Informe definitivo - Informe núm. 397, Marzo 2022

1. 422. The complaint is contained in a communication dated 20 January 2021 from Education International (EI) and the Teachers’ Union of the Autonomous National University of Honduras (SIDUNAH).
2. 423. The Government sent its observations in a communication dated 20 July 2021.
3. 424. 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. 425. In their communication dated 20 January 2021, EI and SIDUNAH allege that: (i) the Autonomous National University of Honduras (UNAH), an autonomous state institution, refuses to recognize the legal existence of SIDUNAH for the purposes of representing all the teaching staff who work at UNAH; and (ii) refuses to transfer to it the sums of money corresponding to the union dues deducted from all teaching staff. The complainants report that: (i) SIDUNAH was established in 2011 and its recognition by the Secretary of State in the Department of Labour and Social Security was published on 18 January 2013; and (ii) on 5 April 2013 a request was submitted to UNAH for it to transfer the union dues to SIDUNAH from that point on, a request that was allegedly denied by UNAH.
2. 426. The complainants note that, in light of the refusal of the university authorities to recognize SIDUNAH as a trade union and to transfer to it the funds corresponding to the union dues deducted from the university teachers, SIDUNAH lodged an appeal for amparo (remedy for the protection of constitutional rights) with the Constitutional Chamber of the Supreme Court of Justice and that, by means of a ruling dated 28 July 2015, the Court ordered UNAH to recognize SIDUNAH and to transfer to it the union dues deducted from the teachers since April 2013.
3. 427. The complainants allege that the university authorities did not comply with this sentence and they therefore requested that an executing officer be appointed, in accordance with articles 64 and 65 of the Constitutional Justice Act, a request that was granted and the Supreme Court appointed an executing officer and a court order was obtained for the seizure of the funds relating to the period from April 2013 to 30 October 2016 from the Central Bank of Honduras. The complainants note that they are requesting the same procedure for the seizure of the funds corresponding to the union dues from 1 November 2016 to 31 December 2019, although that request is allegedly being stalled by the Central Bank, which appears to be conspiring with the university authorities and the other trade union involved.

