Informe provisional - Informe núm. 238, Marzo 1985

1. 312. The complaint is contained in a communication from the World Federation of Trade Unions dated 27 September 1984. The Government replied in communications of 22 October and 22 November 1984.
2. 313. Honduras has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No.087), and the Right to Organise and Collective Bargaining Convention, 1949 (No.098).

A. The complainant's allegations

1. 314. The complainant alleges that on 19 September 1984, 2,500 workers of the National Power and Electricity Undertaking (ENEE) went on strike, demanding a 10 per cent wage increase; they also demanded to know the whereabouts of their leaders and called for the latter's release.
2. 315. The complainant adds that on 20 September 1984, the Minister of Labour declared that the strike was illegal and that all the strikers were dismissed. This meant that the undertaking was not obliged to pay the strikers any seniority-related severance allowance. At the same time, the undertaking decreed the mobilisation by the military of all its employees.
3. 316. The complainant further alleges that the strike was put down by military and para-military units, resulting in the disappearance of a number of trade union officials, including the President of STENEE (Mr. Rolando Vindel) and another trade union official (Mr. Gustavo Morales). (The Committee has already examined the allegation relating to the disappearance of Mr. Vindel under Case No. 1268: see 234th Report, paragraphs 372-384.) According to the complainant, the number of trade union leaders and activists in the country who have disappeared or been murdered as a result of the intervention of the government forces against the workers is 100.

B. The Government's reply

1. 317. The Government states that on 10 June 1981 the National Electricity Undertaking and its Union of Workers signed a collective labour agreement which was to run for a period of three years. Accordingly, both parties, making use of their rights and in accordance with sections 69 and 70 of the Labour Code, denounced the collective agreement before the corresponding authority of the Ministry of Labour with the objective of negotiating a new collective agreement. For this purpose the parties opened discussions with a view to a direct settlement; these discussions ended on 6 December 1983 without a solution to the dispute having been found.
2. 318. The Government adds that the Union of Workers of the National Electricity Undertaking asked the Ministry of Labour to open mediation proceedings, and the Ministry accordingly declared closed the discussions aimed at direct settlement and open the mediation proceedings, appointing mediators in accordance with the provisions of sections 796 and 797 of the Labour Code. During the mediation proceedings, the parties were unable to reconcile their views in order to arrive at a satisfactory agreement, and the Board declared the mediation proceedings closed on 3 September 1984.
3. 319. The Government further states that, in the light of the report presented by the Mediation Commission to the Ministry pronouncing the closure of the mediation proceedings in connection with the negotiation of the new collective labour contract to be signed between the National Electricity Undertaking and its Union of Workers, the Ministry was concerned at the outcome of this disagreement, and attempted to find a point of convergence between the parties so as to enable the dispute to be settled peacefully. Accordingly, by official decision of 6 September 1984 the Ministry ordered the opening of conciliation proceedings and for this purpose required the undertaking and the trade union each to present a list of three candidates to form a Special Conciliation Board, with the proviso that if the parties failed to execute its order the Ministry would appoint the Board itself. The undertaking and the union presented their lists in conformity with the above-mentioned decision. The Ministry of Labour, by a decision dated 13 September 1984, declared the conciliation proceedings open, designating the members of the Special Conciliation Board which was officially established on 14 September 1984. In conformity with the procedure laid down in section 804 of the Labour Code the Special Conciliation Board called a hearing of both parties on 17 September at 4 p.m. Both parties appeared at the hearing, which took place in accordance with the established public order, and agreement was reached on four out of the five clauses in dispute that had remained pending from the mediation proceedings. The clause on which no agreement was reached was the wage clause. The hearing was suspended at 6.30 a.m. on 18 September 1984 and was resumed at the appointed time on the same day, namely 4 p.m. The hearing began with an exchange of views, but no agreement was reached on the disputed clause. The hearing lasted until 3.30 a.m. on 19 September 1984, and it was agreed to resume it at 4 p.m. on the same day, when it was decided that the Special Conciliation Board would present a final proposal to help the parties reach an agreement which would put an end to the dispute. This proposal could not be formulated because at 12 p.m., before the appointed time of 4 p.m., the union issued a call to strike, and the discussions thus remained at the conciliation stage.
4. 320. The Government claims that, in calling the strike, the union was contravening the provisions of section 569 of the Labour Code, which provides that a collective stoppage of work shall be unlawful "when the preliminary procedure for a direct settlement or for mediation, conciliation and arbitration has not been followed as laid down by law". An aggravating factor in this case was that the undertaking was a state undertaking providing public or essential services, in which case the parties are obliged, under section 820 of the Labour Code, to submit the dispute for compulsory arbitration if no agreement can be reached through conciliation proceedings. In virtue of the infringement of the law by the trade union in failing to exhaust the procedures provided for thereunder, the undertaking applied to the Ministry of Labour to have the strike declared illegal, and the Ministry granted this application. In pursuance of section 571 of the Labour Code, as amended by Decree No. 760 of 25 May 1979, the undertaking further applied to the competent court for suspension of the legal personality of the trade union organisation; this application was granted by the court and the suspension of the legal personality of the trade union was ordered for a period of six months. According to the Government it is nevertheless false that the military mobilised the employees of the undertaking and that military groups had repressed the strike movement.
5. 321. According to the Government, notwithstanding the facts related above and the efforts which it had had to make to find a just and definitive solution which would satisfy both parties and at the same time be in the national interest, it decided to appoint a high-level commission composed of the Minister of Labour and Social Welfare, the Minister of the Cabinet, the Director of the National Electricity Undertaking, two representatives of the General Central of Workers (CGT), the General Secretary of the Confederation of Workers of Honduras (CTH) and the President of the Federation of Workers of Honduras (FESITRANH); this commission reached the following conclusions, which are regarded as having provided a definitive solution to the problem in question: "1. Once all acts of work stoppage have ceased and work has resumed normally, the National Electricity Undertaking shall honour each and every one of the clauses negotiated up to the date on which the negotiation proceedings were interrupted. 2. In connection with clause 55-33, the undertaking shall grant a 6 per cent wage increase every year in the manner proposed by the undertaking on the date on which the conciliation proceedings were interrupted. 3. Notwithstanding the declaration of illegality of the strike adopted by the Ministry of Labour, the undertaking shall undertake to refrain from reprisals or dismissals of workers who have given their moral or material support to the strike. 4. The time lost during the strike shall be made up in a manner to be agreed on between the parties, which shall endeavour to find a just solution. 5. The suspension of the legal personality of STENEE is the responsibility of the competent courts, which have the sole power to apply the law, passing and executing judgements in concrete cases. In order to reach a definitive solution to the dispute, the commissions shall undertake to expedite the relevant procedure. 6. At the suggestion of the legally organised trade union committee, the ENEE shall allow the legal representative of the STENEE provisionally to represent the trade union for the signing of the present document and the collective labour agreement and in other relevant matters. 7. The undertaking shall allow the sectoral and subsectoral managing committees to continue to represent the workers in all internal labour questions arising in the undertaking. 8. Once the present document has been signed by the parties, the work stoppage called by the Union of Workers of the National Electricity Undertaking shall be deemed to be terminated. Tegucigalpa, DC, 26 September 1984. (Signed) Government Commission: Ubodoro Arriaga Iraheta. Amado H. Núnez V. Raúl Flores Guillén. Trade Union Commission: Francisco Guerrero. Andrés Víctor Artiles. Felécito Avila. Marco Tulio Cruz. Elpidio Duarte Herrera. Legal representative of STENEE: Germán Leitzelar Vidaurreta."
6. 322. In addition, the Government states that the disappearance of the PANI trade union leader, Mr. Gustavo Morales, occurred many months prior to the strike which commenced on 19 September 1984 and that the competent authorities are investigating the matter.

