Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 397, Marzo 2022

1. 709. The complaint is contained in a communication dated 14 June 2019 from the National Confederation of Trade Union Unity (CNUS) and the Dominican Association of Teachers (ADP).
2. 710. The Government sent its reply in communications dated 20 August 2020, 1 February 2021 and 15 September 2021.
3. 711. The Dominican Republic has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 712. The complainants report that there is a legal prohibition of the right to strike in the public education sector. In particular, they allege that:
   • In the context of the activities that were planned and carried out in the framework of ADP’s plan of action to demand a pay rise for teachers, as well as the payment of unpaid wages that have not been received, starting on 16 January 2017, there were isolated work stoppages in various public schools in Barahona province, none of which endangered the progress of the school year.
   • Several sectors, mainly those with business connections to education, carried out a broad media campaign against ADP, as a way of avoiding public sector labour demands that they would later press for to improve conditions in the private sector. The activities carried out by ADP were twisted and blown up to such an extent that it led to an appeal for amparo (remedy for the protection of constitutional rights) by several people who were supposedly representing a number of children who were supposedly studying at the schools where protests had taken place, facts that were never proven in the subsequent legal proceedings.
   • As a consequence of that appeal for amparo, on 21 March 2017, the First Chamber of the Civil, Commercial and Labour Panel of the Court of First Instance of Barahona handed down ruling No. 0105-2017: (a) ordering ADP to immediately lift its teaching stoppage and to call on the teaching staff to return to work; (b) warning ADP, going forward, to refrain from teaching stoppages that impede the fundamental right to education, because that takes precedence over the others, without prejudice to the legitimate right of ADP to make its demands to the competent authorities by other legal means; (c) affirming that stopping classes was illegal since preschool, primary and secondary school education are mandatory, and (d) imposing a penalty of 50,000 Dominican pesos (approximately US$870) per day for any delay in compliance with the ruling, to be paid to the vocational school of the armed forces and the national police of Barahona.
   • In the light of this ruling, ADP lodged an appeal for review with the Constitutional Tribunal, which unfortunately, in ruling TC/0064/19, dated 13 May 2019, rejected the appeal and upheld the ruling. The complainants report that with this decision, the Constitutional Tribunal treated the education sector as an essential service, which contradicts the Committee’s comments on the matter.
2. 713. The complainants believe that the fact that the exercise of the right to strike in the sector is not regulated – even though it is generally recognized in the Constitution – should not have led the courts to deny its existence. In that regard, they believe that in order to resolve the situation it is necessary to amend the applicable legislation so that it explicitly recognizes the right to strike in the public education sector. The complainants also state that the other dispute resolution mechanisms that the Constitutional Court referred to, such as mediation or arbitration in collective disputes, which are applicable to the private sector in the framework of the Labour Code, are not accessible to the public education sector, since neither the Civil Service Act (No. 41-08) nor the Labour Relations Regulations provide for such mechanisms. The complainants believe that this leaves public education workers completely defenceless.

B. The Government’s reply

1. 714. The Government sent its observations on the case in communications dated 20 August 2020, 1 February 2021 and 15 September 2021.
2. 715. The Government notes that, in accordance with the Civil Service Act No. 41-08 and its implementing Regulation No. 523-09, strikes are prohibited in the essential public services – that is, those whose interruption could endanger the life, health or security of citizens – although those who provide those kinds of services can submit the labour dispute for the consideration of the personnel committee of the relevant body.
3. 716. With regard to the specific case that is the subject of the complaint, the Government provides a transcript of the text of the 13 May 2019 Constitutional Court ruling, which upheld the ruling that was appealed and in which it was established that: (i) a series of marches, pickets, meetings and partial teaching stoppages were held to call for improvements in the working conditions in public schools in the Barahona area and that these partial teaching stoppages affected the school hours that the students should have received, so a number of parents and tutors made an appeal for amparo; (ii) the teaching stoppages for the strike called by ADP seriously harmed the right to education and equality, since students at private schools had no such interruptions to their curriculums; (iii) minor students should not be used as a means to resolve disputes and have the right to receive a public education in the same conditions as everyone else; (iv) progressive and indiscriminate teaching stoppages, not taking into account the pupils’ families, have collateral effects on fundamental rights, in that: they disrupt the student body with regard to the discipline developed in keeping up with educational commitments; they affect family scheduling in the social, economic and labour order, as well as food security; they change the emotional state of parents who take advantage of the time that their children are at school to become professionals and join the labour market; and they also change the emotional state of families in at-risk or vulnerable situations related to their children, and (v) as a result, the Court considered that free public education at the preschool, primary and secondary levels should be added to the traditional definition of essential services – those whose stoppage endangers the life, health or security of people in all or part of the population – in cases when there is a “progressive, prolonged and indiscriminate” teaching stoppage.
4. 717. In addition, the Government reports that, after the ruling, ADP and the Ministry of Education signed an agreement for quality education on 13 January 2020, in which, with a view to obtaining a harmonious atmosphere that contributes to quality education, both parties committed, among other things: (i) to commit to adhere to the school timetable throughout the country; (ii) not to interfere in each other’s affairs or structures, agreeing to maintain mutual respect; and (iii) that teacher transfers will be carried out with the consent of district and regional human resources, and ADP’s suggestions will be heard.

