Report in which the committee requests to be kept informed of development - Report No 230, November 1983

Case No 1188 (Dominican Republic) - Complaint date: 10-MAR-83 - Closed

1. 415. The complaint is contained in a communication of the Unified Workers' Central of 10 March 1983. The Government replied in a communication of 4 June 1983.
2. 416. The Dominican Republic has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 417. The Unified Workers' Central alleges in its communication of 10 March 1983 that the Textiles K company, in order to avoid discussing the draft collective agreement submitted by the works union, and in order to destroy the union, did not renew the contracts of eight union leaders (Messrs. Ramón del Socorro García, Sergio Tulio Medina León, Emenegildo Polanco, Narciso Trinidad, Juan de Dios García, Pedro Angomás, Víctor Hugo Medina and Genaro Rosario), and nine active members of the union (Messrs. Vicente Devorah, Zacarías Pérez, Luis Germán, Sambay Matos, Bienvenido Amado Pérez, Juan Escobozo, Víctor Lara, Jorge Ramírez and Rafael Báez). Of the afore-mentioned union leaders, four were members of the negotiating committee for the draft collective agreement.
2. 418. The complainant adds that the anti-union aims of the company are further evidenced by the fact that the company had promised to renew the contracts of all the workers, and that on 13 January 1983 the owners divided the company into 13 phantom companies, each having from four to 13 workers.

B. The Government's reply

1. 419. The Government states in its communication of 4 June 1983 that, since 1979, it has been the practice of the Textiles K company to sign one-year contracts with its workers, reserving the right to extend the contracts of any who so merit and to provide the legally prescribed severance pay to the others. The right of the company to act in this manner is recognised in section 66 of the Labour Code.
2. 420. The Government adds that the collective agreement in force also contains a clause empowering the company to terminate all labour contracts by 24 December of each year, at the latest, regardless of whether the worker is a union leader, by payment of the appropriate labour benefits.
3. 421. The Government further states that under the provisions of section 295 of the Labour Code, union leaders and members automatically cease to belong to the union upon termination of their contracts, by virtue whereof, there being no legal representatives, the company is not required to bargain collectively with an organisation that de facto does not exist.
4. 422. The Government indicates that the 13 companies to which the complainant refers have been legally incorporated and registered in accordance with the legislation in force.
5. 423. The Government concludes by indicating that the mediation undertaken by the Director-General for Labour for purposes of achieving an agreement to resolve the conflict was unsuccessful, and that it considers that there has been no violation of freedom of association in this case since the owners of the Textiles K company have exercised a lawful right.

C. The Committee's conclusions

1. 424. The Committee observes that the present case refers to the refusal of the Textiles K company to renew the contracts of eight union leaders and nine union members active in the union of that company for the alleged purpose of not discussing the draft collective agreement submitted by the union and in order to destroy the union.
2. 425. The Committee takes note of the statements of the Government in this respect, and in particular that, since 1979, it has been the practice of the company to sign one-year contracts, extending these for persons who so merit, and that this is in accordance with the laws and the collective agreement in force.
3. 426. The Committee considers that, while the system of fixed-term contracts is not in itself objectionable from the standpoint of the principles of freedom of association, the application of this system in practice, and more particularly the real motive behind a refusal to extend a labour contract, should not be the trade union office, affiliation or activity of a given individual. In this respect the Committee observes that in the particular circumstances of the case there are serious reasons for considering that the refusal to extend the contracts in question constituted an act of anti-trade union discrimination. At no time has the Government referred to any economic difficulties faced by the company, or to professional faults committed by the parties involved, whereas the complainant has indicated that the refusal to extend the labour contracts involved a large number of union leaders and members in a relatively small company, that prior to the company's refusal to extend the labour contracts, the union had submitted a draft collective agreement, and that shortly after the refusal to extend the contracts, the owners of the company divided it into 13 companies, each with from four to 13 workers. It is important to note here that section 298 of the Labour Code, which applies to works unions among others, establishes that associations of employees shall not have less than 20 members.
4. 427. The Committee further recalls that recently it has had occasion to examine allegations of anti-union discrimination in the Dominican Republic and has had to emphasise the need to adopt provisions giving effective protection against acts of anti-union discrimination. 1 The Committee of Experts on the Application of Conventions and Recommendations has also made a statement to this effect.
5. 428. In these circumstances, the Committee requests the Government to take measures to bring about the speedy reinstatement of the 17 trade union leaders and members mentioned by the complainant, and to keep the Committee informed on this matter.
6. 429. Finally, the Committee takes note that according to the Government, by virtue of section 295 of the Labour Code ("when the employee leaves the undertaking, for whatever reason, he shall cease to be a member of the union"), union leaders and members automatically cease to belong to the union upon termination of their contracts, and, there being no legal representatives, the company is not required to bargain collectively with an organisation that de facto does not exist. The Committee considers that this provision is not consistent with the right of workers to join organisations of their own choosing (Article 2 of Convention No. 87) and can give rise to acts of anti-union interference by the employer in a manner contrary to the provisions of Article 2 of Convention No. 98, especially in circumstances in which the company is empowered to terminate all labour contracts at the end of each year. The Committee emphasises the need for the Government to adopt provisions giving effective protection against acts of anti-union discrimination and interference, and draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative implications of the case.

The Committee's recommendations

1. 430. In these circumstances, the Committee recommends the Governing Body to approve the present report and, in particular, the following conclusions:
   • (a) The Committee requests the Government to take measures to bring about the speedy reinstatement of the 17 union leaders and members mentioned by the complainant, and to keep the Committee informed on the matter.
   • (b) The Committee emphasises the need for the Government to adopt provisions giving effective protection against acts of anti-union discrimination and interference, and draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative implications of the case.