Report in which the committee requests to be kept informed of development - Report No 387, October 2018

Case No 3297 (Dominican Republic) - Complaint date: 05-JUN-17 - Closed

Allegations: The complainant alleges anti-union acts in an airport sector company, including anti-union dismissals, ineffective national procedures to guarantee the protection of the right to organize and reprisals by the State against the founders and officials of the company trade union

1. 346. The complaint is contained in a communication of the National Confederation of Dominican Workers (CNTD) dated 5 June 2017.
2. 347. The Government sent its observations in a communication dated 24 January 2018.
3. 348. The Dominican Republic 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. 349. In its communication dated 5 June 2017, the complainant organization indicates that due to poor working conditions, including low wages, long working hours and maltreatment, a group of workers at Aviam Ltd Aviation Ground Services (hereinafter the airport sector company) on 25 June 2015 formed the Aviam Ltd Aviation Ground Services Workers’ Union, and sent the accompanying documentation to the Ministry of Labour. In this regard, the complainant organization indicates that on 10 July 2015, by Decision No. 350-2015, the Director-General of Labour approved the foundation of the union.
2. 350. The complainant organization indicates that on 26 June 2015, the airport sector company was notified by Document No. 430-2015 of the foundation of the union and of the membership of the board of directors (Management Committee) which included Messrs Ariel Silverio Peralta, Ángel Ricardo Peña Perez, Luis Emilio González Rodríguez, Roberto del Rosario Peralta, Alexis de Jesús, Yey Marcos Santana Lugo, Rafaelito Medina Méndez, Claudio González Solon, Ángel Emilio Sánchez Hernández and Francisco Antonio Cuevas, Esther Rosario, Nicauris Henriquez Paredes and Netali Paredes Vásquez.
3. 351. The complainant organization alleges that as soon as it received notification of the establishment of the union, the airport sector company suspended the members of the Management Committee. On 6 July 2015, the members of the Management Committee were notified (Document No. 530) of their dismissal without stated cause (dismissal) in violation of the Labour Code on trade union immunity.
4. 352. According to the complainant organization, the flagrant violations committed by the airport sector company were confirmed during the inspection conducted by the Labour Inspectorate, which concluded in its report of 14 July 2015 that the company, by its dismissal of the members of the Management Committee, had violated the freedom of association of the workers who had decided to form a trade union.
5. 353. The complainant organization points out that these reprisals against union activities constitute a violation of article 62 of the Constitution of the Dominican Republic and articles 333 and 389–393 of the Labour Code, as well as of ILO Conventions Nos 87 and 98. In addition, it highlights that these dismissals not only caused serious economic, moral and social damage to the workers concerned, who lost their main means of subsistence, but also had a negative impact on the exercise of freedom of association since they created a hostile environment and widespread fear in the company and hindered the consolidation of the union.
6. 354. The trade union also denounces the lack of effectiveness of the national procedures and mechanisms to guarantee and protect freedom of association. In this respect, the complainant organization alleges that: (i) on 11 August 2015, the union, supported by the CNTD, having exhausted all possible amicable and conciliatory means of resolving the conflict, lodged a formal claim seeking annulment of the dismissal, reinstatement, payment of lost wages and compensation for damages caused; (ii) on 1 March 2016, by its Judgment No. 80-2016, the Labour Court of the La Altagracia judicial district declared the aforementioned claim valid in terms of form, but declared it inadmissible owing to insufficient legal grounds and lack of legal basis, ordering the union to pay costs; and (iii) on 1 March 2016, the union and the workers concerned appealed Judgment No. 80-2016 before the Labour Court of the San Pedro de Macorís judicial department.
7. 355. The complainant organization alleges that the company requested extensions on four occasions in order to delay the appeals process. During the last hearing, which took place on 16 February 2017, the company requested authorization from the Labour Court of the San Pedro de Macorís judicial department to deposit certain documents, including a communication dated 16 February 2017 from the National Department of Investigations (DNI), an intelligence agency under the authority of the armed forces of the Dominican Republic. This communication indicated that on 22 July 2015, the DNI had required Punta Cana International Airport (AIPC) and the Specialized Airport Security Body (CESAC) to withdraw the access card to the ramp and restricted areas from members of the union’s Management Committee, allegedly for reasons of national security, and that that measure remained in force.
8. 356. The complainant organization points out that accusing members of the Management Committee of acting against national security constitutes an extremely serious act, as it is associated with terrorist actions. Consequently, the members of the Management Committee, against whom this serious accusation has been made despite their not having a criminal record, have not only lost their jobs but have suffered serious repercussions in their personal and working lives, as well as in the exercise of their fundamental rights, such as the right to work and the right to freedom of movement, since it is common practice in the country to ask prospective workers for “certificates of good conduct” which are issued on the basis of information held by state security organizations, including the DNI.
9. 357. According to the complainant organization, the company presented the communication of the DNI as a means of evading responsibility for having made an unlawful dismissal. Furthermore, it indicates that the collusion of the DNI with the private company is inimical to freedom of association and thoroughly compromises the responsibility of the State, and concludes by indicating that the workers were subjected to anti-union discrimination.
10. 358. Lastly, the complainant organization requests the Committee to grant effective guarantees to the workers so that they can enjoy the right to organize and to order the company to desist from anti-union practices immediately, annul the dismissal of the workers, reinstate them in their normal work and pay them their lost wages.

