Individual Case (CAS) - Discussion: 1991, Publication: 78th ILC session (1991)

The Government has communicated the following information:

Articles 1 and 2 of the Convention

1. The need to strengthen measures protecting workers against anti-union discrimination and acts of interference

In its response of 19 March 1991 to the Committee of Experts, the Government indicated that freedom of association is expressly protected by article 8 of the Constitution of the Republic, which states that "trade union organisation is free".

The Labour Code which is presently in force contains a number of provisions which protect trade union autonomy as against both employers and the public authorities (sections 305, 307, 311 and 322 et seq.).

These guarantees of trade union rights will be reinforced by the draft Labour Code, which protects the trade union rights of the promoters and leaders of trade unions (section 394). Workers protected by the right of association may not be arbitrarily dismissed (ad natum) (section 396), and in the case of a dismissal the employer must obtain the consent of the Labour Tribunal before having recourse to dismissal (section 395).

On the other hand, the penalties in relation to violations or trade union rights provided by the Labour Code which is presently in force (sections 178(15) and 679(6)), will be substantially increased in the draft Labour Code: those who violate trade union rights will be subject to a fine between 20 and 30 times the minimum wage, or imprisonment for between 15 days and six months, or both (sections 725(3) and 726).

As concerns the communication of the Idependent Confederation of Workers (CTI) concerning the dismissal of workers in free trade zones, the Government refers to its communications to the Committee of Experts and the Committee on Freedom of Association of 19 March 1991. See also under Convention No. 87.

Finally, as regards workers who are dismissed on account of their trade union activites, the draft Labour Code declares the dismissals of workers protected by the right of association to be legally void (section 396), and that their contract of employment remains in force.

2. The exclusion of workers in agricultural enterprises employing not more than ten persons from the scope of the Labour Code

On this point the Government refers to its comments under Convention No. 87.

See under Convention No. 87 the discussion which took place in the Committee on the application of Conventions Nos. 87 and 98, as follows:

The Government communicated the following information:

1. Trade union rights in free trade zones

As concerns the trade union rights of workers in free trade zones, the Government has provided a response, dated 19 March 1991, to the direct request of the Committee of Experts. Twenty enterprise-level unions in free trade zones are currently registered by the Trade Union Registration Section of the Secretary of State for Labour. All requests for information concerning free trade zones' trade unions' conformity with the law will, without delay, be complied with.

With regard to the low rate of unionisation of workers employed in free trade zones, this is due, fundamentally, to the fact that more than 90 per cent of the personnel of enterprises situated in these zones are women from rural areas working for the first time.

Moreover, the draft Labour Code (which is currently being discussed by employers and workers before being submitted to the National Congress in conformity with the provisions of Decree No. 404/90) contains provisions aimed at overcoming all hesitation by administrative labour authorities to register these unions. In this sense, article 380 of the draft provides that "if within 60 days, the Secretary of State for Labour does not proceed to registration, the workers may give notice that such a decision shall be made and if it is not taken within 30 days, the union will be deemed to be registered with full legal effect attached with such registration".

2. Workers in agricultural enterprises employing no more than ten workers

Section 265 of the current Labour Code will be repealed when the draft of amendments to the Labour Code is adopted. The draft provides that the Code will no longer exclude agricultural enterprises which do not employ more than ten workers on a continuous and permanent basis. Henceforth, agricultural enterprises, agro-industries, farming and forestry which employ, in a continuous and permanent manner, ten or more workers, will be regulated by their provisions of the new Code (section 285 of the draft Labour Code).

3. Public officials and other workers and technicians in the public sector

Section 13 of Law No. 520 of 1920 was repealed by the Constitution of the Republic which recognised freedom of association and established that international conventions ratified by the Dominican Republic would be internally binding standards. These provisions are recent, superseding earlier law. According to article 46 of the Constitution of 1966: "all laws, decrees, decisions, regulations and acts contrary to the present Constitution are null and void".

In addition the Law on Public Function and Administrative Career, approved by the Chamber of Deputies on 22 January 1991 and by the Senate of the Republic on 8 May 1991, provides for the right of organisaton of agents of the public service (section 30 of the Law).

Law No. 56 of 24 November 1965, and Law No. 5915 of 1962, will be repealed with the approval of the draft of amendments of the Labour Code which, as has already been indicated, is currently the subject of discussions between employers and workers, before its submission to the National Congress (section 736 of the draft Labour Code).

Law No. 2059 of 22 July 1949 neither refers to freedom of association nor restricts it. Moreover, in the draft of amendments to the Labour Code, it is proposed to partially amend the law to the extent that employees of autonomous institution of State of a commercial or industrial character or in the transport sector will be regulated by the labour law, including provisions concerning the right to organise, to bargain collectively and to strike (sections 2 and 737 of the draft Labour Code).

In conclusion, in this area, the Law on Public Function and Administrative career, which came into effect with approval of the national Congress, confirms the right of trade union organisation of agents of the public function and repeals all related provisions in Law No. 2059 of 22 July 1949.

4. Restrictions on the right to strike

The draft of the new Labour Code takes into account the recommendations of the Committee of Experts: section 371 of the Labour Code is modified and section 408 of the draft excludes from the definition of "permanent public services" transport, the retailing of foodstuffs in markets, sanitary services and the sale of transport fuel. This exclusion means that strikes and work stoppages in these services will be authorised when the new Code is approved.

Similarly, section 373 of the current Code (which refers to sympathy and political strikes) will be suppressed by section 410 of the draft. Law No. 5915 of 1962 which forbids solidarity strikes will be expressly repealed by section 736 of the draft of the new Labour Code.

Regarding the vote required by section 374 of the current Labour Code to declare a strike, section 411 of the draft of amendments to the Labour Code reduces to 51 per cent the majority needed to call a strike.

In the draft of amendments to the Labour Code, it is anticipated that the arbitration procedure will be deemed activated from the date of notification of the judicial decision issued upon resumption of work, this resumption shall take place within the five days which follow the date of the above-mentioned judicial decision (sections 414 and 688 of the new Labour Code).

As concerns the conclusion of the Committee on Freedom of Association, in Case No. 1549, it should be noted that in cases of strikes touching upon public services, the workers currently have the right to resort to the National Wages Committee if the subject is within the competence of this Committee (section 370 of the Labour Code); that arbitration is regulated by section 636 and following of the current Labour Code. In consequence, the current Code includes a scheme which places in impartial hands, the regulation conflict involving economic and social order.

In addition, a Government representative, the Secretary of State for Labour, referred to the question of trade union rights of workers in free trade zones and Convention No. 87. As was pointed out in his Government's written communication, 20 enterprise-level unions were currently registered for such zones and the low rate of unionism could be due to the fact that most workers in these zones were peasant women from rural areas working for the first time. From October 1990 to May 1991, all unions requesting registration had it granted within the ten days allotted under the current Labour Code. The largest number of free trade zone unions was in the Province of San Pedro di Marcores, which had a long tradition of unionism. He repeated that the draft Labour Code contained provisions aimed at overcoming any reluctance by the administrative labour authorities to register unions in these zones. On the question of the right to organise of workers in agricultural enterprises employing no more than ten workers and public officials and other workers in the public sector, he reiterated that the new draft Labour Code would no longer exclude agricultural enterprises from its scope and that the new Act on the Public Service and Administrative Careers (promulgated on 28 May 1991) provided for the right to organise of public servants. On this latter point, with the approval of the draft amendments to the Labour Code, currently being discussed, Act No. 56 of 1965 and Act No. 5915 of 1962 would be repealed; he stated that Act No. 2059 of 1949 referred neither to freedom of association nor restricted it. In any case, the draft amendments to the Labour Code proposed partially to amend that Act so that the Labour Code would apply to the employees involved. Regarding restrictions on the right to strike he again referred to his Government's written communication, stressing that the new Labour Code took into account the recommendations of the Committee of Experts so as to exclude from the definition of "permanent public services" transport, the retailing of foodstuffs in markets, health services and the sale of transport fuel. Likewise, the new Labour Code would expressly repeal the current bans on sympathy, political and solidarity strikes. The new draft would reduce to 51 per cent, the majority vote needed for the calling of a strike. The new Code provided that arbitration did apply from the notification of the resumption of work which was to take place within five days after that notice had been issued. He repeated that the current Labour Code provided a formula for placing the settlement of economic and social disputes in impartial hands as arbitration required: one arbiter was designated by the workers, one by the employers and a third was appointed jointly by the parties.

