Rapport définitif - Rapport No. 376, Octobre 2015

Cas no 3079 (République dominicaine) - Date de la plainte: 28-MAI -14 - Clos

Allegations: Reprisals against trade union leaders and members in the air traffic sector in the context of a collective dispute: suspensions and dismissals, suspension of the deduction of trade union dues, restrictions on trade union leaders’ access to workplaces, etc.

1. 365. The complaint is contained in a communication dated 28 May 2014 presented by the National Confederation of Dominican Workers (CNTD) and the Dominican Association of Air Traffic Controllers Inc. (ADCA). These organizations sent additional information and new allegations in communications dated 15 December 2014 and 8 June 2015.
2. 366. The Government sent its observations in communications dated 30 September 2014 and 24 March 2015.
3. 367. 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 complainants’ allegations

1. 368. In their joint communication dated 28 May 2014, the CNTD and ADCA allege that the leaders of the ADCA have been promoting, and participating in, a range of activities with a view to guaranteeing respect for its members’ rights and improving their working and living conditions.
2. 369. Following up on the agreement (“Memorandum of Understanding”) signed with the employer on 11 May 2007, the ADCA developed a plan to implement the agreement and thereby improve its members’ living and working conditions. This plan led to an inter institutional agreement to increase salaries by 35 per cent, in two stages: a 15 per cent increase in June 2013, and a 20 per cent increase which should have come into effect in January 2014. At the same time, the ADCA sought to resolve the technical problems existing in all the national air traffic control centres, problems which resulted from the state of disrepair of these installations. It requested basic equipment that is essential for the provision of air traffic control services, as well as maintenance and urgently needed repairs for the tools and technological infrastructure that are vital for the provision of service and the guaranteed safety of aerial operations – such as communication systems, radio navigation aids and radars, which were about to fall to pieces. The ADCA had reported these technical problems in a written submission and a PowerPoint presentation, both addressed to the director of the Dominican Civil Aviation Institute (IDAC), following an exhaustive technical inventory of all air navigation centres nationwide which was delivered to the IDAC authorities on 31 July 2011, and to the Air Navigation Directorate (DINA) on 16 September 2011.
3. 370. According to the allegations, up until 2013, the differences that existed between the ADCA and IDAC had been resolved by means of dialogue, without this causing any particular issues.
4. 371. The complainant organizations state that, along with the activities planned and executed under the ADCA’s action plan, they opposed a proposal to amend article 37 of Civil Aviation Act No. 491-06, which provides that:
   • The Director General will establish the regulations governing employment conditions, social security and economic benefits, in accordance with the labour laws of the Dominican Republic and the recommendations and resolutions of the International Labour Organization (ILO), to ensure that the directors, employees, consultants and agents in the IDAC’s service have the protection and support which is guaranteed them by the international legal instruments to which the Dominican State is a signatory.
5. 372. The amendment proposed in turn by the Director of the IDAC was as follows:
   • Article 37. IDAC civil servants shall be subject to the Public Service Regulations, and to the regulations which govern the Dominican Social Security System.
6. 373. This proposal not only infringed workers’ acquired labour rights, it also contravened the recommendations of the International Civil Aviation Organization (ICAO) contained in document No. 9426-AN924, which, for instance, advocates mixed committees comprising managerial staff and workers for the rapid settlement of disputes.
7. 374. Opposition to amending article 37 of Civil Aviation Act No. 491-06 is a just and legitimate cause for a workers’ organization in view of the support that this article provides, by tying working conditions, social security and economic benefits to ILO Conventions. The director of IDAC’s attempt to amend this article was covert, and he denied any such intention on numerous occasions. This plan to change the law was, however, moving forward – without the knowledge or involvement of the parties whom it would affect – and the proposed amendment was placed on the agenda of the meeting of the Senate of the Republic of 5 February 2013. Fortunately, the ADCA’s proposal was well received and understood by the Congress of the Republic, and the ADCA managed to retain the benefits provided for by article 37 of the abovementioned Act.
8. 375. The ADCA’s battle also focused, and continues to focus, on trying to deflect efforts to privatize the essential air navigation services that the IDAC offers. The ADCA adds that on 4 February 2013, along with the other technical workers’ associations in the aeronautical sector, it sent to the director-general of the IDAC a number of defects and faults that affected, and still affect, air navigation services. There was no response, so the ADCA found itself obliged to resort to using the media to appeal to the highest national authorities to voice its concerns about the defects which it had reported, but which the IDAC authorities had not addressed. The association paid to publish its grievance in the 4 February 2013 edition of the newspaper Listín Diario, along with the National Pilots’ Association (ANP), the Dominican Association of Operations Inspectors (ADIO) and the Dominican Association for Aeronautical Maintenance (ADTEMA). That act, and the fact that the association had not approved the director of IDAC’s abovementioned proposal to amend article 37, caused the IDAC authorities to distance themselves. Thereafter, the organization’s authorities refused to receive ADCA representatives in their offices and, moreover, embarked on a series of actions that flagrantly violated freedom of association and other concomitant rights.
