Definitive Report - Report No 85, 1966

Case No 411 (Dominican Republic) - Complaint date: 19-AUG-64 - Closed

1. 214. The complaint of the Latin American Confederation of Christian Trade Unionists (C.L.A.S.C.) is contained in a communication dated 19 August 1964 and that of the International Federation of Christian Trade Unions in a communication dated 20 August 1964. On 25 August 1964 I.F.C.T.U sent a new communication containing additional information. After these had been forwarded to it, the Government sent its replies on 16 November 1964 and 11 March 1965. The allegations before the Committee relate especially to the provisions of the existing legislation and to their application in practice.
2. 215. 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).

216. In its communication of 19 August 1964 C.L.A.S.C reported that the Christian trade union leaders Jesús Caminero, Henry Molina, Porfirio Zarzuela, Rosendo López and others had been imprisoned on account of a general strike which had been declared. The I.F.C.T.U communication of 20 August 1964 repeated this information and reported the arrest of the main leaders of the Autonomous Confederation of Christian Trade Unions (C.A.S.C.). In its additional information I.F.C.T.U reported that Mr. Zarzuela had been sentenced to a term of imprisonment, that 40 leaders had been arrested and that the police had raided the premises of certain organisations.

1. 217. In its communication of 16 November 1964 the Government reported that on being notified of the complaints lodged by these trade union organisations it had ordered an inquiry into the facts connected with the detention of the persons named. No final judgment had so far been given in the case, since the final hearing was not due to take place until 28 November 1964, and the Government promised to send the text of the judgment given. By its communication of 11 March 1965 the Government sent the text of the judgment of 25 August 1964, given against Messrs. Luis H. Molina Peña, José de Jesús Caminero, Felipe Alcántara Valdez, Juan B. Ramirez Bello and Rosendo López R by the Fourth Criminal Chamber of the National District, together with the grounds therefor, the text of the judgment of 28 August 1964 given by the labour court, together with the grounds therefor, and a certificate to the effect that the persons sentenced on 25 August 1964 had brought an appeal against the judgment in question.
2. 218. As is apparent from the text of the judgment given by the Criminal Chamber on 25 August 1964, when the authorities learned that a number of trade union leaders were inciting the workers to strike the matter was investigated and the leaders in question were officially charged with violating sections 103 and 106 of the Penal Code (incitement to commit a crime), Act No. 5915 respecting illegal strikes and Act No. 6132 respecting the expression and dissemination of opinions. On 25 August 1964 the judicial hearing took place and the parties attended to state their case. In the view of the court it appeared from the statements of the accused that they had promoted an unlawful strike, in violation of the Acts and provisions specified. Finally, in the operative part of the judgment, the accused were found guilty of violating Act No. 5915 respecting illegal strikes and sentenced to pay a fine, substantial extenuating circumstances being taken into consideration. Act No. 5915 provides that all strikes declared for political reasons or on the basis of mere solidarity with other workers, and strikes declared in violation of the provisions of section 374 of the Labour Code, are illegal.
3. 219. The judgment given on 28 August 1964 by the labour court found that the strike in which the said persons participated had been declared in violation of the provisions of section 374 of the Labour Code. Under section 373 of that Code strikes declared in violation of section 374, which prescribes the procedures to be followed before a strike is declared, are illegal. According to information furnished by the Secretariat of State for Labour, none of the requirements prescribed in section 374 was satisfied. On 24 August 1964 the accused were summoned to the hearing held to determine whether the strike was legal, but failed to appear. Accordingly, and having regard to the precedents of fact and of law, the strike in which the Autonomous Confederation of Christian Trade Unions participated, inter alia, was declared illegal.
4. 220. Section 374 of the Labour Code reads as follows:
5. Before any strike may be declared the workers concerned shall submit to the Secretariat of State for Labour a statement declaring:
6. (1) that the strike has as its object the settlement of an economic dispute or the improvement of working conditions;
7. (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;
8. (3) that more than 60 per cent of the employees of the undertaking or undertakings concerned have voted in favour of the strike;
9. (4) that the services affected by the proposed strike are not public services of permanent utility.
10. 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 Secretary of State for Labour containing the above points.
11. ......................................................................................................................................................
12. 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.