Referring to Articles 1 and 2 of Convention No. 98 on the need to strengthen measures protecting workers against anti-union discrimination and acts of interference, the Government representative repeated the written information communited by his Government and set out in document D.4 stressing that the national Constitution expressly protected freedom of association by stating that "trade union organisation is free". In addition, the current Labour Code contained a number of provisions protecting trade union autonomy against interference by both employers and the public authorities. The new draft Labour Code would reinforce trade union rights by introducing trade union immunity to protect those forming a union, as well as union leaders; in the case of a dismissal, the employer would have to obtain the prior approval of the Labour Tribunal which would also have to examine whether there was a serious reason for such a dismissal or whether it was a reprisal based on the trade union activities of the official. The draft Labour Code would also substantially increase penalties for infringements of the Code. He explained that the question of dismissal of union leaders in free trade zones raised by the Independent Workers' Confederation before the Committee of Experts and the Committee on Freedom of Association had been taken by the unions concerned to the courts. In any case the draft Labour Code Would give absolute protection against dismissal on account of trade union activities in free trade zones. Lastly, the Government representative referred to his comments under Convention No. 87 concerning the exclusion of workers in agricultural enterprises employing not more than ten persons from the scope of the Labour Code.

The Workers' members noted the Government's written communication and the comments made by the Secretary of State for Labour describing a change in the situation concerning trade union rights in free trade zones. However, this information still had to be examined by the Committee of Experts. For the other points, the key element was the new draft Labour Code which, according to the Government, would take account of the comments made by the Experts. For Convention No. 87, these comments concerned limitations on trade union rights in agricultural enterprises employing no more than ten workers, major restrictions on the right to organise of public servants and on the right to strike in essential services. For Convention No.98, the outstanding comments concerned protection against acts of anti-union discrimination. One could talk of promised progress which had not yet taken place. The Workers' members believed that the conclusions should stress more precisely that the new legislation genuinely should respect all the obligations flowing from these two Conventions, as well as the conclusions and recommendations of the Committee on Freedom of Association in Case No. 1549 concerning strikes in essential services. All the information should be sent, including the text of the new legislation once adopted. In that way the Committee of Experts and the present Committee would be in a position to re-examine the situation next year.

The Employers' members, referring to Convention No. 87, pointed out that there were four different problems: firstly, on the question of whether freedom of association was being unreasonably restricted in free trade zones; the Committee of Experts felt that there were violations at least as far as small trade union organisations were concerned. The Government representative stated that unionisation might depend on the fact that the workers were mainly women from rural areas, but there were also other reasons for such a situation arising. According to the Government, the new Labour Code's provisions concerning registration of trade unions would considerably change and improve the situation, providing either for automatic recognition or the refusal to allow the registration of a union with the reasons being given. Secondly, a similar situation existed regarding freedom of association in the agricultural sector where, once against, the new Labour Code was supposed to bring about considerable change by abolishing the current restrictions. Thirdly, the same would happen to restrictions which have existed up to now regarding the trade union rights of public servants. They believed that these three problem areas would therefore be removed. Fourthly, as regarded restrictions on the right to strike, the Experts had given their classic definition of the right to strike, that is, that restrictions on the right to strike could be allowed in essential services in the strict sense of the term as understood by the Committee of Experts. The Employers' members did not necessarily think that this was the case as contemplated by the Convention, but this question did not need to be considered in greater depth here because the Government had stated that the legal situation was going to be changed. Of course, if the Government followed the wishes expressed by the Committee of Experts, no one would criticise it; but they were of the view that essential services in the strict sense of the term could not be defined as only concerning risks of life and limb or the provision of water and electricity. Other things could be covered by essential services as the Employers had already recalled in earlier discussions. For example, the Experts did not believe that education was an essential service which the Employers found difficult to understand given its fundamental significance. There was also the definition given in Article 31 of the Vienna Convention on the Law of Treaties. Since the Government had declared that it was going to change the situation, the Employers' members would not criticise it for following the Experts' recommendations.

As for Convention No. 98, the Employers' members noted the Government reply that it wanted to, and was going to, amend its legislation in order to bring it into line with this Convention. Thus a long discussion on this question was not necessary. Nevertheless, they noted that the Convention talked of "adequate" protection and implementation "in accordance with national law", and that specific concrete measures were not specified. There were many ways of applying this Convention and it was quite correct to refer to the ILO Constitution under which States Members undertook to apply all the Conventions they ratified and to adopt the necessary measures for their implementation. A member State had a certain room to manoeuvre in this respect and the supervisory bodies could determine the validity of the measures chosen. Since the Government had announced basic legislative reforms along the lines wished by the Committee of Experts, they did not wish to go further into this question; but they hoped that the conclusions would take their view into account.

The Government member of Germany agreed in principle with the proposals made by the Workers' members but wondered whether, firstly, specific progress had indeed been achieved in free trade zones and in working conditions there. Secondly, he wondered whether a reference in the present Committee's conclusions to the need to implement the recommendations of the Committee on Freedom of Association would be outside this Committee's mandate. As far as this particular case was concerned, he did not have any reservations really, although he pointed out that the fact that his Government was prepared to follow the Committee of Experts should not be interpreted as meaning that all governments who, at the present Committee, reached a consensus supporting the conclusions based their interpretation on the Committee of Experts.

The Government member of Argentina made the point that essential services were those which could, because of their duration, affect the life, personal safety and health of the population. No one in particular was identified, but rather the concept; to try to include education or any other service therein was not the job of the present Committee. The Committee had to adhere to the clear concept as defined by the ILO.

The Workers' member of the Dominican Republic pointed out with respect to free trade zones that these areas had grown tremendously in his country: there were now three industrial parks having more than 350 enterprises employing 120,000 workers. This was undoubtedly a means of minimising unemployment which stood at around 30 per cent in the Dominican Republic. But the working conditions in some enterprises in these zones were totally inhuman where the treatment was like that meted out in jails. The Dominican Republic Trade Union Confederation (CNTD), and other organisations, had been involved in a fierce struggle to organise as many workers as possible and to negotiate collective bargaining agreements for better working conditions. To date their efforts had not been successful. Between October 1990 and April 1991, the Ministry of Labour had recognised various trade unions in the free trade zones, five of these belonging to the CNDT. In undertakings like Westinghouse, Electric Corporation, Undergarment Fashion, Silvanya and others, once the existence of a union was known, there were dismissals of both union members and officials. The companies in these zones simply did not tolerate trade unions. In the recent past, the labour authorities had assisted these undertakings, which were mainly multinationals.

The Workers' member of the United Kingdom found that arguments were intruding into this discussion which did not affect the case whatsoever. The Government representative had indicated his intentions, and the speaker did not think that any statement made by the Employers about the right to strike - which were not shared by the Workers - should be included in the conclusions of the present Committee. He also did not agree with the suggestion of the Government member of Germany that no reference should be made to the Committee on Freedom of Association in the conclusions. The speaker could refer to conclusions reached last year where reference was indeed made to the Committee on Freedom of Association. He did not believe that new principles should intrude into the discussion of the case where the Government representative had already indicated his willingness to conform with the recommendations made by the Committee of Experts.

