Report in which the committee requests to be kept informed of development - Report No 376, October 2015

Case No 2786 (Dominican Republic) - Complaint date: 26-MAY-10 - Closed

Allegations: Anti-union acts and dismissals in the Frito Lay Dominicana, Universal Aloe and MERCASID enterprises, and also the refusal to register various trade unions

1. 338. The Committee last examined this case at its May–June 2013 meeting, when it presented an interim report to the Governing Body [see 368th Report, paras 291–299, approved by the Governing Body at its 318th Session (June 2013)].
2. 339. Subsequently, the Government sent new observations in a communication dated 20 March 2015.
3. 340. 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. Previous examination of the case

1. 341. At its June 2013 meeting, the Committee made the following recommendations on the matters still pending [see 368th Report, para. 299]:
   • (a) The Committee regrets that the Government has not provided the information requested in March 2012 on the matters still pending and requests the Government to be more cooperative in the future.
   • (b) The Committee once again urges the Government to indicate without delay whether self-employed workers and contract workers may bargain collectively, and draws this aspect of the case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.
   • (c) As regards the alleged anti-union practices in the enterprises “Frito Lay Dominicana”, “Universal Aloe” and “MERCASID”, the Committee urges the Government to provide additional information, in particular regarding the allegations of inspection flaws (absence of impartiality and failure to carry out inspections).
2. 342. With regard to recommendation (c), the conclusions and recommendations of the Committee from its March 2012 meeting are reproduced below [see 363rd Report, para. 507]:
   • ■ Regarding the alleged anti-union practices in the Frito Lay Dominicana enterprise, the Universal Aloe enterprise and the MERCASID enterprise, the Committee notes that the Government indicates that:
     • (a) in the inspection report of 16 June 2010, it is recorded that the Secretary-General of the Trade Union of Workers and Salespersons of Frito Lay Dominicana, Mr Ramón Mosquera, told the labour inspector that it was not in his interest for the complaint to be investigated but for it to be referred to the Ministry of Labour so that mediation with the enterprise could resume;
     • (b) the campaign of slander against Mr Pablo de la Rosa was an application by MERCASID for the lifting of trade union immunity, that the Labour Court of the National District, in its ruling of 3 August 2009, rejected the application, and that the abovementioned enterprise complied with the ruling. Regarding the dismissal of workers for having joined a trade union, the Committee notes that the Government indicates that the Ministry of Labour has carried out various investigations into the alleged anti-union repression of trade union officers and found no evidence of practices contrary to freedom of association; and
     • (c) regarding the alleged threats against officers of the trade union of workers of the enterprise Universal Aloe, the Ministry of Labour found no signs of anti-union discrimination by the enterprise, nor were practices harmful to freedom of association uncovered.
   • ■ The Committee requests the Government to provide additional information, in particular as regards the allegations of inspection flaws (absence of impartiality and failure to carry out inspections).

B. The Government’s reply

1. 343. In its communication of 20 March 2015, the Government states that the case of the MERCASID enterprise has been resolved and that the trade union official – who had obtained a second ruling from the Second Chamber of the Labour Court rejecting the enterprise’s application to lift his trade union immunity so that he could be dismissed – was not the victim of any retaliation by the enterprise. In a communication from the enterprise, attached by the Government, the enterprise explains that its application to the Court was made on account of an email with pornographic content that had been sent to a number of employees in the enterprise, as stated in the ruling. The Government adds that the complainant states, in a written communication accompanying its reply, that this case was already settled by the courts.
2. 344. As regards the allegation of anti-union practices at the Frito Lay Dominicana enterprise and the request for new mediation by the Ministry of Labour, the Government refers to the multiple instances of mediation aimed at the conclusion of a collective agreement between the trade union and the enterprise but does not send any information concerning the false accusations against the Secretary-General of the trade union, Mr Ramón Mosquera, designed to secure his dismissal, or concerning the anti-union dismissal of 15 union members in 2009–10 [see 359th Report, para. 436].
3. 345. As regards the allegations concerning the Universal Aloe enterprise (threats against union officials), the Government states that in the course of the many inspections conducted in this enterprise no information or complaints relating to violations of freedom of association were received. However, the Government sent a communication from the complainant confederation dated July 2014 stating that the complaint relating to this enterprise is still to be settled.

