Informe provisional - Informe núm. 84, 1965

1. 63. The complaints presented by the National Trade Union of Public Servants of Honduras (SINASEPH) are contained in its communication dated 29 November 1964 and in the additional information sent on 13 January 1965. This material was transmitted to the Government, which sent its observations on 19 February 1965.
2. 64. 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. 65. With its communication dated 29 November 1964 the complaining organisation also forwarded a copy of a letter to the Minister of Labour and Social Welfare stating that a group of public employees had established a trade union on 16 August 1963 in accordance with section 534 of the Labour Code. Following the organisation's application for registration and recognition of its legal personality, the Directorate-General of Labour decided that the documents submitted were in order, except for certain errors in wording discovered in its rules. However, from the time when this decision was communicated on 6 November 1963 until the present the authorities had failed to give instructions for the union to be registered, although section 483 of the Labour Code lays down a period of 30 days within which this must be done. On 25 October 1964 SINASEPH held its first extraordinary congress, at which it decided to set up an Action and Public Relations Committee, Professor Amilcar Salinas Rivera being elected Secretary-General of that Committee. Four days later Professor Salinas Rivera was arrested and wrongfully dismissed from his post in the public administration. The complainants consider that the action taken against Professor Salinas Rivera is due to his trade union activities and state that Miss Marina Barnica, who had been prominent in the formation of the union, was dismissed from her post as secretary at the Labour Inspectorate on the same day.
2. 66. With their communication dated 13 January 1965 the complainants sent a letter received from the Minister of Labour replying to the protests made in connection with the action taken against Professor Salinas Rivera and Miss Barnica. This letter stated that the Minister would undertake the necessary investigation. The complainants allege that this is an attempt to evade the legal requirements. The complainants also sent a copy of the decision by the Directorate-General of Labour referred to above and a copy of a letter received from the Director-General of Labour stating that, since the union was in the process of being formed, its Executive Board would remain under the special protection of the State in accordance with the provisions of the Labour Code.
3. 67. In its reply dated 19 February 1965 the Government states that officials and employees of the public administration are in a relationship sui generis and cannot be identified with private workers; the former are not in an "employment relationship" with the State, since the State is not an employer, but they have to be protected by a special system of " guarantees ", since their relationship is governed by statutes and regulations drawn up by the State. The Government goes on to say that there is no civil service in Honduras and therefore no officials or employees of the State are covered by public servants' regulations, there are only de facto employees of the State who do not yet enjoy de jure guarantees. As de facto employees they enjoy the rights recognised by the Labour Code, subject to special conditions, and will be covered by the Civil Service Act soon to be promulgated. The Government states that SINASEPH has no legal personality for the reasons stated above and that its existence is therefore irregular and without validity within either the national or international sphere.
4. 68. With regard to the violation of freedom of association alleged to be practised by the authorities against the members of SINASEPH, the Government states that it must not be forgotten that purely political activities, such as participation in electoral campaigns, agitation and acts of violence and subversion, do not, either in Honduras or abroad, come within the scope of lawful activities such as may be pursued by duly established trade unions; in no case are such activities lawful for de facto groups like SINASEPH. The only security measures or legal sanctions adopted by the authorities are of an individual character and in no way general or collective against any union or group of persons. The Government further states that Mr. Aristides Mejia Castro, who signed the complaint dated 29 November 1964 as President of SINASEPH, was relieved of his functions as a public official on 31 August 1964 by decision of the Secretariat for Foreign Relations.
5. 69. The Committee observes that under existing legislation employees of the official services are entitled to establish trade unions. However, from the explanations provided by the Government, this right would seem to have been suspended, since state employees still do not enjoy the guarantees to which they should be entitled, since they are de facto employees in the absence of a regular civil service in Honduras. Until such time as the Civil Service Act comes into force, it wilt not be possible to reach a satisfactory solution concerning the status of officials and public servants. This is why the complainant organisation would not have been able to obtain legal personality, since its existence is unlawful according to the Government's statement.
6. 70. The Committee has stated on more than one occasion that the purpose of the procedure for the examination of cases where violation of freedom of association is alleged is to promote respect for trade union rights, both de jure and de facto, and that the workers' right freely to constitute organisations of their own choice cannot be considered to exist until such time as it is fully recognised and observed both de facto and de jure.
7. 71. In view of the allegations made by the complainants and of the statement by the Government concerning the difference between officials and public employees on the one hand and private employees on the other, with regard to the character of their employment relationship, the Committee considers that it must draw the Government's special attention to the provisions of Article 2 of Convention No. 87, which Honduras has ratified, stating that workers and employers, without distinction whatsoever and without previous authorisation, shall have the right to establish and join organisations of their own choosing.
8. 72. The Committee of Experts on the Application of Conventions and Recommendations has already pointed out that " the principle of freedom of association might very often remain a dead letter if employers and workers were required to obtain any previous authorisation to enable them to establish an organisation, be it authorisation concerning the formation of the trade union organisation itself, need to obtain discretionary approval of the Constitution or rules of the organisation, or, again, authorisation for taking steps prior to establishment of the organisation ". This does not mean that the founders of an organisation are freed from the duty of observing formalities as to publicity or other similar formalities which may be prescribed by law. However, such requirements must not be such as to be equivalent in practice to previous authorisation, or as to constitute such an obstacle to the establishment of an organisation that they amount in practice to outright prohibition. Even in cases where registration is optional, if such registration confers on the organisation the basic rights enabling it to " further and defend the interests " of its members, the fact that the authority competent to effect registration has discretionary power to refuse this formality leads to a situation that is not very different from that in cases where previous authorisation is required.
9. 73. The present case relates to public officials who established a trade union and applied for it to be registered and granted legal personality with a view to normal operation within the framework of the law. However, although there were no major formal obstacles to registration, according to the outline of events submitted to the Committee, the authorities did not register the union, nor did they consequently grant it legal personality without which the organisation cannot lawfully exist. In these circumstances the Committee must expressly emphasise, as it has on other occasions, the importance of ensuring that persons employed in the service of the State should be guaranteed the right to establish trade unions and to register them with a view to their lawful operation.
10. 74. With regard to the allegations concerning the arrest of Mr. Salinas Rivera and his dismissal from the post he previously occupied in the public service, and the dismissal of Miss Barnica, the Government has not given any specific explanation, merely referring to certain purely political activities which could not be lawfully pursued by duly established trade unions, let alone de facto groups such as SINASEPH.

