Informe definitivo - Informe núm. 190, Marzo 1979

Caso núm. 822 (República Dominicana) - Fecha de presentación de la queja:: 14-NOV-74 - Cerrado

36. Since 1971 the Committee has had before it numerous complaints of violation of freedom of association in the Dominican Republic. These complaints come from the following workers' organisations: World Confederation of Labour (WCL), World Federation of Trade Unions (WFTU), International Metalworkers' Federation (IMF), World Federation of Teachers' Unions, General Workers' Federation, National Federation of Dockworkers, Stevedores' Union (POASI), National Union of Heavy Machinery Operators (SINOMAPE), and National Union of Telephone Workers (SNTT). They are dealt with in Cases Nos. 672, 768, 802, 819, 822 and 847.

1. 36. Since 1971 the Committee has had before it numerous complaints of violation of freedom of association in the Dominican Republic. These complaints come from the following workers' organisations: World Confederation of Labour (WCL), World Federation of Trade Unions (WFTU), International Metalworkers' Federation (IMF), World Federation of Teachers' Unions, General Workers' Federation, National Federation of Dockworkers, Stevedores' Union (POASI), National Union of Heavy Machinery Operators (SINOMAPE), and National Union of Telephone Workers (SNTT). They are dealt with in Cases Nos. 672, 768, 802, 819, 822 and 847.
2. 37. The Committee examined Case No. 672 in May and November 1972 and at each of these sessions presented conclusions to the Governing Body. The Committee submitted further conclusions to the Governing Body (on Cases Nos. 672, 768, 802, 819 and 822) in May 1976.2 Finally, it examined all the outstanding cases relating to the Dominican Republic in November 19773 and May 1978.4
3. 38. 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. A. The complainants' allegations

1. 39. In May 1976 the Committee considered that the information at its disposal seemed insufficient to enable it to reach conclusions regarding the substance of the various issues raised. It had already examined, on several occasions, cases concerning the Dominican Republic which contained allegations similar to those made in the cases under examination. In these circumstances it considered that it would be very useful to apply the direct contacts procedure. The Governing Body accordingly requested the Government to consider the possibility of giving its consent to the carrying out of a study in the Dominican Republic of the facts surrounding the complaints by a representative of the Director-General.
2. 40. This request was repeated on a number of occasions. In addition, new complaints were presented which, like the earlier ones, contained a variety of serious allegations. Since no detailed reply had been received by May 1978, the Committee had been obliged to formulate its conclusions on the cases in its 186th Report. However, the new Dominican Government constituted after the elections in May 1978 accepted direct contacts by letter of 15 September 1978.
3. 41. The Director-General appointed Mr. Jean-Michel Servais, an official of the Freedom of Association Branch of the International Labour Standards Department, to represent him during this mission. The visit to the country took place from 19 to 26 November 1978, and a report on the mission was submitted to the Committee. During his visit, the representative of the Director-General had conversations with the Secretary of State for Labour and the Secretary of State for the Interior and the Police, with the Under-Secretaries of State for Labour and the Under-Secretaries o€ State for the Interior and for the Police, and with the Public Prosecutor of the Republic. He was also received by the President of the Supreme Court of Justice. He met the leaders of a number of trade union organisations - including those of two of the complainant organisations, CGT and POASI - on their trade union premises. Finally, he had discussions at the headquarters of the Employers' Confederation of the Dominican Republic with the officials of this organisation, and with those of the Association of Industries of the Dominican Republic.
4. 42. The Committee notes with satisfaction that the representative of the Director-General enjoyed the co-operation of all concerned. He was able to carry out all his tasks in full freedom and independence and the Dominican Government afforded him the necessary facilities to perform his mission in the best possible circumstances.
5. 43. The representative of the Director-General collected information on the various issues raised in the complaints and on the measures taken or envisaged to solve the problems encountered. At the invitation of the Government he also discussed the comments made by the Committee of Experts on the Application of Conventions and Recommendations during its periodic examination of the application of Conventions Nos. 87 and 98 under article 22 of the ILO Constitution. All these points are examined in the paragraphs which follow.
