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Definitive Report - Report No 25, 1957

Case No 151 (Dominican Republic) - Complaint date: 28-JUL-56 - Closed

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A. A. The complainants' allegations

A. A. The complainants' allegations
  1. 275. The complaint by the International Confederation of Free Trade Unions is contained in three letters, dated respectively 28 July 1956, 3 October 1956 and 7 January 1957. These are analysed below.
  2. 276. With the first of these letters the I.C.F.T.U transmitted the text of a resolution on the Dominican Republic adopted by its Executive Board in July 1956. In this resolution the Executive Board, " taking note ... of the suppression of the free labour movement and lack of adequate social legislation and protection " in the Dominican Republic, reaffirms its determination to fight for the restitution of trade union freedom and other democratic rights suppressed by the tyranny of Trujillo and calls on its affiliates to join in a world-wide campaign of protest. The General Secretary of the I.C.F.T.U would study the possibility of making a complaint to the International Labour Office on the violation of trade union rights and also the possibility of proclaiming a boycott of the Dominican Republic. The second letter, dated 3 October 1956, contains the text of the complaint itself. According to this document, Rafael L. Trujillo forcibly seized the Presidency of the Dominican Republic on 16 August 1930 and installed an authoritarian régime which deprived the Dominican people of all fundamental freedoms, including freedom of association ; since that date, the Dominican people have lived under a régime characterised by absolute control over all the activities of the country; the workers are subject to continuous repression and are obliged to swear fidelity to the President of the Republic, as actually occurred in a public ceremony on 1 May 1956.
  3. 277. The complaint continues to the following effect : according to an Act of 8 July 1943 a trade union organisation can function only if it has been recognised by the Ministry of Labour, to which a request for registration must be addressed; the Labour Code-known as the Trujillo Labour Code - provides, in section 349, that the Secretariat of State for Labour may forward to the persons concerned the documents required for the establishment of the union, including the rules, and point out any defects in these documents ; section 350 provides that registration of the union shall be refused if any of the required conditions are not fulfilled. These provisions show, the complaint goes on, that the trade unions are dependent on the Government, and this dependence is proved also by the following facts : there are two kinds of trade union leaders, some being not even union members but officials of the régime (provincial governors, etc.) whom the law has made responsible for trade union duties ; the others are members of the unions, elected according to the instructions of the party in power ; this party has a political monopoly and constitutes a single entity with the Government : the trade union leaders elected according to its instructions should therefore be regarded as public officials ; trade union congresses are organised by officials of this party, and they indicate the subjects for discussion ; when a trade union wishes to call a strike it must notify the Secretariat of State for Labour, giving its reasons, and the strike may not be called until two weeks after this notification ; the trade union must prove that the strike has for its exclusive object the settlement of an economic dispute (section 374 of the Code). Other provisions of the Labour Code, the complainant argues, also show lack of freedom : section 306 prohibits trade unions from directly or indirectly restricting freedom to work, and this constitutes interference in the operation of the unions ; section 314 prohibits trade unions from dealing with political questions ; section 356 permits cancellation of registration by decision of the courts, and dissolution of the union, if it engages in activities not connected with its lawful objectives ; lastly, section 104 requires previous approval by the Department of Labour before collective agreements can become applicable. There is therefore no doubt that freedom of association does not exist in the Dominican Republic. On the one hand, there are legislative provisions restricting freedom of association ; on the other hand, the existing trade unions are not authentic, the so-called Dominican Confederation of Labour being an instrument used by President Trujillo to dominate the working class. The complainant therefore urges the Governing Body to request the Government of the Dominican Republic to re-establish the autonomy of the trade unions in relation to the executive authorities and eliminate all interference in trade union activities ; the sections of the Labour Code mentioned in the complaint should be amended, and the Government of the Dominican Republic should be reminded of the obligations assumed by it as a Member of the International Labour Organisation.
  4. 278. In its third letter, dated 7 January 1957, the I.C.F.T.U states that the action for which provision was made by the Governing Body when it adopted the conclusions of the Committee on the previous case regarding the Dominican Republic-Case No. 3 -has not materialised. The complainant organisation then recapitulates the various stages in the examination of Case No. 3 and particularly the question of the Government's invitation-subsequently withdrawn-to send a mission which would study " the practical application of the legal provisions concerning freedom of association in force in the Dominican Republic ". The Committee on Freedom of Association, the letter continues, deplored the Government's refusal to give its consent to the sending of this mission and took note of the assurances given by the Government to the following effect-that workers' organisations could not be suspended or dissolved by administrative action, that there was nothing to prevent the Confederation of Dominican Workers from affiliating with an international organisation, and that the Government intended to ratify the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) ; moreover, the Committee emphasised how important it was that the provisions guaranteeing free exercise of trade union rights should be effectively applied. The I.C.F.T.U further refers to the assurances given at that time by the Government of the Dominican Republic ; it expresses " the disappointment and regret of the free trade union movement " at the attitude of the Government of the Dominican Republic in refusing to receive an I.L.O mission and attaching no value to the assurances given to the I.L.O; it also calls attention to the delay in ratifying Convention No. 87. The letter adds : " Although the Government has given the I.L.O the formal assurance that in the Dominican Republic freedom of association exists, is exercised and is respected, the workers may in fact adhere only to trade unions approved by the Government, whose leaders are not elected freely by the workers and do not therefore represent them ".
    • ANALYSIS OF THE REPLY
  5. 279. In its letter of 29 November 1956 the Government of the Dominican Republic said that a study of the complaint made it clear that this referred not only to labour questions but also to questions of an indubitably political character. The Government might have abstained from any rebuttal as regards the latter questions because they lay outside the terms of reference of the Committee on Freedom of Association. The Committee on Freedom of Association, the Government continued, had already had occasion to pass judgment, in a manner extremely satisfactory to the régime of the Dominican Republic, on a similar complaint, also submitted by the I.C.F.T.U. ; in the light of this previous judgment by the Committee the position of the I.C.F.T.U was no longer tenable, because the Dominican legislation on which the Committee based the conclusions of its Fifth Report remained in force today ; this fresh complaint by the I.C.F.T.U could be explained only by its ignorance of the findings in the Fifth Report of the Committee, or by an intention on its part to act as an instrument of political interests extraneous to the objectives of the International Labour Organisation.