B. The Government’s reply

1. 359. In its communication of 24 January 2018, the Government indicates that: (i) on 26 June 2015, the union notified the company and the Ministry of Labour of the membership of the Management Committee; (ii) on 6 July 2015, the company notified all members of the aforementioned union of the letter of dismissal; (iii) on 7 July 2015, Mr Jacobo Ramos, President of the CNTD, made a request to Mr Luis Francisco Regalado, Director of Mediation and Arbitration and to Mr Andrés Valentín Herrera, Director-General of Labour in the Ministry of Labour for mediation in respect of the alleged violations of freedom of association; (iv) on 13 July 2015, the Director of Mediation and Arbitration forwarded the request for mediation and inspection to the Director-General of Labour to order an investigation; (v) on 9 July 2015, Mr Ariel Silverio Polanco, General Secretary of the airport sector company trade union, appeared before the Local Labour Representation of the Ministry of Labour alleging violations of freedom of association, including anti-union dismissals; the Ministry of Labour therefore appointed a labour inspector to conduct an investigation into the allegation; (vi) on 10 July 2015, Decision No. 350-2015 of the Director-General of Labour granting trade union registration was issued; (vii) the labour inspector, having conducted the inspection, concluded that the company was violating its workers’ right to freedom of association and therefore proceeded to draft a warning report with a view to correcting the situation and, once the period granted had expired, drafted the corresponding violation report; (viii) on 20 July 2015, the Directorate of Mediation and Arbitration summoned the company and the union to mediation which, at the request of the union and the company, was postponed on various occasions and took place on 11 September 2015; (ix) subsequently, the union brought a case for the annulment of the dismissal, reinstatement, payment of lost wages and compensation for damages against the company before the Labour Court of the La Altagracia judicial district, which, on 1 March 2016, ruled in favour of the company (Judgment No. 80-2016); (x) on 18 March 2016, the union appealed Judgment No. 80-2016 before the Labour Court of the San Pedro de Macorís judicial department; and (xi) on 16 February 2017, the company filed a request for production of new documents relating to the appeal, annexing a communication dated 16 February 2017 issued by the DNI, indicating that on 22 July 2015 this body had required the AIPC and CESAC to withdraw the access card to the ramp and to restricted areas of the airport from members of the Management Committee on the grounds of national security.
2. 360. The Government considers that the Dominican State, through the Ministry of Labour and Directorate-General of Labour, the Directorate of the Inspection Coordination System and the Directorate of Mediation and Arbitration, intervened with the objective of bringing the union into existence, as evidenced by Decision No. 350-2015 of the Director-General of Labour whereby the union was registered. Likewise, the Government underscores that a violation report was drafted by the Labour Inspectorate when it understood that the company had violated the Labour Code and constitutional principles, and that the State had promoted legal protection of freedom of association.

