Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 295, Novembre 1994

Cas no 1751 (République dominicaine) - Date de la plainte: 22-NOV. -93 - Clos

1. 360. The complaint in this case is contained in a communication of the National Federation of Sugar, Agricultural and Allied Workers (FENAZUCAR) of 22 November 1993. Later, in a communication dated 14 February 1994, FENAZUCAR submitted additional information. The Government sent its observations in communications dated 4 and 31 May 1994.
2. 361. The Dominican Republic has ratified both the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87), and the Right to Organize and Collective Bargaining Convention, 1949 (No. 98).

A. The Complainant's allegations

1. 362. In its communication of 22 November 1993, FENAZUCAR states that in April 1993 the workers of the Cristóbal Colón Sugar Plantation established the United Agricultural and Industrial Trade Union and elected an executive committee, and that immediately afterward the enterprise dismissed the general secretary and all the members of the executive of the trade union. As soon as the union was created, the sugar plantation's management challenged its establishment. Notwithstanding this, the Department of Labour legally recognized the union on 10 May 1993. The complainant organization further alleges that the enterprise is conducting a campaign to pressure workers to withdraw from membership in the union by threatening them with dismissal and expulsion from their homes.
2. 363. In its communication dated 14 February 1994, the complainant organization adds that the sugar plantation has a security team which blocks trade union meetings, and that in December 1993 the general secretary and claims secretary were prohibited from circulating in the "bateyes" (the places where residences and warehouses are located in a plantation); these trade union leaders were later detained for four hours at the police station.

B. The Government's reply

1. 364. In its communications of 4 and 31 May 1994, the Government states that since 1961 there has been a trade union at the Cristóbal Colón Sugar Plantation, called the Trade Union of Workers of the Sugar Industry (Wage and Salary Earners) of the Cristóbal Colón Sugar Plantation and that in April 1993 a group of workers of this plantation informed the Secretary of State for Labour of the establishment of another trade union, called the United Agricultural and Industrial Trade Union of the Cristóbal Colón Sugar Plantation. The Government further states that the members of the previously established trade union first opposed the registration of the second trade union, alleging that its general secretary held a post in the management of the enterprise, but that despite their request the labour authorities authorized the registration of the union. The Government reports that when the registration was contested in court, the judicial authorities ordered the revocation of the resolution issued by the Secretary of State for Labour registering the trade union, as the union was not established in accordance with the provisions of the law. Specifically, the union did not comply with the provision of the labour code which prohibits workers holding managerial, security, monitoring or supervisory posts from being members of a trade union.
2. 365. Finally, as regards the dismissal of the leaders of the new trade union, the Government reports that the Secretary of Labour attempted without success to mediate, as the parties did not attend the meetings convened by the mediator.