The Employers' member of the United States noted that reference had been made to several United States multinationals operating in export processing zones in the Dominican Republic and informed the present Committee that the United States Government, as part of its obligations under the 1988 Trade Act, had conducted in 1990 a series of investigations on the practices of US multinationals in a variety of export processing zones around the world, including the Dominican Republic. The conclusions of those studies were basically that US multinationals had exemplary practices as regarded the basic human rights standards of the ILO, that is, freedom of association, the right to organise, forced labour, occupational safety and health and child labour.

The Committee took note of the written and oral information provided by the Government and of the discussion which had taken place in the present Committee. It noted that in 1985 a direct contacts mission had prepared, in agreement with the Government, draft amendments in order to remove the serious divergencies existing between the legislation and the provisions of Conventions Nos. 87 and 98 in order to give effect to the comments made by the Committee of Experts. The Committee also noted that a new direct contacts mission had recently visited the Dominican Republic. It observed that several complaints concerning violations of freedom of association pointing to anti-union discrimination had been recently examined by the Committee on Freedom of Association. The Committee noted that the new Law on the Public Service, promulgated in May 1991, recognised the right of freedom of association for public servants. In addition, it noted with interest the assurances provided by the Government representative, according to which a draft Labour Code had been discussed with the social partners at a seminar held under the auspices of the ILO, in order to satisfy the comments of the Committee of Experts and to ensure full implementation of the provisions of these Conventions. The Committee trusted that the good provisions mentioned by the Government would come into force very shortly and would make it possible for the Committee of Experts and the present Committee to note real progress next year.

Individual Case (CAS) - Discussion: 1989, Publication: 76th ILC session (1989)

The Government has communicated the following information:

In general, workers in the Dominican Republic enjoy protection against any act of discrimination which would infringe freedom of association in relation to employment. The right to form trade unions is enshrined in the Constitution and the Government promotes full respect for trade union rights, offering to the workers all the guarantees necessary for retaining this right as a vital part of public liberties. No legal provision impedes national or legally resident foreign workers from working freely or from joining trade unions in accordance with the Constitution and the labour legislation. In some cases, foreigners who are not legally resident may work, but may not join trade unions due to their status as migrant workers.

National and foreign workers enjoy freedom of association and the right to organise both in rural and in urban areas.

As concerns the employment of Haitian workers in sugar cane plantations, there is no anti-union discrimination whatsoever by employers. This is proved by the existence of trade unions in each and every one of the installations of the CEA, a trade union at the Casa Vicini and one in the Central Romana, which are the only sugar producers in the country.

The labour authorities are evaluating a preliminary draft of legislation which would guarantee the continued existence of trade unions and protect trade union leaders in their jobs due to the exercise of their trade union duties, in order to reintroduce it to the legislature for early adoption. There is a firm will to make the necessary administrative and legislative reforms in conformity with the recommendations of the 1983 report of the Commission of Inquiry and the comments made by the Committee of Experts concerning the protection of Haitian workers against any act of anti-union discrimination which might be practised by the large employers of the sugar sector, one of the most basic of the economy. Acts of direct or indirect interference against workers' and employers' organisations or their members or representatives, are now practically non-existent. As for their establishment, functioning and administration, this kind of organisation has complete independence in accordance with the guarantees contained in the Constitution and labour legislation; the authorities of the State Secretariat of Labour maintain strict supervision in this regard.

Other important preliminary drafts of legislation and various administrative provisions are being evaluated, drafted or redrafted, in order to attain higher levels of compliance with Conventions Nos. 87 and 98, such as the extension of the coverage of the Labour Code to agricultural, agroindustrial and forestry undertakings which permanently employ fewer than ten workers; extension of the coverage of section 307 of the Labour code, strengthening sections 678(15) and 679(6) of the Labour Code concerning sanctions for violations of section 307; the adoption of adequate measures to guarantee effective protection against any act of antiunion discrimination or interference, and measures for reintegration in employment preventive measures and penal sanctions involving prison sentences.

The Government trusts that it will soon be able to inform the ILO of the adoption of a package of measures for the amendment of the present legislation so as to bring it into complete conformity with the Convention.

As concerns the specific cases of violations of trade union rights of migrant workers, acts of anti-union discrimination and interference with trade union organisations, alleged by the General Confederation of Workers in its communications of 3 and 31 January 1989 to the ILO, the Government refers to the comments it recently made in a communication to the ILO.

In relation to other aspects of the application of this Convention, the Government refers to the report it has submitted on the application of Convention No. 87 for the period ending 30 June 1989.

The General Directorate of Mediation and Arbitration of the State Secretariat of Labour has intensified its work, and has made important progress among workers' organisations, stimulating collective bargaining and the conclusion of new, significant and satisfactory collective agreements and peaceful solutions to innumerable labour conflicts. It has also supported the development of new trade union organisations, all of which are indicators of the peaceful labour situation in the Dominican Republic.

Individual Case (CAS) - Discussion: 1988, Publication: 75th ILC session (1988)

See under Convention No. 105, as follows:

A Government representative stated that since 16 August 1986 his country had entered into a different political and economic period and that they were now concerned to correct fundamental errors and to reconstruct the nation's forces. This did not imply recognition of the accusation made with respect to non-compliance with Conventions Nos. 98 and 105. In relation to Convention No. 105. In relation to Convention No. 105 it had not ruled out that violations of this Convention had been committed in the past, but the Government had now adopted remedial measures which respected human rights. Amongst others these included the need to seek out and repress the recruitment of foreign workers and their clandestine employment. At present, they were carrying out periodic investigations in regard to clandestine employment in the sugar plantations. Illegal immigration from Haiti was very difficult to control. His country did not wish to carry out mass repatriation in applying, with police help, the laws concerning migration and health. Clandestine employment and its inherent wrongs derived from the social and economic conditions of Haiti.

In regard to Convention No. 98, he stated that no legal text prevented a worker, national or foreign, from enjoying the rights to live and to work, or to join a trade union, the organisation of which was provided for in the Labour Code. Haitian workers were, in every respect, entitled to the same rights in regard to employment as foreign or Dominican workers. Labour legislation was applied without any difference to foreign workers. Given that the 1983 Commission of Inquiry had taken place in an era in which Government authorities neglected to show the attention that it should have to a number of crucial problems, his Government had made a request to the Director-General of the ILO for a direct contacts mission to be undertaken in the Dominican Republic as soon as possible.

The Workers' members stated that this case had been discussed for several years but that the situation remained unchanged. A new and interesting element in this case was the official request by the Government for a high-level direct contacts mission to be carried out. This mission should look into all problems, it should involve the Government, employers' organisations and trade unions, and it should draw up recommendations in order to bring about the necessary changes in law and practice. Referring to Convention No. 95 they stated that this Convention represented protection for people who lived in acute poverty. As yet no satisfactory reply had been given, either to the observations of the Committee of Experts or to the recommendations of the Commission of Inquiry in regard to this intolerable situation. In regard to Convention No. 98, they regretted the violation of the trade union rights of rural workers who had been excluded from the provisions of the Labour Code, and that the Government had merely given a promise to consider draft legislation. They stressed the importance of the agricultural sector which in their opinion merited special attention. In relation to Convention No. 105 they referred to the unacceptable situation of Haitian plantation workers, which, although frequently illegal, was tolerated by the Government as well as exploited by employers. Having taken into consideration the good will that the Government had shown, they proposed that the case be mentioned in a special paragraph in order to emphasise the importance both of the problem and the Government's willingness to resolve it. They hoped that the mission requested by the Government would contribute to the improvement of the situation in the two countries.