C. The Committee’s conclusions

1. 718. The present complaint alleges the prohibition, by means of a judicial ruling, of the right to strike in the public education sector. The Committee observes that, according to the ruling in question from the Constitutional Court, the actions underlying the complaint were “a series of marches, pickets, meetings and partial teaching stoppages to call for improvements in the working conditions in public schools” in the Barahona area, and that “these partial teaching stoppages affected the school hours that the students should have received, so a number of parents and tutors made an appeal for amparo”. The Committee observes that, as a result of the amparo, the Constitutional Court decided, based on its considerations, to “classify free public education at the preschool, primary and secondary levels as an essential service when there is a progressive, prolonged and indiscriminate teaching stoppage”.
2. 719. The Committee is not in a position to begin assessing the impact that the strike whose prohibition resulted in the presentation of the complaint could have had. The Committee recalls that what is meant by essential services in the strict sense of the term depends to a large extent on the particular circumstances prevailing in a country. Moreover, this concept is not absolute, in the sense that a non-essential service may become essential if a strike lasts beyond a certain time or extends beyond a certain scope, thus endangering the life, personal safety or health of the whole or part of the population. The Committee also recalls that where the right to strike is restricted or prohibited in certain essential undertakings or services, adequate protection should be given to the workers to compensate for the limitation thereby placed on their freedom of action with regard to disputes affecting undertakings or services. The Committee further recalls that although the education sector does not constitute an essential service in the strict sense of the term and the possible long-term consequences of strikes in the teaching sector do not justify their prohibition, minimum services may be established in the education sector, in full consultation with the social partners, in cases of strikes of long duration. [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, paras 837, 842, 846, 853 and 898]. The Committee invites the Government, in consultation with ADP, to take the necessary measures to guarantee the exercise of the right to strike in the public education sector, including the possibility of establishing mechanisms to secure minimum services in full consultation with the social partners, in cases of strikes of long duration. The Committee requests the Government to keep it informed of developments.
3. 720. The Committee observes that according to the complainants’ allegations, which the Government does not deny in its reply, public school teachers lack access to dispute resolution mechanisms that are available to private school workers, such as mediation or arbitration in collective disputes. The Committee notes that an agreement has been signed between the Ministry of Education and the ADP with a view to obtaining a harmonious atmosphere that contributes to quality education in the country and observes that the text of the agreement reflects a positive step in the dialogue between the parties and includes commitments on a number of matters. The Committee also observes that the agreement lacks specific provisions for the management of collective labour disputes. The Committee recalls that according to the Voluntary Conciliation and Arbitration Recommendation, 1951 (No. 92), voluntary conciliation machinery, appropriate to national conditions, should be made available to assist in the prevention and settlement of industrial disputes between employers and workers. Provision should be made to enable the procedure to be set in motion, either on the initiative of any of the parties to the dispute or ex officio by the voluntary conciliation authority [see Compilation, para. 792]. In that regard, the Committee invites the Government to include in its consultations with ADP the consideration of measures to ensure the existence of adequate mechanisms for the resolution of collective disputes in the public education sector.