Informe provisional - Informe núm. 363, Marzo 2012

1. 487. The Committee last examined this case at its March 2011 meeting, when it presented an interim report to the Governing Body [see 359th Report, paras 414–458, approved by the Governing Body at its 310th Session (March 2011)].
2. 488. The Government sent its observations in a communication dated 20 October 2011.
3. 489. 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. 490. At its March 2011 meeting, the Committee made the following recommendations [see 359th Report, paras 414–458]:
   • (a) The Committee requests the Government, in consultation with the most representative workers’ and employers’ organizations, to take measures to amend the legislation in order to allow trade unions of self-employed workers or trade unions of contract workers to be founded and registered.
   • (b) Recalling that the Government freely ratified Convention No. 87 and that it is obliged to guarantee that the provisions of the Convention are respected, and assuming that all procedural requirements have been met, the Committee requests the Government to register SINAMITO (whose membership consists of self-employed workers), the Trade Union of Workers of the Enterprise Barrick Gold and the Trade Union of Electricity Generator and Convertor Building and Repair Workers and Related of Haina (whose members are contract workers).
   • (c) As to the National Trade Union of Workers of the Call Center Branch, the Committee requests the complainant organization to communicate its observations concerning the Government’s reply and expects that the Government and the trade union in question will together examine how the problems referred to by the Government might be resolved. The Committee also requests the Government to investigate claims of pressure being brought to bear on workers to get them to leave the trade union and if these allegations are proven to be true, to take the necessary measures to prevent any such acts from occurring in the future.
   • (d) As to SUTRAMICEMA and FUTRAMETAL, the Committee expects the Government and the trade union and the federation in question, to examine how the problems referred to by the Government might be solved. The Committee requests the Government to keep it informed in this regard.
   • (e) The Committee notes that the Government has not sent its observations regarding the allegations contained in the communication dated 8 July 2010 concerning anti-union dismissals, threats and practices in certain enterprises, such as the Frito Lay Dominicana enterprise, the Universal Aloe enterprise and the MERCASID enterprise and requests the Government to send its observations without delay, together with the views of these enterprises obtained through the most representative employers’ organization.

