Informe provisional - Informe núm. 359, Marzo 2011

Caso núm. 2786 (República Dominicana) - Fecha de presentación de la queja:: 26-MAY-10 - Cerrado

Allegations: Anti-union acts and dismissals in the enterprises “Frito Lay Dominicana”, “Universal Aloe” and “MERCASID”, as well as the refusal to register various trade unions, namely: (i) the National Trade Union of Workers of the Call Center Branch (enterprises Rococo Investment Inc., Stream International, Language Line and Git Prepaid); (ii) the National Trade Union of Operators of Topographical Instruments (SINAMITO); (iii) the Trade Union of Workers of the Enterprise Barrick Gold (Minera Pueblo Viejo Barrick Gold enterprise); (iv) the United Trade Union of Workers of Minera Cerros de Maimón (SUTRAMICEMA) (Minera Cerros de Maimón enterprise); (v) the Trade Union of Electricity Generator and Convertor Building and Repair Workers and Related of Haina; (vi) the Single Federation of Workers of the Mining, Metalwork, Chemicals, Energy and Various Industries and Related (FUTRAMETAL)

1. 414. The complaint is contained in a communication of the National Trade Union Confederation (CNUS) dated 26 May 2010. The CNUS sent additional information in a communication dated 8 July 2010.
2. 415. The Government sent its observations in a communication dated 25 August 2010.
3. 416. 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 organization’s allegations

1. 417. In its communication dated 26 May 2010, the CNUS states that it is lodging a formal complaint against the Government of the Dominican Republic for refusal to register various trade unions.
2. 418. Refusal to register the National Trade Union of Workers of the Call Center Branch. The complaint organization states that, on 2 September 2008, 26 workers employed at so-called “Call Centre” enterprises (Rococo Investment Inc., Stream International, Language Line and Git Prepaid) decided to form the National Trade Union of Workers of the Call Center Branch. The complainant organization adds that, when holding the constituent assembly, the founding members of the trade union fulfilled all the requirements as to substance and form set out under the Labour Code regarding the establishment of a trade union: (1) more than 20 workers (in this case 26) from the Call Center enterprises gave their consent, participating voluntarily in the constituent assembly of the trade union and approving the statutes, which were recorded in the minutes that were, in turn, signed, along with the statutes, the list of founding members and the notification of the assembly, by all the founding members present and certified by the president and secretary of the assembly; and (2) this documentation was deposited with the Ministry of State for Labour on 18 September 2008, in order that the trade union might be registered.
3. 419. The complainant organization also states that, on 13 October 2008, the founder members of the trade union were informed by the enterprise that the Ministry of State for Labour had refused their application for trade union registration. The complainant organization highlights the fact that, in accordance with the provisions of section 375 of the Labour Code, procedure dictates that the documentation should be returned to the trade union in order to allow the latter to make good any omission in terms of the content of the application for registration and to resubmit the dossier. The complainant organization states that the decision by the General Labour Director to reject the application for registration made by the National Trade Union of Workers of the Call Center Branch was based on the following facts: (1) the trade union being formed did not have 20 workers, based on the communications deposited by the enterprise and alleged written by Andy Tejada, Boris F. Gil, Eliezer Ferreira, José A. Mordán Frías, Antonio Estévez Castro, William O. Egunjob and Aída Ho Sánchez, in which those individuals state that they do not wish to be associated with the founding of the trade union, despite having participated in the constituent assembly and having signed the corresponding documents; (2) Luis Chapman and Loverly R. Montes de Oca ceased to work for the Rococó Investment enterprise as of 28 May and 27 June 2008 respectively, but the fact that they were working for the enterprise at the moment when the trade union was founded was not taken into account.
4. 420. The complainant organization states that on 24 October it lodged a hierarchical appeal with the Ministry of State for Labour against the ruling issued by the General Labour Director in which the trade union requested the Ministry of State for Labour to revoke said ruling and to order that the trade union be registered. However, through a ruling dated 7 January 2009, the Ministry of State for Labour decided to uphold the decision not to register the trade union.