9. 376. From June 2013 onwards, the hostile actions directed at the ADCA intensified: unilaterally and suddenly, the IDAC suspended the deduction of ADCA trade union dues. It had been deducting dues for 30 years. With this act, the IDAC not only denied the trade union organization’s status, but also punished the union financially, and consequently weakened it. Without resources, the ADCA cannot implement its activities, plans or programmes; nor can it cover its necessary expenditures such as rent, electricity, communication and secretarial support.
10. 377. Among the actions taken against the air traffic controllers, the use of direct threats and intimidation to make them renounce the association stands out. They are threatened with: (a) not receiving due promotion; and (b) not being considered for new training. If they do not yield to the pressure to renounce, they risk the IDAC downgrading the positions that they occupy, arbitrarily transferring them or forcing them into involuntary retirement and making them accept a premature pension.
11. 378. In a new attempt to resolve the problems by means of dialogue, on 4 December 2013, the ADCA sent an extensive communication to IDAC’s Director, detailing each and every violation of and action contrary to good faith, and the law that it had committed. In this communication the ADCA also expressed to the authorities its intention to solve the disputes by means of dialogue, re-establishing the normal inter-institutional channels of communication; and its commitment to maintaining the highest standards of efficiency and safety in the delicate and strategic service that it offers. Additionally, it requested that:
    • – the IDAC give due consideration, and responses, to the multiple communications sent to it by the ADCA, particularly the association’s request to participate in the technical process of installing and making operational the new control centres which are currently being installed; and that the agreement reached in connection with the joint IDAC/ADCA technical report be implemented, in order to improve technical infrastructure at the national level;
    • – the IDAC ensure, without delay, that its technical positions be filled on the basis of competitions, as Decree No. 525-09, Regulation on Performance Evaluation and Promotion for Civil Servants, provides;
    • – illegal and unfair sanctions against air traffic controllers be annulled, due to their retaliatory nature (such as unpaid suspensions of up to two months, and unilateral orders to take involuntary retirement – which do not take into consideration the scarcity of specialized technical personnel – given to air controllers who are fully capable of performing their duties); and
    • – payments of wages to air traffic controllers be made regular and adequate, performance-based bonuses be paid, the 15 per cent salary increase be implemented, Bonus No. 4 be paid to control staff who are on medical leave or retired for pension purposes; as well as the regularization of payment of the school bonus that is referred to in the reference documents attached to the present communication, etc.
12. 379. As a result of the IDAC’s failure to respond to its approaches, the ADCA decided to use peaceful protests and to organize, in conjunction with the CNTD, marches, pickets and sit ins, hoping that the application of pressure would lead to a solution.
13. 380. After a call on 29 January 2014 to take part in a peaceful march organized by the ADCA and CNTD, the director of human resources published a circular, on 31 January, addressed to all the organization’s staff, warning that participation in the scheduled activities would be punishable by the second and third degree sanctions set out in Public Service Act No. 41-08, and possibly dismissal.
14. 381. In response to the protests, the IDAC followed through on its threat and dismissed trade union leaders from their positions in retaliation for their activities. On 19 February 2014, it suspended the leaders and most active members of the association, whom it subsequently dismissed: Mr Wellington F. Almonte Gómez, Ms Cristina Arelis Mateo Guerrero, Mr Josué Joel Pérez Encarnación, Mr Edwin A. Montero Luciano, Mr Leonardo Rivera, Ms Shelby Darío Ng Ruiz, Mr Carlos Alberto Carvajal Ureña, Mr Ramón Armora Santos, Mr Rainier Pavel Ulerio Santos, Mr Arturo Napoleón Rodríguez Cedano and Mr Erik Yohairy Echevarría P. The dismissal of Mr Breydys Laurel Tapia Disla was annulled when he gave in to pressure and renounced his ADCA membership (in a letter dated 13 March 2014); the resolution that establishes his reinstatement includes the fact:
    • … that in his appeal for reconsideration, air traffic controller Tapia Disla went on to say: ‘I let myself get involved in a fight that is not my own; I wanted to intervene and change things and I ended up wronged in the worst possible way: I believe that the Dominican Association of Air Traffic Controllers was, and is, on course for disaster and I cannot be a part of this …’
15. 382. According to the ADCA, none of the sanctioned employees committed any act in violation of the provisions of the law serious enough to warrant dismissal from his or her post; on the contrary, the employees exercised the rights that the Constitution of the Republic, Public Service Act No. 41-08 and the regulations governing its application, Civil Aviation Act No. 491-06 and ILO Convention No. 87 confer upon them.