6. 44. First of all, however, it should be pointed out that, according to the representative of the Director-General, a number of Confederations are at present contending for the allegiance of the workers and the control of the works unions. "Thus", he writes, "at the time of my visit antagonism had taken a very serious turn in the Central Romana Corporations and Central Romana By-Products enterprise, a situation which seems likely to continue, if not to deteriorate further, in the coming months." Trade union Confederations often maintain close political relations with political parties. The General Union of Dominican Workers (UGTD), which was set up very recently, is in sympathy with the Dominican Revolutionary Party (PRD). As will be seen later on the Government has been accused of favouring this new organisation to a certain extent. A similar preoccupation is revealed in a telegram of 7 December 1978 from the General Workers' Federation (CGT), in which this organisation protests against the administrative order allegedly given by the Government to close down the programme of the "Rutas" radio station at La Romana and its alleged prevention of the reorganisation of the local union. This communication has been transmitted to the Government for its observations. The employers' representatives, the report continues, have expressed the view that this situation has created a tense atmosphere in industrial relations on the other hand, it appears that large numbers of unions are now being formed in the present social circumstances.
7. 1. Allegations concerning the death, arrest or banishment of trade unionists
8. 45. As the mission report states, an amnesty law was passed on 8 September 1978. All the trade unionists who were mentioned as having been under arrest have now been released. In addition, the banished trade unionists have recently returned to the country under the amnesty law and after the removal of administrative obstacles to their return.
9. 46. Finally, it appears from the information gathered that under the Code of Penal Procedure any person who is detained must be brought before a judge within 46 hours of his arrest. In addition, an old habeas corpus Act protects individuals against arbitrary arrest. In the past, according to the Public Prosecutor of the Republic, the practice was to refer pleas of this nature to the Public Ministry "which sometimes took rather arbitrary decisions"; this has now been changed and the pleas come before a judge of first instance. Moreover, a Hill to amend the habeas corpus Act is in preparation which stipulates explicitly that the plea must be referred to a judge and prescribes an appeals procedure. As regards banishment, the Public Prosecutor stated that, legally, such a measure could only be taken against foreigners (under the Immigration Law). No law permits the expulsion of nationals, and the measures taken by the previous Government were, in his opinion, arbitrary. There had been no more expulsions since 16 August 1978.
10. 47. Legal proceedings have been instituted in respect of the two cases of murder mentioned in the complaints of the peasants' trade union leaders (Florinda Muñoz Soriano in November 1974, and Dionisio Frias in June 1975). The Secretary and the Under-Secretary of State for Labour said that they would send detailed information regarding the judicial investigations undertaken. It was, they admitted, true that peasant leaders had in the past met their deaths in abnormal circumstances. The new Government, they added, had stated that it would pursue a policy of respect for civil liberties and human rights, including freedom of association. The Undersecretary of State further emphasised the determination of the authorities to abide strictly by the law. The representative of the Director-General also learned from the officials of the Autonomous Confederation of Christian Trade Unions (CASC) that legal proceedings were still pending in the case of the murder of Dionisio Frias; as regards the death of Florinda Muñoz Soriano the court had considered that the accused had acted in self-defence.
11. 48. The Committee notes these various items of information, in particular the release or the return from exile of the trade unionists mentioned in the complaints. The facts surrounding the deaths of two peasant leaders in 1974 and 1975 have been the subject of trials before the courts one of these cases, moreover, appears to have ended in an acquittal. The Government, while admitting that trade unionists in the rural sector had in the past met their deaths in abnormal circumstances, has stated its will to secure respect for the law and for civil liberties. In these circumstances the Committee is of the opinion that these different points call for no further consideration, provided that it is kept informed of the results of the trials in the cases of the deaths of Dioniso Frias and Florinda Muñoz Soriano.
