Rapport définitif - Rapport No. 114, 1970

1. 27. The Committee examined this case earlier at its sessions of February 1965, May 1968 and February 1969 s, when it submitted to the Governing Body certain recommendations concerning a first series of allegations and provisional conclusions concerning new allegations presented in 1967 by the National Federation of School Teachers (FENAMA). Concerning the allegations pending, the Committee requested the Government and the complainant organisation to furnish certain additional information, the nature of which is indicated in paragraphs 132 and 133 of the 110th Report approved by the Governing Body at its 174th Session (March 1969).
2. 28. By a communication dated 15 May 1969 the Government replied to this request for additional information.
3. 29. 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. A. The complainants' allegations

• Allegations concerning Measures of Discrimination and Reprisal against the National Federation of School Teachers
  30. 30 At its session in February 1969 the Committee recalled that, according to the communication of the complainant organisation dated 19 January 1967, there was a conflict between it and the Government on account of the dismissal in 1966 of school teachers and headmasters of schools. To sum up, the allegations of breaches of freedom of association refer to three questions, namely the refusal of the Secretary of State for Education to discuss the problem with FENAMA (it was alleged that the Secretary of State had refused to receive a deputation from that organisation or to place the matter before the National Education Council on which FENAMA is entitled by law to be represented); the creation of parallel organisations promoted and patronised by the Secretariat of State for Education in order to " exercise control " over the teachers, for instance the organisation set up in Santiago de Los Caballeros on the initiative of the Director of Education of that city; and finally, the withdrawal of the postal and telegraphic franchise which FENAMA had enjoyed and which was " a privilege which all political organisations and occupational or cultural organisations of workers have been entitled to since 1962 ". In the opinion of the complainants, the withdrawal of this franchise from FENAMA proved that " government circles " were bent on its destruction by denying it an effective means of communication with its members. The Government had rejected all these allegations saying that they were groundless. In view of the general nature of this reply, the Committee, in paragraph 172 (b) of its 105th Report, recommended the Governing Body to request the Government to supply detailed observations on the specific allegations mentioned above.
  31. 31 At its session in February 1969 the Committee examined a new communication from the Government, which stated z in substance that FENAMA had no legal grounds for trade union activities because its members were public servants whose employment was subject to the authority of the President of the Republic and whose employment relations were governed by special laws, and because, having obtained their " incorporation " under the Act on non-profit-making associations, it lacked legal personality because it had not complied with another requirement laid down in section 4 of the said Act and was therefore regarded as non-existent. The Government stated that it shared the Committee's opinion on the importance that must be attached to the provision of Article 1 of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), which had been ratified by the Dominican Republic, to the effect that workers should enjoy adequate protection against acts of anti-union discrimination in respect of their employment, and viewed with sympathy any movement of workers to organise in accordance with the laws and the Constitution having no aims in conflict with those for which workers might organise under the Labour Code. According to the Government, FENAMA had disregarded the provisions of various sections of the Labour Code and the provision of the Freedom of Association and Right to Organise Convention, 1948 (No. 87), that required respect for the law of the land (Art isle 8).
  32. 32 The Government pointed out, moreover, that if it were indeed true that the then Secretary of State for Education had refused to receive the representatives of FENAMA it could have been due to the overwork to which an official of that rank is subject. Finally, the Government again stated that the allegations made by FENAMA concerning violations of freedom of association were groundless, not only because they had not taken place, but also because FENAMA was " not a trade union organisation covered by our labour legislation ".
  33. 33 The Committee indicated that the Government appeared to have changed its attitude to the complainant, since it now did not recognise its legal existence, whereas at an earlier stage of the examination of the case it had stated, in a communication dated 5 February 1965, that it " maintains normal relations with FENAMA and that nothing impedes or interferes with the carrying out of the programmes of that Federation".
  34. 34 Since certain observations made by the Government appeared to refer not only to the specific case of FENAMA but also to the trade union rights of public servants in general, the Committee considered it appropriate to recall the importance which must be attached to the provision of Article 2 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), which has been ratified by the Dominican Republic, to the effect that workers, without distinction whatsoever, shall have the right to establish and join organisations of their own choosing without previous authorisation, and pointed out that the employees concerned-in this case the school teachers-are not excluded from this provision. The Committee also quoted the provision of paragraph 2 of Article 8 of the same Convention, according to which national legislation shall not be such as to impair, nor shall it be so applied as to impair, the guarantees provided for in the Convention. The Committee recalled at the same time that it had on previous occasions stressed the importance for workers in the service of the State of the right to establish trade unions and to register them with a view to their lawful operation. Accordingly, the Committee went on, even if the provisions of the Labour Code dealing with the formation of trade unions did not apply to school teachers, the Committee considered that any other legislation under which they might organise for the promotion and defence of their occupational interests should be in conformity with Convention No. 87. The legislation in question appeared to be, according to the Government, Act No. 520 on non-profit-making associations.
  35. 35 The Committee pointed out that, according to the Government, FENAMA lacked legal personality because, although it had obtained its " incorporation " under a decree, it had failed to comply with a requirement of section 4 of Act No. 520. A reading of this section shows that the " order of incorporation " decreed by the Executive will have no effect and the association will not be regarded as a legal person until the formalities concerning publication required by section 42 of the Commercial Code have been complied with. Furthermore, copies of the Constitution must be deposited with the Commercial Tribunal and the appropriate municipal office. The requirements of publication relate to a summary of this document. Changes introduced in the Constitution must be published in the same way " after approval by the Executive ".
  36. 36 The Government did not specify the exact nature of the omission on which the refusal of legal personality to the complainant organisation was based. Since under Article 7 of Convention No. 87 the acquisition of legal personality by workers' organisations shall not be made subject to conditions of such a character as to restrict the application of Article 2 of the Convention, according to which workers shall have the right to establish organisations of their own choosing " without previous authorisation ", and since section 4 of Act No. 520 lays down various requirements, the Committee asked the Government to specify on the one hand the nature of the formality omitted by FENAMA and, on the other, whether the provisions of the section referred to above imply that approval of the Constitution by the Executive is a prior condition to the acquisition or retention of legal personality and, if so, to indicate on what standards or criteria this approval depends.
  37. 37 At the same time the Committee requested the complainant organisation to furnish additional information on its Constitution, affiliated organisations, numbers of members and any other information it considered relevant concerning its present situation.
  38. 38 In these circumstances in paragraph 134 of its 110th Report the Committee recommended the Governing Body, in respect of the general question of the right of workers in the service of the State to organise, to draw the attention of the Government to the considerations summarised in paragraph 34 above and indicated that it would proceed with the examination of the case on receipt of the additional information it had requested from the Government and from the complainant.
  39. 39 In reply to that request the Government, in a communication dated 15 May 1969, declared that FENAMA had omitted to deposit with the relevant tribunal a certified copy of the Resolution of Incorporation and a copy of its Constitution. The Government also stated that approval of the Constitution by the Executive was not a prior condition for the acquisition or retention of legal personality by non-profit-making associations, in respect of which it was after the decree of incorporation that the Constitution must be deposited with the competent judicial body as an essential legal condition for the acquisition of legal personality.