16. 383. The sanctioned trade unionists filed administrative and judicial appeals for amparo (remedy for the protection of constitutional rights) and requests for protective measures, with a view to obtaining the reinstatement of the suspended controllers.
17. 384. On 26 April 2014, the ADCA and CNTD submitted a formal request for mediation to the Minister of Labour, which resulted in a mediation session being held between the parties on 13 May 2014. However, up to the present the mediation has not yielded any tangible outcome that facilitates the resolution of the dispute between the parties nor, in particular, an end to the arbitrary sanctions. During the mediation session, by contrast, the IDAC representative merely posited the non-existence of the ADCA as a legal person, brandishing a certificate awarded by the Ministry of Public Administration which showed that the ADCA was not registered with that Ministry.
18. 385. The complainant organizations also allege that the employer is promoting the establishment of a parallel trade union to compete with the ADCA.
19. 386. The complainant organizations state that, on 21 February 2014, the Trade Union Confederation of the Americas (TUCA) sent a communication requesting the IDAC to cease its anti-union activities and demonstrate full respect for the fundamental rights of the air traffic controllers and their organization; the International Federation of Air Traffic Controllers’ Associations (IFATCA) sent a communication along similar lines to the director of the IDAC on 26 February 2014. On 24 February 2014 Public Services International (PSI) also addressed a letter to the Director of the IDAC advocating dialogue, to no avail.
20. 387. Among the arguments it put forward at the mediation session at the Ministry of Labour on 13 May 2014, the IDAC especially focussed on the ADCA’s non-existence as a legal entity. On this point, it is necessary to clarify that the ADCA is a trade union organization under private law, duly registered and, as such, having legal personality by virtue of the provisions of the then Act No. 520 of 26 June 1920 on non-profit associations. It was registered by Executive Decree No. 212-98 of 3 June 1998, and subsequently re-registered in accordance with Act No. 122-05 of 3 May 2005, on regulation and promotion of non profit associations in the Dominican Republic.
21. 388. In their communication of 15 December 2014, the complainant organizations indicate that among the legal proceedings is the request for amparo submitted by the ADCA and the air traffic controllers who were victims of retaliatory measures. In response to said claim, the First Chamber of the Higher Administrative Court handed down Ruling No. 00230-2014 on 24 June 2014, which recognized the truth of the events as reported by the claimants and the arbitrariness of the conduct of the Director of the IDAC, and ordered the immediate reinstatement of the air traffic controllers.
22. 389. The IDAC authorities ignored this ruling. It is important to emphasize that Ruling No. 00230-2014 recognizes the existence of the ADCA, even though it could not register its status under Public Service Act No. 41-08 – because this Act, as the ILO Committee of Experts on the Application of Conventions and Recommendations (CEACR) has expressed, contravenes the provisions of Convention No. 87 by requiring organizations of civil servants to affiliate at least 40 per cent of the employees of the institution concerned at the national level, and does not provide for the establishment of professional associations such as the ADCA (which affiliates workers in the air traffic control profession).
23. 390. Confronted with the IDAC’s unjustified refusal to comply with Ruling No. 00230-2014, the ADCA lodged a formal claim for financial liability against the director of the IDAC.
24. 391. In a communication dated 8 June 2015, the complainant organizations list the various rulings handed down in relation to the present case. They add that the airport authorities, who maintain a blacklist of ADCA leaders with names and photographs, bar these leaders’ access to workplaces in order to prevent them from communicating with their members. In this connection, the complainant organizations also send photographs of the arrest or temporary detention of union leaders, including that of Mr Antonio Rodríguez Fritz, general secretary of the International Transport Workers’ Federation (ITF).

B. The Government’s reply

1. 392. In its communication of 30 September 2014, the Government transmits the IDAC’s position and the comments it made on 26 August 2014 in relation to the complaint presented by the ADCA, which are transcribed in the following paragraphs.