12. 2. Allegations concerning the dismissal of trade unionists
13. 49. Many allegations referred to the dismissal of trade union leaders and militants. According to the complainants the chief target of these dismissals were the executive Committees of the unions, but certain allegations also referred to the dissolution, or attempted dissolution, of workers' organisations. The representative of the Director-General points out in his report that this issue appeared to be a fundamental problem which was still disrupting industrial relations in the country. Although section 307 of the Labour Code prohibits anti-union practices, the penal sanctions imposed are fines ranging from 10 to 500 pesos (1 peso 1 US dollar). According to the report, the Government appears willing to do everything in its power to find a solution:
    • The Secretary and Under-Secretary of State recognise that there have been numerous dismissals and that some cases had apparently involved trade union officials. It was also possible that, in order to get rid of certain leaders, employers had dismissed a whole group of workers. The Government had tried to solve matters through conciliation and mediation and had sometimes succeeded. As it stood, however, the existing legislation did not provide it with the means to do more. Quite apart from the fact that it was difficult to find proof - a problem which is not unique to the Dominican Republic, of course - the Labour Code (section 69) allows the employer to terminate a contract for an indefinite period, without giving any reason. Consequently, an employer can dismiss a worker if he finds it convenient provided he pays his employee the amounts to which he is legally entitled (corresponding to the period of notice, the leaving grant and days of leave). This applies even when a collective agreement contains a special clause providing for the protection of union officials. According to existing case law, an employer who fails to respect this provision and dismisses trade union leaders is only required to pay the special indemnity which is provided for in the event of a violation of this clause.
14. 50. The report mentions that there are at present proposals to amend the Labour Code, in particular section 69. The representative of the Director-General mentions the various drafts which have been prepared and adds:
    • The President of the Republic has made a public appeal for a social truce. The representatives of the workers and employers are therefore in the process of negotiating an agreement through the Secretariat of State for Labour. One meeting was held during our mission, and the various inter-occupational Confederations whose officials I met took part in it along with the employers' associations. One of the items for discussion had to do with genuine respect for the freedom of association of workers: the employers' organisations are apparently prepared to guarantee that no trade union leader and no leader of any trade union in the process of being set up will be dismissed from their enterprises except by authorisation of an arbitration Committee. In practice, this amounts to an amendment by agreement of section 69 of the Labour Code. ... Moreover, it is quite feasible that, following the agreement, the matter will be brought before the Congress in the form of a Bill. The Secretary of State informed me that, even if no agreement is reached, a draft amendment to the law will be submitted on this point. Such an amendment could therefore be adopted without it being necessary to wait for the adoption of a new Labour code.
15. 51. As the Committee has already pointed out in other cases, legislation which merely prescribes that any worker dismissed without just cause is entitled in certain cases to compensation and damages in addition to the wage corresponding to the period of notice, does not give sufficient protection against acts of anti-union discrimination, since it enables an employer, on condition that he pays the compensation prescribed by law, to dismiss any member of his staff, whether a member of a trade union or not, for trade union or other activities, the public authorities being powerless to prevent him from doing so. Protection is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full independence, they must have the guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions. This guarantee is also necessary to secure respect for the principle that workers' organisations have the right to elect their representatives in full freedom.
16. 52. The Dominican Government stated that it was keenly aware of the gaps in its legislation in this respect, and that it was trying to obtain a broad consensus as regards the solution to these difficulties. The Committee considers it essential that this question should be settled in the near future, given the problems which have arisen in the country.
17. 3. Allegations concerning unfair practices in the public sector
18. 53. The allegations referred to the setting up by the Government of a parallel union in Puerto de Andrés at Boca Chica (communication of August 1974) and a manoeuvre in the Dominican Telephone Company (CODETEL) to make the National Union of Telephone Workers (SNTT) lose its legal representative character (communication of June 1977).
