Observation (CEACR) - adopted 1990, published 77th ILC session (1990)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Dominican Republic (Ratification: 1956)

With reference to its previous comments, the Committee notes the Government's report and the written information that it supplied to the Conference Committee on the application of standards in June 1989 and the reply that it supplied to the comments of the General Confederation of Workers (CGT) and the Workers' Central "Clasistas" in January 1989.

The comments made by the Workers' Central "Clasistas" dealt mainly with the prohibition of unionising public employees (Act No. 56), employees in the State television channel (Act No. 126), workers in free trade zones and certain multinational enterprises, and particularly those established in the tourism and communications sectors. They also dealt with the massive dismissals of employees from the independent and decentralised sector and the sugar industry, and the cancellation of the registration of several trade unions between 1986 and 1988.

The comments made by the General Confederation of Workers (CGT) referred in particular to the refusal to register several trade unions (the Union of Agricultural Workers in the Rio Haina and Ozama Plantations, the United Union for the Free Zone of San Pedro de Macoris), the refusal to register certain trade union assemblies and the prohibition placed upon certain trade unions (in particular, the Union of Workers of the Valdesia-Santo Domingo Aqueduct) from joining confederations. They also dealt with the massive dismissals of workers and trade union officers to prevent them from forming unions.

In its reports, the Government indicates that the refusal to register the trade unions of the agricultural workers in the Rio Haina and Ozama plantations and the trade union assemblies is due to the non-observance of the legal requirements for this purpose. It adds that the authorities will register these trade unions once they have completed the legal requirements and that it has also recently registered the Union of Workers of the Valdesia-Santo Domingo Aqueduct, which conformed to these requirements. As regards the denial of the right to join a central trade union organisation for the Union of Workers of the Aqueduct, this was due not to the Government but to the result of a decision taken by the workers who enshrined this in their by-laws. The Government also explains that since the Union of Workers of the Aqueduct had already been registered, the Secretary of State for Labour could not accept the registration of a second trade union leadership covering the workers of a parallel trade union. Finally, the Government provides certain information regarding dismissals, which will be examined under Convention No. 98.

The Committee notes with regret that the Government itself admits that it has refused the registration of a trade union in a sector of activity on the grounds that another trade union had previously been legally registered. In the Committee's opinion, this refusal to register the second trade union constitutes on the part of the public authorities an action that is such as to limit the right of workers to establish unions of their own choosing outside the existing trade union structure, and impedes the legal exercise of this right. The Committee recalls that under the terms of Article 7 of the Convention the acquisition of legal personality by workers' organisations cannot be made subject to conditions of such a character as to restrict the application of the provisions of the Convention.

The Committee also recalls that for several years its comments have covered the following points:

- the exclusion from the scope of the Labour Code by virtue of section 265 of agricultural, agro-industrial, stock-raising or forestry enterprises employing not more than ten permanent workers continuously;

- the exclusion from the scope of the Code, by virtue of section 3, of public officials and other workers in the service of the public authorities who, with a few exceptions, are covered by special laws. Other legislative provisions (Act No. 2059 of 22 July 1949; Act No. 56 of 24 November 1965; Act No. 520, section 13) which contain important restrictions on the trade union rights which these workers should enjoy (in particular, the prohibition of all trade union propaganda or proselytism within public and municipal administrations or autonomous institutions of the State (Act No. 56) and the power of the Executive to dissolve by administrative procedures any associations which might be formed by public officials (section 13, Act No. 520));

- the major restrictions on the exercise of the right to strike by virtue of sections 373, 374 and 377 of the Labour Code (the prohibition of sympathy strikes and political strikes, the requirement that more than 60 per cent of the enterprise or enterprises concerned must have voted in favour of the strike, and the cessation of legal strikes and the guarantees provided for in section 375 upon initiation of the arbitration procedure which is deemed to be open from the date of the official notification referred to in section 640, which involves the resumption of work within 48 hours following the above notification);

- the prohibition of the right to strike in public utilities listed in section 371, some of which, in the opinion of the Committee, do not come within the definition of essential services in the strict sense of the term (including, for example, transport in general, the sale of fuel for transport and the retailing of foodstuffs in markets).

I. Workers in agricultural enterprises employing no more than ten workers (section 265 of the Labour Code)

The Committee takes due note that the Government indicates once again that the provisions of section 265 of the Labour Code, which exclude from the scope of the Code agricultural workers in enterprises employing no more than ten workers, do not imply any restriction on their right to organise because they have the possibility of forming or joining occupational unions and because the minimum number of workers required for the formation of a union is 20.