C. The Committee’s conclusions

1. 346. The Committee notes the explanations from the Government and the MERCASID enterprise concerning the judicial proceedings for lifting the trade union immunity of the union’s Secretary-General. Observing that the ruling went in favour of the union official and that consequently he was not dismissed, the Committee will not pursue its examination of this allegation.
2. 347. As regards the alleged anti-union practices at the Frito Lay Dominicana enterprise, the Committee observes that these relate to the 2009–10 period (allegations of the anti-union dismissal of 15 union members and false accusations against the union’s Secretary-General, Mr Ramón Mosquera). The Committee notes that the Government refers to the multiple instances of mediation aimed at the conclusion of a collective agreement between the enterprise and the union but not to the alleged anti-union practices. In view of the time that has elapsed since these allegations were made, the Committee urges the complainant and the Government to indicate whether or not administrative or judicial complaints have been filed and, if so, to keep it informed of their outcome.
3. 348. As regards the complainant’s allegations in 2010 concerning the Universal Aloe enterprise (threats against union officials), the Committee notes the Government’s statement that in the course of the many inspections conducted at the enterprise no information or complaints relating to violations of freedom of association were received. In view of this, the Committee recalls in general terms that the exercise of trade union rights is incompatible with violence or threats of any kind and it is for the authorities to investigate without delay and, if necessary, penalize any act of this kind.
4. 349. Lastly, noting with regret that the Government has not responded to recommendation (b) made further to the previous examination of the case, the Committee observes that section 2 of the Labour Code links the concept of worker to the existence of an employment contract and that section 319 recognizes only enterprise, occupational or branch trade unions. The Committee requests the Government: (i) to ensure that “self-employed” workers fully enjoy freedom of association rights, in particular the right to join the organizations of their own choosing; (ii) to hold consultations to this end with all the parties involved with the aim of finding a mutually acceptable solution so as to ensure that workers who are self-employed could fully enjoy trade union rights for the purpose of furthering and defending their interest, including by the means of collective bargaining; and (iii) in consultation with the social partners concerned, to identify the particularities of self-employed workers that have a bearing on collective bargaining so as to develop specific collective bargaining mechanisms relevant to self-employed workers, if appropriate [see 363rd Report, Case No. 2602 (Republic of Korea), para. 461]. The Committee again draws this aspect of the case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.
5. 350. As regards the allegations concerning flaws and a lack of impartiality in the functioning of the inspection system, the Committee, in view of the lack of specific observations from the Government on this matter, requests the Government to keep it informed of any developments in this respect and recalls to the Government the availability of technical assistance from the ILO.

The Committee’s recommendations

1. 351. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) As regards the alleged anti-union practices at the Frito Lay Dominicana enterprise, the Committee urges the complainant and the Government to indicate whether or not administrative or judicial complaints have been filed and, if so, to keep it informed of their outcome.
   • (b) The Committee requests the Government: (i) to ensure that “self-employed” workers fully enjoy freedom of association rights, in particular the right to join the organizations of their own choosing; (ii) to hold consultations to this end with all the parties involved with the aim of finding a mutually acceptable solution so as to ensure that workers who are self-employed could fully enjoy trade union rights for the purpose of furthering and defending their interest, including by the means of collective bargaining; and (iii) in consultation with the social partners concerned, to identify the particularities of self-employed workers that have a bearing on collective bargaining so as to develop specific collective bargaining mechanisms relevant to self-employed workers, if appropriate. The Committee again draws this aspect of the case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.
   • (c) Observing the allegations concerning flaws and a lack of impartiality in the functioning of the inspection system, the Committee requests the Government to keep it informed of any developments in this respect and recalls to the Government the availability of technical assistance from the ILO.