5. 421. In its communication dated 8 July 2010, the complainant organization adds that the workers of the Call Center branch who dared to exercise their trade union rights were faced with a wave of repression which led to several workers being dismissed, and which involved threats, blackmail, bribes and the recruitment of external agents in order to pressure the workers into giving up their attempt to have the trade union registered.
6. 422. Refusal to register the National Trade Union of Operators of Topographical Instruments (SINAMITO). The complainant organization states that SINAMITO has existed as an organization since 1962, but that, owing to the supposed deterioration of the records held at the Ministry of State for Labour, it was impossible to locate the document attesting to the trade union’s registration. Furthermore, against the background of this lapse on the part of the State, the General Labour Director suggested that the workers should found a new trade union, something which the workers proceeded to do. On 20 January 2010, Jorge de Frank and Juan Francisco Rodríguez y Compartes deposited the documentation required under the Labour Code for registration of the trade union they had founded with the Ministry of State for Labour. On 29 January 2010, the General Labour Director returned the documentation deposited because the enterprises for which the founding members of the trade union provided their services were not registered with the Ministry of State for Labour.
7. 423. The complainant organization states that, on 17 February 2010, it requested the General Labour Director to register the trade union, given that the workers cannot be prevented from exercising a fundamental right such as the right to organize based on the fact that the enterprises for which they work are not registered with the Ministry of State for Labour, in particular given that no more than half of the small enterprises in the Dominican Republic are registered with this Ministry. Despite the communication transmitted by the CNUS, the General Labour Director continued to refuse to proceed with registration.
8. 424. In its communication dated 8 July 2010, the complainant organization adds that the General Labour Directorate requested the workers to provide the payrolls of the enterprises for which they worked. The Directorate proceeded to check the names of staff members and, on allegedly finding that not all of the workers were listed on the payroll, refused to register the trade union, ignoring the fact that the workers could not be penalized for what was a failure on the part of the enterprise with regard to its obligations.
9. 425. Refusal to register the Trade Union of Workers of the Enterprise Barrick Gold. The complainant organization states that on 24 April, Julio Antonio Rojas, Oscar Nina Arias, Derby E. Rodríguez Viña, Efrain Febriel Figuereo, Sandy Ureña Bautista, Roberto Sierra, Domingo A. Hernández, Reyito Aquino Mariñez, Adalberto Cruz, Luis R. Almonte González, Rosendo Martínez Candelario, Jerónimo Santiago, Juan Francisco Pineda, Ismael Mena Abreu, Joel Alexander Cruz Gómez, Luis Ramón Sánchez Disla, Marcelino Sánchez, Juan Reyes Martínez, Andy Rafael Sánchez Disla, Heuiy Mejía Jiménez and Juan B. Paredes founded the Trade Union of Workers of the Enterprise Barrick Gold and deposited the documentation required for trade union registration. The trade union was refused registration because, in the view of the General Labour Director (and following an investigation allegedly carried out by the latter into the payroll of the Minera Pueblo Viejo (Barrick Gold) enterprise), a number of the founding members of the trade union were not workers of the enterprise. The workers had work cards in which it was recorded that they were working for a subcontractor which was providing services for the Barrick Gold enterprise; therefore they worked in and for the enterprise, Barrick Gold.
10. 426. The complainant organization adds that the workers providing services for the Barrick Gold enterprise, Julio Antonio Rojas and Oscar Nina Arias y Compartes, founded the Trade Union of Workers of the Mining Sector of Sánchez Ramírez Province and deposited the documentation required for its registration. The new trade union was not granted registration because, in the General Labour Director’s opinion, the founders of the union had been recruited by enterprises which belonged to sectors other than the mining sector, including construction and metalwork. The complainant organization highlights that the founders of the trade union had been recruited by other enterprises to provide services for the Barrick Gold enterprise through subcontracting, a method used by a great many enterprises in order to avoid obligations and compliance with labour rights.
