Rapport intérimaire - Rapport No. 110, 1969

1. 117. The Committee previously examined this case at its sessions in February 1965 and May 1968. On the latter occasion it submitted to the Governing Body a new interim report, contained in paragraphs 148 to 172 of its 105th Report, which was approved by the Governing Body at its 172nd Session (May-June 1968).
2. 118. In the report referred to, the Committee made certain recommendations on a first series of allegations, but postponed reaching conclusions on other allegations made in 1967 by the National Federation of Schoolteachers (FENAMA) while awaiting more detailed observations from the Government.
3. 119. The Government replied in a letter dated 29 October 1958, which was received too late for the Committee to examine it at its session in November 1968.
4. 120. 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. A. The complainants' allegations

• Allegations relating to Measures of Interference and Discrimination against the National Federation of Schoolteachers
  121. 121 In their letter of 19 January 1967 the complainants stated that they had a dispute with the Government on account of the dismissal of headmasters and teachers in 1966. The allegations relating to infringements of trade union rights referred, in short, to three questions, namely the refusal of the Secretary of State for Education to discuss the matter with FENAMA (it was alleged that he had refused to receive a deputation from the Federation and to bring the matter before the National Education Council, on which the Federation was legally represented); the setting up of parallel organisations encouraged and sponsored by the Secretariat of State for Education with a view to " exercising control " over teachers, an example being that set up at Santiago de los Caballeros on the initiative of the Director of Education for that city; and, lastly, the withdrawal of a postal and telegraphic franchise that FENAMA had been enjoying, which was " a privilege to which all political organisations and occupational or cultural organisations of workers have been entitled since 1962 ". In the view of the complainants, the withdrawal of this franchise from FENAMA proved that government circles were bent on its destruction, by denying it an effective means of communication with its members.
  122. 122 The Government in its reply rejected the allegations, saying that they were groundless. In view of the general nature of this reply, the Committee, in paragraph 172 (b) of its 105th Report, recommended the Governing Body to request the Government to supply detailed observations on the specific allegations mentioned above.
  123. 123 The Government replied to this request by a letter of 29 October 1968, in which it communicates the observations made on the matter by the Secretariat of State for Labour. It states that " the National Federation of Schoolteachers has no legal grounds for enjoying the privileges granted to workers by our laws and by ratified Conventions in the field of trade unionism, since its members are public servants, removable from office at the pleasure of the President of the Republic, who is, moreover, empowered by the Constitution of the State to appoint them and to accept their resignations ". In accordance with section 3 of the Labour Code, it is added, the employment relations of public employees with the State are subject to special legislation.
  124. 124 According to the Secretariat of State for Labour, FENAMA, " having requested and obtained incorporation by Decree No. 43 of 14 March 1963, under Act No. 520 on non-profit-making associations, lacks legal personality, because it has not complied with the provisions of section 4 of the Act in question, as it has been possible to observe ... ". It is therefore regarded under this section as non-existent, being unable to act in law.
  125. 125 The Secretariat of State goes on to say that the Dominican Government shares the opinion expressed by the Committee on the importance that must be attached to the provision of Article 1 of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), which has been ratified by the Dominican Republic, to the effect that workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment, and views with sympathy any movement of workers to organise, in accordance with the laws and the Constitution, and with no aims conflicting with those for which they can organise under the Labour Code. According to the Government, FENAMA has disregarded the provisions of various sections of the Labour Code and the provision of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), that requires respect for the law of the land (Article 8).
  126. 126 With regard to the request for additional information, and more particularly information concerning the alleged refusal of the Secretary of State for Education to receive the representatives of FENAMA, " we attribute this ", says the Secretariat of State for Labour, " to the facts set out above and to the overwork to which an official of this rank is subject in our country, if indeed it is true that he refused ".
  127. 127 The Secretariat of State for Labour concludes by stating that the allegations of FENAMA of violations of trade union rights are baseless, not only because such violations did not occur but also because FENAMA is not " a trade union organisation covered by our labour legislation ".
  128. 128 The foregoing observations of the Government show that it does not at present recognise the legal existence of the complainant organisation, though this did not seem to be the case at earlier stages of the examination of the case. On the contrary, in a communication of 5 February 1965 the Government stated that it " maintains normal relations with FENAMA and that nothing impedes or interferes with the carrying out of the programmes of that Federation".
  129. 129 The Government also states that the Labour Code does not cover state employees. The provisions on the formation of trade unions contained in this code do not therefore apply to such employees, who are subject to special laws. Certain observations of the Government seem to refer not only to the particular case of FENAMA but also to the trade union rights of public employees in general, from the point of view of the protection of these rights by national law and by " ratified Conventions in the field of trade unionism ". In this connection the Committee considers it appropriate to recall the importance that must be attached to the provision of Article 2 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), which has been ratified by the Dominican Republic, to the effect that workers, without distinction whatsoever, shall have the right to establish and to join organisations of their own choosing without previous authorisation: The employees in question-in this case the schoolteachers-are not excluded from this provision. Under paragraph 2 of Article 8 of the Convention, the law of the land shall not be such as to impair, nor shall it be so applied as to impair, the guarantees provided for in the Convention. On previous occasions, the Committee has stressed the importance for workers in the service of the State of the right to establish trade unions and to register them with a view to their lawful operation.
  130. 130 Accordingly, even if the provisions of the Labour Code dealing with the formation of trade unions do not apply to schoolteachers, the Committee considers that any other legislation under which they may organise for the promotion and defence of their occupational interests should be in conformity with Convention No. 87. The legislation in question appears to be, according to the Government, Act No. 520 on non-profit-making associations.
  131. 131 The Government states that FENAMA now lacks legal personality because, although it has obtained its " incorporation " under a decree, it has failed to comply with a requirement of section 4 of Act No. 520. A reading of this section shows that the " Order of Incorporation " decreed by the Executive will have no effect and the association will not be regarded as a legal person until the formalities concerning publication required by section 42 of the Commercial Code have been complied with. Furthermore, copies of the Constitution must be deposited with the Commercial Court and the appropriate municipal office. The requirements of publication relate to a summary of this document and, more particularly, to specific data such as title, address, purposes and the officials acting for the association. Changes introduced in the Constitution must be published in the same way, " after approval by the Executive ".
  132. 132 The Government does not specify the exact nature of the omission on which the refusal of legal personality to the complainant organisation was based. Since, under Article 7 of Convention No. 87, the acquisition of legal personality by workers' organisations shall not be made subject to conditions of such a character as to restrict the application of, inter alia, Article 2 of the Convention, according to which workers shall have the right to establish organisations of their own choosing " without previous authorisation ", the Committee wishes to ask the Government for certain additional information in order for it, to be able to formulate its conclusions. Since section 4 of Act No. 520 lays down various requirements, the Committee would be grateful if the Government would specify the nature, of the formality omitted by FENAMA, state whether the provision of this section implies that approval of the Constitution by the Executive is a prior condition to the acquisition or retention of legal personality and, if so, indicate on what standards or criteria this approval depends.

B. B. The Committee's conclusions

1. 133. The Committee also requests the complainant organisation to furnish additional information on its Constitution, affiliated organisations, number of members and any other information which it considers relevant concerning its present situation.