  6. 280. The first allegation, the reply went on, was that the laws of the Dominican Republic infringed freedom of association because a trade union could function only if it had been " recognised " by the Secretariat of State for Labour, which might return the prescribed documents to the persons concerned ; on this point the Committee on Freedom of Association had already given a ruling, in favour of the present legislation, in its Fifth Report. The I.C.F.T.U mentioned the Act of 8 July 1943, but this had been repealed by section 689 of the Labour Code another point which the Committee had certified in its Fifth Report. The registration referred to in sections 349 and 350 of the Code was a mere administrative formality, chiefly intended to enable legal personality to be accorded to trade unions ; hitherto, not a single case of refusal of registration had occurred. Provision for a similar formality was to be found in the legislation of many I.L.O member States, as was pointed out in the report of the Committee on Freedom of Employers' and Workers' Organisations (McNair Committee), submitted to the Governing Body at its 131st Session (March 1956).
  7. 281. The second allegation of the I.C.F.T.U referred to the trade union leaders who were stated to be government officials at the same time ; this allegation was based on an error and an untrue statement of fact. The provisions attributing trade union functions to certain public officials-those of Act No. 267 of 10 May 1940-had been repealed many years ago, as the Committee had recognised in paragraph 43 of its Fifth Report. The third allegation, regarding the lack of freedom of the Confederation of Dominican Workers, also proceeded from imaginary facts. The Confederation of Dominican Workers held congresses every two years in accordance with its own rules, and the agenda of these meetings consisted of trade union matters ; many of the aspirations proclaimed at these congresses had been converted into legislation for the benefit of the working class. Political parties, political leaders and members of the armed forces did not intervene in any way in these congresses.
  8. 282. As regards the allegations dealing with exercise of the right to strike - i.e. that the union must inform the Secretariat of State for Labour of its reasons for deciding to call a strike this was an aspect of the dispute which should be examined in the light of the sovereign rights of the State. The Dominican Republic had a political régime established by the free will of its people. In virtue of sovereign Constitutional powers the Executive, when issuing the Trujillo Labour Code, had considered that it was indispensable to afford absolute autonomy to trade union organisations, but that it was not appropriate to the vital interests of the country for such organisations to be able to engage in political activities. Such a view had been confirmed by experience in some other countries, where trade union organisations really operated on behalf of causes contrary to public peace. The limitation imposed by Dominican legislation on the activities of trade unions in no way infringed the independence to which they were legitimately entitled. In other words, a trade union as a legal person could not engage in political activities, but this rule in no way prevented the members of the union as natural persons from freely entering the political field. The right to strike was recognised, but in regulating this right the Legislative Power had thought fit to restrict its exercise to cases of economic dispute. These regulations had not been the object of any observation in the Fifth Report of the Committee on Freedom of Association. The restrictions had been imposed in virtue of sovereign Constitutional powers and of the elementary duty of every government to ensure the maintenance of public peace. The prescribed waiting period between notification and declaration of a strike, and the rule that only the courts of law may appreciate the character of a strike, did not involve an infringement of trade union rights. The I.C.F.T.U had also pointed out that the trade unions were prohibited from directly or indirectly restricting freedom to work, alleging that this was an interference in the operation of trade unions. Such an allegation was quite unspeakable. Freedom to work was an essential attribute of the individual laid down in the Constitution of the Dominican Republic. A law which permitted trade union organisations to restrict this fundamental freedom would be in flagrant conflict with the highest Constitutional principles. Every worker, whether a trade union member or not, was free to engage in the activity which was most attractive to him or best suited his interests ; this freedom was guaranteed by the Labour Code, which prohibited employers from exerting influence over workers to induce them to join or refrain from joining trade unions ; and section 307 of the Code expressly made it illegal for any person applying for employment to be required to enter or refrain from entering a trade union. These safeguards were in conformity with the standards of the Freedom of Association and Protection of the Right to Organise Convention, 1948, which had been ratified by the Dominican Republic on 21 June 1956. The same principle had been laid down in a special resolution adopted by the International Labour Conference at its 35th Session. As already recognised by the Committee in the Fifth Report, Dominican legislation gave trade union organisations all the safeguards required by these international instruments. Trade unions could not establish political relations with political parties, nor could the Government seek to obtain the political co-operation of the unions. Similarly, prohibitions were to be found in the legislation of many of the States Members of the I.L.O, as had been indicated in the report of the Committee on Freedom of Employers' and Workers' Organisations. Special reference should be made to the case of Cuba, whose legislation prohibited trade unions from engaging in political activity, because the Cuban Workers' Confederation had been " the evident instigator of the I.C.F.T.U's complaint ".
  9. 283. The I.C.F.T.U also alleged that the legislation of the Dominican Republic violated freedom of association because it permitted registration of a trade union to be cancelled by the courts, followed by dissolution of the union, if it engaged in activities not connected with its lawful activities. The only obligation of States Members of the I.L.O was to guarantee complete independence to the trade unions so that they might perform the functions proper to them ; it was no infringement of this independence to prohibit engagement in activities foreign to the said functions. To sanction the cancellation of a union's registration if it pursued improper objectives was a normal course, provided the cancellation was ordered as the result of a judicial and not of an administrative procedure. This was, moreover, the rule specified in Article 4 of the Freedom of Association and Protection of the Right to Organise Convention, 1948, which had been ratified by the Dominican Republic.
  10. 284. The last allegation by the complainant organisation referred to collective agreements. As it was necessary to handle this question in a manner varying with national conditions, no uniform international standards had been adopted on the subject. Article 4 of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), only stated that, where necessary, appropriate measures should be taken to encourage and promote the full development and utilisation of machinery for voluntary negotiation. Every collective agreement must have regard to the rules of public order, introduced to protect the workers' rights. Therefore, before a collective agreement was put into effect and even during its currency, the administrative authorities must exercise supervision thereover. The intention of the previous approval required by section 104 of the Trujillo Labour Code was only to make it possible to ascertain whether a draft agreement was or was not contrary to the current rules of public order. Similar provisions applied in many other countries belonging to the I.L.O. Furthermore, refusal to grant approval was subject to appeal to the courts of law.
