Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Dominican Republic (Ratification: 1953)

The Committee takes note of the comments of the International Trade Union Confederation (ITUC), the National Confederation of Trade Union Unity (CNUS), the Autonomous Confederation of Workers’ Unions (CASC) and the National Confederation of Dominican Workers (CNTD), referring to a lack of effective sanctions against acts of anti-union discrimination in various enterprises, restrictions on the freedom of association of public employees and the requirement that a union must represent an absolute majority of the workers in order to be able to bargain collectively. The Committee requests the Government to send its observations thereon.

The Committee also notes the adoption of a new Constitution, proclaimed on 26 January 2010, which guarantees freedom of association and the right to collective bargaining.

Lengthy proceedings in the event of violation of trade union rights. The Committee notes the ITUC’s comments referring to matters already under examination, and to the length of court proceedings, which last for some 18 months or more, and reporting that collective agreements have been negotiated in only four enterprises in the export processing zones (EPZs). While noting that, according to the Government, the length of court proceedings has been shortened to less than one year, the Committee requests the Government to send its observations thereon.

Article 2 of the Convention. Insufficiently dissuasive sanctions against acts of anti-union discrimination. In its previous comments, the Committee asked the Government to carry out a full investigation into the ITUC’s allegations of 31 August 2005 regarding the lack of effective penalties against acts of anti-union discrimination, anti-union dismissals of leaders in sugar cane plantations, the drawing up of black lists of trade unionists in the EPZs and the dismissal of all the founding members of a trade union which the administrative authority had refused to register. The ITUC raises this question again in its 2009 comments. The Committee previously asked the Government in particular to provide further details on the absence of effective penalties for acts of anti-union discrimination. In its 2009 comments, the ITUC pointed out that penalties are not sufficiently dissuasive. While observing that the Government has not sent any specific information in reply to the ITUC’s allegations of 2005, the Committee notes the Government’s statement that information and guidance are provided on an ongoing basis to workers who report violations of their trade union rights. Furthermore, in 2007 and 2008 numerous inspections were carried out (12 of them in EPZs) in response to requests made by union federations or the unions themselves, and where violations of freedom of association were demonstrated, reports of the infringements were drawn up and submitted to the courts for appropriate penalties to be determined. Nine reports of infringements were thus dealt with in 2007 and seven in 2008. Recalling once again that investigations should be carried out without delay in cases where acts of anti-union discrimination are reported, the Committee expresses the firm hope that the Government will hold a thorough investigation of these alleged cases without delay that will enable it to identify those responsible and, as the case may be, impose sufficiently dissuasive sanctions. The Committee also requests the Government to indicate the specific penalties that may be imposed by law on persons found guilty of anti-union acts.

Article 4. Requisite majorities for collective bargaining. The Committee points out that for many years it has referred in its comments to the fact that, in order to engage in collective bargaining, a trade union must represent an absolute majority of the workers in an enterprise or a branch of activity (sections 109 and 110 of the Labour Code). The Committee observes that the Government has not sent its comments on this point and recalls that in its previous observation it noted that the Labour Advisory Committee had held a meeting with a view to obtaining proposals agreed by the social partners and the Government for amending the legislation. The Committee recalls that in cases where the law provides that in order to be recognized as a bargaining agent, a trade union must obtain the support of 50 per cent of the members of a particular bargaining unit, problems may arise since a majority union that fails to secure this absolute majority is thus denied the possibility of bargaining. The Committee considers that under such a system, if no union covers more than 50 per cent of the workers, collective bargaining rights should be granted to all the unions in this unit, at least on behalf of their own members (see General Survey on freedom of association and collective bargaining, 1994, paragraph 241). The Committee once again requests the Government to take the necessary steps without delay to amend sections 109 and 110 of the Labour Code in order to bring them into conformity with the provisions requiring the promotion of collective bargaining.

Articles 2, 4 and 6. Application of the Convention in the public sector. The Committee notes the promulgation, on 16 January 2008, of the Public Service Act, No. 41-08, and its implementing regulations (Decree No. 523-09). The Committee notes that the Act establishes the right to organize of public servants, including in federations and confederations, and that it applies to those employed in the service of the State, municipalities and autonomous entities, guaranteeing special protection (organizational immunity) for the founders of organizations and some members of their executive committees. Violation of this protection is subject to penalties, including even discharge from duties. The Committee expresses the hope that the protection established in the new legislation on the public service will be extended to acts of anti-union discrimination at the time of hiring and in the course of employment, prohibiting any discrimination based on union membership or participation in legitimate union activities. The Committee also requests the Government to establish for organizations specific protection from acts of interference by the employer such as interference in or control – whether financial or otherwise – of the association’s activities. The Committee also requests the Government to establish sufficiently dissuasive penalties against such acts of discrimination and interference.

Articles 4 and 6. With regard to the right to collective bargaining of public servants not engaged in the administration of the State, who, under the terms of Article 6 of the Convention should enjoy the right to collective bargaining through their organizations, the Committee requests the Government to indicate whether under article 62 of the new Constitution, associations of public servants now enjoy the right to collective bargaining.

Article 4. Right to collective bargaining in practice. The Committee notes that, according to the Government’s report, the authorities have implemented measures such as the dissemination of laws and regulations, training workshops for trade unions, workers and employers and guidance provided at the request of any interested party. The Committee also notes the Government’s statement that in 2007, 15 new agreements were registered and in 2008, 14 collective labour agreements were deposited, which, in this last instance, benefited 7,420 workers. The Committee observes that there has been a drop in the number of agreements and of workers covered and that it is not clear from the information supplied by the Government whether it refers to the private sector or the public sector or both. While pointing out that Article 4 requires the Government to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers and workers, the Committee requests the Government to take specific measures in this area and to send statistical information on collective agreements concluded in the public and private sectors, including in the EPZs, indicating the number of workers covered by them.