Rapport intérimaire - Rapport No. 277, Mars 1991

1. 420. Initially, in a communication of 31 August 1990, the World Federation of Trade Unions (WFTU) requested the ILO's intervention in connection with an alleged violation of trade union rights in the electricity sector in the Dominican Republic. Subsequently, the Dominican Electricity Corporation Workers' Trade Union (SITRACODE) submitted a formal complaint in this matter in a communication of 28 September 1990, and the Confederation of Independent Workers (CTI) sent certain documents in support of this complaint on 19 October 1990. More recently, the International Confederation of Free Trade Unions (ICFTU) and SITRACODE sent additional allegations in communications dated 17 and 18 January 1991, respectively.
2. 421. The Government sent its comments and observations in communications of 27 September, 9, 14, 15 and 16 November 1990 and 28 January 1991.
3. 422. The Dominican Republic has ratified both 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. The complainants' allegations

1. 423. According to the complainants, on 24 August 1990 the Government of the Dominican Republic ordered the army to occupy the headquarters of the Dominican Electricity Corporation Workers' Trade Union (SITRACODE) and ordered the arrest of many trade unionists on the grounds that they had been responsible for several recent interruptions in the supply of electricity. In addition, the management of the enterprise threatened to dismiss 4,000-6,000 of the corporation's workers in retaliation for their participation in a strike. This strike had taken place following the draconian economic measures which had been imposed by the International Monetary Fund and the World Bank, and the general 48-hour strike which had been called by several trade union organisations on 13 and 14 August 1990.
2. 424. More specifically, the complainants explain that on 19 August 1990 the Government had appointed a new administrator for the Dominican Electricity Corporation who, upon his arrival in the enterprise, had dismissed all trade union leaders and delegates of the SITRACODE, as well as 2,000 workers who belonged to that organisation. This administrator claimed that the trade union's registration had been cancelled, and that the collective agreement signed between the enterprise and the trade union was no longer in force, and thus, that the trade union had ceased to exist. The Government then had the trade union's headquarters in Santiago surrounded on 24 and 25 August, and ordered the arrest of 18 persons, including the principal leaders of the SITRACODE in Santiago.
3. 425. The Confederation of Independent Workers (CTI) supplied several press clippings in support of the complainants' allegation that the arbitrary actions taken by the public authorities violate Article 3 of Convention No. 87, Article 4 of Convention No. 98, and Article 5 of Convention No. 154.
4. 426. Subsequently, in a communication dated 17 January 1991, the ICFTU expressed its concern at the fact that on 20 November 1990 the Secretary of State for Labour filed a request with the Public Prosecutor of the District of Santo Domingo to cancel the legal personality of the following trade union confederations: the General Confederation of Workers (CGT), the Confederation of Independent Workers (CTI), the Confederation of Class Workers (CTC), the Confederation of Progressive Workers (CTP), the Majority Workers' Confederation (CTM) and the Single Confederation of Workers (CUT). According to the ICFTU, the Secretary of State attempts to justify this measure by claiming that these organisations engaged in subversive activities aimed at compelling the Government to resign during the general strike held in November 1990. The ICFTU explains that on 19 November the Dominican trade union confederations called a work stoppage in protest against an increase in the prices of essential goods and called for an economic policy less unfavourable to workers and to the common people, that the strike had continued until 21 November but that its affiliate had assured it that no act of subversion had been committed by the trade union organisations during the strike in question. The ICFTU requests the Committee to urge the Government to restore legal personality to the above-mentioned trade union organisations.