11. 427. In its communication of 8 July 2010, the complainant organization adds that the enterprise contracted around 30 companies and that, in one of its verbal instructions, it urged those subcontractors not to allow trade union activities, stating that to do so would lead to immediate suspension of their contracts. The enterprise also filed a petition with the Ministry alleging that the workers were not included on its payroll and that therefore the name of the Barrick Gold enterprise could not be connected to the trade union’s constituent assembly. Owing to the fact that the documents of the Ministry of Labour are in the public domain, an application was made for a certified copy of the petition. However, the General Labour Directorate never provided said document. The complainant organization states that Julio Rojas (Secretary-General of the trade union) was dismissed.
12. 428. Refusal to register the United Trade Union of Workers of Minera Cerros de Maimón (SUTRAMICEMA). The complainant organization states that, on 7 July 2009, Virginio Encarnación, José Antonio Pérez y Pérez and Epifanio Castro y Compartes founded SUTRAMICEMA and deposited the documentation required for trade union registration, which was returned to them through a communication of the General Labour Director, dated 7 August 2009, based on the fact that: (1) those workers were listed on the permanent payroll of the Sococo de Costa Rica Dominicana, SA enterprise, a subcontractor which selects staff for the mining enterprise, without the fact that those workers provide their services under the instructions of Minera Cerro de Maimón and their respective work cards bore the names of both enterprises being taken into account; (2) the legal name of Minera Cerro de Maimón was “Corporación Minera Domicincana, SA”, despite the fact that the jurisprudence of the Supreme Court of Justice of the Dominican Republic establishes that workers cannot be prevented from exercising their rights simply because they do not know the legal name of the enterprise for which they work.
13. 429. In its communication of 8 July 2010, the complainant organization adds that José Antonio Pérez y Pérez, Secretary-General of the trade union, was falsely accused of having set fire to a company vehicle and that he is constantly harassed as trade union leader. Finally, the complainant organization states that another member of the trade union, Juan Bautista (the appeals and disputes secretary), was dismissed.
14. 430. Refusal to register the Trade Union of Electricity Generator and Convertor Building and Repair Workers and Related of Haina. The complainant organization states that the application for registration of the Trade Union of Electricity Generator and Convertor Building and Repair Workers and Related of Haina was deposited on 26 October 2009 with the Ministry of State for Labour. The application contained all the necessary documentation listing the enterprises in which the founders of the trade union provided services, proving their status as employees and therefore, the Labour Code should be applied both with regard to their individual and collective rights.
15. 431. However, the complainant organization states that, through a ruling dated 5 November 2009, the General Labour Director rejected the trade union’s application for registration, claiming that the union was being established by independent workers who were not governed by the Labour Code. An appeal was lodged with the Ministry of State for Labour against the ruling. Through a ruling dated 24 March 2010, the Ministry upheld the decision of the General Labour Director, stating that the members of the union being formed did not qualify as workers and that it was therefore impossible to grant their application for registration.
16. 432. In its communication dated 8 July 2010, the complainant organization adds that the refusal to register the abovementioned trade unions has led to a situation whereby not only are these organizations being prevented from obtaining legal personality but also those workers who decided to exercise the right to organize are left without protection. Furthermore, once the enterprise learnt that the authorities had refused to register the trade union and that no trade union immunity had been granted, it broke the employment contracts and dismissed the founders of the trade unions without the Ministry of Labour even issuing a contravention notice concerning the freedom of association.
17. 433. Refusal to register the Single Federation of Workers of the Mining, Metalwork, Chemicals, Energy and Various Industries and Related (FUTRAMETAL). The complainant organization states that on 2 March 2010, the General Labour Director was requested to register FUTRAMETAL, founded on 5 December 2009. The documentation deposited contained details of the delegates representing the trade unions that made up the federation, their names, identity card numbers and respective signatures, as well as information on each trade union (their numbers and registration numbers), and proof of the legal existence of eight trade unions (four more than the number required under the Labour Code). The complainant organization highlights that, with regard to the creation of federations, the only additional requirement established by the Labour Code is that their founding instruments must contain the names and addresses of the member trade unions and that the statutes of the federations must describe the form in which the trade unions are represented at the general assemblies of the federations.