19. 54. As regards the latter point, the representative of the Director-General wanted to assure himself that the SNTT was exercising its trade union activities fully and that it had recently concluded a collective agreement with the enterprise for the period 1978-81. The agreement contains a special clause concerning the protection of trade union officials. Except in the case of a former leader who had been suspended, this provision had been respected. However, the report mentions other cases than that referred to in the previous paragraph in which parallel unions had been set up under the former Government. In this respect the Committee had earlier recalled (in May 1978) the provision of Article 2 of Convention No. 98. Under this provision - as under Article 5 of the Labour Relations (Public Service) Convention, 1978 (No. 151), not ratified by the Dominican Republic - workers' organisations must enjoy adequate protection against any act of interference by employers in their establishment, functioning or administration. Article 2 specifies that acts which are designed to promote the establishment of workers' organisations under the domination of employers or employers' organisations, or to support workers' organisations by financial or other means with the object of placing such organisations under the control of employers or employers' organisations, shall be deemed to constitute acts of interference.
20. 55. The Secretary and Under-Secretary of State for Labour declared that the present Government would not endorse or tolerate such practices as the previous Cabinet had done, specifically in the transport sector and the sugar industry. The representative of the Director-General adds the following:
    • In a more general vein, I raised the matter of attempts by employers to interfere in the activities of workers' organisations, and not only in the public sector. On this point the Secretary and Under-Secretary of State said that the current provisions of the Labour Code did not give the Government sufficient scope to combat such practices but that it was nevertheless its policy to try to take action on the basis of the complaints received. They added that it was the Government's attention to introduce proper provisions to put a stop to such acts of interference.
    • The Committee notes these statements and considers it desirable, even if the Government is resolved to tolerate such practices no longer, that legal protection should be strengthened and that the Labour Code should, for example, prescribe more dissuasive sanctions for contraventions of section 307, the provisions of which are reproduced in the footnote.
21. 56. According to the information gathered, several union Confederations also expressed concern at the creation of the General Union of Dominican Workers (UGTD) allied to the political party currently in power (PRD) because they were afraid that the new organisation would receive more favourable treatment, especially in the public sector (the State is the principal employer in certain branches of activity, such as agriculture). Dismissals had already allegedly taken place in the health sector and the sugar-cane industry. This had given rise to a fear that the dismissed workers would be replaced by others who supported the new Government. In some cases this was said to have already begun. The representative of the Director-General explains that, according to the governmental authorities he spoke to, most of the Dominican trade unions were independent of the traditional Confederations and close to the PRD; they were now able to organise themselves and were doing so within the UGTD. The report continues:
    • The Government spokesman went on to say that the dismissals that had taken place in the public sector had not been on trade union grounds. Two points in particular should be borne in mind: in the first place, it was customary in the country to give posts in the public sector to members of the party in power (spoils system); secondly, from the economic standpoint it was necessary to cut down in personnel as the number of employees had sometimes grown far too great. They insisted that the Government would respect the right of freedom of association and ideological pluralism. In any case, legal proceedings could be undertaken against the administration if it was suspected of misuse of power.
22. 57. On more than one occasion the Committee has examined cases in which allegations were made that the public authorities had by their attitude favoured or discriminated against one or more trade union organisations: examples of such allegations are pressure exerted on workers by means of public statements made by the authorities, unequal distribution of subsidies among unions or the granting to one union, rather than to the other, of premises for holding its meetings or carrying on its activities, and refusal to recognise the leaders of certain organisations in their legitimate activities.& Discrimination by these means or others may be an informal way of influencing the trade union membership of workers. They are therefore sometimes difficult to prove. The fact nevertheless remains, as the Committee has recalled in each of the foregoing cases, that any discrimination of this kind jeopardises the right of workers to set up and join organisations of their own choosing, a right which is explicitly recognised in Article 2 of Convention No. 87.
23. 58. The Committee also wishes to lay stress on the principles set forth in the resolution concerning the independence of the trade union movement, adopted by the International Labour Conference at its 35th Session (1952). The fundamental and permanent mission of the trade union movement, states the resolution, is the economic and social advancement of the workers. When trade unions in accordance with the national law and practice of their respective countries and at the decision of their members decide to establish relations with a political party or to undertake Constitutional political action as a means towards the advancement of their economic and social objectives, such political relations or actions should not be of such a nature as to compromise the continuance of a trade union movement or its social or economic functions irrespective of political changes in the country. The resolution also stresses that governments should not attempt to transform the trade union movement into an instrument for the pursuance of political aims, nor should they attempt to interfere with the normal functions of a trade union movement because of its freely established relationship with a political party.