2. 393. The IDAC is the autonomous, specialized and technical body established by Civil Aviation Act No. 491-06 of the Dominican Republic as the national aeronautical authority with responsibility for reporting to the International Civil Aviation Organization (ICAO) (which IDAC is governed by) and the international aeronautical community. It is responsible for ensuring compliance with international regulations and standards designed to guarantee the safety of civil aviation at the global level, and, in the national context, it is charged with the supervision, control and surveillance of civil aviation activities that take place across the territory and within national air space.
3. 394. As regards the complaint presented by the CNTD and ADCA to the ILO, it is important to emphasize that, far from intervening to ensure respect for workers’ legitimate and constitutional right to strike in accordance with the legally established parameters, the complainant organizations are seeking to distort the reality of events and cover up the disciplinary offences committed by various air traffic controllers in the IDAC’s employ.
4. 395. The complainants, reprehensibly, seek the ILO’s intervention in order to apply international pressure and spread misinformation. The IDAC would thus like to present the following clarifications.
5. 396. At present, the events that have occurred, and the disciplinary proceedings that have been carried out, are being examined by the Higher Administrative Court and the Constitutional Court, and the IDAC will abide by the final decisions of these bodies. Up to now, there are four judicial proceedings the results of which are pending, these being:
   • (a) a request for protective measures initiated on 7 April 2014, which is being examined by the President of the Higher Administrative Court;
   • (b) a request for protective measures initiated on 14 April 2014, which is being examined by the President of the Higher Administrative Court;
   • (c) a contentious administrative appeal made on 30 June 2014, which is being examined by the Higher Administrative Court; and
   • (d) a request for review made on 14 August 2014, which is being examined by the Constitutional Court.
6. 397. The existence of these judicial proceedings demonstrates that the request for intervention made by the CNTD and ADCA to the ILO is inadmissible, as the Dominican courts are already protecting the interested parties’ fundamental rights.
7. 398. Air traffic control is an essential public service: it prevents aircraft colliding and ensures the safety of air navigation. It is vital in safeguarding the lives of passengers and ensuring the safety of people on the ground, and the health of the whole or part of the population. It is the IDAC’s exclusive responsibility to offer this service, which is regulated by Civil Aviation Act No. 491-06 and the Dominican Aeronautical Regulations on Air Traffic Services (RAD 11), in accordance with the Convention on International Civil Aviation or “Chicago Convention” of 1944, which the Dominican Republic has signed and ratified. Article 38 of Act No. 188-11 on Airport and Civil Aviation Security establishes that in extraordinary situations this service may be provided by the Air Force of the Dominican Republic (FARD).
8. 399. Notwithstanding, even though this case does not concern the right of unions to strike or to suspend services, but relates to disciplinary proceedings initiated individually for violations of Public Service Act No. 41-08 of the Dominican Republic, it should be recalled that the ILO itself, through the Committee on Freedom of Association, has declared whether, generally speaking, a list of specific services are essential or non essential, as follows:
   • … the Committee has considered to be essential services in the strict sense, where the right to strike may be subject to major restrictions or even prohibitions, to be: the hospital sector; electricity services; water supply services; the telephone service; air traffic control.
9. 400. As air traffic controllers are civil servants, their employment relationship with the IDAC is governed by the aforementioned Public Service Act No. 41-08 and its regulations, the provisions of which are aligned with article 142 of the Dominican Constitution of 2010, which establishes the Public Service Regulations:
   • Article 142. Public Service. The Public Service Regulations comprise a system of public law based on merit and professionalization with a view to efficient management and ensuring that the State fulfils its essential functions. These Regulations will govern civil servants’ payment, promotion, performance evaluation, term of service and dismissal (Dominican Constitution).
10. 401. In addition to regulating the pay, career progression, promotion and dismissal of civil servants, the aforementioned Public Service Act clearly establishes that associations of civil servants only acquire legal personality when they register with the Ministry of Public Administration, specifically stating that any action by an unregistered civil servants’ organization is considered automatically void:
    • Article 68 of Act No. 41-08. Associations, federations and confederations of civil servants acquire legal personality by virtue of their registration with the Secretariat of State for Public Administration, which will issue the appropriate certificate. Actions taken by organizations of civil servants which have not registered with the Secretariat of State for Public Administration are considered void.
11. 402. This requirement to register with the Ministry of Public Administration is also contained in paragraph VI of article 84 of Regulation No. 523-09 on Labour Relations in Public Administration.
12. 403. On 9 April 2014, the Ministry of Public Administration issued a certificate which indicates that the ADCA:
    • … in accordance with Public Service Act No. 41-08 and its accompanying Regulation No. 523-09 on Labour Relations in Public Administration, it is not registered with this Ministry as an established association, protected by these regulations. This document proves that all actions by the ADCA, in its alleged capacity as an association of civil servants, are automatically void by virtue of article 68 of Public Service Act No. 41-08.