18. 434. The complainant organization states that, more than two months after the application, the General Labour Directorate of the Ministry of Labour has still not registered the federation, alleging that each and every one of the founding trade unions must provide it with the minutes of their respective assemblies, in which the majority of their members have approved the participation of the trade union in the formation of this new federation. The complainant organization adds that these excessive requirements for registration of a trade union organization are not normal and entail restrictions because they subject trade union organizations to special administrative supervisory measures which limit the right to organize. In the light of the General Director of Labour’s position, the complainant organization states that, in order that trade union organizations legitimately established by the workers might be registered, it expressed its concern to the Ministry of State for Labour, but received no reply from the Dominican authorities.
19. 435. In its communication dated 8 July 2010, the complainant organization states that, as well as acting incorrectly regarding the registration of trade union organizations, the Government has also failed to monitor compliance with labour rights, as can be seen from the following cases.
20. 436. Frito Lay Dominicana enterprise. The complainant organization states that the trade union is under a constant state of siege within this enterprise, in the person of the secretary general, Ramón Mosquea, who was subjected to intimidation through the use of false accusations made with a view to his dismissal. During 2009 and the first quarter of 2010, more than 15 members of the trade union were dismissed for having carried out trade union activities. When the complainant organization presented formal complaints concerning the flagrant violations of the freedom of association in this enterprise, the Labour Inspectorate failed to carry out the investigations requested and consequently did not note the infringements. On other occasions, the actions of the investigators appointed to look into violations committed by the enterprise gave rise to serious suspicions that they were biased in favour of the employer sector. As a result of the ineffectiveness of the labour authorities with regard to the investigation and identification of violations of freedom of association, the judicial proceedings initiated for these violations conclude without the tribunals being able to sanction the enterprise, owing to a lack of evidence regarding the infringements committed.
21. 437. Universal Aloe enterprise. The complainant organization states that pregnant women have been dismissed from this enterprise, direct threats have been made against the trade union leaders and the interventions of the Ministry of Labour have not been sufficiently effective owing to the fact that a high level of complicity exists. Recently the enterprise has come to believe that it can destroy the organization founded by the workers owing to the fact that none of the measures taken have led to the enterprise being sanctioned for its anti-union behaviour.
22. 438. MERCASID enterprise. The complainant organization states that workers have been dismissed from this enterprise for having joined a trade union that had already been established. Furthermore, a campaign of slander was launched against Pablo de la Rosa with the aim of damaging his image and forcing him to abandon his demand that the collective agreement in force be respected and that the legally-constituted trade union be allowed the independence to run itself.

B. The Government’s reply

1. 439. In its communication of 25 August 2010, the Government states that many initiatives and measures have been taken to promote trade union rights in the country, in accordance with the international Conventions. The Government also provides the following information regarding the trade unions referred to in the complaint presented by the complainant organization.
2. 440. The National Trade Union of Workers of the Call Center Branch. The Government states that, on 18 September 2008, workers from various Call Center enterprises requested trade union registration from the Labour Administration. This request was not granted because: (1) Andy Marcel Tejeda, Boris F, Gil, Eliezer Ferreras, José A. Mordán Frías, Antonio Estévez, William O. Egunjobi and Sra Aída Ho Sánchez, who were listed in the documentation presented to the Ministry of Labour as members of the management committee of the trade union, clearly informed both the Ministry of Labour and the committee managing the registry that they had not consented to their names being included on the list of participants for the constitution of the trade union in question. These workers took this step acting within their individual and constitutional rights as free individuals subject to law; (2) Luis Chapman and Loverly R. Montes de Oca, who were referred to in the request, were not workers at any of the Call Center enterprises at the time when the application for registration was made.