B. The Government’s reply

1. 428. In a communication dated 20 July 2021, the Government noted that on 5 April 2013, SIDUNAH submitted a document to UNAH stating that it had legal recognition and requested that the deductions of union dues, from the teachers who work at that institution, be transferred to it (request logged as administrative file No. SG-UEA-015-04-2013). The Government notes that by means of documents dated 16 and 18 April 2013, the rector’s office of UNAH requested SIDUNAH to correct a number of deficiencies and, in accordance with the provisions of article 526 of the Labour Code, to, among other things, provide accreditation for the teachers by means of their respective original signed membership applications, along with a copy that can be duly checked, as well as a certified extract of the records of the meeting held by the members of SIDUNAH, in which, by majority vote, they request UNAH to take a deduction from the wages of the affiliated workers and to make available to the union the ordinary and extraordinary dues that they are required to contribute.
2. 429. The Government notes that, even though on 11 July 2013, SIDUNAH partially corrected the things that had been requested of it, it did not comply with the aforementioned, therefore, on 15 October 2013, UNAH decided to shelve the proceedings. The Government also notes that: (i) on 30 October 2013, SIDUNAH appealed that ruling and requested that it be declared partially void; (ii) on 7 November 2013, SIDUNAH requested the rector's office of UNAH to send certification that it had given implied consent (article 29 of the Administrative Proceedings Act, which provides that: "The silence of the Administration shall have the effect of a declaration of presumed intent, only in such cases in which the Act gives it a positive or negative effect"); (iii) on 23 November 2013, the rector's office decided that it should refer back to what had been decided on 15 October (that is, to shelve the proceedings); (iv) on 29 November 2013, SIDUNAH submitted a document entitled "Document certifying that implied consent has been given in its favour" (which was received by the secretariat of the University Council on 13 December 2013); and (v) on 11 July 2014, the Legal Department issued a report on the matter.
3. 430. The Government notes that on 13 March 2014, SIDUNAH lodged an appeal for amparo (remedy for the protection of constitutional rights) before the Constitutional Chamber of the Supreme Court of Justice and that on 28 July 2015, the Court issued its ruling granting amparo having considered that implied consent had been given and "that, having detected an infringement of the right to petition, of the right to defence and, as a result, to due process, the teachers belonging to SIDUNAH were granted amparo, in order that their right to due administrative process be restored to them, providing them with the certification of implied consent, because it had been proven that there had been no response for more than two years, which gave rise to the legal effect of a positive reply to the request". The Government notes that the Court ordered UNAH to recognize SIDUNAH and its board of directors and to proceed with the transfer of the sums of money corresponding to the deductions for ordinary and extraordinary union dues from April 2013 until the date of the ruling.
4. 431. According to the Government, in compliance with this ruling, on 29 January 2016, the rector’s office of UNAH ordered the recognition of SIDUNAH and ordered the general secretariat to request SIDUNAH to submit union membership rolls, which should be accompanied by a signed authorization and the fingerprint, employee number and identity number of each member, for the purposes of the salary deductions. The executive secretariat for staff development was also ordered to implement the deductions for SIDUNAH members, in accordance with the lists submitted.
5. 432. The Government indicates that: (i) SIDUNAH believed that the sentence had not been wholly complied with and requested the Constitutional Chamber to appoint an executing officer to ensure that the sentence was carried out; and (ii) the Court appointed an executing officer, without overseeing their work or defining the procedures to follow for accomplishing their mandate (article 119 of the Constitutional Justice Act) and that, in view of such an omission by the Court, UNAH was subjected to serious and irreparable damages as a result of the arbitrary and discretionary actions taken liberally by the executing officer who, going beyond the scope of the ruling, illegally requested that the executive board of SIDUNAH join the governing body of UNAH, that the executive board of SIDUNAH be relieved of their academic duties, that physical spaces be assigned to the union, that the total number of teaching staff at UNAH be determined, and required payment and seized UNAH property in the amount of 80 million lempiras, which corresponds to the period from April 2013 to December 2019 (and not to July 2015, as per the ruling), making arbitrary use of the list of all teachers at UNAH, ignoring the fact that not all of them are members of SIDUNAH, and as a result the ruling that they were instructed to carry out did not cover all of them. The Government notes that the funds were seized from the UNAH budget intended for the execution of its constitutional mandate to further higher education in the country, and not that corresponding to the union dues deducted from the salaries of teachers who are members of SIDUNAH.
6. 433. The Government notes that on 19 June 2021, UNAH requested that the Court completely void the proceedings since the ruling appointing the executing officer and all of their actions, for having violated due process and having omitted to define the proceedings as laid down in article 119 of the Constitutional Justice Act, and due to the excesses of the executing officer in carrying out their mandate. The Government notes that UNAH has proposed that the declaration that implied consent had been given does not in itself give automatic authorization to what SIDUNAH had requested, since it is still necessary to comply with the requirements of the relevant norms, in this case, those contained in article 526 of the Labour Code. The Government notes that UNAH had not taken deductions from members of SIDUNAH, since they had not been accredited and had not submitted union membership rolls or the duly signed authorizations, accompanied by the fingerprints, employee number and identity number of every member of SIDUNAH for the purpose of the deduction from their salary of ordinary and extraordinary dues.
7. 434. The Government highlights that SIDUNAH’s request and aim has always been to have transferred to it the amount corresponding to the deductions for union dues and contributions already credited to UNAH’s other union, the Union of Workers of the Autonomous National University of Honduras (SITRAUNAH), which was founded in 1961 and is comprised of workers from different sections of the university, from various professions, offices and specialities. The Government notes that, according to the meeting records, 164 members of SIDUNAH had resigned their membership of SITRAUNAH. The Government highlights that such resignations, in accordance with the provisions of articles 473 and 526 of the Labour Code, are very personal acts that should be carried out with the union that the person is a member of, or with their employer, and not at a meeting of another union, since they are required to notify their employer in writing. The Government notes that SIDUNAH claims to represent all university teachers and not only its members, which is an abuse of its right and violates the freedom of association of the teachers who are not members of SIDUNAH, that is to say, their freedom to freely and voluntarily decide whether or not to join that trade union. The Government notes that both the Secretary of State in the Department of Labour and Social Security and UNAH agree that SIDUNAH only represents those members who have joined the trade union, and not all teachers, as has been claimed.