24. 4. Allegations concerning the registration and cancellation of registration of trade unions
25. 59. The representative of the Director-General explained that a resolution, No. 22/78 of 18 October 1978, repealed resolutions of 1973 which, by administrative decision, cancelled the registration of numerous trade unions, including the single union of workers of the Central Romana Corporations and Central Romana By Products mentioned in the complaints. Such registration was necessary to enable the trade unions to function. In the preamble to this new resolution it is stated, among other things, that the previous Government was guilty of actions ultra vires by assuming powers that legally belonged to the courts of first instance by virtue of section 356 of the Labour Code. The preamble also refers to Article 4 of Convention no. 87, which prohibits the dissolution or suspension of workers' and employers' organisations by administrative authority. In these circumstances the Committee considers that this aspect of the case calls for no further examination.
26. 60. In this connection, the Committee of Experts on the Application of Conventions and Recommendations has observed that according to section 350 of the Labour Code the registration of a trade union could be refused by the Ministry of Labour. It had asked the Government whether it was possible to appeal to the courts against a refusal to register a trade union. The Under-Secretary of State told the representative of the Director-General that it was possible to appeal against a refusal to register a trade union, as it was to appeal against any administrative act.
27. 5. Allegations concerning intervention by the public authorities in the internal affairs of trade unions and occupation of trade union premises
28. 61. The problems raised in this connection were of two kinds. The first related to an administrative resolution, No. 13/74 of 21 October 1974, issued by the Secretariat of State for Labour, according to which general assemblies organised with a view to setting up a trade union, federation or Confederation, electing its executive Committee, amending its statutes, merging with other trade unions or affiliating with a federation or Confederation, had to be "certified" by a labour inspector. After examining the file on the case and hearing the administration's opinion, the Secretary of state decided whether the trade union can be registered, whether its executive Committee can be recognised, and whether a merger or affiliation can take place, after having previously verified that the legal requirements have been fulfilled. The Committee expressed the view in its 186th Report that the obligation to accept the presence of a representative of the authorities at general assemblies constituted a restriction upon the free activity of trade unions.
29. 62. The representative of the Director-General received the assurance that the resolution would shortly be repealed. The officials he talked with added that, pending the repeal, the authorities would abide by the limitations placed on this text by two rulings of the Supreme Court of Justice. According to the rulings, the powers of the Secretariat of State for Labour in trade union affairs should be interpreted restrictively and the purpose of the presence of an inspector at union assemblies could only be to provide the Secretariat with a report on the circumstances in which the assembly took place and on the decisions adopted. The Court stressed that contesting union elections was a matter for the labour tribunal and not the administrative authorities. According to officials of the CGT, says the report, while the previous Government had used this resolution to commit excesses, the present Government was not applying it in the same spirit.
30. 63. The second set of problems raised relates to factual situations: intervention by the authorities in the elections of the Stevedores' Union (POASI); manoeuvres in other undertakings, with the assistance of the authorities, to remove trade union leaders from office; confiscation and misappropriation of the funds of POASI; and occupation of its premises and those- of the National Union of Independent Drivers (UNACHOSIN). In this connection the representative of the Director-General makes the following statement in his report:
    • With regard to the election of trade union leaders, the Secretary and Under-Secretary of State declared that the Supreme Court ruling in the POASI case was a clear case of the infringement of the law by the Government of that period. They confirmed that the POASI had organised elections on 31 October 1977 and was now operating normally. They also confirmed that the premises of the POASI and UNACHOSIN had been occupied but that a stop had now been put to these measures. The Under-Secretary of State for Labour said that in occupying union premises the previous Government had not respected existing legal provisions. Forcible entry is prohibited by law and misuse of power by public servants is a punishable offence under the Penal Code. As to the allegations concerning POASI funds, he said that this was now past history and that the POASI was currently verifying its financial records. If any misappropriation of funds was brought to light, the matter would be brought before the competent authorities.