3. 441. The Government adds that, in the light of the workers’ statements to the effect that they have no interest in belonging to the National Trade Union of Workers of the Call Center Branch, and given that some of the individuals referred to in the request were not workers of the enterprise and that the fundamental requirement of gathering at least 20 workers from enterprises belonging to the corresponding sector was not fulfilled, the General Labour Director issued a ruling rejecting the application for registration. The applicants lodged a hierarchical appeal with the Ministry of Labour, who upheld the decision taken by the General Labour Director.
4. 442. The National Trade Union of Operators of Topographical Instruments (SINAMITO). The Government states that, according to the complaint presented by the CNUS, this trade union has existed since 1962, and that it does not appear on the register owing to the deterioration of the Ministry of Labour’s records. However, the Government states that, in 1994, work began to systematize the archives of the Trade Union Registry, with the support of the Spanish Cooperation. As a result of this process, a manual on procedures was drawn up, the paper archive of the Department of Trade Union Registry was reorganized and all the processes were systematized, in order to make it possible to offer a reliable, quality service to users. The Government highlights that on 5 March 2008, the Ministry of Labour received an application for the registration of SINAMITO, which was refused through a ruling dated 18 March 2008, owing to the fact that the trade union did not fulfil the basic requirement of representing dependent employees governed by the Labour Code.
5. 443. The Government highlights that the root of the disagreements between trade union bodies lies in a meeting held in November 2008 at the Pension Fund for the Construction Sector. The National Single Federation of Trade Unions of Construction Workers (FENUSTRACON) requested a review of the registrations of the trade unions making up the Technical Council of the abovementioned Fund in order to check their legal status. The Technical Council of the Pension and Retirement Fund for Construction Sector Workers is made up of those trade union organizations of the construction sector with legal personality and is presided over by the Ministry of Labour. The corresponding review was carried out but no evidence was found in the archives of the Ministry of Labour of the registration of SINAMITO. It was found that this trade union, which had requested registration seven months beforehand, had been operating for a long time using the registration which corresponded to the Autonomous Trade Union of Knitting Manufacturers, a trade union organization that is completely separate from SINAMITO.
6. 444. The Government states that on looking closely at the situation it becomes apparent that a dispute exists between two trade union organizations, FENUSTRACON and SINAMITO, with regard to influence over the management of the Pension Fund for the Construction Sector. It was FENUSTRACON that objected to the participation of SINAMITO in the Pension Fund for the Construction Sector.
7. 445. The Government also states that, on 20 January 2009 and 19 March 2010, the leaders of this trade union organization made new applications for registration, which were returned (and not rejected) so that missing details could be added to the dossier, in particular, information regarding representation of dependent employees (an indispensable requirement). The Government highlights that the return of applications for registration with observations does not imply rejection, rather, the aim is to inform applicants, in accordance with the procedure set out under the Labour Code, so that documentation is completed in due and proper form.
8. 446. As to the Ministry of Labour’s intervention in this case, the Government states that there is no trace of the registration or the founding documents (such as statutes, constituent assembly and list of members) of the said trade union in the trade union file archives. That is the reason why the Ministry of Labour is not in a position to certify that the trade union actually exists. The Government also states that the Labour Code only applies to dependent employees, that is to say, those with a mandate from an employer, and therefore the provisions of the Code do not apply to self-employed persons, as is the case with the topographical instrument operators, who are neither dependent upon nor subordinate to an enterprise or employer.