C. The Committee’s conclusions

1. 435. The Committee observes that in this case the complainants allege that UNAH refuses to recognize SIDUNAH and to transfer to it the sums of money corresponding to the union dues deducted from university teachers. They allege that, although in 2015 the Constitutional Chamber of the Supreme Court of Justice granted SIDUNAH its appeal for amparo (remedy for the protection of constitutional rights) and ordered UNAH to recognize it and transfer to it sums corresponding to the union dues deducted from the teachers since April 2013, UNAH did not comply, and therefore they requested the appointment of an executing officer, who seized the amount corresponding to the period from April 2013 to 30 October 2016 and is currently in the process of requesting the seizure for the period from November 2016 to December 2019, which is being stalled by the Central Bank.
2. 436. The Committee notes that in this regard the Government indicates that: (i) the request that SIDUNAH made on 5 April 2013 for UNAH to recognize it and transfer to it the union dues had deficiencies and although it partially corrected the things that had been requested, it did not comply with several requests and therefore UNAH shelved the proceedings; (ii) on 30 October 2013, SIDUNAH appealed that ruling and submitted a document stating that implied consent had been given in its favour; (iii) in its ruling on 28 July 2015, the Court considered that implied consent had been given and ordered UNAH to recognize SIDUNAH and transfer to it the amount corresponding to the dues deducted from April 2013 until the date of the ruling; (iv) in compliance with that, on 29 January 2016, the rector’s office of UNAH ordered the recognition of SIDUNAH and the implementation of deductions for members of SIDUNAH, in accordance with the membership rolls that the union would have to submit; (v) the Court did not oversee the work of the executing officer, who acted in an arbitrary and discretionary manner, going beyond the scope of the ruling and, among other things, seized UNAH property in the amount of 80 million lempiras, corresponding to the period from 2013 to 2019 (not what the ruling ordered) and using the list of all university teachers, many of whom belong to a different union, SITRAUNAH, causing UNAH serious and irreparable damages; and (vi) on 19 June 2021, UNAH requested that all the proceedings since the appointment of the executing officer be declared void.
3. 437. The Committee notes that in its 2015 ruling the Constitutional Chamber focused on the question of whether implied consent had been given and concluded that, since more than two years had passed and the State had not provided a response, that entailed approval of what SIDUNAH had requested in 2013.
4. 438. The Committee notes that, according to the documentation provided, on the one hand is SITRAUNAH, the company or primary union, comprised of workers from different sections of the university, from various professions, offices and specialities, and on the other hand is SIDUNAH, which is an occupation-based trade union, which is to say that it is comprised of individuals who share the same profession, trade or speciality. The Committee notes that in the document that SIDUNAH presented to UNAH on 5 April 2013, it is stated that because it is an occupation-based organization, it brings together and represents all the teaching staff who work at UNAH. It also states that SIDUNAH does not include UNAH’s administrative and service staff “who have always been represented by the other union organization in which no teacher has had any participation due to the hegemony established by a group of administrative workers”. The Committee notes that in a report written by the Secretary of State in the Department of Labour and Social Security, dated 23 March 2021, annexed to the Government’s reply, they note that SIDUNAH represents its members and not all the teachers, as it had claimed. In that regard, the Committee recalls that workers in public or private universities shall have the right to establish organizations and to join them, [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 364] and in this case the teachers can choose to join whichever organization that they deem suitable.
5. 439. On the other hand, the Committee notes that article 526 of the Labour Code provides that, in order for there to be deductions of ordinary dues, the union must provide the company with, among other documents, the membership roll for those from whom deductions are to be made, which, according to the Government, have not been submitted to UNAH. In that regard, recalling that both legislation which imposes accreditation or proof of affiliation of members of the trade union for their union dues to be deducted from their wages, and legislation which stipulates that it suffices for a union to submit a list of members for the union dues to be deducted, are compatible with Convention No 87, the Committee trusts that, once the requirements established in the legislation have been complied with, UNAH will transfer to SIDUNAH the sums of money corresponding to the union dues that have been deducted from those of its members that have requested it. Noting that an appeal lodged by UNAH is pending resolution, and regretting that a request made by SIDUNAH almost a decade ago has not materialized, the Committee trusts that the Constitutional Chamber will soon rule and expects the Government to promote constructive dialogue between UNAH and SIDUNAH in the interests of contributing to the establishment of harmonious labour relations.