The Employers' members observed that this case had been under discussion since 1973 and that according to the report of the Committee of Experts specific replies to important questions had still not been received. In regard to Convention No. 95, the 1983 Commission of Inquiry had made specific recommendations for wage protection. In particular, this concerned the Payment of wages in negotiable vouchers, and the observance of minimum wages on sugar plantations where wages were based on output, that is, on the quantity of sugar cane harvested. The Government representative had not replied in a specific manner to any of these questions. The situation was the same for Convention No. 98. The Commission of Inquiry had drawn up a series of recommendations in regard to the application of this Convention to Haitian workers who were employed on sugar cane plantations. No specific measures had been taken in response to these, and the statement by the Government representative confirmed previous statements on the difficult in controlling those people who had entered the country illegally. In reference to Convention No. 105 the Report of the Committee of Experts indicated that although Haitian workers were not legally hired but were obliged by force to carry out the work in the Dominican Republic. The Government had mentioned illegal immigration and the problems therein, but had not given any information on whether or not new agreements between Haiti and the Dominican Republic had been concluded. The Employers' members considered that the only new item in the discussion had been the proposal to send a direct contacts mission, but this did not alter the fact that the Government representative had not mentioned anything which had actually changed the situation or would change it in the future. They remarked that three important Conventions had been violated in the Dominican Republic and regretted the discrepancy that existed between the standards and their application.

The Government representative of Haiti announced his satisfaction with the statement made by the Government representative of the Dominican Republic in which he spoke of the willingness of his Government to put an end to the errors which had been made in the past. However, he was surprised that the requirement to observe the Conventions was considered to be a punishement and that Haitians had benefited from the good will of the Dominican Republic when this behaviour was in any case required by the Conventions. The case caused great anxiety to his Government and was of great interest to Haitian citizens. He considered it opportune that a direct contacts mission was to be undertaken but stressed that the carrying out of this mission should not end the discussion of this case by the Committee.

The Worker member of the Dominican Republic stated that Convention No. 98 continued to be violated by private and public employers and that the Labour Code contained provisions which did not comply with the Convention. As well, in one specific case, in the Dominican Republic the Executive Power had frozen the application of a collective agreement. Notwithstanding this, the present Government could not be accused of having an anti-trade union attitude. Recently tripartite dialogue had taken place and had led to a draft amendment being presented to the National Congress to change those provisions which did not comply with Convention No. 98. She stated that Haitian workers were members of trade unions, with rights to vote and be elected. The problem which did exist affected all workers and concerned the establishment of trade unions.

Referring to Convention No. 95 she said that the problem of the exclusion of agricultural workers from the Labour Code continued to exist. In relation to Convention No. 105 she remarked that there was a problem, which was widely known. She believed that if the Dominican Republic was traditionally going to seek Haitian workers for sugar cane harvesting, the Government was obliged to offer these workers normal and adequate living and working conditions. She stated she was satisfied with the present positive attitude of the Government, which was aware of the problem and had proposed that a mission visit the country in order to find a solution to the problem.

The Worker member for the United States of America emphasised the importance of the case which had now been discussed by the present Committee for the fifth consecutive time. Noting that the case concerning Convention No. 105 had appeared in a special paragraph in 1984 and 1987, he insisted on the necessity to undertake action, which could take the form of a direct mission.

The Workers' members proposed that the text of the conclusion appear in a special paragraph of the report of the present Committee. They stated that they were satisfied with the frank and constructive discussion which had taken place.

The Employers' members agreed to the Workers' members' proposal. They repeated that the special paragraph was not a penalty but highlighted a particular problem. They hoped that the text of the special paragraph would reflect the hopes that the direct contacts mission had given rise to.

The Committee took note of the information provided by the Government representative, as well as the extensive and detailed discussion which took place in the Committee while expressing its concern as regards the situation. The Committee welcomed the proposal made by the Government to invite an ILO direct contacts mission. The Committee expressed the hope that this mission would assist in removing the various discrepancies which existed regarding the application of these Conventions as well as others covered by the Commission of Inquiry in 1983, and that the Government would be able to report progress in law and practice the following year. The Committee decided to include this case in a special paragraph of its general report.

Individual Case (CAS) - Discussion: 1987, Publication: 73rd ILC session (1987)

A Government representative stated that the situation had changed in that in 1987, just as in the two previous years, no Haitian workers had been engaged. Furthermore, there had been contacts between the Governments of Haiti and the Dominican Republic with a view to obtaining a complete and extensive revision of the process of recruiting Haitian workers.

The Workers' members stated that they had no information relating to the hiring of Haitian workers in 1987. In contrast, as far as 1986 was concerned they had received information according to which Haitian workers had been engaged and the existence of forced labour that been reported. As far as the right to collective bargaining was concerned there were serious difficulties since trade union representative did not enjoy any protection and could be dismissed. They felt it was impossible to have a clear view of the situation because of the lack of information and the absence of a reply from the Government, circumstances which prevented any dialogue. They considered that in spite of what the Government representative had said, this case should be mentioned in a special paragraph. They hoped that the information requested would be provided as quickly as possible and that the necessary progress would be achieved so as to ensure full conformity with this Convention and Conventions Nos. 95 and 105.

The Employers' members observed that no changes had occurred in the legislation. They stated that in spite of the Government representative's statement, there was informal recruitment of Haitian workers and this recruitment took place in conditions which were far from satisfactory, if not deplorable. They observed that no reply to the comments of the Committee of Experts had been received and stated that as long as no steps were taken to put the legislation into conformity with the Convention, this should be indicated in the report. The Employers' members supported the Workers' members' proposal that this case be mentioned in a special paragraph.

The Government representative stated that there was no forced labour in the Dominican Republic. He said that for two years no Haitian workers had been recruited and that Haitians working in the Dominican Republic enjoyed the same rights as Dominican workers. What did exist was clandestine work by Haitian workers who illegally crossed the border. This was a phenomenon which could be controlled only with difficulty. Nevertheless the authorities of the tow countries were working in good faith to resolve these problems. He hoped that the good faith of the Government, proof of which was its appearance before this Committee, would also be acknowledged.

As concerns the application by the Dominican Republic of Convention No. 98, the Committee took note of the explanations provided by the Government representative. It observed with regret that no information had been provided in reply to the comments of the Committee of Experts. This Committee hoped that the necessary action would be taken soon and that the progress that had been achieved would be reported. The Committee decided to mention this case in a special paragraph of its report.

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Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes the Government’s reply to the comments made by the International Trade Union Confederation (ITUC) dated 28 August 2007, which refer to various acts of anti-union discrimination, particularly the dismissal of workers in various enterprises (betting and lottery, cardboard packaging, beverages, agri-exports and an enterprise in an export processing zone (EPZ)) for attempting to set up trade unions. The ITUC also alleges delays in the admission and handling of cases. The Committee further notes the Government’s indication that: (1) the length of labour judgements has been reduced considerably and they currently take less than one year; (2) special labour courts have been set up in most provinces which have a large economically active population; (3) the number of labour inspectors has been increased and their salaries have improved (12 of these inspectors undertake periodic visits to sugar refineries); (4) a programme has been implemented for awareness raising of rights at work, particularly on freedom of association and trade union immunity. The Committee also notes the Government’s statement that, in 2006 and 2007, 18 unions were registered in the EPZs. With regard to the allegations of anti-union discrimination, the Government points out that, in the betting and lottery enterprise, the registration of the enterprise union was effected; in the cardboard packing enterprise, infringements were reported and a negotiation process is currently under way; in the beverages enterprise, an infringement of freedom of association was reported and an agreement was reached between the workers and the representatives of the enterprise. As regards the agri-export enterprise and the EPZ enterprise, the Government states that no violations of freedom of association were found.