C. The Committee’s conclusions

1. 361. The Committee notes that in this complaint, the complainant organization alleges that the members of the Management Committee involved in forming the Aviam Ltd Aviation Ground Services Workers’ Union were subjected to anti-union dismissals by an airport sector company. Furthermore, the complainant organization denounces the ineffectiveness of the national procedures and mechanisms for guaranteeing respect for fundamental rights in relation to freedom of association; and the alleged collusion between the DNI and the company, which led to the access card to the ramp and restricted areas of the airport being withdrawn from members of the Management Committee on the grounds of national security.
2. 362. The Committee notes that both the complainant organization and the Government indicate that: (i) a group of workers at the airport sector company established the union on 25 June 2015 and that the following day, the union notified the company and the Ministry of Labour of this fact and of the membership of the Management Committee; (ii) on 6 July 2015, the company dismissed the Management Committee; (iii) on 10 July 2015, the union was registered; (iv) the report of the labour inspector dated 14 July 2015 noted “actions detrimental to freedom of association”; and (v) the union brought a case for the annulment of the dismissal, reinstatement, payment of lost wages and compensation for damages before the Labour Court of the La Altagracia judicial district, which by its Judgment No. 80-2016 declared the case inadmissible “for insufficient legal grounds and lack of legal basis”; (vi) the union appealed the judgment before the Labour Court of the San Pedro de Macorís judicial department; and (vii) on 16 February 2017, the company sought authorization from the appeals court to deposit a communication from the DNI indicating that on 22 July 2015 this body had required the AIPC and CESAC to withdraw the access card to the ramp and restricted areas of the airport from members of the Management Committee on the grounds of national security.
3. 363. The Committee notes that in its reply, the Government points out that through the Ministry of Labour and the Directorate-General of Labour, the Directorate of the Inspection Coordination System and the Directorate of Mediation and Arbitration intervened with the objective of bringing the union into existence, as evidenced by Decision No. 350-2015 of the Director-General of Labour whereby the union was registered. The Committee also takes note of the Government’s reply indicating that a violation report was drafted by the Labour Inspectorate, when it understood that the company had violated the Labour Code and constitutional principles; and that the State had promoted legal protection of freedom of association.
4. 364. In respect of the alleged anti-union dismissals and the alleged ineffectiveness of the national, administrative and judicial mechanisms in guaranteeing respect for freedom of association, the Committee takes note of the labour inspector’s report, transmitted by the complainant organization and the Government, which indicates that once the deadline given to the company to reinstate the workers had expired, the labour inspector issued a violation report No. 21574 because the company had taken “actions detrimental to freedom of association” by dismissing workers protected by trade union immunity in accordance with articles 333(2) and 392 of the Labour Code, and concludes that the company was violating the right to freedom of association of the workers who decided to form an establishment trade union. The Committee notes that at the judicial level, the court of first instance rejected the request for annulment of the dismissal, reinstatement, payment of lost wages and compensation for damages, on the specific grounds that: (i) the union acted outside its sphere of competence, namely “in defence of the particular interests of the workers of the union” and not in defence of their “common interests” as provided for in article 317 of the Labour Code; (ii) “there is no evidence in the file that the union notified both its employer and the labour authorities which workers were protected by trade union immunity”; and (iii) in respect of compensation, the fault attributed to the complainant was not established. While noting that the members of the Management Committee were dismissed days after the establishment of the union, the Committee notes that the first instance judge considered only the issue of the trade union’s competence to bring an action to court on behalf of the members of the Management Committee, rejecting the request. Consequently, the first instance judgment did not examine the reasons for the dismissals and their alleged anti-union character nor does it refer in its whereas clauses to the aforementioned decision of the Labour Inspectorate. The Committee further notes that the complainant organization appealed Judgment No. 80 2016 and that the judgment was pending resolution by the Labour Court of the San Pedro de Macorís judicial department. The Committee, observing that the dismissals of the members of the Management Committee occurred more than three years ago, recalls that cases concerning anti-union discrimination contrary to Convention No. 98 should be examined rapidly so that the necessary remedies can be really effective. An excessive delay in processing cases of anti-union discrimination and, in particular, a lengthy delay in concluding the proceedings concerning the reinstatement of the trade union leaders who were dismissed, constitute a denial of justice and therefore a denial of the trade union rights of the persons concerned [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 1145]. Furthermore, the Committee recalls in respect of the alleged lack of competence of the union to represent its members, that in a previous case (see 354th Report (India), paragraph 117) the Committee considered that workers who consider that they have been prejudiced because of their trade union activities should have access to means of redress which are expeditious, inexpensive and fully impartial [see Compilation, op. cit., para. 1142] and requested the Government to adopt all the necessary measures, including amending the legislation, to ensure that the unions could approach the courts directly. The Committee trusts that the Court of Appeal will issue its decision in the near future on the alleged anti-union dismissals, taking the above into account and that, in the framework of the judicial proceedings, there will be an examination of the causes that gave rise to the dismissals of the members of the Management Committee and their alleged anti-union nature. The Committee requests the Government to keep it informed in this regard.
5. 365. With regard to the decision of the DNI to withdraw the access card to the ramp and restricted areas from members of the union’s Management Committee, allegedly on the grounds of national security, the Committee takes note of the allegations of the complainant organization indicating that: (i) the company sought the communication of 16 February 2017 with the aim of evading criminal responsibility for having dismissed the members of the Management Committee in an unlawful manner and that the DNI, having lent itself to that exercise, compromised the responsibility of the State; (ii) the workers concerned had no criminal record; and (iii) the said accusation had serious economic and social consequences for the workers concerned. In this regard, the Committee regrets that, in its observations, the Government confines itself to annexing the communication of 16 February 2017 sent by the DNI without indicating any facts relating to how the members of the Management Committee allegedly violated national security. Concerned about the impact of the accusations of violation of State security and of the withdrawal of the access card to the ramp and restricted areas on the employment of the trade union leaders, the Committee requests the Government to send its observations in this regard as soon as possible.

The Committee’s recommendations

1. 366. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) With regard to the alleged anti-union dismissals of members of the Management Committee, the Committee trusts that the Court of Appeal will issue its decision on this matter in the near future, taking the above into account, and that in the framework of the judicial proceedings there will be an examination of the causes that gave rise to the dismissals of the members of the Management Committee and their alleged anti-union nature. The Committee requests the Government to keep it informed in this regard.
   • (b) Concerned about the impact of the accusations of violation of State security and of the withdrawal of the access card to the ramp and restricted areas on the employment of the trade union leaders, the Committee requests the Government to send its observations in this regard.