  11. 285. The Government closed its first communication by referring to the conclusions of the I.C.F.T.U's complaint. The complainant, as such, must bring proof of what it alleged. It had not done this. Dominican legislation surrounded freedom of association with full safeguards and the autonomy enjoyed by the trade unions was in no way infringed. Such a situation had been reached by legislative action and by the personal initiative of Generalissimo Trujillo. The Government did not claim that its legislation was perfect, but it did emphatically state that this legislation embodied the legitimate aspirations of the working class. Proof of this was the ratification of Convention No. 87, as reported by the Committee on Freedom of Association in its Sixth Report.
  12. 286. In its second letter dated 30 January 1957 in reply to the I.C.F.T.U's communication of 7 January 1957, the Dominican Government stated that the complaining organisation had not adduced any new evidence but had merely recapitulated a case which the Committee on Freedom of Association had already dealt with. The only new feature was the proposed procedural measures which could only be justified once the Committee had passed on the substantive question, and not before. The complainant organisation, the Government concluded, was not pursuing any constructive designs in preferring its charges, its sole aim being to secure, for obviously political reasons, a verdict detrimental to the Dominican Government. The I.C.F.T.U itself admitted that the Government had ratified the international Conventions on freedom of association, and to say that such ratification had come lately did not obscure the fact that the principles given international recognition in those Conventions had been the law of the land in the Dominican Republic ever since 1951. The Government therefore considered that the Committee should not proceed with the case " owing to the clearly political character of the complaint ", coupled with the lack of evidence to support the charges.

General Observations

General Observations
  1. 287. The Dominican Republic on 22 September 1953 ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). This instrument came into effect on 22 September 1954. On 27 June 1956 the Dominican Republic ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). This will come into force on 27 June 1957.
  2. 288. The Government of the Dominican Republic, although it enters a specific reply to each of the allegations made by the complainant organisation, also maintains that the Committee should dismiss the complaints without further examination by reason of their " clearly political character ". The principles by which the Committee has been guided in the past when examining allegations described as " political " by the governments concerned are set forth in paragraph 29 of its First Report. In that paragraph, going by the precedent adopted by the Officers of the Governing Body, the Committee considered it to be its duty to form its own judgment in each case as to whether it should advise the Governing Body that " the allegations made are so purely political in character that it is undesirable to pursue the matter further or whether its advice should be that, although the case may be political in origin or present political aspects, it raised questions directly affecting the exercise of trade union rights which call for further examination ". In the present case the complaint relates to various questions of labour and trade union law and to the previous conclusions of the Committee in Case No. 3, which also concerned the Dominican Republic. This being so, and in view of the fact that the Government has answered the substantive questions raised, the Committee has considered that it should examine the substance of the complaint.
  3. Allegations relating to Recognition of Trade Unions
  4. 289. The complainant organisation alleges that no trade union can operate unless it has been previously recognised by the Secretariat of State for Labour, which is empowered to return the documents attesting the Constitution of the union to the persons concerned, pointing out any errors or omissions therein for them to correct. Registration of the union is refused if the legal requirements are not complied with. These conditions are set forth in the Act of 8 July 1943 and in sections 349 and 350 of the Labour Code. In this connection the Government points out that the Committee on Freedom of Association has already dealt with this point in its Fifth Report. The Act of 8 July 1943 was repealed by an express provision in the Trujillo Labour Code of 11 June 1951. The registration made compulsory by sections 349 and 350 of that Code is a purely administrative formality intended to invest the trade unions with corporate personality and in no case has an application for registration been refused. A similar requirement of law exists in many countries, as was ascertained by the Committee on Freedom of Employers' and Workers' Organisations. A specific reference to the position in the Dominican Republic is made in paragraphs 121 and 126 of the report of that Committee, in which it is stated that the fundamental purpose of registration is to ensure that legal requirements are complied with, and that the organisations possess a right of appeal to the courts in the event of a refusal of their application.
  5. 290. Sections 349 to 351 of the Trujillo Labour Code are as follows
  6. 349. The Secretariat of State for Labour may, within ten days of the date of the submission of the documents required under section 348, forward the documents to the persons concerned, pointing out any defects in them so that such defects may be remedied.
  7. 350. Registration of the association shall be refused:
  8. (1) if the rules do not contain all the provisions essential for the regular functioning of the association or if any of the provisions are contrary to the law ;
  9. (2) if any of the requirements under this Code or under the rules respecting the Constitution of the association have not been satisfied.
  10. 351. All documents of an association which have not been registered in the manner prescribed in this Code shall be invalid.
  11. In its Fifth Report (paragraphs 37 to 39) the Committee had occasion to examine these clauses prior to the ratification of Convention No. 87 by the Dominican Republic. The Committee there took note of the statements made by the representative of the Government of the Dominican Republic, to the effect that registration could not arbitrarily be refused to trade unions which fulfilled the conditions laid down by the Code. In the event of a refusal recourse to the courts and, in the last resort, to the Supreme Court, was provided for. In conclusion the Committee stated in paragraph 41 of the same report that " it would ... appear from the various provisions which we have analysed that the workers included in the scope of the Code are free to constitute organisations of their choice and to be members of them without previous authorisation ". This conclusion by the Committee, however, refers exclusively to the wording of the legal texts, since with reference to the actual situation the Committee declared both in its Fifth and Sixth Reports that " it would be desirable that a mission on the spot should be enabled to verify whether in practice these legal provisions are applied so as to provide an effective guarantee to those concerned of their exercise of their freedom of association ".