B. B. The Committee's conclusions

1. 75. The Committee recalls, in the first place, that on many occasions in the past, where allegations that trade union leaders or workers had been arrested or detained for trade union activities have been met by governments with statements that the arrests or detentions were made for subversive activities, for reasons of internal security or for common law crimes, it has followed the rule that the governments concerned should be requested to submit further and as precise information as possible concerning the arrests or detentions and the exact reasons therefor. If, in certain cases, the Committee has concluded that allegations relating to the arrests or detentions of trade union militants did not call for further examination, this has been after it has received information showing sufficiently precisely and with sufficient detail that the arrests or detentions were in no way occasioned by trade union activities but solely by activities outside the trade union sphere, which were either prejudicial to public order or of a political nature. In all cases where trade unionists have been arrested for political offences or for offences under ordinary law the Committee has insisted on the importance of ensuring that such persons should be tried within the shortest possible period by an impartial and independent judicial authority.
2. 76. In the second place the Committee has always attached great importance to the provisions of Article 1 of Convention No. 98, according to which workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment, such protection applying more particularly in respect of acts calculated to cause the dismissal of or otherwise prejudice a worker by reason of union membership or because of participation in union activities.
3. 77. With regard to the Government's statement that " purely political activities, such as participation in electoral campaigns ... do not, either in Honduras or abroad, come within the scope of lawful activities such as may be pursued by duly established trade unions; in no case are such activities lawful for de facto groups like SINASEPH ", the Committee refers to the comments by the Committee of Experts on the Application of Conventions and Recommendations in 1959. That Committee stated that if trade unions are prohibited in general terms from engaging in any political activities this may raise difficulties by reason of the fact that the interpretation given to the relevant provisions in practice may change at any moment and considerably restrict the possibility of action of the organisations. In this connection the Committee of Experts thought it useful to refer to the resolution adopted by the International Labour Conference at its 35th Session (Geneva, 1952) in which it stated that when trade unions undertake or associate themselves with political action this action shall not be " of such a nature as to compromise the continuance of the trade union movement or its social or economic functions, irrespective of political changes in the country ". It would therefore seem that States should be able, without prohibiting in general terms political activities of occupational organisations, to entrust to the judicial authorities the task of repressing abuses which might, in certain cases, be committed by organisations which had lost sight of the fact that their fundamental objective should be " the economic and social advancement " of their members.