5. 427. In a communication dated 18 January 1991, SITRACODE reiterates its earlier allegations and adds further allegations of violations of freedom of association and collective bargaining, and of human rights committed by the Government: (1) detention of and physical assault on the general secretary and disputes secretary of SITRACODE on 15 November 1990; (2) detention and exhibition before the press of trade union activists Félix Santana on 7 November 1990; (3) persecution of and death threats against the general secretary for the Southern Zone of the country; (4) setting up of an executive committee of the parallel trade union by the management of the Dominican Electricity Corporation on 19 January 1991; (5) detention of trade union activists Pascual Diaz, Juan Serra, Pantaleon Silva and Ramon Paulino on 4 January 1991 in the town of Bani; (6) unilateral increase of hours of work to ten hours per day and obligation to work until noon on Saturday; (7) prohibition on payment of overtime, irrespective of its duration; (8) prohibition on payment of per diem; (9) illegal withholding of paychecks for most of the corporation's employees throughout the period 31 August 1990 to 15 January 1991; (10) unilateral and arbitrary suspension of acquired rights under the collective agreement, such as medical insurance, pension and retirement plan, death benefit and childbirth allowances, family allowances, etc., bonuses, paid leave and Christmas bonuses. SITRACODE deplores the reactionary attitude of the new administrator of the corporation. It explains that on 8 September 1990 the trade union movement and the Government reached agreement on 20 points providing that the workers dismissed by the corporation would be considered as having been suspended and that the dispute would be settled within 15 days. It regrets, however, that this has not yet occurred. In support of these allegations, SITRACODE sends press cuttings reporting the surrounding of its premises by military police, the alleged assault on the general secretary, Ignacio Soto, the arrest of the education secretary, Eliaser Batista Matos, and the collective dismissals of trade union officers and activists. It also encloses a copy of the agreement of 8 September 1990 concluded with the President of the Republic.

B. The Government's reply

1. 428. In a first reply dated 27 September 1990, the Government states that, as concerns what it refers to as the dispute which broke out between certain workers and the management of the Dominican Electricity Corporation, the workers in question forcefully opposed the appointment of a new general administrator. It adds, however, that with the participation of a representative of the Catholic Church, a social pact was signed on 8 September 1990 between the Government and the major organisations of workers. This pact called for the establishment of a committee composed of a representative from the corporation in question, a government official, a representative of the trade union organisations, a representative of the SITRACODE, and a delegate of the Catholic Church, to review the situation and present a report to the President of the Republic.
2. 429. In a second communication of 9 November 1990, with regard to this dispute, the invalidation of SITRACODE's executive committee and the dismissal of several workers and employees of this corporation, the Government adds that the Secretary of State for Labour received several complaints from both parties alleging different types of violations of working conditions specified in the collective agreement. According to the Government, he intervened as a mediator and conciliator between the parties, but he had not completed his investigations at the date of the Government's communication to the ILO, owing to the fact that the SITRACODE leaders refused to receive the group of labour inspectors which the Secretary of State had assigned to this case. The Government requests the ILO to use its influence with the trade unionists to obtain their full collaboration in the inquiry and its successful conclusion.
3. 430. Subsequently, in a letter of 14 November 1990, the Secretary of State for Labour explains that the Dominican Electricity Corporation, the country's only electricity company, belonging entirely to the people and therefore a public service enterprise, has filed a complaint with his office. The complainant denounces the violation of the collective agreement signed by the enterprise and the leadership of the SITRACODE trade union, claiming, in particular, that the trade union sequestered vehicles belonging to the Dominican people, refused to accept the new general administrator and threatened to shut down all power plants unless the Government proceeded immediately to replace the general administrator. Moreover, according to the Secretary of State for Labour, the trade union's leadership launched an appeal to consumers requesting them not to pay their electricity bills, thus causing the Dominican Electricity Corporation the loss of millions.
4. 431. In his letter the Secretary of State also indicates that from 19 to 25 August 1990 the leaders of SITRACODE caused much turmoil and, along with other trade unionists, violated article 8, paragraph 11(d), of the Constitution, which recognises the right of workers in private enterprises to strike within the framework of the law, but bars strikes in Government and in public services and corporations. Nevertheless, according to this letter, on 22 October 1990 the General Directorate for Labour of the Dominican Republic sent five labour inspectors to obtain information from the leaders of the trade union in question. Although these inspectors insisted on meeting with this trade union's general secretary, Mr. Ignacio Soto, they were not able to do so, as the general secretary merely replied "I see no reason for meeting with these gentlemen".
5. 432. The Secretary of State for Labour adds in his letter that the Dominican Republic is currently experiencing economic difficulties, and that the current situation calls for work, not strikes. He deplores the international campaign, orchestrated by Dominican trade union leaders, which seeks to discredit his country.
6. 433. In a subsequent letter of 15 November 1990, the Secretary of State for Labour states that on 26 October 1990 the general secretary of SITRACODE, Mr. Soto, came to his ministry accompanied by 200 persons, who caused a great deal of turmoil and terrorised the ministry's employees. The general secretary of SITRACODE demanded that the Secretary of State accompany the group to the National Congress. When the Secretary of State refused, the general secretary of SITRACODE challenged him to call the police to have the workers removed.