  12. 291. Subsequently to the issue of these reports, the Dominican Republic ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948, Article 2 of which expressly provides that " workers and employers, without distinction whatsoever, shall have the right to establish ... organisations of their own choosing without previous authorisation ". The Committee has had occasion to consider, in various cases involving countries that had not ratified the Convention, whether the requirement of registration and the conditions governing such registration did or did not amount to infringement of the right to organise. In Case No. 20 (Lebanon), the Committee stated that "while it is a common practice for States to provide in their legislation such formalities as seem to them proper to ensure the normal functioning of these associations, a provision in virtue of which the right of association is subject to authorisation given by a government department in its sole discretion is incompatible with the principle of freedom of association " ; it accordingly recommended the Government to consider the desirability of modifying those provisions. In Case No. 4 (Egypt) the Committee, observing that in its report to the 1948 Session of the International Labour Conference (at which the above Convention was adopted) the Committee on Freedom of Association and Industrial Relations had declared : " The States would remain free to provide such formalities in their legislation as appeared appropriate to ensure the normal functioning of industrial organisations. It followed, therefore, that formalities provided for by national regulations concerning the Constitution and operation of workers' and employers' organisations were in conformity with the provisions of the Convention, provided that these regulations did not impair the guarantees granted by the Convention ", was of the opinion that the requirements for registration laid down in Egyptian legislation, while being " very detailed ... do not appear to be of such a nature as to infringe the guarantees laid down by the Convention ". In Case No. 12 (Argentina), the Committee came to the conclusion that the conditions attached to registration in Argentine law " are purely formal and should therefore not be interpreted as imposing a restriction on the freedom of workers or employers ", even though they did imply an inadmissible distinction between registered organisations and unregistered bodies. In Case No. 29 (United Kingdom-Kenya), the Committee held that the question of whether the legal conditions attached to registration constituted infringement of the right of association depended on " the manner in which and purpose for which they are used ". Lastly, at an early stage of the proceedings in Case No. 3 (Dominican Republic), the Committee had occasion, as the Government pointed out, to examine the articles in the Dominican Code which are again the subject of complaint in this case.
  13. 292. The only new circumstance in this connection is the ratification by the Dominican Republic of the Freedom of Association and Protection of the Right to Organise Convention, 1948. From a perusal of the formal conditions imposed by the Dominican law now in force (since the Act of 1943 cited by the complainant has been repealed by section 689 of the 1951 Code), namely submission of an application for registration accompanied by copies of the rules, the minutes of the constituent general meeting and the names of the foundation members (section 348), there would not appear to be any arbitrary restriction upon the right of workers to form organisations of their own choosing without previous authorisation, a fortiori because registration of one organisation is not a bar to the registration of other trade unions and because registration may not arbitrarily be withheld. In addition it should be pointed out that the complaint refers exclusively to a legal technicality, inasmuch as no cases of refusal to register an organisation are alleged. For its part, the Government states that registration has never been refused in a single case.
  14. 293. In these circumstances the Committee, considering that the present allegations contain no material new evidence to cause it to modify its previous conclusions, recommends the Governing Body to decide that this aspect of the complaint does not call for further examination.
  15. Allegations relating to the Subordination of Trade Unions to the Government
  16. 294. The International Confederation of Free Trade Unions alleges that the subordination of the trade unions to the Government is shown by a series of circumstances, viz. there are public officials (provincial governors, etc.) who allegedly hold trade union office by virtue of the law. The leaders are said to be elected on the instructions of the official political party, a party possessing a monopoly of political action and being one with the Government itself. Trade union congresses are said to be organised by adherents of the party in question or by political and military leaders, who draw up the agenda. The Government, on the other hand, points out that these allegations are based on a misunderstanding, since Act No. 267 of 10 May 1940, which conferred trade union functions on certain public officials, was repealed years ago. As regards the congresses, the Confederation of Dominican Workers acts in complete independence and holds congresses every other year in accordance with its own rules, the agenda of these congresses dealing with questions of an exclusively trade union nature. The Government rejects the allegation that a political party or military leaders take part in these congresses.
  17. 295. In its Fifth Report (paragraphs 42 and 43), the Committee found that " the Code contains no provisions empowering the administrative authorities to intervene in the activities of trade unions .... The Code ... had rescinded all previous regulations concerning trade unions including, consequently, any measure which, according to the allegation of the complainants, enabled the Government to intervene in the administration of trade unions." Under the Code now in force, the governing body of a union shall be " elected by the general meeting for a period not exceeding two years " (section 333) ; and " the right to be present at the general meetings and to elect delegates may only be exercised personally by members of the association " (section 326).
  18. 296. In these circumstances the Committee, having regard to the fact that the legislation on which this part of the complaint is based has been repealed and to its previous conclusions with respect to the law now in force, which would not appear to subject the unions to any intervention by the public authorities restricting their right to elect their representatives in full freedom and to organise their administration and activities, recommends the Governing Body to decide that this aspect of the case does not call for further examination.
  19. Allegations relating to a Prohibition on Political Activity by Trade Unions
  20. 297. The I.C.F.T.U alleges that the provisions of the Labour Code forbidding trade unions to intervene in political matters (section 314) constitutes governmental interference in the affairs of the unions. The Government, on the other hand, states that the Executive, when enacting the Trujillo Labour Code, considered that though it was necessary that the trade union movement should be given complete independence it was undesirable " for the vital interests of the country that such organisations should be empowered to carry on political activities ". To limit the activities of trade unions " to their real objects " cannot in any way be regarded as an infringement of their independence. No trade union in the Dominican Republic may engage in political activities in its corporate capacity ; however, there is nothing to prevent trade union members, in their individual capacity, from indulging in activities of this type in complete freedom. In this connection the Government invokes the resolution passed by the 35th Session of the International Labour Conference on the subject of political and trade union activities, and submits that this resolution recognises the right of every country to permit or not to permit trade union organisations from engaging in political activities. The recognised objectives of trade unions under Dominican law are precisely those set out in the said international resolution, namely " the improvement of conditions of employment, efficiency in production and the material, social and moral conditions of members ", etc. (sections 299 to 301 of the Labour Code). Hence trade unions cannot enter into political relations with a political party, and similarly the Government cannot enlist the political support of the trade unions. A like prohibition exists in several other countries, among them Cuba, as was shown by the McNair Committee.