The Committee also notes the Government's assurance that it will re-introduce into the legislature a Bill to repeal section 265 of the Code. The Committee requests the Government to supply information on any developments in the situation in this connection.

Furthermore, the Committee is of the opinion that the right of these workers to organise will be better guaranteed if the provisions protecting them against any act of anti-union discrimination are strengthened. The Committee therefore refers to its comment under Convention No. 98 on this point.

II. Public officials and employees

The Government once again emphasises that in practice certain categories of public employees in decentralised, semi-independent or independent enterprises have established unions. It adds that in several centralised enterprises there already exist unions covering special categories of employees such as physicians, nurses and engineers, and that public officials and supporting staff in centralised enterprises can form associations in accordance with the special legislation covering them.

Finally, the Government states that it envisages the possibility of introducing certain specific restrictions into the national legislation on the right to organise of certain public officials involved in high-level management or decision-making, since such restrictions are not contrary to the provisions of Article 2 of the Convention, in accordance with the suggestion made by the Committee in its previous observation.

In this connection, the Committee recalls that it stated in its 1983 General Survey on Freedom of Association and Collective Bargaining (paragraph 131) that forbidding these persons to join trade unions representing other workers is not necessarily incompatible with the Convention, but only on condition they have the right to form their own organisations and that the categories of managerial staff and employees in positions of confidence are not so broadly defined that the organisations of other workers in the sector of activity are weaknened by depriving them of a substantial proportion of their potential membership. The Committee also recalls that Acts Nos. 2059, 520 and 56 contain provisions restricting the right to organise of public officials and employees and it hopes that the planned measures will result in the amendment of these provisions so as to guarantee public officials and employees all the rights set out in the Convention.

III. Restrictions concerning the right to strike

The Committee notes that the Government indicates that the competent authorities are currently examining the possibility of amending section 374(3) of the Labour Code so as to reduce the number of workers necessary for a strike to be declared to a simple majority of the workers in an enterprise. The Commmittee states once again that this must consist of a simple majority of the voters (excluding those workers not taking part in the vote) for this provision to be in conformity with the principles of freedom of association. The Committee also notes that the Government envisages removing transport in general from the list of public utilities. The Committee recalls in this connection that, under the terms of the legislation that is currently in force, the prohibition of strikes applies to other public services which are not necessarily essential as, for example, the sale of transport fuel and the retailing of foodstuffs in markets, and it invites the Government to amend the legislation so that these provisions are limited to strikes in the essential services, that is, those services whose interruption would endanger the life, personal safety or health of the whole or part of the population.

The Government also states that it has noted the Committee's suggestion that the prohibition on political strikes be limited so that workers may come out on strike in protest against economic and social policies that they consider to be contrary to their interests, it being understood that the essential objective of unions should be to ensure the economic and social development and well-being of all workers while respecting the Constitution, the labour legislation and the internal security of the Republic.

Finally, as regards sympathy strikes, the Government states, with reference to Act No. 5915, that this type of strike is not prohibited in cases where the initial strike is legal.

While noting this information, the Committee recalls that section 1(2) of Act No. 5915 explicitly prohibits sympathy strikes without qualification. The Committee therefore requests the Government to envisage amending this provision, in order to set out in law the situation regarding sympathy strikes described by the Government. It also trusts that measures will be taken in the near future to raise the legal restrictions on the right to strike which are not compatible with the principles of freedom of association.

Furthermore, as regards the provisions of the Labour Code which make it possible to end a legal strike when a dispute is referred to the arbitration procedure at the initiative of one of the parties to the dispute (sections 374, 375, 636, etc.), the Committee recalls, in the absence of information on this point in the Government's report, that these provisions are such as to restrict the exercise of the right to strike which, in the opinion of the Committee, should only be limited or prohibited for public servants acting in their capacity as agents of the public authority, in the essential services in the strict sense of the term, or in a situation of acute national crisis and then only for a limited period.

The Committee notes once again that the Government limits itself to announcing its intention of amending the legislation. It once again urges the Government to bring its law and practice into conformity with the Convention that it ratified very many years ago and to supply detailed information in its next report on the progress achieved in this respect. [The Government is asked to supply full particulars to the Conference at its 77th Session.]