7. 434. The general secretary of SITRACODE was accompanied by a member of the National Congress, the Vice-President of the Dominican Workers' Party, and by the general secretary of the CTI. The two trade union leaders used furniture belonging to the State to erect a make-shift podium, and spent the next hour insulting the Secretary of State for Labour and the President of the Republic.
8. 435. Lastly, in a third letter dated 16 November 1990, the Secretary of State for Labour denounces the call for a general strike on 19 to 23 November 1990, launched by the General Workers' Confederation (CGT), the Single Confederation of Workers (CUT), the Majority Workers' Confederation (CTM) and the Independent Workers' Confederation (CTI), to request the Government's resignation. The Secretary of State affirms that this was intended to be a solidarity strike with the SITRACODE. He goes on to say that none of these confederations complied with legal requirements for calling a strike, and consequently, that in reality it was a call for a political demonstration which threatened to become a criminal assembly.
9. 436. Because these confederations did not comply with sections 373 and 374 of the Labour Code, the Secretary of State for Labour indicates that they are liable for prosecution for violation of Act No. 5915 and for the sanctions provided for in section 356 of the Labour Code, which states that "the registration of trade unions, federations and confederations may be cancelled by decision of courts of first instance: (a) if the organisation engages in activities extraneous to its legal purposes; (b) if its legal representatives, leaders or members provoke, incite, sponsor, support or otherwise call a strike without previously having observed the conditions required by the Labour Code. The cancellation of the registration of trade unions, federations and confederations automatically entails their dissolution."
10. 437. The Secretary of State for Labour concludes that by calling the strike the Dominican trade unions placed themselves above the law.
11. 438. In a later communication which reached the ILO on 28 January 1991, the Secretary of State for Labour again explains the reasons for which he instituted legal proceedings against the trade union confederations which, together with political parties, declared the general strike of 19 to 21 November 1990 contrary to constitutional law. According to the Secretary, under international labour law the right to strike has absolutely no bearing on the case in question as these are public employees of an essential service and a public utility and the dispute was unsuccessfully submitted to conciliation procedures with the authorisation of 60 per cent of the workers in the enterprise. The Secretary of State adds that under section 1 of Act No. 5915 strikes may be declared illegal if they are held for political purposes, which is the case here, as the confederations against which the Government has instituted proceedings publicly demanded the Government's resignation and backed SITRACODE's disorderly struggle. Under section 2 of Act No. 5915 the applicable penalties are 15 days' to 6 months' imprisonment and a fine of 30,000 to 50,000 pesos or both, and they may be imposed on the trade union bodies in the case of fines, and on their officers in the case of prison terms. Moreover, under Act No. 680 of 31 March 1965 to amend Act No. 5915, the legal personality of trade unions, federations and confederations may be cancelled. The Secretary of State concludes that there is no ILO Convention dealing with the right to strike. Convention No. 87 guarantees freedom of association but contains no provisions on strikes. From this he concludes that the right to strike cannot come before the public interest and this has been the basis for the legal proceedings he has instituted against certain trade union confederations, such as the CTM, CUT, CTC, CTI and other organisations, for illegal activities and for supporting a strike for political purposes and as an act of trade union solidarity. The case will be heard by the first penal division of the court of the first instance of the national district at a public, oral hearing of all of the parties.

C. The Committee's conclusions

1. 439. On the basis of available information and, in particular, on the basis of press clippings sent by the complainants concerning the events of August 1990, and the Government's observations, the Committee notes that the complaint concerns a wide-ranging labour dispute which began in the summer of 1990 in the electricity sector and now involves all four trade union confederations in the country. This labour dispute was marked by strikes, the occupation of the headquarters of the Dominican Electricity Corporation Workers' Trade Union (SITRACODE), the surrounding of the said premises by law enforcement agents, the arrest, sometimes violent, of some 18 trade union leaders and activists, their detention over a period of five days, the invalidation of the trade union's executive committee, and the mass dismissal of some 2,000 workers. Efforts at conciliation, under the auspices of the Catholic Church, led to the signing of a social pact in early September, to examine the situation and submit a report to the President of the Republic. At the same time, complaints were submitted by SITRACODE leaders and the enterprise's management to the Secretary of State for Labour alleging violations of the collective agreement. An inquiry was instituted by the Government, but it was not completed owing to the refusal of trade union leaders to receive the labour inspectors responsible for the inquiry. New demonstrations and a solidarity strike were called for 19 to 21 November by several trade union confederations throughout the country in support of SITRACODE's demands.
