does not imply interference by the authorities contrary to the Convention, provided that this regulation by law is not of such a nature as seriously to impede the running of a trade union in accordance with prevailing conditions, making practically impossible the adoption of the decisions proper to it, and provided that the purpose is to guarantee the right of members to participate democratically in the life of the union.
6. 182. Nevertheless, with regard to the majority vote required by law for the declaration of a legal strike (two-thirds of the total number of members of the union or branch concerned), non-compliance with which may entail a penalty by the administrative authorities going as far as dissolution of the union, the Committee recalls the conclusions of the Committee of Experts on the Application of Conventions and Recommendations a concerning the application by the Government of Honduras of Convention No. 87, which it has ratified, 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 ".
7. 183. With regard to the observation of the authorities contained in item (h), according to which boycott tactics must be eliminated from the by-laws, since such a procedure comes within the scope of the Penal Code as an illegal act, the Committee requests the Government to inform it of the specific penal provisions in force in Honduras under which the boycott is considered an illegal act, and in the meantime postpones the examination of this aspect of the case.