C. The Committee's conclusions

1. 366. The Committee observes that the allegations refer to the dismissal of the general secretary and all the members of the executive committee of the United Agricultural and Industrial Trade Union of the Cristóbal Colón Sugar Plantation following the establishment of the union, to a campaign of pressure from the enterprise to force workers to withdraw from membership in the union, to the blocking of the free movement of trade union leaders in the enterprise's premises, to the impossibility of holding trade union meetings and to the temporary detention by the police of the general secretary and the claims secretary of the union.
2. 367. As regards the dismissal of the general secretary and all the members of the executive committee of the new trade union following the establishment of the union, the Committee notes that the Government recognizes that these dismissals took place and that it states that it attempted without success to mediate, as the parties did not attend the meetings which were convened. The Committee deeply deplores these anti-union dismissals. It furthermore emphasizes that they are a very serious violation of freedom of association which affects all of the leadership of the trade union. It draws the Government's attention to the fact that "no person should be dismissed or prejudiced in his employment by reason of his trade union membership or legitimate trade union activities" (see 272nd Report, Case No. 1506 (El Salvador), para. 132). In these circumstances, the Committee urges the Government to take the measures necessary so that the dismissed trade union leaders are immediately reinstated in their posts.
3. 368. As regards the alleged campaign of pressure and threats of dismissal conducted by the enterprise so that the workers would withdraw from membership in the trade union, the Committee observes that the Government has not communicated its observations. However, given that the Government acknowledges that the entire executive committee of the trade union was dismissed for anti-trade union reasons, the Committee cannot but conclude that in this anti-trade union context there was anti-trade union persecution within the enterprise of the union's members. In these circumstances, the Committee requests the Government to ensure that the union's members can freely exercise their trade union activities and, if necessary, that the competent authorities apply the penalties provided by legislation.
4. 369. As regards the allegation concerning the blocking of the free movement of trade union leaders on the premises of the sugar plantation, the Committee observes that the Government has not communicated its observations. The Committee draws the attention of the Government to the principle according to which Governments must "guarantee access of trade union representatives to workplaces, with due respect for the rights of property and management, so that trade unions can communicate with workers, in order to apprise them of the potential advantages of unionization". (See 284th Report, Case No. 1523 (United States), para. 195.) The Committee requests the Government to take the measures necessary to ensure that trade union representatives are given free access to workplaces and are able to move about within them.
5. 370. As regards the alleged impossibility to hold trade union meetings at the sugar plantation because a security team prevents them, the Committee observes that the Government has not communicated its observations. In these circumstances, the Committee refers to the conclusions it has formulated in the past as regards trade union activities at plantations, in which it stated that although it "recognized that plantations are private property", the Committee recalled that "employers should remove existing hindrances, if any, in the way of the organization of free, independent and democratically controlled trade unions by plantation workers and they should provide such unions with facilities for the conduct of their normal activities, including ... freedom to hold meetings". (See Digest of decisions and principles of the Committee on Freedom of Association, 3rd edition, 1985, para. 220.) The Committee thus requests the Government to conduct an investigation into the allegations, and to ensure that the trade union in question may immediately hold freely the trade union meetings it considers necessary at the sugar plantation.
6. 371. As regards the detention for four hours of the general secretary and the claims secretary at the police station, the Committee deeply regrets that the Government has not communicated its observations in this respect as well, and given the anti-trade union context of this case must deplore the detention which reportedly occurred and draw the Government's attention to the principle according to which the arrest - even if only briefly - of trade union leaders and trade unionists who are exercising legitimate trade union activities constitutes a violation of the principles of freedom of association. (See Digest, op. cit., para. 88.) The Committee insists that such reprehensible acts should not reoccur in future.
7. 372. Finally, as regards the judicial challenge of the registration of the United Agricultural and Industrial Trade Union of the Cristóbal Colón Sugar Plantation by another trade union which already existed at the enterprise, the Committee notes the Government's statement that it was the judicial authorities that requested revocation (despite the fact that the United Agricultural and Industrial Trade Union had been registered by the administrative authorities). As regards the grounds for the challenge of the registration, the Government points out that the trade union previously established at the sugar plantation challenged new trade union's registration, referring to the fact that the general secretary of the new union was a member of the enterprise's management. For its part, the court judgement refers to the fact that some members of the new trade union held "administrative, security, monitoring or supervisory posts" as grounds for the revocation of the registration.
8. 373. In this respect, as regards the accusation that the general secretary of the new trade union reportedly held a management post at the sugar plantation, or in other words that the trade union leader was not independent, the Committee observes that this accusation appears to be refuted by the fact that the general secretary in question was dismissed for his trade union activities, as was the entire executive committee. Furthermore, the Committee observes that in this case the judicial authority revoked the registration based on the Labour Code (section 328) which makes it possible to exclude workers who carry out "administrative, inspection, security, monitoring or supervisory functions ..." from the right of association. On this point, given that the text of the judgement does not give an accurate description of the tasks carried out by the members of the trade union in question, the Committee emphasizes that an excessively broad interpretation of the concept of "worker of confidence", which denies such workers of their right of association, may seriously limit trade union rights and even, in small enterprises, prevent the establishment of trade unions, which is contrary to the principle of freedom of association. In these circumstances, the Committee also emphasizes the principle under which the right of workers to constitute organizations of their choosing implies, in particular, the effective possibility to create - if the workers so choose - more than one workers' organization per enterprise. In the light of these principle, the Committee considers that all the workers of the Cristóbal Colón Sugar Plantation should be allowed to establish and join trade unions of their choosing and that, consequently, the United Agricultural and Industrial Trade Union of the Cristóbal Colón Sugar Plantation should be allowed to function and develop its activities. The Committee requests the Government to take measures to guarantee that this is the case, including by initiating judicial proceedings if necessary, and to keep it informed in this respect.

The Committee's recommendations

1. 374. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) Recalling that no person should be dismissed or prejudiced in his employment by reason of his trade union membership or legitimate trade union activities, the Committee urges the Government to take the measures necessary so that the trade union leaders of the United Agricultural and Industrial Trade Union of the Cristóbal Colón Sugar Plantation who were dismissed are immediately reinstated in their posts.
   • (b) The Committee requests the Government to conduct an investigation to determine whether the allegations concerning the campaign by the enterprise to pressure workers to withdraw from membership in the union are true and, if so, to take the necessary measures so that the union's members can freely exercise their trade union activities, and to apply the penalties provided by legislation.
   • (c) The Committee requests the Government to take the necessary measures to ensure that trade union representatives are given free access to workplaces and are able to move about within them.
   • (d) The Committee requests the Government to conduct an investigation into the alleged impossibility to hold trade union meetings because of a security team which prevents them and to guarantee that the trade union in question may immediately hold freely the trade union meetings that it considers necessary.
   • (e) Considering that all the workers of the Cristóbal Colón Sugar Plantation should be able to establish and join the trade union of their choosing and that, consequently, the United Agricultural and Industrial Trade Union of the Cristóbal Colón Sugar Plantation should be able to function and develop its activities, the Committee requests the Government to take measures to guarantee that this is the case, including by initiating judicial proceedings if necessary, and to keep it informed in this respect.