9. 447. The Trade Union of Workers of the Enterprise Barrick Gold. The Government states that the legal name of the Barrick Gold enterprise is Pueblo Viejo Dominicano corporation (PVDC) and that: (1) it is a recently established mining enterprise which is currently constructing its installations, and to this aim, it has contracted various national and international construction firms; (2) one of the subcontractors is ISS Serviacero and in response to an application made by Franciso Rafael Abreu Polanco, dated 11 November 2009, the United Trade Union of Workers of the Enterprise ISS Serviacero was registered through a ruling dated 2 December 2009; (3) on 22 April 2010, the Ministry of Labour received an application for trade union registration from the workers of the Hermanos Yarull T enterprise, an enterprise which carries out work under contract within the PVDC mining complex. The Labour Administration responded to this application by granting trade union registration through a ruling dated 10 May 2010; (4) on 24 May 2010, the Ministry of Labour received an application for registration from the United Trade Union of Workers of the Construction Sector and Related Activities, whose construction enterprises were contracted by PVDC, with the Ministry granting registration through a ruling dated 15 June 2010; and (5) on 14 June, workers of the PVDC enterprise applied for the registration of the United Trade Union of Workers of the Enterprise Minera Pueblo Viejo Cotuí (Barrick Gold), with the Ministry of Labour granting registration through a ruling dated 25 June 2010.
10. 448. The Government concludes by stating that the Labour Administration has granted a total of four trade union registrations to workers of PVDC and its related enterprises, and that therefore the claim that the Ministry of Labour is hindering trade union activity in this enterprise is untrue.
11. 449. The United Trade Union of Workers of Minera Cerros de Maimón (SUTRAMICEMA). The Government states that: (1) on 26 June 2008, the Labour Administration received an application for the registration of the Trade Union of the Enterprise Corporación Minera Cerro de Maimón, and granted that registration on 4 July 2008; (2) on 10 and 31 July 2009 new applications for the registration of the Trade Union of Workers of Minera Cerros de Maimón were received, which were returned in light of the fact that they contained errors of substance and form which prevented registration under the provisions of the Labour Code; and (3) prior to these applications (5 March 2009), an application for registration had already been received for the Autonomous Trade Union of Workers of the Enterprise Sococo de Costa Rica, Dominicana, SA, (SINTRASO), which was registered through a ruling dated 17 March 2009.
12. 450. The Trade Union of Electricity Generator and Convertor Building and Repair Workers and Related of Haina. The Government states that, on 26 October 2009, the Ministry of Labour received an application for registration of the Trade Union of Electricity Generator and Convertor Building and Repair Workers and Related of Haina, which was not registered owing to the fact that the applicants are self-employed and are not governed by the Labour Code (dependent employee status is one of the fundamental requirements enshrined in the Labour Code regarding the granting of trade union registration).
13. 451. The Single Federation of Workers of the Mining, Metalwork, Chemicals, Energy and Various Industries and Related (FUTRAMETAL). The Government states that on 9 April 2010, it received an application for the registration of FUTRAMETAL. The Government highlights that the application was rejected based on the fact that: (1) the application in question did not fulfil the requirements set out in the Labour Code, given that the founding instrument, the notification of the assembly and the statutes had not been signed by the number of members required under labour legislation; and (2) one of the trade unions behind the application is not registered with the Ministry of Labour, and the registration of another was cancelled by the judiciary when it was noted that there were many errors that were not observed by the Ministry of Labour at the time that it was registered. In the light of these lapses, the constituent documentation was returned to this federation in order that it might take into account the points made in that regard by the General Labour Director.

C. The Committee’s conclusions

1. 452. The Committee notes that in the present case the complainant organization alleges difficulties and delays in the registration of trade union organizations. These allegations refer to five trade union organizations and one federation.
   • – The National Trade Union of Workers of the Call Center Branch. The Committee notes that, according to the complaint organization, the founding members of the trade union fulfilled all the requirements as to substance and form set out under the Labour Code regarding the establishment of a trade union. It also notes that, according to the Government, trade union registration was not granted because: (1) various workers, who were listed in the documentation presented to the Ministry of Labour as members of the management committee of the trade union, clearly informed both the Ministry of Labour and the committee managing the registry that they had not consented to their names being included on the list of participants for the constitution of the trade union in question; and (2) other individuals referred to in the application were not workers at any of the Call Center enterprises at the time when the application for registration was made and consequently the requirements set out under law were not fulfilled, namely, the need to gather 20 workers in order to found a trade union. Finally, the Committee notes that the applicants lodged a hierarchical appeal with the Ministry of Labour, who upheld the decision of the General Labour Director.