13. 404. The IDAC adds that the ADCA members who were dismissed from the IDAC, committed acts classified as third-degree offences by Public Service Act No. 41-08, and were then subject to disciplinary proceedings in which their right to defence was respected.
14. 405. Since the beginning of 2013, and following an increase in hostilities at the beginning of 2014, a group of air traffic controllers (Mr Wellington Almonte and others), individually and/or on behalf of and/or representing the ADCA, carried out a series of activities which constitute third-degree disciplinary offences under Public Service Act No. 41-08, and which are punishable by dismissal. Among these activities, the following were carried out repeatedly, in an arrogant manner and with a deliberate lack of discipline:
    • (a) the dissemination of false information to the national and international media, claiming that the communication equipment and radars used in air traffic control centres were in poor condition, and predicting an “imminent collapse” of the air navigation system;
    • (b) the use of the ADCA as a lobbying platform to influence the public opinion and within the IDAC, despite the fact that the association is not registered with the Ministry of Public Administration, meaning that it has no legal status as a civil servants’ association and that its actions are void in law, as is expressly established in article 68 of Public Service Act No. 41-08;
    • (c) the call to strike and picket, which were likely to interrupt the delivery of the essential public service of air traffic control, and which could have endangered the lives, health and safety of citizens. This action is also defined in the prohibition from: (i) encouraging their members to abandon their positions and duties; (ii) persuading their members to refuse to cooperate in the provision of efficient public services; and (iii) carrying out actions that violate the principles and regulations governing the development of the IDAC;
    • (d) the incitement of the ADCA members to refuse to comply with the administrative policies of the IDAC, which is an act included in the prohibitions listed in the previous paragraph; and
    • (e) disrespectful treatment and the dissemination of false information aimed at damaging the reputation of the IDAC as a public entity, and of its managers as senior officials.
15. 406. In response to a call to picket on the premises of the IDAC made by Mr Wellington Almonte and other individuals, in collusion with the CNTD (despite the fact that the IDAC effectively implemented a 35 per cent salary increase for air traffic controllers in January 2014), the Director of human resources at the IDAC sent a circular to all staff, requesting them to refrain from conducting any activities that may constitute disciplinary offences.
16. 407. Mr Wellington Almonte and other individuals ignored the aforementioned institutional warning and continued with their plan to lobby against and discredit the IDAC and its managers through the media, and consequently, the IDAC initiated an investigation and disciplinary proceedings which resulted in their dismissal. During this administrative process, the right to defence of Mr Wellington Almonte and other individuals was fully respected, as demonstrated by the proof presented by the IDAC before the Higher Administrative Court and/or the Constitutional Court.

    • Timeline of the disciplinary procedure followed by the IDAC and the legal proceedings initiated by the appellants and the ADCA
      Actions and/or events	Dates
      1. Circular issued by the IDAC with a warning of possible disciplinary offences, in response to a picket organized by the appellants and the CNTD.		31 January 2014
      2. Personnel actions ordering the suspension with pay of the appellants, in accordance with article 88 of Act No. 41-08.		19 February 2014
      3. Actions to establish a commission of inquiry, in order to investigate the disciplinary offences committed by the appellants.		20 February 2014
      4. Letters sent to Mr Wellington Almonte and other individuals requesting them to produce written evidence in their defence, which demonstrates the protection of their right to defence.		25 February 2014
      5. Decisions by the commission of enquiry on the disciplinary offences committed by the appellants.		19 March 2014
      6. Filing of an amparo appeal before the Higher Administrative Court.		19 March 2014
      7. Comments by the legal director of the IDAC, relating to the disciplinary offences committed by the appellants.		31 March 2014
      8. Decisions to carry out dismissals, issued by the Director of the IDAC.		3 April 2014
      9. Submission of a first request for an advance precautionary measure to the President of the Higher Administrative Court, by the appellants.		7 April 2014
      10. Notification of the decisions to carry out dismissals.		9 April 2014
      11. Filing of appeals for review against the IDAC.		10 April 2014
      12. Submission of a second request for an advance precautionary measure to the President of the Higher Administrative Court.		14 April 2014
      13. Filing of an administrative dispute appeal before the Higher Administrative Court.		30 June 2014
      14. Lodging of an appeal for review before the Constitutional Court.		14 August 2014

      >
17. 408. It appears that the opposition to the amendment of article 37 of Act No. 491-06, which the CNTD and the ADCA also expressed in the complaint, had no effect on the factual aspect of the disciplinary proceedings conducted, given that: (i) the legal provision was not changed and Act No. 67-13, which amended Act No. 491-06, was published in Official Gazette No. 10713 of 25 April 2013; and (ii) following the publication of Act No. 67-13, in June 2013 and January 2014, the IDAC implemented a progressive salary increase of 35 per cent for air traffic controllers.