  21. 298. The Committee observes that, according to the monograph concerning the Dominican Republic reproduced in Appendix II to the report of the Committee on Freedom of Employers' and Workers' Organisations, which embodies the corrections made by the Dominican Republic, Act No. 1443 of 14 June 1947 remains in force. Section 2 of that Act provides that " groups, societies or associations which endeavour to disseminate by any means whatsoever " doctrines or programmes of any Communist, anarchist or other group which are incompatible with the civil, republican, democratic and representative character of the Government of the Republic are prohibited (section 1). The activities of such organisations are deemed to be offences against the Constitution and are punishable.
  22. 299. The resolution adopted on 26 June 1952 by the International Labour Conference at its 35th Session-a resolution which has been cited on numerous occasions by the Committee on Freedom of Association-states that " the fundamental and permanent mission of the trade union movement is the economic and social advancement of the workers ", to which end " it is essential for the trade union movement in each country to preserve its freedom and independence so as to be in a position to carry forward its economic and social mission irrespective of political changes " ; and, further, " when trade unions in accordance with national law and practice of their respective countries and at the decision of their members decide to establish relations with a political party or to undertake Constitutional political action as a means towards the advancement of their economic and social objectives, such political relations or actions should not be of such a nature as to compromise the continuance of the trade union movement.."
  23. 300. The Committee reaffirms the importance it attaches to the principles underlying this resolution. However, the latter may not in any way be construed as acknowledging the propriety of a ban on all kinds of political activity on the part of trade unions. Article 3, paragraph 1, of the Freedom of Association and Protection of the Right to Organise Convention, 1948, broadly sets forth the right of workers' organisations to organise their activities and formulate their programmes, the public authorities being obliged to refrain from any interference which would restrict the exercise thereof. In the exercise of this right, as of the other rights set forth in the Convention, organisations must " respect the law of the land " (Article 8, paragraph 1). The Committee on Freedom of Association and Industrial Relations, reporting on this Convention to the 31st Session of the International Labour Conference, gave its opinion regarding the lawfulness of political activities by trade unions when examining a draft amendment : " if it were likewise understood that workers and employers, and their organisations, had the right, within the limits of legality ... to join any political or other organisation ". Moreover, the Convention in Article 8, paragraph 2, stipulates that " 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 this Convention ". It so happens that in the case of another country, Cuba, which is expressly cited in the Dominican Government's reply, and which has also ratified the above Convention, the Committee of Experts on the Application of Conventions and Recommendations has given its views as follows:
  24. In 1955 the Committee [of Experts] pointed out that section 14 of the [Cuban] decree of 7 November 1933 laid down that industrial trade unions shall not engage in " political activities " and it requested the Government to be good enough to supply information regarding the application of this section of the decree. In its report for this year [1956], the [Cuban] Government states that it is difficult for it to supply the definition of the terms employed in the above-mentioned decree, but that persons who are affiliated to a trade union are completely free, as individuals, to belong to a political party of their own choosing and even to carry out propaganda among their fellow members of the union ; the object of the decree in question would be to prevent trade unions from becoming political parties, as they are obliged " to protect the collective interests of their members irrespective of their views ". Here again it seems to the Committee [of Experts] that in view of the fact that the [Cuban] Government itself admits that such a provision is of comparatively minor importance, there would appear to be no real difficulty in abrogating or modifying this provision, so as to avoid any possibility of abuse which would be likely to be contrary to the provisions of Article 3 of the Convention, according to which organisations shall have full freedom to organise their activities and to formulate their programmes.
  25. 301. Under the circumstances, and having regard especially to the comments by the Committee of Experts on the Application of Conventions and Recommendations in the case of Cuba, it would appear, as the Dominican Government has also ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948, that the provisions in section 314 of the Trujillo Labour Code whereby " no industrial association shall ... intervene in any political ... matter " and Act No. 1443 of 14 June 1947 might admit of abusive interpretations incompatible with the provisions of Article 3, paragraph 1, of the Convention, which recognise the right of workers' and employers' organisations to organise their activities and formulate their programmes in full freedom and without hindrance by the Government. Even if it is admitted that political activities per se must be distinguished from purely trade union activities, in practice many labour questions undoubtedly take on political aspects which it is not possible to ignore. This being so, the Committee considers that section 314 of the Labour Code admits of interpretations incompatible with the Convention as ratified and that the application of Act No. 1443 of 14 June 1947 to employers' or workers' organisations might also be incompatible with the Convention, and, in these circumstances, recommends the Governing Body to draw these points to the attention of the Dominican Government and of the Committee of Experts on the Application of Conventions and Recommendations.
  26. Allegations relating to Freedom Not to Associate
  27. 302. The I.C.F.T.U alleges that the provision in section 306 of the Labour Code : " No industrial association shall directly or indirectly restrict the freedom to work or take any steps to compel any employee or employer to be a member of the association or to remain therein ", implies a restriction on the freedom of action of the trade unions. In this connection the Government maintains that the allegation is baseless. The above-mentioned provision, which implements the Constitutional guarantee of freedom to work, one of the inherent rights of man, not merely conforms to other provisions in the same Code (e.g. those which forbid employers " to exert influence on employees to induce them to join or refrain from joining or to withdraw from or remain a member of a trade union " (section 43) or require an " employee or person applying for employment ... to refrain from entering an association or to apply to be a member thereof " (section 307)) but also conforms to the standards in the Right to Organise and Collective Bargaining Convention, 1949, which has been ratified by the Dominican Republic. The complaining organisation is therefore claiming, in the view of the Dominican Government, that the latter should amend a law that is in accordance with the current international standards on the subject, a clearly inadmissible demand.
  28. 303. Article 1 of the Right to Organise and Collective Bargaining Convention, 1949, provides that:
  29. 1. Workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment.
  30. 2. Such protection shall apply more particularly in respect of acts calculated to:
  31. (a) make the employment of a worker subject to the condition that he shall not join a union or shall relinquish trade union membership ;
  32. ......................................................................................................................................................
