Report in which the committee requests to be kept informed of development - Report No 363, March 2012

Case No 2819 (Dominican Republic) - Complaint date: 20-OCT-10 - Closed

Allegations: The complainant organization alleges the dismissal of all the founders of a trade union in a company, and the suspension of union leaders for submitting a draft collective agreement and for exerting the right to organize in another company

1. 509. The complaint is contained in a communication of the National Confederation of Dominican Workers (CNTD) dated 20 October 2010. The CNTD submitted new allegations in a communication of 8 March 2011.
2. 510. The Government sent its observations in a communication dated 20 October 2011.
3. 511. The Dominican Republic has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Workers’ Representatives Convention, 1971 (No. 135).

A. The Complainant’s allegations

1. 512. In its communication dated 20 October 2010, the CNTD states that in its meeting of 26 January 2009, the workers of the company Ciramar International Trading Ltd decided to establish the Union of Workers of Ciramar International (STECI), which was registered by the Ministry of Labour under No. 02/2009. The complainant organization alleges that on 29 January 2009, the company Ciramar International Trading Ltd dismissed (termination of contract for no valid reason) all the founding members of the trade union, claiming that it was carrying out the orders of the Chief of Naval Staff, which did not acknowledge the trade union and denied the dismissed persons entry to the company’s premises (according to the complainant these facts are recorded in Report No. 18-2006 submitted under the investigation carried out on Ciramar International Trading Ltd).
2. 513. The company Ciramar International Trading Ltd manufactures and repairs ships and its main headquarters are located in the naval base of Las Calderas, in the municipality of Bani and province of Peravia, in the south of the country. Although the company is located inside the grounds of a naval military base, it is not attached to this military body and the workers that established the trade union are not part of the military. The fact that a company is located in areas controlled by military bodies does not mean that its workers cannot form a trade union and that they are excluded from the scope of ILO Convention No. 87.
3. 514. The complainant organization indicates that, following their dismissal for participating in the foundation of the trade union, the dismissed workers Sandy Soto Díaz, Richard Candelario, Onasis R. Espinosa, Víctor Beltre G., Beato Brujan Arias, Gilberto de los Santos, Bodre Brujan, Porfirio Ramírez Guzmán, José del Carmen Guance, Samuel de Jesús Franco, Daniel Ramírez Báez and Santos Reyes filed a complaint against Ciramar International Ltd, before the competent district court, the Civil, Commercial and Labour Panel of the Court of First Instance of the Judicial District of Peravia. In this complaint they requested the court to declare the dismissals null and void, order their reinstatement in their normal activities, the payment of wages foregone over the period that they were not in the company and compensation for damages caused.
4. 515. The complainant states that pursuant to the abovementioned complaint, the Civil, Commercial and Labour Panel of the Court of First Instance of the Judicial District of Peravia handed down Ruling No. 23 on 12 July 2010 in which the presiding judge decided not to order the workers’ reinstatement “since the current labour legislation in the Dominican Republic does not provide for the reinstatement of workers and workers dismissed under such conditions (protected by trade union immunity) are only entitled to compensation”.
5. 516. The complainants state that protection guaranteeing the exercise of a fundamental right, in this case the freedom of association, must include the restitution of the right once this has been breached. To exercise the right to organize, dismissed workers must be reinstated to their posts, since financial compensation does not guarantee the exercise of the right to organize, but only provides monetary compensation for the damages caused. Only the continued employment of the union founders, leaders and members guarantees the existence and effective operation of the workers’ union. Therefore, their irregular and abusive dismissal should lead to their reinstatement in their posts. Accepting only financial compensation for the dismissal of union leaders and activists is tantamount giving up the right to organize, which contradicts the terms of Convention No. 98. According to the complainant, the position adopted by the company Ciramar International Trading Ltd by dismissing and denying entry to its premises to the union founders and leaders, on the grounds of the supposed opposition of the Navy of the Dominican Republic, constitutes a flagrant violation of Article 2 of Convention No. 87, and Articles 2 and 3 of Convention No. 98. At the same time, the decision of the Civil, Commercial and Labour Panel of the Court of First Instance of the Judicial District of Peravia, not to order the reinstatement of the workers dismissed in trade union reprisals and to attempt to settle the case through financial compensation alone, also constitutes a serious violation of freedom of association and of the terms of Conventions Nos 87 and 98.
6. 517. In its communication of 8 March 2011, the CNTD states that on 19 July 2007, 31 workers of the company Elsamex International SL, who were working on the extension of the Las Américas motorway, on the stretch for the province of San Pedro de Macorís and La Romana, in the exercise of the right to form a trade union, enshrined in the Constitution of the Dominican Republic, the Labour Code and Conventions Nos 87 and 98, created the Union of Workers of Elsamex Internacional SL – Concesionaria Dominicana de Autopistas y Carreteras (CODACSA) (STEEI–CODACSA) to counter the company’s recent treatment of workers. The CNTD alleges that, as soon as the company Elsamex International SL was notified of the creation of the trade union, it applied a whole series of serious anti-union practices.