The Committee also notes the comments from the ITUC dated 26 August 2009 which refer to the matters examined by the Committee and the length of judicial proceedings, which go on for some 18 months or more, and indicate that collective agreements have been negotiated in only four export processing enterprises. While noting the Government’s statement that the length of judicial proceedings has been reduced to less than one year, the Committee requests the Government to send its observations on these comments.

Article 2 of the Convention. Lack of sufficiently dissuasive penalties against acts of anti-union discrimination. The Committee previously asked the Government to carry out a full investigation into the allegations from the ITUC dated 31 August 2005 regarding the absence of effective penalties for acts of anti-union discrimination, the dismissal on trade union grounds of leaders in sugar plantations, the drawing up of blacklists of trade unionists in EPZs and the dismissal of all the founding members of a trade union which the administrative authority had refused to register. The ITUC refers once again to this matter in its comments made in 2009. The Committee previously asked the Government to provide further information on the absence of effective penalties for acts of anti-union discrimination. In its 2009 comment, the ITUC emphasizes the fact that the penalties are not sufficiently dissuasive. While observing that the Government has not sent any specific information in reply to the allegations made by the ITUC in 2005, the Committee notes the Government’s statement that information and guidance are provided on an ongoing basis to workers who report violations of their trade union rights. Moreover, in 2007 and 2008 numerous inspections were carried out (12 of them in EPZs) on the basis of requests made by union federations or the unions themselves, and on the occasions when violations of freedom of association were established, reports of the infringements were drawn up and sent to the courts so that the appropriate penalties could be imposed. Accordingly, nine reports of infringements were dealt with in 2007 and seven in 2008. Recalling once again that investigations should be carried out without delay in cases where acts of anti-union discrimination are reported, the Committee expresses the firm hope that the Government will carry out an investigation without delay into these allegations and thus be able to assign responsibility and, if appropriate, impose sufficiently dissuasive penalties. The Committee also requests the Government to state which specific penalties may be imposed under the legislation for persons found guilty of anti-union acts.

Article 4. Majorities required to engage in collective bargaining. The Committee recalls that it has been commenting for many years on 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 the workers in a branch of activity (sections 109 and 110 of the Labour Code). The Committee observes that the Government has not sent its observations in this respect and recalls that in its previous observation it noted that the Labour Advisory Committee had held a meeting with a view to establishing consensual proposals between the social partners and the Government for amending the legislation. The Committee recalls that in cases where the law provides that, in order to be recognized as a bargaining agent, a union has to obtain the support of 50 per cent of the members of a specific bargaining unit, problems may arise since a majority union which 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 of 1994 on freedom of association and collective bargaining, paragraph 241). The Committee again requests the Government to take the necessary steps without delay to amend sections 109 and 110 of the Labour Code in order to bring them into conformity with the provisions requiring the promotion of collective bargaining.

Right of collective bargaining in the public sector. The Committee notes with interest that, on 16 January 2008, Act No. 41-08 concerning the civil service and its implementing regulations (Decree No. 523-09) were enacted. The Committee appreciates that this Act establishes the right to organize for civil servants, including in federations and confederations, and that it applies to those employed in the service of the State, municipalities and autonomous entities, guaranteeing special protection (organizational immunity) to the founders of associations and to some members of their executive committees. Penalties for violations of this protection are also provided for, ranging as far as dismissal from the post concerned.

The Committee expresses the hope that the protection provided for in the new legislation extends to acts of anti-union discrimination at the time of recruitment and in the course of employment, prohibiting any discrimination on the basis of union membership or participation in legitimate union activities. The Committee also requests the Government to establish specific protection for associations against interference from the employer aimed at interfering in or controlling the activities of the organization, whether in the form of financial control or otherwise. The Committee also requests the Government to lay down sufficiently dissuasive penalties against such acts of discrimination or interference.

Finally, the Committee observes that although the new regulations guarantee the legal right to strike, they are silent with regard to the right to collective bargaining of public servants 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. The Committee therefore requests the Government to take the necessary steps, in consultation with the trade unions concerned, to ensure recognition of this right and provide information in this respect.

Right to collective bargaining in practice. The Committee further notes the Government’s statement that 15 collective agreements were registered in 2007 and 14 collective agreements were filed for registration in 2008, in the latter case benefiting 7,420 workers. The Committee observes that the numbers of agreements and workers covered are low, and it is not clear from the information supplied by the Government whether the figures refer to the private or public sector. While recalling that, under Article 4 of the Convention, the Government has the obligation to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers and workers, the Committee requests the Government to take specific measures in this respect and send statistical information on any collective agreements concluded in the public and private sectors, including in the EPZs, indicating the numbers of workers covered by them.

Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee notes the Government’s report. It also notes the comments of the International Trade Union Confederation (ITUC) of 28 August 2007, which refer to various acts of anti-union discrimination. The Committee asks the Government to send its comments in this regard.

Article 4 of the Convention. 1. Majorities required to engage in collective bargaining. The Committee recalls that it has been commenting for many years on 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 the workers in a branch of activity (sections 109 and 110 of the Labour Code). The Committee notes the Government’s statement to the effect that on 18 July 2007, the Consultative Committee on Labour held a meeting with a view to establishing consensual proposals between the social partners and the Government for amending the legislation. The Committee regrets to note that despite the amount of time that has elapsed, no specific progress has been made with regard to amending the legislation. The Committee asks the Government to take the necessary steps to bring its legislation fully into line with the provisions of the Convention and to keep it informed of any developments in this respect.

2. Coverage of collective bargaining in the public and private sectors in practice. The Committee notes that the Government has not sent any information in this respect. The Committee asks the Government to provide statistics on the collective agreements concluded in the private and public sectors, including in export processing zones, indicating the number of workers covered by these agreements.

3. Comments by the ITUC. The Committee previously noted the comments by the ITUC on the absence of effective sanctions for acts of anti-union discrimination, the dismissal on trade union grounds of leaders in sugar plantations, the drawing up of blacklists of trade unionists in export processing zones and the dismissal of all the founding members of a trade union which the administrative authority had refused to register. In this regard, the Committee notes that the Government has provided information on the campaigns for the promotion, dissemination and observance of labour legislation in sugar refineries, the labour inspections carried out on sugar plantations, the workshops on labour law and the satisfactory settlement of labour disputes in export processing zones, the campaign to disseminate information on labour rights and fundamental Conventions, and the effective registration of the trade union which the administrative authority had previously refused to register, but that it has not provided any concrete information on the allegations made by the trade union. The Committee reminds the Government that in the event of allegations of acts of anti-union discrimination, investigations should be carried out without delay, and that if the allegations are confirmed, sufficiently dissuasive sanctions should be imposed. The Committee therefore asks the Government to carry out a full investigation into the matters referred to by the ITUC and to inform it of the outcome. It also requests the Government to provide further information on the absence of effective sanctions for acts of anti-union discrimination.

Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes the comments of the International Confederation of Free Trade Unions (ICFTU) of 10 August 2006, which refer, for the most part, to pending legislative issues and issues relating to the application of the Convention in practice which are already being examined. Moreover, the ICFTU cites the dismissal of all the founding members of a trade union which the administrative authority had refused to register. In this respect, the Committee asks the Government to send its observations regarding the ICFTU’s allegations.

The Committee also asks the Government to communicate, in accordance with the regular reporting cycle and in time for its next meeting in November-December 2007, its observations on all the legislative issues and issues relating to the application of the Convention in practice that were mentioned in the Committee’s previous observation in 2005 (see 2005 observation, 76th Session).

Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee notes the Government’s report and the comments of the International Confederation of Free Trade Unions (ICFTU).