  33. The clauses in the Labour Code mentioned in the complaint and mentioned by the Government do not appear to be at variance with the provision in the Convention cited above. In these circumstances the Committee recommends the Governing Body to decide that this aspect of the complaint does not call for further examination.
  34. Allegations relating to the Right to Strike
  35. 304. The I.C.F.T.U alleges that any trade union which decides to declare a strike must give its reasons for such a decision to the Secretariat of State for Labour. No strike may be declared within 15 days of such notification. The trade union must establish the fact that the strike " has for its exclusive objective the settlement of an economic dispute " (section 374 of the Code). In its reply the Government states that the Executive, in the exercise of its sovereign power, has brought the right to strike under regulation, restricting it to economic disputes. No comments have been made on such regulations in the previous reports of the Committee on Freedom of Association. The Dominican Republic is, moreover, not the only country that has made this right subject to similar regulations " in the discharge of the elementary duty of every government to see to the maintenance of peace and public order". The period of notice for a strike declaration and the right of the courts to pass on it do not amount to infringements of trade union rights.
  36. 305. The Committee on Freedom of Association in a number of earlier cases has had occasion to decide on various aspects of the right to strike. In Case No. 28 (United Kingdom-Jamaica), the Committee stated that " the right to strike and that of organising union meetings are essential elements of trade union rights... ". The right to strike is generally regarded as being an integral part of the general right of the workers and their organisations to defend their economic interests -, and the Committee has drawn the attention of various governments to this principle and to the fact that " although a strike may be temporarily restricted by law ... until existing facilities for negotiation, conciliation and arbitration can be brought to bear, such limitation or counteraction must be accompanied by adequate, impartial and speedy conciliation and arbitration proceedings in which the parties concerned can take part at every stage ".
  37. 306. The right to strike is governed by Part II of the Sixth Book of the Trujillo Labour Code, which reads as follows
  38. 368. A " strike " (huelga) shall mean any voluntary suspension of work concerted and carried out collectively by the employees in defence of their common interests.
  39. 369. All strikes shall be limited to the suspension of work. Any acts of coercion or of physical or moral violence against persons, or of physical force against things, or any other act having for its object the promotion of disorder or the alteration of the pacific character of the strike, shall be punished with the penalties laid down in this Code or in other legislation and may result in the strike being declared illegal.
  40. 370. No strike shall be permitted in public services of permanent utility.
  41. 371. The following shall be deemed to be public services of permanent utility for the purposes of section 370:
  42. (1) services under the State, the district of Santo Domingo or of a commune;
  43. (2) communications services;
  44. (3) transport services;
  45. (4) services connected with the sale of food at markets;
  46. (5) services for the supply of water;
  47. (6) services for the supply of gas or electricity for illumination or domestic use;
  48. (7) pharmaceutical services in hospitals and health services;
  49. (8) services for the sale of transport fuel.
  50. The above list shall not be restrictive.
  51. Any other service which cannot be suspended without prejudice to the public health or to the national economy shall be added to the list.
  52. 372. Where a strike is carried out in violation of section 370 the Executive shall be empowered to take over the direction and administration of the suspended services for such time as is necessary to avoid loss or damage to the national economy, and to take all such steps as are necessary to re-establish the said services and guarantee their maintenance.
  53. 373. In order to be legal a strike must have for its exclusive objective the settlement of an industrial dispute in the undertaking in which the persons concerned are employed.
  54. In consequence, the following strikes shall be illegal:
  55. (1) strikes declared for political reasons;
  56. (2) strikes declared on the basis of solidarity with other employees.
  57. All strikes declared in violation of the provisions of section 374 shall also be illegal, and also strikes which continue after the expiry of the legal time limit for the resumption of work ordered by a competent judge.
  58. 374. Before any strike may be declared the employees concerned shall be bound to submit to the Secretariat of State for Labour a statement declaring:
  59. (1) that the strike has for its exclusive objective the settlement of an economic dispute ;
  60. (2) that the economic dispute in question has been submitted without success to administrative conciliation procedure and that the parties (or one of the parties) have not appointed arbitrators or have not notified the appointment of arbitrators within the given time in conformity with the provisions of section 636;
  61. (3) that more than 60 per cent of the employees of the undertaking or undertakings concerned have voted in favour of the strike;
  62. (4) that the services affected by the proposed strike are not of the nature of the services mentioned in section 371.
  63. No strike may be declared until at least 15 days have elapsed after the date of the statement submitted by the representatives of the organisation to the Secretariat of State for Labour containing the above points.
  64. No vote concerning a strike shall be held before the expiry of the period of notice prescribed for the denunciation of a collective agreement of employment.
  65. Within 48 hours of the submission of the statement the said Secretariat of State shall notify the employer party of the statement, forwarding one of the copies of the statement.
  66. 375. Any strike declared after the procedure laid down in section 374 has been complied with shall have the following effects:
  67. (1) the employees shall be entitled to claim the protection of the labour authorities and the police for the peaceful exercise of their rights ;
  68. (2) the working of the undertaking in question shall be suspended, subject to the provisions of section 376.
  69. 376. The employer may demand that during the period of the strike such employees as are necessary, in the opinion of the Department of Labour or the local authority representing the Department, shall continue such work as is indispensable for the safety and preservation of the machines, the workplace and the raw materials.
  70. 377. The effects referred to in section 375 shall cease:
  71. (1) when the strike ceases for any reason;
  72. (2) when arbitration proceedings commence.
  73. Arbitration proceedings shall be deemed to have begun from the date of notification of the order referred to in section 640.
  74. 378. Strikes shall not put an end to contracts of employment, but only suspend the execution thereof.
  75. On the termination of the strike work shall be resumed in conformity with the provisions of section 531
  76. 379. In the case of an unlawful strike all contracts entered into with the employees who take part in the strike shall terminate without liability for the employer.
  77. Where new contracts of employment are concluded with the same employees, or with some of them, the conditions of employment shall be the same as those in force before the commencement of the strike, unless the employer accepts or offers other conditions more favourable to the employees.