B. The Government’s reply

1. 491. Refusal to register the National Trade Union of Operators of Topographical Instruments (SINAMITO). In its communication dated 28 September 2011, the Government states that, on 9 August 2011, the trade union informed the Ministry of Labour that it had held an assembly on 17 July 2011 at which the trade union had decided to amend its statutes and change its name to “Trade Union of Construction Workers and Operators of Topographical Instruments” (registration No. 00126-1962). The Government states that, as a result of these arrangements, the application filed by the National Trade Union Confederation (CNUS) and SINAMITO is resolved.
2. 492. Constant harassment of the Trade Union of Workers and Salespersons of Frito Lay Dominicana. The Government states that the Ministry of Labour has responded appropriately to the various applications received from both the Trade Union of Workers of Frito Lay Dominicana and the CNUS and relating to alleged violations committed by that enterprise against both unionized and non-unionized workers, as reflected in the reports prepared by labour inspectors. In the inspection report of 16 June 2010, it is recorded that the Secretary-General of the trade union, Mr Ramón Mosquea, 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.
3. 493. Refusal to register the United Trade Union of Workers of Minera Cerros de Maimón (SUTRAMICEMA). The Government states that the Ministry of Labour sent back the registration application on the grounds that it contained errors that made it impossible to proceed with registration in conformity with national legislation. The workers managing the trade union subsequently decided to join the Trade Union of Workers of Cerro de Maimón Mine (SITRACEMA), registered under No. 24/2010 on 19 October 2010. The issue of the trade union registration application by the workers of that enterprise was thus resolved.
4. 494. Refusal to register the Trade Union of Workers of the Enterprise Barrick Gold. The Government states that the Ministry of Labour, acting in accordance with labour legislation, sent back the application on the grounds that the CNUS itself had reported in a previous communication that workers listed in the Barrick Gold registration application worked for an enterprise known as “Graña y Montero” (G&M). The Government states that returning a registration application with observations does not mean that the application has been rejected. The General Labour Director attended a meeting with CNUS officers and lawyers to discuss and take note of their observations. As a result, the United Trade Union of Workers of the Enterprise Minera Pueblo Viejo Cotuí (Barrick Gold) was registered under No. 10-2010 by the Ministry of Labour on 25 June 2010, and the representation was resolved.
5. 495. Refusal to register the Single Federation of Workers of the Mining, Metallurgy, Chemicals, Energy and Various Industries and Related (FUTRAMETAL). The Government reiterates that on 13 March 2010, the registration application was returned to FUTRAMETAL together with various observations clearly based on the law and understood and recognized by the trade union confederations. The observations were accepted by the Secretary-General of the federation and FUTRAMETAL was registered on 12 November 2010.
6. 496. Anti-union practices in the MERCASID enterprise. In the complaint filed by the CNUS regarding MERCASID, it is stated that workers have been dismissed from this enterprise for having joined an existing trade union, and that a campaign of slander was launched against Mr Pablo de la Rosa, a trade union officer, with the aim of damaging his image and forcing him to abandon his demand that the collective agreement in force be respected. Regarding the situation of Mr de la Rosa, the Government states that, according to investigations conducted by the Ministry of Labour, the real issue was the application by MERCASID for the lifting of trade union immunity because of alleged misconduct by Mr de la Rosa under the Labour Code. The Labour Court of the National District, in its ruling of 3 August 2009, rejected the application by MERCASID, which complied with the ruling, and Mr de la Rosa kept his job and remained an officer of the trade union.
7. 497. Regarding the dismissal of workers who joined the trade union, the Government states that the Ministry of Labour has conducted various investigations, including those of 18 August and 10 September 2010, in response to the complaint lodged by the SID Workers’ Trade Union (SITRASID) concerning the alleged anti-union repression of trade union officers. Neither investigation found evidence to indicate to the labour inspectorate that there had been any practices contrary to freedom of association. The inspectors observed that there was some rivalry between various officers, apparently over the leadership of the trade union.
8. 498. Refusal to register the Trade Union of Electricity Generator and Converter Building and Repair Workers and Related of Haina. In the complaint, the CNUS stated that the application for the registration of the Trade Union of Electricity Generator and Converter Building and Repair Workers and Related of Haina was filed with the Ministry of Labour on 26 October 2009. The application contained all of the required documentation, which referred to the enterprises in which the founders of the trade union provided their services, and thereby proved that they were wage earners in those enterprises. The CNUS stated that, through a ruling dated 5 November 2009, the General Labour Director rejected the trade union’s application for registration, claiming that the union was being established by self-employed workers who were not governed by the Labour Code. The workers were dismissed as a result.
9. 499. The Government states that the Labour Code was the product of consensus and discussions among the parties to labour relations, namely, employers, workers and the State. The Code stipulates that its provisions are applicable to wage-earning workers, meaning that in this instance, the persons applying for registration are workers who are not covered by the Labour Code. The State accordingly passed Act No. 122-05 of 2005, whereby all associations or entities not governed by the Labour Code are entitled to organize and acquire a legal personality. Regarding the dismissal of the workers, the Government states that it never received a report of any alleged dismissals, and since the alleged enterprises are not known, there is no way an investigation can be conducted into the allegations.
10. 500. Anti-union practices in the Universal Aloe enterprise. The complainant organization stated that pregnant women had been dismissed from this enterprise, direct threats had been made against trade union officials and the interventions of the Ministry of Labour had not been sufficiently effective. The Government states that the Ministry of Labour keeps the enterprise under constant supervision through the labour inspectorate; over 15 investigations had been carried out in the previous year, mostly in response to complaints from the workers’ trade union, and every application had been duly processed. Regarding the dismissal of pregnant workers, the Government states that the Ministry of Labour had recorded only one case in which a female worker had had a fight with a female colleague, apparently in a fit of jealousy thought to involve a trade union officer. No evidence of anti-union discrimination by the enterprise had been found. Likewise, no practices harmful to freedom of association had been uncovered by any of the various investigations.
11. 501. Refusal to register the Trade Union of Workers of the Call Center Branch. The Government reiterates that some of the workers mentioned in relation to the establishment of the trade union had informed the Ministry of Labour in writing that they had not consented to being part of the trade union, or that their names had been used without their knowledge. The Ministry of Labour had no choice but to take these reports into consideration when deciding whether or not to register the trade union, otherwise it would have exposed itself to a legal challenge by the workers in question. Similarly, given that enterprises are required to inform the Ministry of Labour of contract terminations, it was discovered that some of the workers mentioned in the application had been dismissed before the time of the founding assembly. Consequently, the trade union did not have the number of members required for the establishment of trade unions under labour legislation. It should be noted that Rococo Investment, Inc. (the enterprise that employed nearly all of the workers) was sanctioned by the Ministry of Labour for attempting to ignore the trade union immunity of the workers at the time the composition of the management committee was announced. The Government states that Rococo Investment, Inc. ceased operations in the Dominican Republic in September 2011.
12. 502. The Government points out that there are no impediments to workers to establish their organizations and that various trade unions have been registered in recent months in the call centre branch, namely, the Trade Union of Workers of the Enterprise ACS (SETA); the Trade Union of Workers of the Enterprise Nearshore Call Center Services SA, and the National Union of Call Center Employees (UNECA).

