Definitive Report - Report No 246, November 1986

Case No 1339 (Dominican Republic) - Complaint date: 30-MAY-85 - Closed

1. 72. The complaint presented by the General Central Organisation of Workers (CGT) is contained in a communication dated 30 May 1985. The Government sent its observations in communications dated 25 September 1985 and 5 June 1986.
2. 73. 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. 74. The complainant alleges that on 4 May 1985, three days after the workers of the Pasteurizadora Rica C. por A. undertaking had set up a trade union, the executives of the undertaking requested the occupation of the premises by the military and dismissed 24 members of the trade union, including five recently elected leaders (Antonio Suárez, José A. Lagares, Francisco Sánchez, Elvin Herrera and José Antonio Pimentel).
2. 75. The complainant adds that on 5 May 1985, the Ministry of Labour ordered a so-called investigation into the events; however, the persons appointed to carry out this investigation never visited the premises of the undertaking, a situation which was exploited by the employers to replace the dismissed workers by active members of the military.
3. 76. The complainant adds that on 14 May 1985, Gregorio Reyes, Secretary-General of the trade union and Marino del Carmen Mejía, Secretary of Records and Correspondence, were forced to resign from the leadership of the trade union. On 21 May 1985 the trade union assembly met and elected Juan Osorio, Dianor Beltré Amador and Diloné Reyes as substitutes for the dismissed leaders. On the following day they were also dismissed. There are thus serious grounds for suspecting collusion between middle-rank officials of the Ministry of Labour and the employers at the undertaking.
4. 77. Finally, the complainant states that the remaining trade union leaders (Pablo de Jesús Rosario, Manuel de Jesús, Pedro Bretón and Erasmo Vargas) were transferred to less well-paid workplaces with the express objective of forcing them to resign from the undertaking.

B. The Government's reply

1. 78. In its communication of 25 September 1985, the Government states that the complaint presented by the CGT does not correspond exactly to the events which occurred in the Pasteurizadora Rica C. por A. undertaking since no reference is made in the complaint to the serious circumstances which in fact led to a precarious economic situation which obliged this undertaking to make urgent readjustments and changes in its pace of production and which affected the level of employment.
2. 79. The documentation furnished by the Government in the annex contains information from the undertaking explaining the economic difficulties which it had been experiencing since 1983, in particular following the increase in production costs and the freezing of milk prices by the Government. A communication from the undertaking dated 12 August 1985 points out that as a result of the precarious economic situation of the undertaking 63 workers had been dismissed in recent months.
3. 80. In its communication dated 5 June 1986, the Government states that although the dismissed workers included 24 members of the trade union, the dismissals were made without reference to their status as trade unionists and at all times in accordance with the right granted by the Labour Code to remove workers; that they were motivated only by the serious and precarious economic situation of the undertaking; and that the persons concerned were not replaced by active members of the military to whom remuneration would have had to be paid, which would have meant a persistence of the same economic deficit.
4. 81. With regard to the allegation concerning the transfer of trade union leaders to less well-paid workplaces, the Government states that this does not accord with the facts, since these workers are sales agents who are rotated on a temporary basis, irrespective of their trade union status, in various zones some of which prove more profitable than others. The Government adds that the allegation concerning the pressure brought to bear on two trade union leaders to resign from the trade union is unfounded.
5. 82. Finally, the Government states that the Secretariat of State for Labour, in the interests of preserving industrial peace and in its role as friendly mediator between the parties, reached a satisfactory settlement of this dispute which was already assuming major proportions and creating a shortage of a nutriment which is vital to children and old people, since the Pasteurizadora Rica C. por A. undertaking is the main supplier of pasturised milk in the country.

C. The Committee's conclusions

1. 83. The Committee notes that in the present complaint the complainant has alleged basically that acts of trade union discrimination were carried out in the Pasteurizadora Rica C. por A. undertaking following the establishment of a trade union. The complainant organisation has referred in particular to the dismissal of 24 trade unionists (including five trade union leaders and two substitutes) and the transfer of three trade union leaders to workplaces with poorer working conditions.
2. 84. The Committee notes that, according to the Government, although the 63 dismissed workers included 24 trade unionists, no account was taken of their status as trade union members and that their dismissal was the result of the economic crisis which the undertaking was experiencing. The Government also affirms that the allegation concerning the transfer of trade union leaders to less well-paid workplaces does not accord with the actual facts since as sales agents they are rotated temporarily in different zones irrespective of their status as trade union members.
3. 85. The Committee therefore concludes that the accounts of the complainant and the Government concerning the events are contradictory. The Committee would like to stress, nevertheless, that according to the allegations, the dismissals in question affected a large number of trade union leaders (at first five and subsequently two others) and trade unionists, and occurred days or weeks after the establishment of the trade union.
4. 86. In these circumstances, although it takes note that the undertaking was in a situation of economic crisis, the Committee would like to recall the principle contained in the Workers' Representatives Recommendation, 1971 (No. 143) that one of the specific measures of protection should be the "recognition of a priority to be given to workers' representatives with regard to their retention in employment in case of reduction in the workforce".
5. 87. The Committee notes furthermore that section 84 of the Labour Code of the Dominican Republic authorises dismissal "without just cause" on the 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. Therefore, on the basis of previous conclusions concerning the legislation of the Dominican Republic (see for example, 211th Report, Case No. 1053 (Dominican Republic), paras. 163 to 165), 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 anti-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 the trade unions.
6. 88. Finally, the Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspect of the case and 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.

The Committee's recommendations

1. 89. In these circumstances, the Committee recommends the Governing Body to approve the present report and, in particular, the following conclusions:
   • a) The Committee recalls the principle contained in the Workers' Representatives Recommendation, 1971 (No. 143) that one of the specific measures of protection should be the "recognition of a priority to be given to workers' representatives with regard to their retention in employment in case of reduction of the workforce".
   • b) On the basis of previous conclusions reached in relation with the legislation of the Dominican Republic, 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.
   • c) The Committee draws the attention of the Committee of Experts on the Application of Recommendations and Conventions to the legislative aspect of the case and 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.