31. 64. The representative of the Director-General continues:
    • In more general terms, the Secretary of State for the Interior and for the Police informed me that meetings organised on union premises were allowed to take place unhindered and that no authorisation was required open-air meetings were another matter and did require authorisation, and the appropriate decisions were taken in the light of all relevant factors: importance of the date for the union (1 May, for example), traffic problems, proximity of an important building (hospital, for example), etc.
32. 65. The Committee notes that a solution has now been found to the factual problems raised in the complaints. It also notes the intention of the Government to repeal Resolution No. 13/74 mentioned above and trusts that this measure will be taken in the near future.
33. 6. Allegations concerning interference with the right to strike
34. 66. Complaints were also made with reference to the exercise of the right to strike. In this connection, the representative of the Director-General points out, the labour authorities have recognised that it was virtually impossible to engage in strike action in the present state of the legislation. Such action could only last for a few days because judges were empowered to order a return to work. The report adds:
    • It is significant that the Labour Code only authorises strike action within very strict limits (see sections 373, 374 and 377): for example, more than 60 per cent of the employees concerned must have voted in favour of the strike; a strike cannot take place if one of the parties decides to submit the dispute to arbitration; and it must come to an end upon the expiry of the legal time limit for the resumption of work ordered by the judge. The right to strike is restricted even further by the provisions governing arbitration procedure: the presiding judge can appoint the arbitrators ex officio or at the request of the Secretary of State for Labour (section 636) and may order the resumption of work (section 640; see also sections 625 to 629 and 642). The arbitration award has the effect of a collective agreement (section 656). The Secretary of State adds that the judge orders the resumption of work but that, moreover, arbitrators were not appointed. The Under-Secretary told me that he knew of hardly any case where a strike had been recognised as legal. In the past the police had often intervened and an appeal to the tribunal was barely conceivable under these conditions. Nowadays, whenever a collective labour dispute arose, the Government tried to reconcile the parties; often the employers accepted to reinstate at least some of the strikers, and the police no longer intervened. However, he added that in the current period of transition he would not hesitate to apply the sections of the Labour code that empowered him to prevent a strike if he felt that public order was threatened - although this situation had not arisen.
35. 67. The representative of the Director-General referred to information according to which the party in power, the PRD, had undertaken to revise the Labour Code so as to make it more liberal; the debate on the subject had already begun in the legislative chambers. The question of the right to strike had not yet been taken up, but the Secretary of State for Labour said that he intended to propose the adoption of liberal provisions in this respect as he wanted to bring Dominican legislation fully into line with the ILO's standards and principles respecting freedom of association.
36. 68. The Committee has always considered the right to strike as one of the essential means by which workers and their organisations may promote and defend their occupational interests it has held that restrictions or prohibitions on the right to strike are admissible only under certain conditions, in particular in the public service and in essential services (in the strict sense of the term). In the latter cases, it has added, such restrictions should be accompanied by adequate, impartial and speedy conciliation and arbitration procedures in which the parties can take part at every stage, and at which the awards are binding on both parties in all cases. Such awards should be executed rapidly and completely.
37. 69. The Committee notes the Government's intention to revise its legislation on this important question. It has also noted that the Committee of Experts on the Application of Conventions and Recommendations has made certain observations on the present strike legislation. It would be desirable that the envisaged amendments should be adopted at an early date.
