Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Dominican Republic (Ratification: 1953)

Other comments on C098

Observation

Direct Request

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The Committee notes the comments of the International Trade Union Confederation (ITUC), the National Confederation of Trade Union Unity (CNUS), the Autonomous Confederation of Workers’ Unions (CASC) and the National Confederation of Dominican Workers (CNTD), reiterating earlier comments on the lack of effective sanctions against acts of anti-union discrimination in various enterprises, restrictions on the freedom of association of public employees and the requirement that a union must represent an absolute majority of the workers in order to bargain collectively. The Committee notes the Government’s reply to these comments.

Lengthy proceedings in the event of violation of trade union rights. The Committee requested the Government to send observations on the ITUC’s assertion that court proceedings are excessively long (18 months or more) and that collective agreements have been negotiated in only four enterprises in the export processing zones. The Committee notes that in its report, the Government indicates that under the Labour Code, special labour courts have been set up that deal with cases simply and rapidly. The Committee also notes the Government’s statement that according to a survey conducted in 2010 by the Judiciary and based on a sample of 723 cases that were settled between October 2009 and March 2010, 31 per cent of the cases were concluded in less than three months, 45 per cent took from three to six months, 17 per cent from six to nine months, 5 per cent from nine to 12 months and 2 per cent took more than a year; however, according to data supplied by the Legal Statistics Division, the average length of cases judged on the merits is 429 calendar days. The Committee points out that the existence of legal provisions prohibiting acts of anti-union discrimination is not enough if they are not accompanied by effective and rapid procedures to ensure their application in practice (see General Survey on the fundamental Conventions concerning rights at work, 2012, paragraph 190). The Committee asks the Government to ensure that further measures are taken to secure rapid and effective protection against violations of trade union rights and to report on the impact of such measures on the length of proceedings to hear complaints of such violations.

Article 2 of the Convention. Insufficiently dissuasive sanctions against acts of anti-union discrimination. The Committee asked the Government to indicate the specific penalties that may be imposed by law on persons found guilty of anti-union acts. The Committee notes that according to the Government; (1) under section 392 of Labour Code, the ordinary dismissal (without stated cause) of workers protected by trade union immunity shall be null and void; (2) where an enterprise terminates its employment relationship with a worker protected by trade union immunity in breach of the ban on termination without stated cause, the Labour Code establishes the following: (a) the termination shall be declared null and void; (b) the reinstatement of the worker shall be ordered; (c) the wages due from the date of termination to the date of reinstatement shall be paid; (d) a fine ranging from seven to 12 minimum monthly wages shall be imposed; (e) social security shall be paid; and (f) any incidental damages claimed by the worker shall be paid by order of the judge who imposed the penalties.

The Committee also notes that section 333 of the Labour Code prohibits employers from engaging in unfair or unethical labour practices, namely: (1) requiring workers or persons seeking work to refrain from joining or applying to join a union; (2) carry out reprisals against workers for engaging in trade union activities; (3) dismissing or suspending a worker for belonging to a trade union; (4) refusing, without due cause, to establish negotiations for the conclusion of collective agreements on conditions of work; (5) intervening, in any manner, in the establishment or administration of a union of workers or supporting it by financial or other means; (6) refusing to have dealings with the legitimate representatives of the workers; and (7) using force, violence, intimidation or threat, or any other form of coercion against workers or unions of workers, with a view to preventing or obstructing exercise of their rights as established by law. The Committee notes that section 720 classifies unfair practices that violate freedom of association as very serious offences punishable by fines ranging from seven to 12 minimum monthly wages (section 721(3)). The Committee requests the Government to provide information on the application of these penalties in practice, including statistical information, and on the dissuasive effects of the penalties (amount of the fines imposed and number of enterprises concerned).

Article 4. Requisite majorities for collective bargaining. The Committee points out that for many years it has referred in its comments to the fact that, in order to engage in collective bargaining, a trade union must represent an absolute majority of the workers in an enterprise or a branch of activity (sections 109 and 110 of the Labour Code). The Committee observes in this connection that the Government repeats that tripartite discussions have been held in the Labour Advisory Council with a view to amending the legislation. The Committee further observes that the Government refers to an appendix containing a draft amendment to the Labour Code (the appendix was not received). The Committee recalls that in cases where the law provides that in order to be recognized as a bargaining agent, a trade union must obtain the support of 50 per cent of the members of a particular bargaining unit, problems may arise since a majority union that fails to secure this absolute majority is thus denied the possibility of bargaining. The Committee considers that under such a system, if no union covers more than 50 per cent of the workers, collective bargaining rights should be granted to all the unions in this unit, at least on behalf of their own members (see General Survey on freedom of association and collective bargaining, 1994, paragraph 241). The Committee requests the Government to send the draft amendment to the Labour Code and hopes that sections 109 and 110 will be amended in the very near future in order to bring them into conformity with the provisions requiring the promotion of collective bargaining.

Right to collective bargaining in practice. In its previous comments the Committee asked the Government to take specific measures to promote collective bargaining and send statistical information on any collective agreements concluded in the public and private sectors, including in export processing zones, indicating the number of workers they cover.

The Committee notes from the Government’s report that according to data supplied by the General Directorate of Labour, 15 collective agreements were concluded in 2011, covering 10,056 workers, including two agreements signed in export processing zones, covering 3,438 workers. The Committee also notes that between 2010 and 2012, 11 workshops were held on freedom of association and collective bargaining and a course was organized on collective bargaining. The Committee requests the Government to continue to take measures to stimulate collective bargaining and develop it further, and to report on their effects in particular by continuing to provide statistics of the number of collective agreements signed and the number of workers covered.

Articles 2, 4 and 6. As regards public servants not engaged in the administration of the State, in its previous comments, the Committee took note of the adoption of the Public Service Act, No. 41-08, and its implementing regulations (Decree No. 523-09). The Committee expressed the hope that the protection established in the new legislation on the public service would be extended to acts of anti-union discrimination at the time of hiring and in the course of employment, prohibiting discrimination based on union membership or participation in lawful union activities (the protection as it stands covers a union’s founders and a number of its leaders, but not public officials or employees). The Committee again asked the Government to secure for associations specific protection from acts of interference by the employer such as interference in or control – financial or otherwise – of the associations’ activities. Lastly, the Committee asked the Government to establish sufficiently dissuasive penalties against such acts of discrimination and interference.

The Committee notes in this connection that the Government again refers to the provisions of the Act and its implementing regulations but provides no specific information in reply to the Committee’s requests. In these circumstances, the Committee again asks the Government to take the necessary steps to secure for public servants not engaged in the administration of the State and their associations specific protection against acts of anti-union discrimination at the time of hiring and in the course of employment and against acts of interference by the employer such as interference in or control – financial or otherwise – of the associations’ activities, and to establish sufficiently dissuasive penalties against such acts of anti-union discrimination and interference. The Committee requests the Government to provide information on these matters.

Articles 4 and 6. Right to collective bargaining of public servants. With regard to the right to collective bargaining of public servants who are not engaged in the administration of the State, who, under the terms of Article 6 of the Convention should enjoy the right to collective bargaining through their organizations, the Committee asked the Government to indicate whether under article 62 of the Constitution or under the legislation, associations of public servants now enjoy the right to collective bargaining. The Committee notes that, according to the Government, the Public Service Act, No. 41-08, and its implementing regulations (Decree No. 523-09) establish the right of public employees to form associations. The Committee invites the Government, in consultation with the most representative employers’ and workers’ organizations, to take measures to secure recognition in law of the right to collective bargaining of public servants who are not engaged in the administration of the State.