7. 518. The complainant organization indicates that on 26 February 2008, the STEEI–CODACSA notified the company of a draft collective agreement to initiate a bargaining process in view of signing of a collective agreement. The interest and the actions taken by the union and the workers of Elsamex International SL to exercise the right to collective bargaining and improve living and working conditions through a collective agreement were thwarted. After various mediation sessions before the Ministry of Labour the mediation process was brought to an end on 18 April 2008, when the company declared that: “the company currently has no interest in concluding a collective agreement with its employees and the trade union that they have created, and that for the time being, its relations with the workers’ union will be regulated in accordance with the Dominican Labour Code”.
8. 519. The CNTD indicates that, following the failure of the mediation due to the company’s refusal to bargain collectively, the trade union followed all the legal procedures to stage a strike. Under pressure from the strike, the Ministry of Labour offered further mediation. Following various rounds of meetings and the company’s initial refusal to negotiate an agreement, proposals were discussed and agreed on, but the company did not sign the agreement. On 15 February 2009, following on from its anti-union practices employed to obstruct the signing of the collective agreement and its workers’ right to organize, Elsamex International SL proceeded to suspend (without pay) union leaders Pilar Castro Madrigal, Eliezer Jil, Carlos Julio Santos de la Cruz, Santo G. Michell, Juan Samuel F., Julio Berson Hernández, Pablo Taveras and Ramón Orlando Santana Rijo.
9. 520. The CNTD adds that the companies Elsamex International SL and the CODACSA are interrelated, as Elsamex International SL is one of the founders of the latter. The workers would receive orders from representatives of both companies indistinctly, which indicates that they are the same company.
10. 521. The complainant organization indicates that, since the suspension of the union leaders, Elsamex International SL and CODACSA continue with their work on the extension of the Las Américas motorway. The CNTD adds that, as a result of this barefaced illegal suspension, to prevent the signing of the collective agreement and further trade union action, such as another strike, the suspended workers Pilar Castro Madrigal, Eliezer Jil, Carlos Julio Santos de la Cruz, Santo G. Michell, Juan Samuel F., Julio Berson Hernández, Pablo Taveras and Ramón Orlando Santana Rijo, filed a complaint before the Labour Court of San Pedro de Macorís, requesting that it declare the suspensions illegal, order the workers’ reinstatement to their usual posts, order the company to pay the wages foregone during the period of illegal suspension, and the payment of compensation for the damages caused by the company in its attempt to stop the workers’ from organizing, bargaining collectively and striking .
11. 522. In response to this request, Panel No. 2 of the Labour Court of San Pedro de Macorís handed down Ruling No. 202-2009 on 12 October 2009, ordering Elsamex International SL and CODACSA to pay the wages forgone for the months from 15 February 2009 to the date of the final ruling or the defendant’s termination of the work contracts. These companies were also ordered to pay compensation for the damages caused to the abovementioned workers as a result of the companies’ violation of their right to organize.
12. 523. Ruling No. 202-2009 handed down by the Labour Court of San Pedro de Macorís (Panel No. 2) was appealed by the companies and also by the workers, who requested the Labour Court of San Pedro de Macorís to uphold the decision and include a further article ordering the reinstatement of the workers to their usual position. As a result of this appeal, the Labour Court of San Pedro de Macorís handed down appeal Labour Ruling No. 425 2010, revoking Ruling No. 202-2009 handed down by the Labour Court, absolving CODACSA from any liability and rejecting the workers’ trade union immunity protection. It also allowed the false closure and termination of the company’s activities. In an attempt to please everyone, the Labour Court only ordered Elsamex International SL to pay 20,000 Dominican Republic pesos (DOP) in damages per worker (DOP20,000 is the equivalent of US$523.33) to Pilar Castro Madrigal, Eliezer Jil, Carlos Julio Santos de la Cruz, Santo G. Michell, Juan Samuel F., Julio Berson Hernández, Pablo Taveras and Ramón Orlando Santana Rijo for the violation of labour law standards and legislation established in the Constitution.
13. 524. During the actions brought before both courts, the complainant workers provided evidence of the companies’ anti-union practices, firstly to dismantle the trade union and then to avoid signing the collective agreement and obstructing the right to strike, which explains the fictitious closure of the company. The interrelation and solidarity between the two companies was also demonstrated. According to the CNTD, Ruling No. 425-2010 of the Labour Court of San Pedro de Macorís, makes the Dominican Republic guilty of violating Conventions Nos 87 and 98 by not implementing the mechanisms to guarantee the exercise of the right to organize, to collective bargaining and to strike of the workers Pilar Castro Madrigal, Eliezer Jil, Carlos Julio Santos de la Cruz, Santo G. Michell, Juan Samuel F., Julio Berson Hernández, Pablo Taveras and Ramón Orlando Santana Rijo, who were working for Elsamex International SL and CODACSA.