B. B. The Committee's conclusions

1. 40. Up to the present no reply has been received from the complainant organisation to the request for additional information made in a letter dated 13 March 1969 and repeated in another letter dated 9 June 1969.
2. 41. As for the allegations pending (see paragraph 30 above), the Committee notes that the Government has repeatedly and formally denied what was maintained by the complainants, although it admitted that perhaps the Secretary of State for Education might not have received the representatives of FENAMA on the occasion referred to in the complaint but that if this had been the case it was only due to lack of time.
3. 42. On the other hand, the information received from the Government shows that FENAMA omitted to deposit its Constitution and another document, the existence of which should not be difficult to prove since it is the text of a government resolution adopted by decree. In this case the Government recognises that the resolution has been taken. As for the Constitution, its simple transmission appears to be a requirement of form, frequently imposed in such cases, which in itself would not give rise to a problem of freedom of association unless it were proved that the transmission of the Constitution was subject to a condition, the nature of which was such as to impair the exercise of trade union rights. This would be the case, for instance, if the contents of the Constitution were subject to the discretionary approval of the authorities. In fact, Article 3 of Convention No. 87, which has been ratified by the Dominican Republic, lays down that workers' organisations have the right to draft their Constitutions and rules and that public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof. The Committee, as also the ILO Committee of Experts on the Application of Conventions and Recommendations, has pointed out in this respect that this right appears, unfortunately, to be considerably restricted in certain countries where, it would appear, Constitutions have to be submitted for prior approval to the authorities, whose power of decision does not seem to be restricted by any particular standard. It should be pointed out that in spite of the declaration of the Government, according to which approval of the Constitution is not a condition for obtaining or retaining legal personality, section 4 of Act No. 520 contains a provision on the approval by the Executive of any change in the Constitution.
4. 43. The Committee lacks the information which would enable it to judge whether or not this implies that at some stage in the creation of associations such as FENAMA the Constitution itself has to be approved. However, in the present case, the statements of the Government show that the formality omitted consisted in the simple transmission of the Constitution.
5. 44. The complainant organisation has failed to supply the Committee with information that might lead to the view that FENAMA's lack of legal personality is attributable to some restriction of freedom of association.