  78. 307. In the circumstances there appear to be two distinct questions for consideration : the restrictions on the right to strike in essential services which are analogous to restrictions, already considered by the Committee in earlier cases, and the requirements prescribed by section 374, which appear to apply to all strikes.
  79. 308. As regards the prohibition of strikes in " public services of permanent utility ", the Committee, in accordance with its practice in previous cases, recommends the Governing Body to draw the attention of the Dominican Government to the importance which it attaches, in cases in which strikes are prohibited in essential occupations, to ensuring adequate guarantees to safeguard to the full the interests of the workers thus deprived of an essential means of defending occupational interests.
  80. 309. The Committee has recognised in a number of cases that prior notification to the administrative authority and provision for compulsory conciliation and arbitration in industrial disputes are provided for in the laws or regulations of a substantial number of countries, and that reasonable provisions of this type cannot be regarded as an infringement of freedom of association. In the present case, the Committee considers that the cumulative effect of all the various provisions set forth in sections 368 to 379 of the Trujillo Labour Code, including in particular the provision that a trade union must before calling a strike satisfy a government authority of the economic character of the dispute-a provision which may well become indistinguishable in practice from a requirement of government authorisation prior to calling a strike amounts to a denial of the right to strike, and recommends the Governing Body to draw the attention of the Government to the desirability of its giving further consideration to the matter.
  81. Allegations relating to the Prior Approval of Collective Contracts of Employment
  82. 310. The I.C.F.T.U alleges that under section 104 of the Dominican Labour Code a collective agreement to be executable requires the approval of the Department of Labour. The Government, on the other hand, points out that there is no unity in the international regulations on this subject, since the standards in the Right to Organise and Collective Bargaining Convention, 1949, and the Collective Agreements Recommendation, 1951, are purely a guide. Every collective labour agreement must comply with the rules of law and order laid down precisely for the worker's own protection, and hence the competent government authorities exercise supervision over collective contracts before allowing them to be put into force in order to avoid infringements of the provisions relating to law and order. The prior approval for which provision is made in section 104 of the Labour Code has no other purpose than to determine whether a projected collective agreement is or is not contrary " to the regulations of law and order laid down for the good of the working class ". Moreover if approval is withheld this decision is always subject to appeal to the courts, an appeal which is available to the party which considers itself to be aggrieved. Section 104 does not contradict the provisions of Article 4 of the Right to Organise and Collective Bargaining Convention, 1949.
  83. 311. Dominican law makes collective contracts on conditions of employment, that is to say collective agreements, subject to various conditions of form and, in the words of paragraph (3) of section 104 of the Code, to approval "by the most representative associations of employers and employees and by the Department of Labour ". In accordance with sections 96 to 99 of the Code, the " most representative " associations are deemed to be the registered associations, representing (in the case of workers' associations) more than 60 per cent of the employees of the undertaking. Any worker concerned who is a member of the union that has entered into a collective agreement may enter a protest on reasonable grounds against the approval of the agreement, by submitting it in writing to the public authorities. The Department of Labour must grant or deny its approval of the collective agreement on the basis of the documentation submitted and after hearing the statements of the parties (sections 105 and 106). Any refusal of approval, the Government reports, may be appealed against in the courts. At the international level, Article 4 of the Right to Organise and Collective Bargaining Convention, 1949, which has been ratified by the Dominican Republic, confines itself to providing that " measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation of machinery for voluntary negotiation between employers or employers' organisations and workers' organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements ".
  84. 312. Taking the above-mentioned provision of the said Convention into account, there are grounds for the belief that the requirement of previous approval by the Department of Labour to make the agreement valid might in certain circumstances imply a measure unlikely to encourage the collective bargaining procedures called for in the Convention. And, even though a refusal by the Government to give approval may be the subject of an appeal to the courts, the system of previous official approval in itself appears to be contrary to the whole system of voluntary negotiation envisaged in the Convention ratified by the Dominican Republic. In Case No. 102 (Union of South Africa) the Committee emphasises the importance it attaches to the principle that " trade unions should have the right, through collective bargaining or other lawful means, to seek to improve the living and working conditions of those whom the trade unions represent, and that the public authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof ". In these circumstances, noting that Dominican law makes provision for an appeal to the courts if official approval is withheld from a collective agreement the Committee considers that the provisions in sections 105 and 106 of the Labour Code of the Dominican Republic imply a possibility of interference by the public authorities in collective bargaining-a characteristic trade union activity-such intervention being incompatible with Article 3 of the Freedom of Association and Protection of the Right to Organise Convention, 1948, and Article 4 of the Right to Organise and Collective Bargaining Convention, 1949, which the Dominican Republic has ratified. The Committee therefore recommends the Governing Body to call the attention of the Committee of Experts to this matter and also to draw the attention of the Government of the Dominican Republic to the desirability of its giving further consideration to the question.
  85. Allegations relating to Cancellation of Registration and Dissolution of Trade Unions
  86. 313. The I.C.F.T.U alleges that the provisions in the Dominican Labour Code under which the registration of trade unions may be cancelled by a decision of the courts and the unions may be dissolved if they pursue activities not connected with their lawful objectives (section 356) are proof of the prevailing absence of freedom of association. The Government states in reply that Dominican legislation on this subject is in conformity with the standards in Article 4 of the Freedom of Association and Protection of the Right to Organise Convention, 1948, which prohibits dissolution or suspension "by administrative authority".
  87. 314. Sections 352 to 356 of the Labour Code deal with the question of dissolution of industrial associations and cancellation of their registration. Trade unions may be dissolved on the grounds provided for in their own rules and, where the rules do not contain any provisions on the subject, by a resolution of the general meeting. If an undertaking closes down for good, the works union in the undertaking is automatically dissolved. Section 356 states : "The registration of the association may be cancelled by a decision of the courts if the association pursues activities not connected with its lawful objectives." Cancellation of registration has the effect ipso jure of making null and void any acts by the association subsequent to such cancellation. Article 4 of the Freedom of Association and Protection of the Right to Organise Convention, 1948, ratified by the Dominican Republic, provides that " workers' and employers' organisations shall not be liable to be dissolved or suspended by administrative authority ".