   • – The National Trade Union of Operators of Topographical Instruments (SINAMITO). The Committee notes that, according to the complainant organization, the General Labour Director returned the documentation deposited because the enterprises in which the founder members of the trade union provided services were not registered with the Ministry of State for Labour. The Committee also notes that, according to the Government: (1) the trade union does not fulfil the fundamental requirement of representing dependent employees governed by the Labour Code: (2) it was found that this trade union, which had applied for registration seven months beforehand, had been operating for a long time using the registration which corresponded to the Autonomous Trade Union of Knitting Manufacturers, a trade union organization that is completely separate from SINAMITO; and (3) the leaders of this trade union organization made new applications for registration, which were returned (and not rejected) so that missing details could be added to the dossier, in particular, information regarding representation of dependent employees (an indispensable requirement).
   • – The Trade Union of Workers of the Enterprise Barrick Gold. The Committee notes that, according to the complainant organization, the trade union was refused registration because, in the view of the General Labour Director, a number of the founding members of the trade union were not workers of the enterprise, despite the fact that all of those workers had work cards in which it was recorded that they were working for a subcontractor which was providing services for the Barrick Gold enterprise, that is to say, they were working in and for the Barrick Gold enterprise. The Committee also notes that the Barrick Gold enterprise (Pueblo Viejo Dominicano Corporation (PVDC)) is a recently established mining enterprise which is currently constructing its installations and to this aim it has contracted various national and international construction firms and that the Labour Administration has granted a total of four trade union registrations to workers of PVDC and its related enterprises.
   • – The United Trade Union of Workers of Minera Cerros de Maimón (SUTRAMICEMA). The Committee notes that, according to the Government, new applications for the registration of the Trade Union of Workers of Minera Cerros de Maimón were received on 10 and 31 July 2009, which were returned in light of the fact that they contained errors of substance and form which prevented registration under the provisions of the Labour Code.
   • – The Trade Union of Electricity Generator and Convertor Building and Repair Workers and Related of Haina. The Committee notes that, according to the parties, the application for registration of the trade union was rejected because it was alleged that it was being formed by self-employed workers, not governed by the Labour Code. An appeal was lodged against this ruling with the Ministry of State for Labour, which, through a ruling dated 24 March 2010, upheld the decision of the General Labour Director.
   • – The Single Federation of Workers of the Mining, Metalwork, Chemicals, Energy and Various Industries and Related (FUTRAMETAL). The Committee notes that, according to the complainant organization, more than two months after the application, the General Labour Directorate of the Ministry of Labour has still not registered the federation, alleging that each and every one of the founding trade unions must provide it with the minutes of their respective assemblies, in which the majority of their members have approved the participation of the trade union in the formation of this new federation. The Committee also notes that the Government states that the founding documents of this federation were returned so that the points made in that regard by the General Labour Director might be taken into account.
2. 453. In general, the Committee wishes to highlight that Article 2 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), establishes that workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organization concerned, to join organizations of their own choosing without previous authorization. The Convention guarantees this right for all workers, with the sole possible exception of the armed forces and the police. Therefore this right also applies to self-employed workers and subcontracted workers. The Committee notes that the Government states that dependent employee status is one of the fundamental requirements enshrined in the Labour Code regarding the granting of trade union registration. It can thus be concluded that the law only allows for the founding and registration of trade unions of dependent employees. The Committee recalls that by virtue of the principles of freedom of association, all workers – with the sole exception of members of the armed forces and the police – should have the right to establish and join organizations of their own choosing. The criterion for determining the persons covered by that right, therefore, is not based on the existence of an employment relationship, which is often non-existent, for example in the case of agricultural workers, self-employed workers in general or those who practise liberal professions, who should nevertheless enjoy the right to organize [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 254]. The Committee requests the Government to take measures to amend, in consultation with the most representative workers’ and employers’ organizations, the legislation in order to allow trade unions of self-employed workers or trade unions which bring together contract workers to be founded and registered.
