Definitive Report - Report No 211, November 1981

Case No 1053 (Dominican Republic) - Complaint date: 12-JUN-81 - Closed

1. 159. The complaint is contained in a communication dated 12 June 1981 from the Sole Confederation of Workers. The Government sent its observations in a communication dated 5 August 1981.
2. 160. The Dominican Republic has ratified 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).

A. The complainant's allegations

1. 161. The Sole Confederation of Workers alleges that Nelson Rafael Minaya was dismissed from his job as a result of his recent election as executive member of this trade union Confederation and for having requested a wage increase of 70 per cent, in accordance with the terms of the preliminary draft of the collective agreement which will shortly be discussed between the Cartonera Dominicana Corporation and the trade union of this undertaking, of which Mr. Minaya is Secretary-General. The complainant adds that the undertaking has thus violated the provisions of sections 43 and 307 of the Labour Code and Conventions Nos. 87 and 98.

B. The Government's reply

1. 162. The Government states that the dismissal of Nelson Rafael Minaya constitutes an infringement of the collective agreement concluded between the undertaking and the trade union, but should not be confused with an infringement of freedom of association. The Government adds that in the event of an infringement of the clauses of a collective agreement it is for the courts to assess the scope and consequences of such infringements and to determine whether any guilt can be assigned.

C. The Committee's conclusions

1. 163. As the Committee has already pointed out in other cases, national legislation which enables employers' on condition that they pay the compensation prescribed by law for cases of unjustified dismissal to dismiss a worker does not give sufficient protection against anti-trade union discrimination, since it enables an employer on condition that he pays the compensation prescribed by law, to dismiss any member of his staff, for trade union or other activities, the public authorities being powerless to prevent him from doing so. Protection is particularly desirable in the case of trade union officials because in order to be able to perform their trade union duties in full independence they must have the guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions. This guarantee is also necessary to secure respect for the principle that workers' organisations have the right to elect their representatives in full freedom,
2. 164. In the present case, the Committee notes that the Government has at no time referred to any serious misconduct on the part of the trade union leader, Mr. Minaya, nor has it raised any objections to the allegation that Mr. Minaya was dismissed on the grounds of his trade union activities; on the contrary the Government has in its references to Mr. Minaya described his dismissal as an infringement of the collective agreement in force. The Committee also notes that section 84 of the Labour Code of the Dominican Republic authorises dismissal without just cause on condition that the employer pays the compensation prescribed by the law and that section 679 imposes only small fines in the event of an infringement of the provisions which establish protection against acts of trade union discrimination. The Committee therefore draws the attention of the Government to the principles set forth in the preceding paragraph and requests it to consider the adoption of legislation to give effective protection to trade union leaders and workers against dismissals made on the basis of their trade union activities, and more specifically to take steps with a view to reinstating the trade union leader Nelson Rafael Minaya, in his workplace. In addition it would draw the attention of the Committee of Experts on the Application of Conventions and Recommendations to this aspect of the case.

The Committee's recommendations

1. 165. In these circumstances, the Committee recommends the Governing Body to approve the present report and, in particular, the following conclusions:
   • The Committee draws the attention of the Government to the fact that legislation which authorises the dismissal without just cause of trade union leaders and workers on condition that they are paid the compensation prescribed by law, does not give sufficient protection against acts of anti-union discrimination. It accordingly draws this aspect of the case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.
   • The Committee requests the Government to consider the adoption of legislation to give effective protection to trade union leaders and workers against dismissals made on the basis of their trade union activities and more specifically, to take steps with a view to the reinstatement of the trade union leader, Nelson Rafael Minaya, in his workplace.