Article 4 of the Convention. The Committee has been commenting for many years on 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 the workers in a branch (sections 109 and 110 of the Labour Code). The Committee notes that the Government intends to deal with this matter in the Consultative Committee on Labour and hopes to have the support of the social partners for amending the abovementioned provisions. The Committee expresses the hope that the above amendments will be made in the near future and requests the Government to keep it informed on this matter.

The Committee also notes the statistical information supplied by the Government which it requested at its previous examination, concerning the conclusion of 17 collective labour agreements covering 5,086 workers, seven of which pertain to industry, four to services, two to commerce, one to agriculture and three to export processing zones (one of the three covers the period from January to July 2005 and the other two were deposited in August 2005). The Government also states that the Mediation and Arbitration Directorate intervened in 41 collective labour disputes, 13 of which were settled by formal agreement and three by informal agreement, with 15 agreements still pending. The Committee observes that the Government provides no information on the existence of collective agreements in the public sector. In view of the number of agreements and the coverage of collective bargaining, it requests the Government to take further steps to promote bargaining. It also requests the Government to continue to send statistical information on any collective agreements concluded in the public and private sectors.

Lastly, the Committee notes the Government’s observations on the comments by the ICFTU. The Committee requests the Government to give further details on the comments referring to the absence of effective sanctions for acts of anti-union discrimination, dismissals on trade union grounds of leaders in sugar plantations and blacklists of trade unionists in export processing zones. The Committee brings to the Government’s attention that in case acts of anti-union discrimination are denounced, investigations should take place without delay and if the allegations are confirmed, sufficiently dissuasive sanctions should be imposed.

Observation (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee notes the Government’s report.

The Committee notes the information provided by the International Confederation of Free Trade Unions (ICFTU) on 30 September 2002, and the Government’s reply to a number of these comments.

Article 4 of the Convention. The Committee recalls that for many years it has been referring in its comments to the requirement for a trade union to represent an absolute majority of workers in an enterprise or of the workers employed in a particular branch of activity to be able to bargain collectively (sections 109 and 110 of the Labour Code). The Committee notes that, in its comments on the application of the Convention, the ICFTU indicates that coverage by collective agreements is minimal, largely as a consequence of these legislative provisions. In this respect, the Committee regrets to note that the Government has not provided any new information on this subject and confines itself to indicating that collective bargaining is a recognized right in the country and reiterating the statement made in its previous report that the Advisory Labour Council will be convened to examined this matter. In these conditions, the Committee emphasizes once again that this requirement is excessive and that in many cases it could constitute an obstacle to collective bargaining and to its promotion in general; in any case, minority trade unions should be able to negotiate on behalf of their own members. The Committee hopes that in the very near future the Government will take the necessary measures to make the necessary amendments to the legislation and requests the Government to provide information in this respect.

The Committee also requested the Government to provide statistical data on the number of collective agreements concluded in the public and private sectors, including export processing zones, during the period covered by the report (with an indication of whether they are collective agreements concluded at the enterprise or branch level and the number of workers covered). The Committee also notes the ICFTU’s indication that at the end of 2001 only three collective agreements were in force in export processing zones. In this respect, the Committee notes the Government’s statement that 140 trade unions are in operation in the export processing zone sector, that there are eight collective agreements in that sector, and that the Directorate of Mediation in the Secretariat of State for Labour intervened in 51 collective labour disputes, carrying out functions of mediation and arbitration. The Committee requests the Government to indicate in its next report whether the eight collective agreements concluded in export processing zones to which it refers are of recent date, with an indication of the number of workers covered by them, as well as information on the collective agreements that have been concluded in the public and private sectors.

The Committee also requested the Government to provide information on the application of an accord concluded between the Dominican Association of Free Trade Zones (ADOZONA), the United Federation of Workers of Free Trade Zones (FUTRAZONAS) and the National Federation of Workers of Free Trade Zones (FENATRAZONAS) which provides, among other measures, for strengthening and guaranteeing compliance with trade union rights and the promotion of collective bargaining. In this respect, the Committee notes the Government’s indication that dialogue and good understanding prevail between the parties and that satisfactory accords have been concluded.

Finally, the Committee regrets to note that, with the exception of a general statement that the legislation provides for trade union protection and that dismissals require the approval of the judicial authority, the Government has not provided information on the comments of the ICFTU which refer to: the failure to give effect to the prohibition of acts of anti-union discrimination; dismissals and other anti-union acts against trade union leaders and members in various enterprises in export processing zones, sugar plantations and health sector institutions; and the denial of collective bargaining in the sugar plantation sector and the health sector. The Committee requests the Government to provide full comments on these observations in its next report.

Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee notes the information supplied by the International Confederation of Free Trade Unions (ICFTU) in a communication of 30 September 2002 raising questions about the application of the Convention. The Committee requests the Government to send its observations thereon in its next report so that the Committee may examine the questions at its next meeting.

Observation (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee notes the Government’s report.

Article 4 of the Convention. The Committee recalls that for many years it has been referring in its comments to the requirement for a trade union to represent an absolute majority of workers in an enterprise or of workers employed in a particular branch of activity to be able to bargain collectively (sections 109 and 110 of the Labour Code). The Committee reiterates that this requirement is excessive because in many cases it could constitute an obstacle to collective bargaining or even make it impossible. The Committee notes that the Government states once again that the question of amending sections 109 and 110 will be submitted to the Advisory Labour Council with a view to requesting the ILO’s technical assistance. The Committee hopes that in the near future the Government will take the necessary measures to make the required amendments to the legislation and requests the Government to keep it informed in this respect.

The Committee also notes the Government’s statement that the Directorate of Mediation of the Secretariat of State for Labour serves as the machinery to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or employers’ organizations with a view to the regulation of terms and conditions of employment by means of collective agreements. The Committee requests the Government to provide statistical data in its next report on the number of collective agreements concluded in the private and public sectors, including in export processing zones, for the period covered by the report (with indications of whether they are collective agreements concluded at the enterprise or branch level and the number of workers covered).

Finally, the Committee notes with interest that an accord was concluded between the Dominican Association of Free Trade Zones (ADOZONA), the United Federation of Workers of Free Trade Zones (FUTRAZONAS) and the National Federation of Workers of Free Trade Zones (FENATRAZONAS) following a tripartite seminar promoted by the Department of International Labour Standards, which provides, among other things, the reform and the guarantee of the respect of the exercise of the right to freedom of association and the promotion of collective bargaining. The Committee requests the Government to provide information along with its next report on the application of this accord.

Observation (CEACR) - adopted 1999, published 88th ILC session (2000)

The Committee notes the Government's report.

Article 4 of the Convention. In its earlier observation, the Committee had noted the requirement for an absolute majority of workers in an enterprise or of workers employed in a particular branch of activity to be represented in order for a trade union to be able to bargain collectively (sections 109 and 110 of the Labour Code). The Committee considered this requirement excessive because, in many cases, it could constitute an obstacle to collective bargaining or even make it impossible. The Committee notes the Government's statement to the effect that whilst no steps have been taken to amend the Labour Code to reduce the majority required to bargain collectively or, at least, to allow a sufficiently representative minority union to conclude collective agreements on behalf of its members, the Government is submitting the Committee's observation to the Consultative Labour Council for review. The Committee also notes with interest the Government's request for ILO technical assistance on this matter. It hopes that the Government shall shortly be in a position to make the necessary amendments and requests the Government to inform it of any developments in this regard.

Observation (CEACR) - adopted 1997, published 86th ILC session (1998)

The Committee takes due note of the information provided by the Government in its report.

The Committee recalls that in previous comments it referred to the lack of collective agreements in export processing zones. In this respect, it notes the information provided by the Government indicating that eight new collective agreements have been concluded in such zones.