B. The Government’s reply

1. 525. In its communication dated 20 October 2011, the Government declares that both the Constitution and the Labour Code fully guarantee the freedom of association and collective bargaining of workers, which is also enshrined in Conventions Nos 87 and 98 of the International Labour Organization, which have been ratified by the Dominican Republic. In view of guaranteeing this right, following the complaints filed by both the CNTD and the STEEI–CODACSA, the Ministry of Labour initiated a series of investigations through the Labour Inspectorate, which in various instances found that the company in question was indeed adopting an anti-union attitude; in such cases, the labour inspectors reported the corresponding violations.
2. 526. With regard to collective bargaining, as a result of the interventions requested by the CNTD, the Ministry of Labour proceeded to organize meetings, which at first, were not attended by the company. However, at the Ministry of Labour’s insistence the company attended the requested mediation sessions, sitting down with the trade union to initiate the collective bargaining procedure. The Government indicates that after various mediation sessions the parties managed to negotiate an agreement. However, when the agreement was about to be signed, Elsamex International SL and CODACSA declared that they no longer held the work licence that they had signed with the Ministry of Public Works in previous years. In view of the above, one of the companies proceeded to terminate its workers’ contracts, requesting the definitive closure of the company before the Ministry of Labour. This closure was denied on the grounds that the Ministry considered that the arguments submitted in the request were unsubstantiated.
3. 527. The Government indicates that, as the CNTD states in its complaint, the union leaders proceeded to lodge an appeal before the relevant courts, as a result of which, according to information from the CNTD, the appeal is currently awaiting a decision by the Supreme Court of Justice.
4. 528. With regard to the allegations against the company Ciramar International Trading Ltd, the Government declares that since the workers of this company decided to form a trade union, the Ministry of Labour has provided them with all the support specified in the Labour Code and in ILO Conventions Nos 87 and 98. In this respect, the Government intervened in the whole process of the formation of the trade union in question. However, the company did not comply with the Government’s observations that it should allow the establishment of the trade union, and on this basis, was charged with the violation of freedom of association and adoption of unfair practices in respect of freedom of association.
5. 529. The Government indicates that, in view of the position taken by the company Ciramar International Trading Ltd, the trade unionists filed a complaint requesting the annulment of the dismissals, the reinstatement of the workers and the payment of wages. In this respect, a decision was handed down in which, although the Court ordered the company to pay compensation, it failed to rule on the annulment of the dismissals and the reinstatement of the workers. In light of this, the workers filed an appeal which is currently pending the decision of the San Cristobal Court of Appeal.
6. 530. The Government adds that, on another front, the Ministry of Labour is pursuing actions and meeting with the navy with a view to it reasoning with the company to make it understand that the workers are free to establish a trade union and engage in collective bargaining. The Government reiterates that it is open to any guidance or observations from the ILO regarding the issues raised in this report, and it stresses that it remains intent on ensuring effective compliance with legal standards, whether these are national or international, in view of guaranteeing peace in the workplace with regard to the employer–worker relationship.

C. The Committee’s conclusions

1. 531. The Committee observes that in this case the CNTD alleges that days after having constituted the STECI, all its founding members were dismissed (named in the complaint). Moreover, the CNTD alleges that in the context of anti-union practices to prevent the signing of the collective agreement and the exercise of the right to organize, the company Elsamex International SL – CODACSA suspended eight union leaders (named in the complaint).