3. 454. The Committee recalls that the Government freely ratified Convention No. 87, and that it is obliged to guarantee that the provisions of the Convention are respected. In light of the conclusions set out in the paragraphs above and if all procedural requirements have been met, the Committee requests the Government to register SINAMITO (whose membership consists of self-employed workers), the Trade Union of Workers of the Enterprise Barrick Gold and the Trade Union of Electricity Generator and Convertor Building and Repair Workers and Related of Haina (whose members are contract workers).
4. 455. As to the National Trade Union of Workers of the Call Center Branch, the Committee notes that, according to the Government: (1) various workers who were listed in the documentation presented to the Ministry of Labour as members of the management committee of the trade union clearly informed both the Ministry of Labour and the committee managing the registry that they had not consented to their names being included on the list of participants for the constitution of the trade union in question; and (2) other individuals referred to in the application were not workers at any of the Call Center enterprises at the time when the application for registration was made. The Committee requests the complainant organization to communicate its observations concerning the Government’s reply and expects that the Government and the trade union in question will together examine how the problems referred to by the Government might be resolved. The Committee also requests the Government to investigate claims of pressure being brought to bear on workers to get them to leave the trade union and if these allegations prove to be true, to take the necessary measures to prevent such acts from occurring in the future.
5. 456. As to the United Trade Union of Workers of SUTRAMICEMA. The Committee regrets that the Government has not provided more details on the errors of substance and form to which it made a general reference. As to FUTRAMETAL, the Committee notes that, according to the Government, the founding documentation of this federation was returned so that the errors which prevented the trade union from being registered by the General Labour Director might be corrected. The Committee expects that the Government and the trade union and the federation in question will examine how the problems referred to by the Government might be solved. The Committee requests the Government to keep it informed in this regard.
6. 457. Finally, the Committee notes that the Government has not sent its observations regarding the allegations contained in the communication dated 8 July 2010 concerning anti-union dismissals, threats and practices in certain enterprises, such as the Frito Lay Dominicana enterprise, the Universal Aloe enterprise and the MERCASID enterprise and requests the Government to send its observations without delay, together with the views of these enterprises obtained through the most representative employers’ organization.

The Committee's recommendations

1. 458. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government, in consultation with the most representative workers’ and employers’ organizations, to take measures to amend the legislation in order to allow trade unions of self-employed workers or trade unions of contract workers to be founded and registered.
   • (b) Recalling that the Government freely ratified Convention No. 87 and that it is obliged to guarantee that the provisions of the Convention are respected, and assuming that all procedural requirements have been met, the Committee requests the Government to register SINAMITO (whose membership consists of self-employed workers), the Trade Union of Workers of the Enterprise Barrick Gold and the Trade Union of Electricity Generator and Convertor Building and Repair Workers and Related of Haina (whose members are contract workers).
   • (c) As to the National Trade Union of Workers of the Call Center Branch, the Committee requests the complainant organization to communicate its observations concerning the Government’s reply and expects that the Government and the trade union in question will together examine how the problems referred to by the Government might be resolved. The Committee also requests the Government to investigate claims of pressure being brought to bear on workers to get them to leave the trade union and if these allegations are proven to be true, to take the necessary measures to prevent any such acts from occurring in the future.
   • (d) As to SUTRAMICEMA and FUTRAMETAL, the Committee expects the Government and the trade union and the federation in question, to examine how the problems referred to by the Government might be solved. The Committee requests the Government to keep it informed in this regard.
   • (e) The Committee notes that the Government has not sent its observations regarding the allegations contained in the communication dated 8 July 2010 concerning anti-union dismissals, threats and practices in certain enterprises, such as the Frito Lay Dominicana enterprise, the Universal Aloe enterprise and the MERCASID enterprise and requests the Government to send its observations without delay, together with the views of these enterprises obtained through the most representative employers’ organization.