Ratified treaties;¹ Instruments not subject to ratification²

Process of creating a union in a private security company/ Dismissal of provisional union officers without judicial authorization/ Protection against anti-union discrimination/ Challenge by the employer to the right of security firm employees to unionize/ Direct resolution of a dispute on the basis of international law

Forty-two employees of a private security company launched the procedure for registration of a union. Before their organization was formally granted legal standing, several members of the provisional leadership of the union were dismissed after they refused to work for one of the company’s clients.

Some of these workers went to court to have their dismissal recognized as invalid, on the grounds that they were protected by the Labour Code of Honduras, which makes the dismissal of officers of a union, including a union which does not yet have legal standing, dependent on a prior court decision.

For its part, the employer claimed that the paperwork to register the union had not been completed and therefore the union did not exist at the date of dismissal, and the appointment of union officials on a provisional basis could last for only thirty days, so that those appointments had expired at the time of dismissal. It also challenged the right to unionize employees of private security companies on the basis of the "Police Law" and Article 534 of the Labour Code, which excluded police corps and services from the right to freedom of association. It pointed out that the employment contracts of employees of the company contained a clause renouncing the exercise of freedom of association.

Basing its decision on international treaties ratified by Honduras with regard to freedom of association, the court of first instance hearing the case recognized the plaintiffs’ right to freedom of association and assigned them a portion of the monetary compensation and indemnities claimed. Both the employer and the workers appealed against the decision, the latter because they did not get all they had claimed.

Before the court of second instance, the employer again challenged the right of employees of private security companies to organize and the applicability of the special protection against dismissal provided by the Labour Code to members of unions which had yet to obtain legal standing. Lastly, he asked for the results of a labour administration inspection, which noted that several workers had left the union, to be taken into account in analyzing the case.

To deal with these three points, the Court of Appeal referred to ILO Conventions Nos. 87 and 98:

“WHEREAS: workers who organize themselves to come together in a union are automatically placed under State protection, it is not possible for the employer to terminate the employment contract of any of them without the question being previously dealt with by the competent court (...). Any activity by an employer with the support of administrative authorities that seeks to establish and secure acts of renunciation by workers is contrary to the protection that the State must give in this matter. Convention No. 98 of the ILO, cited by the court of first instance in the contested decision, sets that out in Article 1. Accordingly, it is not possible to accept such evidence in the way called for by the employer.”

“WHEREAS: Convention No. 87 of the International Labour Organization, concerning freedom of association and protection of the right to unionize, does not make any sort of distinction among workers and does not make prior authorization a condition for the creation of unions, it follows that protection is effective from the moment workers communicate their decision to organize, without recognition of legal standing being required. Regarding the type of activity performed by the workers in this case, the aforementioned principles of protection should always be interpreted in a manner that encourages respecting of the right in question. Article 9 of the said Convention does not exclude members of the armed forces of the State from the right to freedom of association and protection of the right to unionize. It only asks national legislation to determine (vis-à-vis the latter) the scope of the said Convention, which is set out in Article 534 of the Labour Code. There is no doubt that the supervision of private security companies is overseen by the national police. This does not, however, transform the workers in those enterprises into police nor mean that they are implicitly covered by the Labour Code provision cited above. Moreover, even if they were, because freedom of association is a fundamental right from which trade union freedom emanates, if the law limited its exercise "for any reason whatsoever" (...) it would be imperative to apply directly the provisions which protect that right more fully.”

The Court of Appeal therefore decided that Convention No. 87 of the ILO meant that employees of private security companies could not be excluded from the scope of freedom of association, and that protection against dismissal for members of the provisional leadership of a union which did not yet have legal standing was a form of protection in accordance with ILO Conventions. The court of second instance therefore confirmed the unwarranted nature of the dismissals and, as requested by the plaintiffs, increased the amount of compensation to be paid by the employer.