Company Ciramar International Trading Ltd

1. 532. With respect to the dismissal of all the founding members of the STECI, the Committee notes that the Government states that: (1) the company workers received the Ministry of Labour’s full support from the moment that they decided to establish a trade union; (2) the authorities intervened throughout the process of creating the trade union, but the company did not comply with the observations made that it should allow the establishment of the trade union and it was therefore charged with the violation of freedom of association and of adopting unfair practices in respect of the freedom of association; (3) in view of the attitude adopted by the company, the unionized workers filed a complaint requesting the annulment of the dismissals, the reinstatement of the workers, and the payment of wages foregone; (4) in this respect, a ruling was handed down, which while ordering the company to pay compensation, made no ruling regarding the annulment of the dismissals and the reinstatement of the workers; (5) in response, the workers filed an appeal, which is pending a decision by the Court of Appeal of San Cristobal; (6) the Ministry of Labour is pursuing actions and meeting with the navy with a view to it reasoning with the company to make it understand that the workers are free to form a trade union and engage in collective bargaining; and (7) it is open to any guidance or observations from the ILO regarding the issues raised in this complaint.
2. 533. The Committee observes that the complainant organization confirms that the complainants appealed to the courts requesting that the dismissals be declared null and void, ordering the workers’ reinstatement, the payment of the wages foregone and compensation for damages caused. In this regard, the complainant organization submits a copy of the ruling, where the preamble indicates that: (1) “regarding the first claim made by the complainants, it should be established whether the complainants were dismissed by the defendant, as they alleged; in this respect, article 391 of the Labour Code states that the dismissal of workers protected by trade union immunity must first be submitted to the Labour Court, to determine within no more than five days whether the grounds for dismissal refer to an offense, or to union leadership, duties or activities. Where the employer does not observe this formality, the dismissal is null and void or does not terminate the work contract”; (2) “in this case, the defendant did not comply with the requirement established in the previous article and, as the report of the labour inspector states, limited itself to claiming that the navy denied the workers entry to the company, therefore entitling them to dismiss them”; (3) “having established that the complainants were not allowed to enter the company on the grounds of their trade union activity and being unable to establish whether their dismissal was justified, the court must declare this null and void, thereby upholding the validity of the work contract”; (4) “the complainants’ request their reinstatement but this must be rejected on the grounds that the current legislation does not provide for reinstatement and that the workers dismissed in those circumstances, will only be liable to compensation in the event of this being declared unjustified or null and void, all obligations and restrictions resulting in compensation but not in reinstatement”; (5) “that by not having complied with the requirements established in the Labour Code the defendant violated the rights of these workers, whereby the company is obliged to compensate them” (the company is ordered to pay DOP1million in compensation to the complainants). The complainant organization contests the court’s decision against ordering the reinstatement of the workers and its attempt to settle the case through financial compensation only.
3. 534. In this respect, noting that the administrative authority and the judiciary confirm the anti-union nature of the dismissals and the violation of article 391 of the Labour Code on submitting the dismissal of a worker protected by trade union immunity to the Labour Court, the Committee stresses that “anti-union discrimination is one of the most serious violations of freedom of association, as it may jeopardize the very existence of trade unions” [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 769]. Moreover, while taking note of the decision of the Labour Court and of the fact that the legislation does not provide for the possibility of reinstatement, the Committee recalls that no one should be subjected to anti-union discrimination because of legitimate trade union activities and that the remedy of reinstatement should be available to those who are victims of anti-union discrimination [see Digest, op. cit., para. 837]. Under these circumstances, the Committee requests the Government to take the necessary measures to amend the legislation so as to bring it into conformity with this principle. The Committee requests the Government to continue to make every effort to bring the parties together with the objective of obtaining the reinstatement of the dismissed union founders. The Committee requests the Government to keep it informed in this regard.

Companies Elsamex International SL and Concesionaria Dominicana de Autopistas y Carreteras (CODACSA)