38. 7. Allegations concerning the trade union rights of agricultural workers
39. 70. This aspect of the case was the subject both of a complaint and of observations by the Committee of Experts on the Application of Conventions and Recommendations, which considered that the exclusion of certain rural workers from the field of application of the provisions of the Labour Code which guaranteed the right of association was incompatible with Convention No. 87. In this connection the representative of the Director-General states the following:
    • When asked about this, the Secretary and Under-Secretary of State for Labour explained that under the previous regime there had in practice been a certain amount of opposition to unionisation. On the other hand, the present Government was trying to meet and encourage the participation of peasants' representatives. Under the Labour Code agricultural workers were entitled to set up trade unions. According to section 265, the provisions of the Code do not apply to any agricultural undertaking, agricultural undertaking of an industrial type or stock raising or forestry undertaking which does not continuously and permanently employ more than ten persons, but this refers to the undertakings themselves and not to the workers. As the Secretary of State pointed out, this means that the workers cannot set up a works union and, in fact, section 298 of the Code stipulates that associations of employees must have not less than 20 members. However, nothing prevents them from setting up an occupational "class" union. The government authorities I spoke to actually cited two federations that were registered with the Secretariat of State for Labour (and therefore possess juridical personality)
40. 71. The information gathered by the representative of the Director-General refers both to the de facto situation and to certain legal difficulties. From the latter point of view the authorities have provided the necessary explanations, even though it would be desirable for the Labour Code to be more explicit in recognising the right of all rural workers to form unions. It would also appear that the de facto situation has improved, and the Committee takes note of this development.
41. 8. Allegations concerning the trade union rights of teachers and public servants
42. 72. The complainants mention the specific case of a teachers' union, the Dominican Teachers' Association (ADP), which the public authorities refused to recognise. In its 186th Report the Committee referred to the comments of the Committee of Experts on the Application of Conventions and Recommendations and expressed concern at the position of public officials and public servants in general, who are excluded from the Labour Code and thereby deprived of the trade union rights proclaimed by the Code.
43. 73. The ADP, reports the representative of the Director-General, was granted legal personality in January 1978. Another union - the National Union of Educators (UNE) - was registered at the Secretariat of State for Labour in accordance with the provisions of the Labour Code. These two organisations were theoretically for teachers from the private sector; however, according to their by-laws and, with the tacit assent of the public authorities, teachers from the public sector were also allowed to join.
44. 74. Generally speaking, public servants and other persons employed by the public authorities are excluded, with certain exceptions, from labour legislation (section 3 of the Labour Code, Act No. 2059 of 19 July 1949] and are therefore deprived of the guarantees provided for therein with respect to freedom of association. Furthermore, the representative of the Director-General refers to an Act, No. 56 of 24 November 1965, which prohibits any propaganda activity or attempt to encourage people to join trade unions within public and municipal administrations or autonomous state institutions (section 2). "According to government officials", he writes, "this latter provision means in effect that all trade union activity in the public sector is prohibited. Outside the public service in the strict sense, however, individual statutes do provide for the right to organise."
45. 75. The report continues:
    • The Secretary of State for Labour said that, although the right for public servants to join trade unions was not recognised, their right of association on the basis of Act No. 520 on non-profit-making associations was fully guaranteed. As early as 1964 the Committee of Experts on the Application of Conventions and Recommendations had, however, made a number of comments on this Act, which contains provisions (for example, section 13 which refers to the dissolution of an association by the executive authority) whose application could constitute an infringement of Convention No. 87. The trade union organisations with which I had discussions were highly critical of this legislation: Act No. 520 permits the creation of cultural or mutual assistance associations but, according to them, not of real workers' organisations entitled, for instance, to submit claims and to negotiate collectively. Moreover, it is the Government which is responsible for registering and recognising these associations, which are not governed by the Labour Code. However, according to the UGTD, although trade union legislation would be preferable these associations do nevertheless permit workers to organise themselves and to defend their interests and they are also able to take legal action. According to the Under-Secretary of State for Labour, the Government accepts the activities of organisations set up to defend the interests of public servants. Thus, for instance, a Dominican Public Service Federation (FEDOMEPIA) has been created. The Secretary of State added that he intended to propose a new public service status which would sanction the right to organise in this sector.
46. 76. The Committee has often stressed, and particularly in two recent cases, that the standards on freedom of association embodied in Convention No. 87 apply to all workers "without distinction whatsoever", and are therefore applicable to employees of the State. It was indeed considered inequitable to draw any distinction in trade union matters between workers in the private sector and public servants, since persons in either category are permitted to become organised for the defence of their interests. It was also made clear during the preparatory work on Convention No. 873 that recognition of the right of association of public servants in no way prejudges the question of the right of such officials to strike. Their special situation has, as mentioned earlier, led the Committee to admit that this right could be restricted for public servants.