C. The Committee's conclusions

1. 323. The Committee notes that in the present complaint the complainant alleges that the strike of the workers of the National Power and Electricity Undertaking (ENEE), called on 19 September 1984 to demand wage increases, was declared illegal and that, as a consequence, the dismissal of all the strikers was announced, the military mobilisation of the employees of the undertaking was decreed and the strike was put down by military and para-military units, as a result of which the trade union leader, Gustavo Morales, disappeared.
2. 324. As regards the declaration of illegality of the strike, the Committee notes that Honduran legislation recognises the right to strike for workers in the electricity sector (section 555 of the Labour Code), although its exercise is subject to the fulfilment of certain requirements; in particular, the obligation to make available the necessary personnel to ensure that a suspension of the services provided does not result in serious and immediate danger to public health or safety or to the economy in general (section 555 of the Labour Code) and to exhaust the possibilities offered for the direct settlement of disputes and for mediation, conciliation and arbitration (section 553 of the Labour Code), such arbitration being compulsory in the case of the electricity sector as in other public services (section 820 of the Labour Code).
3. 325. In this connection the Committee wishes to recall that a strike may be subject to major restrictions such as compulsory arbitration in essential services in the strict sense of the term (i.e. those whose interruption might endanger the lives, safety or health of all or part of the population). (See, for example, 208th Report of the Committee, Case No. 958 (Brazil), paragraph 305.) The Committee considers that the services rendered throughout the country by the National Electricity Undertaking would appear to fall within the concept of essential services.
4. 326. In these circumstances, and noting that the Union of Workers of the National Electricity Undertaking called the strike on 19 September 1984 four hours before the appointed time for the final meeting under the statutory conciliation procedure and without submitting to the compulsory arbitration procedure (a restriction which, as has been seen, is admissible in the case of essential services in the strict sense, as is the case of the electricity services), the Committee concludes that the declaration of illegality of the strike begun on 19 September 1984 by the trade union does not infringe the principles of freedom of association.
5. 327. As regards the alleged consequences of the declaration of illegality of the strike in question (repression of the strike, dismissals of strikers and military mobilisation of workers), the Committee notes that the Government denies any repression of the strike or mobilisation by the military of the workers. It also notes that a high-level tripartite commission, including representatives of the central Honduran confederations, reached definitive conclusions in which the undertaking undertakes to refrain from dismissals of workers who took part in the strike. The Committee also notes that, according to the Government, the National Electricity Undertaking obtained the suspension of the legal personality of the union for six months from the judicial authority by virtue of section 571 of the Labour Code, amended by Decree No. 760 of 25 May 1979. The Committee requests the Government to provide detailed information on the conclusions reached by the said commission on this last point.
6. 328. Lastly, as regards the allegation concerning the disappearance of the trade union leader, Gustavo Morales, the Committee notes that this disappearance had nothing to do with the strike which took place in the ENEE undertaking on 19 September 1984 since it occurred many months prior to the events. It expresses its serious concern over this allegation and requests the Government to send the results of the investigation which is being carried out by the authorities as a matter of urgency.