1. 535. With regard to the allegations that, following on from anti-union practices to prevent the signing of a collective agreement and the exercise of the right to organize, the company Elsamex International SL – CODACSA suspended eight union leaders (named in the complaint), the Committee notes that the Government states that: (1) the Constitution and the Labour Code fully guarantee freedom of association; (2) in view of guaranteeing this right and in response to the complaints submitted by the CNTD and STEEI–CODACSA, the Ministry of Labour initiated a series of investigations through the Labour Inspectorate, which in various instances found that the company in question was adopting an anti-union attitude; in such cases, the labour inspectors reported the corresponding violations; (3) after the companies declared that they no longer held the work licence that they had signed with the Ministry of Public Works in previous years, they proceeded to terminate their workers’ contracts and requested their definitive closure before the Ministry of Labour (which was rejected); and (4) the union leaders proceeded to lodge appeals before the corresponding courts and the appeal against this decision is currently pending at the Supreme Court of Justice. The Committee also observes that the complainant organization sends a copy of the first instance ruling handed down by the Labour Court of the Judicial District of Pedro de Macorís regarding the claim of wages forgone due to illegal suspension and compensation for damages due to the violation of the freedom of association in which: (1) it is indicated that the “complainants’ request the payment of DOP20,000 in compensation for damages caused by the defendant violating its freedom of association and illegally withholding the complainants’ wages, whereby it proceeds to uphold their request, but for the sum of DOP1,000,000”; (2) “it upholds, as regards the form, the request for wages foregone due to illegal suspension and compensation of damages due to the violation of the freedom of association and the illegal withholding of wages”; and (3) “it orders, on the merits, the companies Elsamex International SL and CODACSA to pay the corresponding wages owed to the complainant workers for the months from 15 February 2009 to the date of the final ruling or up to the defendant’s termination of the work contracts”.
2. 536. The Committee also notes that the complainant organization submits the second instance ruling of the Labour Court of the Judicial District of San Pedro de Macorís regarding the suspensions where it decided to: (1) “revoke Ruling No. 202-2009 of 12 October 2009 handed down by the Labour Court of the Judicial District of San Pedro de Macorís stating insufficient legal grounds, the distortion of events and documents”; (2) “reject the complaint of the violation of freedom of association”; (3) “order the company Elsamex International SL to pay DOP20,000 per worker to Pilar Castro Madrigal, Eliezer Jil, Carlos Julio Santos de la Cruz, Santo G. Michell, Juan Samuel F., Julio Berson Hernández, Pablo Taveras and Ramón Orlando Santana Rijo, in damages for the violation of labour law standards and legislation, for negligence in the management of working relationships and the social rights established in the Dominican Constitution”; and (4) “absolve the company CODACSA of any liability”.
3. 537. In this respect, noting that the second instance court rejected the complaint of the violation of freedom of association and that, according to the Government, an appeal against this decision is currently pending before the Supreme Court of Justice, the Committee notes that – according to the allegations – the suspensions occurred during the process of bargaining a collective agreement, which failed, and following the staging of a strike and findings by the Labour Inspectorate that one of the companies was adopting an anti-union attitude. In these circumstances, the Committee recalls that in general “no person should be dismissed or prejudiced in employment by reason of trade union membership or legitimate trade union activities” [see Digest, op. cit., para. 771], and requests the Government to keep it informed of the outcome of the appeal of the ruling before the Supreme Court of Justice.
4. 538. Lastly, with regard to the alleged impossibility of concluding a collective agreement with the companies in question, the Committee notes that the Government states that: (1) as a result of the interventions requested by the CNTD, the Ministry of Labour proceeded to organize the corresponding sessions. At first, these were not attended by the companies, but at the Ministry of Labour’s insistence they attended the requested mediation sessions, sitting down with the trade union to initiate the collective bargaining procedure; (2) following various mediation sessions, the parties were able to negotiate an agreement, but when this was going to be signed, the companies declared that they no longer held the work licence that they had previously signed with the Ministry of Public Works; and (3) only one of the companies (according to the Government’s reply) applied to the Ministry of Labour for its definitive closure, and was rejected. In this respect, the Committee regrets to find that, despite its efforts, the trade union in question has not been able to conclude a collective agreement on working conditions with the company or companies concerned since 2008. In these conditions, the Committee stresses that “measures should be taken to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or employers’ organizations and workers’ organizations, with a view to the regulation of terms and conditions of employment by means of collective agreements.” And “recalls the importance which it attaches to the obligation to negotiate in good faith for the maintenance of the harmonious development of labour relations” [see Digest, op. cit., paras 880 and 934]. In these circumstances, the Committee urges the Government to take the necessary measures to promote collective bargaining between the STEEI–CODACSA and the company or companies concerned. The Committee requests the Government to keep it informed in this regard.

The Committee’s recommendations

1. 539. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to make every effort to bring the STECI and the company in question together, in view of achieving the reinstatement of the dismissed trade union founders. The Committee requests the Government to keep it informed in this regard. Moreover, the Committee requests the Government to take the necessary measures to amend the legislation in accordance with the principle indicated in the conclusions in relation to the remedy of reinstatement in cases of anti-union dismissals.
   • (b) The Committee requests the Government to keep it informed of the outcome of the appeal currently underway before the Supreme Court of Justice in relation to the suspension of eight union leaders of the STEEI–CODACSA.
   • (c) The Committee urges the Government to take the necessary measures to promote collective bargaining between the STEEI–CODACSA and the company or companies concerned. The Committee requests the Government to keep it informed in this regard.