18. 409. Despite its lack of legal status and the legal nullity of its actions, the ADCA has carried out acts that are expressly prohibited for civil servants’ organizations registered with the Ministry of Public Administration. These acts are defined in the provisions of article 88 of Regulation No. 523-09 on Labour Relations in Public Administration:
    • Article 88. Organizations of civil servants are prohibited from:
    • …
    • 2. Encouraging, initiating and supporting strikes in public services whose interruption could endanger the lives, health and safety of citizens.
    • …
    • 4. Inciting or forcing their members to abandon their positions and duties, in violation of the official regulations in force.
    • …
    • 6. Persuading their members to refuse to cooperate in the provision of efficient public services.
    • 7. Carrying out actions that violate the principles and regulations governing the development of the state administration, at any level or in any sectors or places where it is required to act.
19. 410. In this regard, Mr Wellington Almonte and other individuals committed the offences set out in paragraphs 2, 4, 18 and 21 of article 84 of Act No. 41-08:
    • Article 84. The following actions committed by any civil servant in the public administration constitute third-degree offences that will lead to dismissal:
    • …
    • 2. Carrying out, concealing, justifying or allowing, in any form, acts which undermine the interests of the State, or which cause, whether intentionally or by manifest negligence, serious financial damage to State assets.
    • …
    • 4. Demonstrating a lack of integrity or committing acts of violence, insult, defamation or immoral conduct at work, or carrying out an act detrimental to the reputation of the State or any State body or entity.
    • …
    • 18. Hosting or holding meetings that may disrupt the work of the institution.
    • …
    • 21. Repeating any of the offences defined as second degree.
20. 411. Furthermore, Mr Wellington Almonte and other individuals repeatedly committed the offences established in paragraphs 3, 7 and 10 of article 83 of Act No. 41-08:
    • Article 83. The following acts constitute second-degree offences that will lead to suspension from work for up to ninety (90) days without pay:
    • …
    • 3. Repeatedly treating colleagues, junior staff, superiors and the public in a disrespectful, aggressive, rude and offensive manner.
    • …
    • 7. Disseminating, circulating, removing or reproducing from office archives, documents or information of a confidential or any other nature, of which civil servants have knowledge as part of their work, without prejudice to the provisions contained in legislation.
    • …
    • 10. Supporting or participating in illegal strikes.
    • …
21. 412. The IDAC applies internal policies that encourage and promote the right to freedom of association. For this reason, the IDAC has six employees’ organizations which, despite not having been established as civil servants’ associations under Public Service Act No. 41-08, but instead under Act No. 122-05 on Non-Profit Associations, have enjoyed and continue to enjoy the treatment and recognition received as part of the institutional role that they play. This demonstrates that the IDAC has respected and respects the rights of ADCA members at all times, and that there has been no violation of freedom of association.
22. 413. With regard to the employee members of the ADCA, the IDAC has promoted the right to freedom of association, as, far from creating obstacles to the exercise of this right, it has recognized the ADCA as a de facto association, supported its operation, addressed its claims and interacted with its leaders, even though the ADCA has no legal status and no status as a trade union or a civil servants’ association.
23. 414. Likewise, in the disciplinary proceedings against several members of the ADCA for having committed third-degree offences established in Public Service Act No. 41-08, the constitutional principle of due process was also ensured, and no threat or arbitrary act to the detriment of the members was carried out. Therefore, there has been and is no violation whatsoever of freedom of association by the IDAC.
24. 415. In its communication dated 24 March 2015, the Government forwards the mediation agreement drafted by the Ministry of Labour on 10 June 2014 in relation to this case, and Ruling No. 030-14-00362 of the Higher Administrative Court dated 24 June 2014, Ruling No. TC/0006/15 of the Constitutional Court of the Dominican Republic of 3 February 2015, and Ruling No. 0048-2015 of the Higher Administrative Court.
25. 416. The Government adds that, in the Dominican Republic, freedom of association is a constitutional right, and therefore all necessary measures are taken to ensure that it is protected and observed.