Furthermore, the Committee also referred to the requirement for an absolute majority of workers in an enterprise or of workers employed in a particular branch of activity to be represented in order for a trade union to be able to bargain collectively (sections 109 and 110 of the Labour Code). The Committee observes that in its report the Government states, with reference to comments made previously by the National Union of Agricultural Workers of Sugar Plantations concerning the refusal of the State Sugar Board to negotiate a collective agreement, that the refusal is based on the fact that an absolute majority of the workers in the enterprise is not represented in the trade union in question for the purposes of negotiating a collective agreement.

In this respect, the Committee considers that the requirement for an absolute majority of workers in an enterprise or branch of activity to be represented, in order for a trade union to be able to bargain collectively, is excessive and, in many cases, may constitute an obstacle to collective bargaining or even make it impossible. The Committee requests the Government to take the measures necessary to amend the provisions of the Labour Code, in order to encourage and promote free collective bargaining, by reducing the majority required for negotiations, or at least by allowing a sufficiently representative minority union to conclude collective agreements on behalf of it members.

Observation (CEACR) - adopted 1996, published 85th ILC session (1997)

The Committee notes the Government's report and the observations from the National Union of Sugar Plantation Agricultural and Allied Workers (SINATRAPLASI), the Cane Cutters' Union of the Barahona Plantation (SIPICAIBA) and the Union of Plantation and Allied Workers of the Barahona Plantation (SITRAPLASIB), on the application of the Convention.

The Committee recalls that its previous comments concerned:

- the absence of collective agreements in export processing zones; and

- the requirement that, for trade unions to bargain collectively, their membership must include an absolute majority of the workers in an enterprise or of the workers employed in the branch in question (sections 109 and 110 of the Labour Code).

With regard to workers in export processing zones, the Committee notes with interest that the first four collective agreements were concluded in 1994 and that the tripartite committee for the harmonization of labour relations in export processing zones, established by an agreement of 22 April 1994, obtained the signature of eight labour agreements between enterprises and unions (the Government sent the texts). The Committee also notes with interest that the Secretary of State for Labour will continue to encourage the development of voluntary negotiation procedures with a view to regulating employment conditions in the export processing zones, through the above-mentioned tripartite committee, and will communicate any relevant changes in the legislation and practice.

With regard to the requirement of an absolute majority in order to bargain collectively, the Committee takes due note that, under section 111 of the Labour Code, when none of the unions in an enterprise has an absolute majority, the collective agreement may be concluded jointly by the unions representing each of the occupations, provided that an absolute majority is thus obtained. Notwithstanding the foregoing, the Government has again asked the workers' and employers' organizations for their opinion on the comments of the Committee of Experts.

In their observations, SINATRAPLASI, SIPICAIBA and SITRAPLASIB refer to anti-union acts (threats, intimidation, repression) against workers wishing to join unions or which participate in union activities, and the systematic refusal of the State Sugar Board to bargain collectively.

The Committee asks the Government to take appropriate steps to ensure that, in practice, sugar plantation workers have adequate protection against acts of anti- union discrimination and can conclude collective agreements on conditions of employment, and hopes that it will continue to report on progress made, in both law and practice, in the matters raised, towards full compliance with the provisions of the Convention.

Observation (CEACR) - adopted 1994, published 81st ILC session (1994)

The Committee notes the Government's report and the new Labour Code (29 May 1992) as it relates to freedom of association and collective bargaining.

The Committee recalls that its previous comments referred to:

- the insufficient protection provided to workers against acts of anti-union discrimination and acts of interference (sections 678(15) and 679(6) of the former Code);

- the exclusion from the scope of the Labour Code of workers in agricultural enterprises employing no more than ten workers (sections 281 and 307 of the former Code);

- the absence of collective agreements in export processing zones.

The Committee notes with satisfaction that the new Labour Code sets out trade union rights (section 390), increases the level of fines and sanctions as punishment to the authors of anti-union acts and discriminatory practices (sections 720 and 721), and that the provisions of the Labour Code respecting protection against anti-union discrimination and the promotion of collective bargaining for the determination of terms and conditions of employment through collective agreements (sections 103 and 281) are applicable to workers in agro-processing, stock-raising and forestry enterprises, as well as in export processing zones.

With regard to workers in export processing zones, the Committee notes the Government's statement that there are not yet any collective agreements between trade unions and employers, since trade unions are only authorized to negotiate collective agreements when their membership includes an absolute majority of the workers in the enterprise or the workers employed in the branch in question (sections 109 and 110 of the Labour Code).

As regards legislation restricting recognition to an association which has a membership or the support of more than 50 per cent of the persons in a given bargaining unit (absolute majority), it follows that a trade union, even with a majority, that does not cover 50 per cent of the persons in a unit cannot obtain a certificate as a recognized bargaining agent; the Committee has recalled on various occasions that, if under a system of nominating an exclusive bargaining agent there is no union covering 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 1994 General Survey on Freedom of Association and Collective Bargaining, paragraph 241). The Committee therefore considers that this requirement is too high and is liable to render collective bargaining difficult for trade union organizations covering all categories of workers, both at the level of the enterprise and the branch of activity.

The Committee requests the Government, in consultation with the social partners, to take steps to amend the law so that organizations of employers and workers are not impeded in their exercise of collective bargaining in accordance with Article 4 of the Convention and requests the Government to continue to supply information in its next report on any measure which has been taken or is envisaged to encourage and promote, in respect of employers in export processing zones and the organizations of workers, the full development and utilization of machinery for voluntary negotiation with a view to the determination of terms and conditions of employment.

Direct Request (CEACR) - adopted 1991, published 78th ILC session (1991)

Article 4 of the Convention. The Committee takes note of the information concerning the application of the above provision of the Convention and notes in particular that 40 collective agreements were concluded for 1989 and 1990 and that there are eight collective agreements governing the employment conditions of workers employed in the enterprises of the State Sugar Board.

As regards the situation in the free export zones, the Committee notes from the information provided by the Government that there are only agreements negotiated on an ad hoc basis or agreements negotiated directly between workers and employers and that, furthermore, workers in this sector reportedly do not seek assistance from union federations as they consider that they would not defend the interests of the workers but would act out of political considerations.

The Committee asks the Government to provide information on the measures contemplated to promote the full development and utilisation of voluntary negotiating procedures for collective agreements between employers and trade union organisations in the free zone sector, in accordance with this provision of the Convention and to provide a copy of any collective agreement concluded in this sector.

Observation (CEACR) - adopted 1991, published 78th ILC session (1991)

The Committee takes note of the Government's report and of the comments dated 19 October 1990 forwarded by the Independent Workers' Confederation (CTI) involving the same topic.

Articles 1 and 2 of the Convention

1. The need to strengthen measures protecting workers against anti-union discrimination and acts of interference

For several years, the various supervisory bodies called upon to examine the trade union rights situation in the Dominican Republic have all pointed out the need to adopt adequate measures to provide protection against acts of anti-union discrimination in order to guarantee observance of trade union rights recognised in the national legislation (see the report of the Commission of Inquiry of 1983 which examined the application, in particular, of Convention No. 98 in connection with Haitian workers engaged in sugar plantations, and the 211th, 241st and 253rd reports of the Committee on Freedom of Association).

In its previous observation, the Committee recalled that although the legislation contains provisions consistent with Articles 1 and 2 of the Convention (section 307 of the Code), the penalties provided by the law to enforce them (sections 678, 15 and 679, 6 of the Code) are quite inadequate. It also noted from the comments made by the General Confederation of Workers (CGT) that there had been dismissals, particularly in the free trade zones, in order to deprive certain workers of the right to join trade unions, and urged the Government to ensure that measures were taken to prevent all forms of anti-union discrimination.