  88. 315. In the previous case concerning the Dominican Republic the Committee on Freedom of Association had occasion to state its views on this point. In its Fifth Report the Committee found that from an examination of the articles analysed above " it would seem ... that a union is not subject to suspension or dissolution by administrative action " and it " noted with satisfaction the formal assurance given by the representative of the Dominican Republic that workers' organisations may not be dissolved by administrative action. It also noted that the provisions of the Labour Code at present in force relating to the suspension and dissolution of trade union organisations offer to those concerned all the guarantees of a normal judicial procedure.". In its Sixth Report the Committee reiterated its previous conclusions, adding that " it wished to emphasise the importance it attaches to the fact that these provisions should be fully applied ". In these circumstances, having regard to the fact that the allegations refer solely to a point of law that has already been dealt with, the Committee, subject to the reservations made in paragraph 301 above concerning the possibility of abusive interpretation of section 314 of the Labour Code and of Act No. 1443 of 14 June 1947, reiterates its previous conclusions and recommends the Governing Body to decide that this aspect of the case does not call for further examination.
  89. Allegations relating to Non-Compliance with Previous Recommendations of the Committee on Freedom of Association
  90. 316. In its letter dated 7 January 1957 the I.C.F.T.U alleges that the conclusions arrived at by the Committee on Freedom of Association in Case No. 3 (Dominican Republic) have been disregarded. The complaining organisation recalls the various stages of Case No. 3, mentioning " the disappointment and regret of the free trade union movement at the fact that the Dominican case has now been pending for several years, even though the Government of the Dominican Republic has shown by its refusal to fulfil the undertaking that it had given to allow an I.L.O mission to visit the country, its intention of persisting in the same course and of disregarding the assurances given to the I.L.O regarding the exercise of the right to organise in the Dominican Republic ". The I.C.F.T.U refers to paragraphs 1022 to 1028 of the Sixth Report of the Committee, in which the latter deplored " that the Government of the Dominican Republic has refused to give its consent to the sending of a mission ... to study the practical application of the legal provisions in force with respect to the right to organise ". It noted the prevailing legal situation at that time in the Dominican Republic and also noted the formal assurances given by the Government that workers' organisations may not be dissolved by administrative action, and that there was nothing to prevent the Confederation of Dominican Workers from affiliating with an international organisation of workers. Lastly it took note of the Government's intention to ratify the Freedom of Association and Protection of the Right to Organise Convention, 1948. The I.C.F.T.U points out that there was a delay of four years before this ratification took place and that, despite the formal assurances given by the Government, " the workers may in fact only adhere to trade unions approved by the Government, whose leaders are not elected freely by the workers and do not therefore represent them ".
  91. 317. The Government argues that the new submissions by the I.C.F.T.U add nothing new to the case, merely recapitulating earlier conclusions of the Committee. The fact that ratification of the Convention mentioned above was of recent date should not obscure the fact that the principles underlying it had been written into Dominican domestic law as early as 1951.
  92. 318. In these circumstances, and considering that the I.C.F.T.U letter of 7 January 1957 confines itself to a repetition of the Committee's earlier conclusions without submitting any specific allegation that has not been examined before or in the present report, the Committee recommends the Governing Body to decide that this aspect of the case does not call for further examination.

The Committee's recommendations

The Committee's recommendations
  1. 319. In all the circumstances the Committee recommends the Governing Body:
    • (a) to decide, subject to the reservation made in paragraph 315 above, that the allegations relating to recognition of trade unions, the subordination of trade unions to the Government, the cancellation of the registration of trade unions and the dissolution of these unions, relate partly to legislation which the Governing Body has already found in Case No. 3 was repealed in 1951 and partly to legislative provisions which the Governing Body found in Case No. 3 to be satisfactory, subject to employers and workers being able in actual practice to form and join organisations of their own choosing in full freedom ; so far as the allegations relating to the latter legislation are concerned, there are no allegations of fact concerning the manner in which it has been applied submitted in the complaint;
    • (b) to note that both 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) have now been ratified by the Dominican Republic and that the other allegations concerning failure to give effect to the recommendations made by the Committee in Case No. 3 are too vague to call for further examination ;
    • (c) with regard to the prohibition on political activity by trade unions, to draw the attention of the Dominican Government to the fact that section 314 of the Labour Code admits of interpretations incompatible with the Freedom of Association and Protection of the Right to Organise Convention, 1948, ratified by the Dominican Republic, and to the fact that the application of Act No. 1443 of 14 June 1947 to employers' or workers' organisations might also be incompatible with the Convention, and to draw this matter also to the attention of the Committee of Experts on the Application of Conventions and Recommendations ;
    • (d) to decide that the allegations relating to freedom not to associate examined in paragraphs 302 and 303 above do not call for further examination ;
    • (e) to draw the attention of the Dominican Government to the importance which the Committee attaches, in cases in which strikes are prohibited in essential occupations, to ensuring adequate guarantees to safeguard to the full the interests of the workers thus deprived of an essential means of defending occupational interests ;
    • (f) to note that the cumulative effect of all the various provisions set forth in sections 368 to 379 of the Labour Code, including in particular the provision that a trade union must before calling a strike satisfy a government authority of the economic character of the dispute-a provision which may well become indistinguishable in practice from a requirement of government authorisation prior to calling a strike-amounts to a denial of the right to strike, and to draw the attention of the Government to the desirability of its giving further consideration to the matter ;
    • (g) as regards the provisions of the Labour Code requiring previous approval by the authorities of collective agreements, to draw the attention of the Dominican Government to Article 3 of the Freedom of Association and Protection of the Right to Organise Convention, 1948, and Article 4 of the Right to Organise and Collective Bargaining Convention, 1949, both ratified by the Dominican Republic, and to the desirability of its giving further consideration to this question, and to draw the matter also to the attention of the Committee of Experts on the Application of Conventions and Recommendations.
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