2. 440. The Committee notes that the Government merely indicates that it has signed a social pact to examine the situation, but that it also states that the current situation calls for work, and not for strikes, and that strikes are forbidden in the civil service, public services and public utilities. The Government also threatens to have the courts cancel the registrations of the four trade union confederations for calling a solidarity strike in support of SITRACODE without abiding by legal procedures.
3. 441. The Committee has always regarded the right to strike as constituting a fundamental right of workers and of their organisations and as an essential means of defending their economic and social interests. (Digest of decisions and principles of the Freedom of Association Committee, 3rd edition, 1985, para. 364.) Moreover, the Committee has on several occasions emphasised that the occupational and economic interests which workers defend through the exercise of the right to strike do not only concern better working conditions or collective claims of an occupational nature, but also the seeking of solutions to economic and social policy questions and problems facing the undertaking which are of direct concern to the workers (Digest, para. 368).
4. 442. In this case, however, the strike had its origins in the electricity sector, and the Government has stated that in the Dominican Republic strikes are forbidden in public utilities, thus indicating that strikes are prohibited in the electricity sector.
5. 443. The Committee has acknowledged that the right to strike may be restricted, or even prohibited in the civil service or in essential services in the sense of services whose interruption may endanger the life, personal health or safety of all or part of the population, to the extent that the strike could cause serious hardship to the national community, and provided that any such limitations are accompanied by certain compensatory guarantees to protect workers who are thus deprived of an essential means for the defence of their occupational interests (Digest, para. 393).
6. 444. In the Committee's opinion, although the electricity sector may be considered as an essential service where the right to strike may be limited, it would seem that, according to the information furnished by the complainants and by the Government, the workers in this sector have not, since the dispute began in August 1990, enjoyed adequate, impartial and speedy conciliation and arbitration proceedings, in which the parties concerned could take part at every stage and in which the awards, once made, would be fully and promptly implemented, as the Committee has suggested on several occasions (Digest, para. 397). At any rate, the reference made by the Government to an inquiry carried out following the receipt of complaints from the enterprise's management as well as from trade union leaders, cannot be considered equivalent to the compensatory procedures of conciliation and arbitration to which reference was made above.
7. 445. The Committee notes with concern that the Government has instituted legal proceedings with the aim of cancelling the legal personality of several trade union federations in the country for having declared a strike which it describes as being political and in solidarity with SITRACODE. This strike lasted two days from 19 to 21 November and was not accompanied by acts of violence. None the less, according to the Government, the leaders of the confederations face fines or imprisonment or both. In this respect, the Committee endorses the opinion expressed by the Committee of Experts on the Application of Conventions and Recommendations in its 1983 General Survey on Freedom of Association and Collective Bargaining, to the effect that "trade union organisations ought to have the possibility of recourse to protest strikes, in particular where aimed at criticising a government's economic and social policies. However, strikes that are purely political in character do not fall within the scope of the principles of freedom of association". The Committee of Experts points out further that: "As for sympathy strikes, where workers come out in support of another strike already declared by other workers, they are recognised as lawful in certain countries. ... The Committee considers that a general prohibition of sympathy strikes could lead to abuse and that workers should be able to take such action provided the initial strike they are supporting is itself lawful." Lastly, the Committee of Experts concludes that penal sanctions should only be imposed as regards strikes where there are violations of strike prohibitions which are in conformity with the principles of freedom of association. In addition, in these cases, the sanctions should be proportionate to the offences committed, and penalties of imprisonment should not be imposed in the case of peaceful strikes, as the application of disproportionate penal sanctions does not favour the development of harmonious industrial relations (See General Survey, paras. 216, 217 and 223.). The Committee reminds the Government that by membership of the ILO it committed itself to respecting freedom of association in law and in practice, and it requests the Government not to pursue the legal proceedings it has instituted against the confederations and against their officers.
8. 446. Moreover, the Committee notes that the Government has not furnished replies to the complainants' allegations concerning the dismissal of striking workers, the surrounding of the premises of SITRACODE, the arrest of trade union leaders and members, the invalidation of the trade union's executive committee, and the enterprise's contention that the collective agreement is null and void.