The Committee notes that, in its communication, the CTI also reports that workers have been dismissed from an enterprise located in the free trade zone, because of their trade union activities.

In its report, the Government recalls that trade union rights are respected and that workers are provided with the necessary guarantees for the full exercise of these rights. The Government adds that there is no form of anti-union discrimination against Haitian workers on sugarcane plantations, as witnessed by the existence of trade unions in each of the enterprises of the State Sugar Board, of three unions at Casa Vicini and one union at the Central Romana.

Furthermore, the Government indicates that a Bill is to be presented to the Legislative Assembly during its next session, which will guarantee that workers holding trade union office may not be removed during the term of such office. In addition, reinforcement of the penalties set out in section 679 of the Labour Code is also being contemplated, in particular by increasing the amount of fines and introducing prison sentences for all violations of section 307 of the Labour Code. Lastly, there are also to be provisions permitting the reinstatement of workers dismissed for trade union activities.

While noting this information, the Committee again urges the Government to ensure that measures accompanied by sufficiently effective and dissuasive sanctions are adopted in the near future to guarantee that all workers, including those in agriculture, industry and the free trade zones enjoy adequate protection against all acts of anti-union discrimination and all forms of interference by employers in their union organisations.

2. Workers in agricultural undertakings employing no more than ten workers excluded from the scope of the Labour Code

The Committee has been recalling for several years that the exclusion of agricultural, agro-industrial, stock-raising and forestry enterprises with no more than ten workers from the Labour Code has the effect of enabling employers of such small enterprises to exempt themselves from the obligations laid down in section 307 of the Code which prohibits all acts of anti-union discrimination and interference by employers, and of excluding this category of workers from collective bargaining. The Committee also recalls that, in paragraph 474 of its report, the Commission of Inquiry stressed the need to define the status of such workers with regard to the exercise of their trade union rights.

The Committee notes from the Government's report that this provision is to be repealed at Parliament's next session so that these workers may be covered by all provisions of the Labour Code.

Accordingly, the Committee urges the Government to adopt the measures that have now been envisaged for several years to guarantee that these workers enjoy adequate protection against all acts of anti-union discrimination and the right to settle their conditions of employment through collective bargaining.

Observation (CEACR) - adopted 1990, published 77th ILC session (1990)

The Committee notes the Government's report, the written information transmitted to the Conference Committee in 1989 and the reply to the comments of the General Confederation of Workers (CGT) which dealt, among other matters, with the trade union rights of migrant workers and acts of anti-union discrimination.

I. Haitian workers in sugar plantations

For several years, the Committee has been requesting the Government to give effect to paragraph 473 of the report of the Commission of Inquiry of 1983 concerning the need to adopt provisions for the protection of workers engaged in sugar plantations against anti-union discrimination by employers and acts of interference by employers in workers' organisations.

In its comments, the CGT alleges that acts of violence have been committed against Haitian and Dominico-Haitian workers (the violent deaths of two Dominico-Haitian trade union leaders, forceable displacement, expulsion, the destruction of houses, the separation of cane-cutters from their families, the rape of Dominico-Haitian women), that dismissals occurred in the Romana and Bani free trade zones, that State Sugar Board circulars are not transmitted to the workers concerned and are not applied, and finally that the committee set up to examine the situation of agricultural workers has not yet met the trade union organisations concerned.

In its reply, the Government indicates that the right of association is a constitutional right and that no legal text prevents the national or foreign workers who are resident in the country from working freely and from joining trade unions, in accordance with the provisions of the Constitution and the Labour Code. As regards foreign workers who are illegal residents, it adds that they can produce and work but that they cannot join a trade union. Regarding the allegations of violence, the Government states that Haitian workers engaged in the Dominican Republic in sugar plantations do not suffer any anti-trade union discrimination by employers, as witnessed by the existence of trade unions in each of the enterprises of the State Sugar Board (CEA), the Casa Vicini and the Central Romana. As regards the death of Dominico-Haitian trade unionists, the Government indicates that one died in the attack on a batey for unknown reasons and the second committed suicide in his cell in the National Police Station, also for unknown reasons. Finally, no cases of rape have been reported, which proves the unfounded nature of this allegation.

Furthermore, the Government indicates that the circulars of the State Sugar Board have been widely disseminated in order to inform workers in plantations and bateys of their rights and the services available to them. As regards the committee responsible for examining the situation of agricultural workers, its members are pursuing their mission despite the departure of the workers' representative.

In view of the above, the Committee cannot but deplore the violence in industrial relations and hopes that appropriate measures will be put into effect, including recourse to the courts, in order to ensure complete financial and occupational compensation for the harm suffered by Haitian workers due to acts of anti-trade union discrimination. In this connection, the Committee notes the Government's statement to the effect that the authorities have the firm intention of carrying out the necessary administrative and legislative reforms, in accordance with the recommendations contained in the report of the 1983 Commission of Inquiry.

The Committee is bound once again to urge the Government to adopt in the near future the measures recommended in 1983 by the Commission of Inquiry concerning the protection of these workers against acts of anti-union discrimination by employers.

II. The need to strengthen measures protecting workers against anti-union discrimination and acts of interference

For several years, the Committee has noted that, although the legislation contains provisions in conformity with Articles 1 and 2 of the Convention (section 307 of the Code), the penalties provided by the law to enforce these provisions, which are limited to a fine of from 10 to 500 pesos (sections 678 (15) and 679 (6) of the Code) are quite insufficient and should be increased.

In its comments, the CGT alleges the dismissal of workers and trade union officers in certain enterprises (Coca Cola and Dole Dominica), and the dismissal of members of the Asociación Nacional de Trabajadores de Apoyo a la Educación, in order to prevent them from establishing trade unions.

In its reply, the Government indicates that the enterprise Coca Cola has concluded a new agreement with its workers which provides for an improvement of their terms and conditions of employment and the re-employment of the dismissed workers and trade union officers. The dismissal of the workers of Dole Dominica is not related to the establishment of a trade union. The workers and trade union officers of the Asociación Nacional de Trabajadores de Apoyo a la Educación were dismissed for abandoning their workplace without justification.

Furthermore, the Government states that it has the intention of extending the scope of section 37 and strengthening the provisions setting out penalties for violating this section. Furthermore, a Bill is currently being prepared that will guarantee the employment security of trade union officers during the exercise of their trade union functions.

While noting this information, the Committee of Experts, like the Committee on Freedom of Association (Case No. 1393, approved by the Governing Body at its February-March 1988 Session), is bound to urge once again the need to adopt appropriate measures to provide effective protection against acts of anti-union discrimination and interference, and in particular preventive measures, stronger penalties and the reinstatement of workers in their jobs.

III. Workers in agricultural undertakings employing no more than ten workers, excluded from the scope of the Labour Code

The Committee recalls that the exclusion of agricultural, agro-industrial, stock-raising and forestry enterprises from the Labour Code has the effect of enabling the employers in these small enterprises to evade the obligations laid down in section 307 of the Code. This section prohibits acts of anti-union discrimination and acts of interference by employers, and of excluding this category of workers from collective bargaining procedures.

The Committee urges the Government to take the appropriate measures to ensure workers engaged in these small enterprises the same protection against acts of anti-union discrimination and interference, accompanied by the same sufficiently dissuasive penalties as those that have been taken or will be taken in favour of workers covered by the Labour Code, and also to grant them the right to settle their terms and conditions of employment through collective bargaining with employers or employers' organisations.

The Committee once again requests the Government to indicate in its next report the measures that have been taken or are envisaged to bring its legislation into conformity with the Convention. [The Government is requested to supply full particulars to the Conference at its 77th Session.]