47. 77. The Committee takes note of the information gathered regarding the present opportunities for state personnel to join associations for the defence of their occupational interests, and on the reforms envisaged. It nevertheless considers it essential that the right of all public servants to organise should be fully recognised in the near future, and in this connection notes that the question is the subject of an examination and observations by the Committee of Experts on the Application of Conventions and Recommendations.
48. 9. The right to form federations and Confederations
49. 78. During the direct contacts mission discussions were also held with the authorities on a restriction imposed by legislation on the right to form federations and Confederations. In this connection the representative of the Director-General writes:
    • Finally, the Committee of Experts on the Application of Conventions and Recommendations noted that Resolution No. 15/64 of the Secretariat of State for Labour requires a minimum of seven trade unions to form a federation and four federations - or three federations of craft unions - to form a Confederation. The Committee considered that these provisions restricted the right of organisations to establish federations and Confederations as provided in Article 5 of the Convention. The Secretary of State informed me that the purpose of this text was to avoid the proliferation of trade union federations and Confederations. However, when I explained to him the point of view of the ILO supervisory bodies on the matter as a whole, he informed me that the resolution would very shortly be repealed.
50. 79. Although this matter has not been the subject of complaints, the Committee takes note of this information, to which it draws the attention of the Committee of Experts.

B. B. The Committee's conclusions

1. 80. Generally speaking, the Committee notes that due to the recent change in Government there has been a favourable development in the trade union situation in the country since the complaints were presented. Although certain matters remain to be settled - in particular the question of dismissals of trade unionists and certain alleged discriminatory practices in the public sector - a solution has now been found to the other points raised by the complainants and amendments to the trade union legislation on the points raised by the Committee and the Committee of Experts are under examination.

The Committee's recommendations

1. 81. In these circumstances the Committee recommends the Governing Body:
   • (a) as regards the death, arrest or banishment of trade unionists:
2. (1) to note the concern expressed by the new Government to pursue a policy of respect for the law and civil liberties;
3. (2) to note that all the trade unionists who were arrested or exiled have been released or have returned to the country under an amnesty;
4. (3) to note that legal proceedings have been initiated as regards the murder of two peasant leaders in 1974-75 and that the Government has promised to supply information on the results of these trials;
   • (b) as regards the dismissal of trade unionists, to express the hope, for the reasons indicated in paragraphs 51 and 52, that measures will be taken to ensure better protection of trade union officials against such practices;
   • (c) as regards unfair practices in the public sector:
5. (1) to note the Government's declaration that it will no longer tolerate acts of interference in the establishment of trade unions, but to suggest that legal protection should be strengthened in this field;
6. (2) to recall the importance of the principles set forth in the resolution concerning the independence of the trade union movement, adopted by the International Labour Conference in 1952;
   • (d) as regards the registration of trade unions, to note with interest that the resolutions cancelling the registration of a number of workers' organisations have been repealed;
   • (e) as regards the intervention of the public authorities in the internal affairs of trade unions and the occupation of trade union premises:
7. (1) to note that the factual problems raised in the complaints have now been resolved;
8. (2) to note that the Government has stated that it intends to repeal Resolution No. 13/74 (concerning the presence of a labour inspector at certain trade union assemblies);
   • (f) as regards the restrictions on the right to strike, to point out to the Government that it would be desirable, for the reasons given in paragraphs 68 and 69, that amendments in this respect should be adopted at an early date;
   • (g) to note the explanations given by the Government regarding the trade union rights of agricultural workers, and the improvement in the de facto situation in this sector;
   • (h) as regards trade union rights of teachers and public servants:
9. (1) to note that two teachers' unions have been registered in accordance with the Labour Code;
10. (2) likewise to note the information gathered on the present opportunities for state personnel to join associations in defence of their occupational interests, and of the reforms envisaged, but to urge the Government to take steps to ensure that trade union rights of all public servants are fully recognised in the near future;
    • (i) to bring this report to the attention of the Committee of Experts on the Application of Conventions and Recommendations.