B. B. The Committee's conclusions

1. 221. The Committee notes that the case involves two aspects of the same problem, which derives fundamentally from the legislation in force in the Dominican Republic respecting collective disputes and strikes. One is the criminal aspect and the other is the purely industrial aspect, though both are closely related.
2. 222. With regard to the industrial aspect the Committee points out that on a previous occasion it was called upon to examine the legislation of the Dominican Republic on collective labour disputes and the right to strike) Notwithstanding certain amendments to that legislation, the Committee notes that the rules applied are basically the same. On that occasion the Committee had felt that the cumulative effect of the various provisions applicable in this matter, especially the provision that a trade union must, before declaring a strike, satisfy the government authorities of the economic character of the dispute, a provision which may well become indistinguishable in practice from a requirement of prior government authorisation, amounts to a denial of the right to strike, and for that reason recommended the Governing Body to draw the Government's attention to the desirability of its giving further consideration to the matter.
3. 223. On the other hand, with a view to stating still more clearly its observations on the relevant legislation, the Committee finds it necessary to point out that, under section 374 of the Labour Code, one of the requirements to be satisfied before a strike may be declared is that one of the parties to the dispute has not appointed arbitrators after the administrative conciliation procedure. In such event, according to section 636, the arbitrators may be nominated ex officio, i.e. a dispute may be taken to arbitration in any case. However, as section 377 seems to imply, a strike declared after the commencement of arbitration proceedings would be illegal. On the other hand, according to section 656, the award, once given, has the effect of a collective agreement and its application is compulsory. Taken together, these provisions may be interpreted as absolutely prohibiting the right to strike.
4. 224. The Committee has always maintained the principle that allegations respecting the right to strike are within its competence in so far, but only in so far, as they affect the exercise of trade union rights and has pointed out on a number of occasions that workers and their organisations are usually granted the right to strike as a legitimate means of defending their occupational interests. In this connection the Committee has emphasised the importance it attaches, where strikes are prohibited or are subject to restrictions, in essential services, to the establishment of adequate safeguards to protect the interests of the workers, who are thus deprived of an essential means of defending their occupational interests, and has pointed out that such restrictions should be accompanied by adequate, impartial and speedy conciliation and arbitration procedures, in which the parties concerned may participate at every stage, and that the awards given should in all cases be binding on both parties. The Committee explained in this connection that these principles do not apply to the absolute restriction of the right to strike, but to the restriction of that right in the essential services or in the civil service, in which case adequate guarantees should be provided to safeguard the interests of the workers s
5. 225. The Committee observes that in a report sent by the Government of the Dominican Republic on the application of Convention No. 87 it is stated that all the requirements and formalities which the Labour Code imposes on trade unions before a strike may be declared are purely for the information of the Secretariat of State for Labour, which allows them to use its good offices in an endeavour to achieve a settlement through conciliation, and that the requirements are never laid down with the idea that the Secretariat should come to any kind of decision as to whether the workers do in fact wish to strike or not, or as to the nature of the strike, such decisions falling exclusively within the competence of the labour courts. The Government adds that there has been no case where workers have been restricted in their freedom to determine whether or not to strike, although they have been notified on many occasions that they must follow the procedure laid down in the Labour Code if the strike is to be declared lawful.
6. 226. The Committee feels that the legal provisions cited seem to admit of the interpretation that it is possible to prohibit the exercise of the right to strike in all cases by declaring a strike illegal, even though this is done by a court. It is also possible that the existence of seemingly contradictory provisions respecting the right to strike might give rise to uncertainty.
7. 227. The Committee accordingly recommends the Governing Body to draw the Government's attention once again to the desirability of re-examining the provisions governing strikes in the light of the considerations set forth in paragraphs 224 and 226 above, so as to establish sufficiently simple and speedy procedures prior to a strike and thereby ensure that workers are not, in practice, deprived of one of the essential means at their disposal for furthering their demands.
8. 228. With regard to the criminal aspect of this case the Committee notes that, under the legislation in force, persons found guilty of promoting an illegal strike are liable to imprisonment for a period between 15 days and six months, as prescribed in Act No. 5915. In this connection the Committee notes that, according to the information furnished by the Government, the persons concerned were sentenced for offences under this Act only, and that fines were imposed having regard to substantial extenuating circumstances.
9. 229. The Committee therefore recommends the Governing Body, while noting that the accused persons are not being detained and that they have merely been fined, to draw the Government's attention to the fact that the restrictive nature of the provisions governing strikes and the possible consequence of the procedure to be followed before a strike may be declared appear to make it possible for strikers to be liable in all cases to penal sanctions, which would imply a violation of the provision of Convention No. 87 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 the Convention (Article 8, paragraph 2), and especially the right of workers' p organisations to " organise their administration and activities and to formulate their programmes " (Article 3).

The Committee's recommendations

1. 230. In all the circumstances, while reaffirming the principle that allegations respecting the right to strike are within its competence, in so far-but only in so far-as they affect the exercise of trade union rights, the Committee recommends the Governing Body:
   • (a) to draw the Government's attention once again to the desirability of re-examining the provisions respecting strikes in the light of the considerations set forth in paragraphs 224 and 226 above, so as to establish a simplified procedure prior to the declaration of a strike and thereby ensure that the workers are not deprived in practice of one of the essential means at their disposal for furthering their demands;
   • (b) while noting that the accused persons are not being detained and that they have merely been fined, to draw the Government's attention to the fact that the restrictive nature of the provisions governing strikes and the possible consequence of the procedure to be followed before a strike may be declared appear to make it possible for strikers to be liable in all cases to penal sanctions, which would imply a violation of the provisions of Convention No. 87 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 the Convention (Article 8, 2), and especially the rights of workers' organisations to " organise their paragraph administration and activities and to formulate their programmes " (Article 3).