C. The Committee’s conclusions

1. 417. The Committee observes that, in the present case, the complainants allege that, in response to the trade union claims and activities of the ADCA in 2013 and 2014 (opposition to changes in the legislation applicable to the association; privatization attempts; a public trade union complaint in the press regarding the safety of air service operations in terms of equipment and repairs; delays in the organization of competitions; payment of salary increases and other entitlements, etc.), the IDAC suspended the deduction of trade union dues as from June 2013, pressurized or threatened controllers to make them give up their membership or be excluded from training courses and promotions, did not accept the calls for dialogue made by the ADCA (and by other international trade union organizations), and its management refused to meet with ADCA representatives. They also allege that the IDAC sent a circular to all staff on 29 January 2014, requesting them to refrain from participating in trade union activities (marches, pickets, sit-ins) or risk incurring the penalties provided for by law, including dismissal. The complainants underscore that the trade union activities carried out led, as an anti-union reprisal, to the suspension of 12 of the most active leaders and members on 19 February 2014 and their subsequent dismissal, despite the fact that not one of them committed any offence established by law, which would justify their removal. The complainants add that the IDAC ignored the ruling dated 24 June 2014 of the First Chamber of the Higher Administrative Court, which ordered, as part of an amparo appeal, the immediate reinstatement of the dismissed trade union leaders and members, and that the ADCA therefore initiated legal proceedings against the Director of the IDAC for financial liability, in contempt of the aforementioned ruling. The Committee also takes note of the complainants’ allegations that the IDAC does not recognize the ADCA as a civil servants’ association and claims that it has no legal status and that its acts are void. However, it observes that the legal rulings issued on the case rejected the IDAC’s claims.
2. 418. The Committee notes that, in its reply, the Government recalls that freedom of association is a constitutional right in the country and that it includes the legal rulings issued in relation to the complaint by the complainant organizations, as well as the IDAC’s comments on the case, which are summarized below:
3. ■ the complaint by the ADCA distorts the facts, and their actions fall outside the parameters established by law; the ADCA has initiated legal proceedings in response to the events that have taken place and the disciplinary procedures carried out, and the IDAC will observe the definitive court decisions. The IDAC is therefore calling into question the origin of the complaint before the Committee on Freedom of Association;
4. ■ air traffic control is an indispensable service whose interruption could endanger the lives of passengers and the public, and the Committee on Freedom of Association has included it in the list of essential services where the right to strike may be subject to major restrictions or even prohibitions. The IDAC has recognized the ADCA as a de facto association and addressed its claims, despite the fact that it does not have legal status as a trade union. The members of the ADCA who were dismissed had committed acts defined under Public Service Act No. 41-08 as third-degree offences punishable by dismissal. These penalties were imposed following disciplinary proceedings which respected their right to defence (the IDAC gives a general outline of the different stages of the procedure followed). The offences included: (1) the dissemination of false information to the media, claiming that the communication equipment and radars were in poor condition and predicting an “imminent collapse” of the air navigation system, in addition to disrespectful treatment and the circulation of false information aimed at damaging the reputation of the IDAC and its managers; and (2) a call to strike and picket encouraging members to abandon their positions and duties, and refuse to cooperate in the provision of efficient public services and to comply with the administrative policies of the IDAC;
5. ■ organization of a picket by the ADCA, despite the fact that the IDAC had effectively implemented a 35 per cent salary increase for air traffic controllers in January 2014, and that the amendment of article 37 of Act No. 491-06 (queried by the ADCA in 2013) was not pursued;
6. ■ the offences committed by the dismissed employees are defined in: (1) article 88 of Regulation No. 523-09 on Labour Relations in the Public Service which prohibits trade union organizations from encouraging strikes in essential services, persuading workers to abandon their positions and duties, refusing to cooperate and from carrying out actions that violate the principles and rules of the State administration; and (2) article 84 of Public Service Act 41-08 which establishes the following as third degree offences that lead to dismissal: engaging in acts that seriously undermine the interests of the State or damage its reputation or that of its institutions; holding meetings that disrupt work; treating superiors in a disrespectful, aggressive, rude or offensive manner; and supporting or participating in illegal strikes;
7. ■ no threat or arbitrary act has been carried out to the detriment of ADCA members, nor any violation of freedom of association. The IDAC has six employees’ associations.