C. The Committee’s conclusions

1. 503. The Committee recalls that this case relates to anti-union actions and dismissals in the enterprises “Frito Lay Dominicana”, “Universal Aloe” and “MERCASID”, as well as the refusal to register various trade unions, namely, the Trade Union of Workers of the Call Center Branch (enterprises Rococo Investment, Inc., Stream International, Language Line and Git Prepaid); SINAMITO; the Trade Union of Workers of the Enterprise Barrick Gold (enterprise Minera Pueblo Viejo Barrick Gold); the SUTRAMICEMA and the Trade Union of Electricity Generator and Converter Building and Repair Workers and Related of Haina; and the FUTRAMETAL.
2. 504. Regarding the refusal to register the abovementioned trade unions, and recalling that it asked for them to be registered, the Committee notes with interest that most of them are already registered or have opted to merge with another trade union, namely; SINAMITO, the Trade Union of Workers of the Enterprise Minera Pueblo Viejo Cotuí (Barrick Gold); the FUTRAMETAL; and SITRACEMA – formerly the (incipient) SUTRAMICEMA.
3. 505. Regarding the allegations of dismissal and impediments to the establishment of trade unions of self-employed workers or contract workers (the Trade Union of Electricity Generator and Converter Building and Repair Workers and Related of Haina), the Committee takes due note of the Government’s statement that it has never received a report of any alleged anti-union dismissals and that, given that the Labour Code is applicable only to wage-earning workers, the State adopted Act No. 122-05, whereby all associations or entities not governed by the Labour Code are entitled to organize and acquire a legal personality. The Committee requests the Government to indicate whether self-employed workers and contract workers may bargain collectively.
4. 506. Regarding the National Trade Union of Workers of the Call Center Branch, the Committee recalls that in its previous recommendations it had requested the complainant organization to communicate its observations concerning the Government’s reply, and requested the Government to contact the trade union in question with a view to examining how the problems referred to by the Government might be resolved. The Committee notes that the complainant organization has not provided the observations requested. It also notes that the Government states that: (a) Rococo Investment, Inc. (the enterprise that employed nearly all of the workers) was sanctioned by the Ministry of Labour for attempting to ignore the trade union immunity of the workers at the time the composition of the management committee was announced; (b) the enterprise ceased operations in the Dominican Republic in September 2011; and (c) various trade unions have been registered in recent months in the call centre branch, namely, SETA; the Trade Union of Workers of the Enterprise Nearshore Call Center Services SA, and UNECA.
5. 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 Mosquea, 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).