8. 419. The Committee takes note of the three legal rulings issued in relation to the present case, which have been forwarded by the complainant organizations and by the Government. The Committee observes that the first ruling (No. 00230-2014 of 24 June 2014) was handed down by the Higher Administrative Court (First Chamber) in response to an amparo appeal lodged on 19 March 2014 by the ADCA, which was declared admissible and well founded. The ruling ordered the revocation of the suspension of the trade unionists referred to in the complaint and the disciplinary proceedings against them to be reversed, in order to protect their fundamental right to freedom of association, and called for the immediate reinstatement of the plaintiffs to their positions in the IDAC. The second ruling (No. TC/0006/15) was issued by the Constitutional Court on 3 February 2015 in response to an appeal for review lodged by the IDAC on 14 August 2014 against Ruling No. 00230 2014 of the First Chamber of the Higher Labour Court. The ruling by the Constitutional Court revoked Ruling No. 00230-2014 of the Higher Administrative Court and declared the appeal lodged by the ADCA to be unjustified, on the specific grounds that: (1) “in this case, there is a specialized court that is entitled by law to guarantee the rights that may be affected by the actions of the administration, in particular disciplinary actions, as an administrative dispute court”; and (2) the Higher Administrative Court (First Chamber) concluded that freedom of association had been violated but did not ascertain “the reasoning or evidence reviewed which would allow it to determine what constitutes, in the case, the violation of the rights mentioned”. The third ruling (No. 0048-2015) of the Higher Administrative Court (First Chamber) was handed down on 26 February 2015 in response to an appeal, dated 30 June 2014, lodged by 12 air traffic controllers suspended by the IDAC and subsequently dismissed for, according to the appeal, having carried out legitimate protests. In its ruling, the Higher Administrative Court dismissed the appeal as the aforementioned controllers had failed to file it within the time frame prescribed by law.
9. 420. The Committee concludes that the only one of the three aforementioned rulings which examined the issue in depth, and which ordered, through an amparo appeal, the immediate reinstatement of the air traffic controllers dismissed on the grounds that the IDAC had violated their freedom of association, was revoked by a Constitutional Court ruling (on the grounds of flawed reasoning and evaluation of evidence by the Higher Labour Court, and the existence of an administrative dispute court to which the case should have been referred). The Committee also observes that the IDAC did not respond to the allegations that it had ignored the calls for dialogue by the ADCA and other international trade union organizations (including Public Services International (PSI)), and that it refused to meet representatives from the ADCA.
10. 421. In response to the proceedings described above, in which the legality of the dismissals carried out by the IDAC was not examined in depth by any authority independent of the parties to the dispute, the Committee does not have sufficient information to pursue its examination of the specific allegations made and issues raised in this case, which go beyond the allegations relating to the right to strike. The Committee recognizes that air traffic control can be considered as an essential service [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 585] where the right to strike may be subject to major restrictions or even prohibitions. The Committee observes however that there appears not to have been a specific determination of the extent of alleged violations regarding the exercise of freedom of association invoked by the employer, the type of action undertaken, and the legitimacy of concerns raised by the complainants about passenger safety. In this regard, the Committee also takes note of the allegations by the complainants regarding serious violations during the administrative process.
11. 422. The Committee furthermore highlights that the IDAC has not provided information or explanations on why, in June 2013, it unilaterally suspended the deduction of trade union dues for the ADCA (which had benefited from this deduction for 30 years), or why it did not comply with the order to reinstate immediately the dismissed leaders, issued by the Supreme Labour Court on 24 June 2014 (which was only revoked by the Constitutional Court on 3 February 2015), and has not referred to the allegations that the complaints regarding poor safety were supported by three other employees’ associations (which apparently were not punished). The Committee also observes that the IDAC did not reply in sufficient detail to the allegations by the ADCA regarding the alleged coercion and intimidation of ADCA members to make them give up their membership, nor to the alleged actions of the employer to promote the creation of an organization parallel to the ADCA. Moreover, the Committee observes that the IDAC has not responded to the new allegations by the complainants, according to which the leaders of ADCA were denied access to their workplaces to prevent them from making contact with the ADCA members (by retaining them or detaining them for several hours when they attempted to enter the premises). Lastly, the Committee also observes that the IDAC has not responded to the allegation that it ignored the calls to dialogue made by the ADCA and other international trade union organizations (including the PSI), and that it refused to meet with ADCA representatives.
12. 423. Observing that it has not been possible to establish the substance of this case and emphasizing the fundamental importance of tripartite dialogue, the Committee invites the Government to refer the different issues raised in this complaint to tripartite dialogue, bearing in mind the elements noted above.

The Committee’s recommendation

1. 424. In light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • Observing that it has not been possible to establish the substance of this case and emphasizing the fundamental importance of tripartite dialogue, the Committee invites the Government to refer the different issues raised in this complaint to tripartite dialogue, bearing in mind the elements noted in its conclusions.