2008 Annual Survey of violations of trade union rights - Dominican Republic
|Publisher||International Trade Union Confederation|
|Publication Date||20 November 2008|
|Cite as||International Trade Union Confederation, 2008 Annual Survey of violations of trade union rights - Dominican Republic, 20 November 2008, available at: http://www.refworld.org/docid/4c52ca962.html [accessed 23 August 2014]|
|Disclaimer||This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.|
Capital: Santo Domingo
ILO Core Conventions Ratified: 29 – 87 – 98 – 100 – 105 – 111 – 138 – 182
Dismissal continues to be the chief weapon used against union organising. EPZ employers are constantly developing new strategies to stop the formation of unions. Nestlé dismissed 45 permanent employees, replacing them with subcontracted workers. CEMEX invested 30 million pesos in a campaign to press workers to leave the union.
Trade union rights in law
Freedom of association: All workers are free to organise, with the exception of members of the armed forces and the police force. Unions must have at least 20 members and are legal once they have been registered by the Labour Ministry. If the government fails to act on an application for registration within 30 days, the applicants may declare it in default over the next three days, and then one day later, the union is automatically recognised. Unions may form federations, which can in turn form confederations. There are some restrictions, however. Civil servants may, for instance, only form a union if at least 60 per cent of the employees of a given governmental body agree to join. Employees of independent and municipal state bodies are excluded from the Labour Code. The laws and regulations governing these bodies contain no provisions on trade union freedoms.
The law does not provide for the reinstatement of workers dismissed on account of their union activities, stipulating only their right to meagre compensation.
Restrictions on collective bargaining: To be able to bargain collectively, a union must represent an absolute majority of workers in an enterprise or branch of activity.
Restrictions on the right to strike: Strikes can only be called if a majority of employees, regardless of whether they are trade union members, vote in favour of action – a requirement which could seriously hinder strike action. There must have been a prior attempt to resolve the conflict through mediation. If this fails, written notification of the strike must be given to the Ministry of Labour and a 10-day waiting period observed before the strike goes ahead.
People working in key public services and civil servants are not allowed to strike. If a strike that has been declared illegal is carried out, the contracts of the workers involved are terminated, with no remaining responsibilities for the employer, unless the illegality ruling is for procedural reasons or the workers return to their posts within 24 hours of the ruling.
Export Processing Zones: There are no laws exempting EPZ companies from complying with the national labour legislation.
Trade union rights in practice and Violations in 2007
Background: After proposing three dates, the Free Trade Agreement with Central America and the United States entered into force on 1 March. In the months following its implementation, there were no signs that the promises attached to it were likely to be met. There was no increase in foreign investment and the export processing zones continued to suffer the decline that began in 2005, resulting in losses of permanent jobs. The fiscal reforms and tax increases led to a fall in living standards. Discrimination against Haitians and their descendents remains a major cause for concern among human rights groups.
Poor law enforcement and inefficient judicial process: Although trade union members and their leaders are protected from dismissal by law, the legislation is poorly enforced and the legal penalties are insufficient to dissuade employers from violating workers' rights.
There are several reasons behind the inadequate enforcement of the labour legislation, including the delays in the processing of cases and the pronouncing of rulings, and the use of technicalities or other legal tactics to block proceedings when dealing with fundamental rights. Labour court proceedings are too long. It takes an average of 15.3 months to settle cases in courts of first instance and 16.4 months in the court of appeal.
Furthermore, justice is still administered, albeit to a lesser extent than in the past, by judges and magistrates who are political appointees and tend to be in league with employers. Employers enjoy impunity when violating workers' rights because of ineffective sanctions.
Restrictions in the public sector: Given that over 58 per cent of formal economy workers are State employees, the exercise of the right to strike is limited. What is more, despite the Law on the Civil Service and Administrative Careers, mass dismissals take place in the public sector without any guarantee of compensation.
Collective bargaining restricted in practice: Collective bargaining is restricted, in practice, by the requirement that unions must represent an absolute majority of workers in a company. Only a minority of companies have a collective bargaining agreement. The ILO examined the requirements and deemed that they were excessive and thus constitute a barrier to collective bargaining.
Growing informal economy a threat to union organising: There are more people working in the informal economy than in the formal economy. As a result, just over half of all workers are in effect deprived of the ability to organise in unions.
Terms of employment make it hard to organise trade unions: In the stagnating formal economy, companies are increasingly imposing so-called "flexible" terms of employment, which are gradually stripping workers of their rights and indirectly hindering freedom of association.
Recruitment strategies represent a particularly serious obstacle. The subcontracting of work to specialised firms means that workers are constantly being moved to different companies, thus hampering union organising. In addition, they do not have a contract with the employer at their actual workplaces, which makes collective bargaining impossible even when workers do manage to set up a union.
The practice of cancelling contracts every three months is also leaving workers in a state of perpetual insecurity, affecting their rights and increasing their dependence on their employers, as well as further widening the equality gap between workers and the management. Under the constant threat of losing their jobs, the workers' focus is on staying in work rather than on demanding their rights or trying to organise.
Total lack of protection for Haitian workers: Many workers in the sugar cane and other sectors are Haitian. They are often in the country illegally, and although they are protected by the labour legislation regardless of their migrant status, the majority do not exercise their rights for fear of being dismissed or deported.
Employers exploit this situation, forcing them to work under near slave-like conditions. Such exploitation also applies to Dominicans of Haitian descent, many of whom are expelled from the country by the police, regardless of their dual nationality. They have no way of asserting their rights. As a result, recruiting foreigners is becoming a strategy used by companies to lower labour standards and prevent organising.
Export processing zones, a model in crisis: Although the Labour Code does apply in the EPZs, no real effort has been made by the government to ensure that the labour legislation is enforced. Employers only rarely comply with the decisions of the industrial tribunal when it rules against them.
Employers refuse to recognise trade unions and use various strategies to prevent their creation or to destroy them. Companies distribute lists of union activists to prevent them from finding new jobs. Some companies turn to specialised agencies when hiring staff in order to screen out trade union and human rights activists, etc. Where unions do exist there are many cases of their leaders being dismissed or subjected to campaigns involving discrimination, threats and constant intimidation.
Many of the main EPZ manufacturers have voluntary codes of conduct that cover labour rights, including freedom of association, but the workers are not always aware of these codes and the principles they contain.
Dismissals and subcontracting, a dual strategy to combat unions: In April, one of the Nestlé factories in the Dominican Republic dismissed 45 of its employees to replace them with subcontracted workers. The company's aim is to have as few workers as possible under its responsibility. The subcontracted workers cannot be represented by the union at the Nestlé ice cream factory (Sindicato de Trabajadores de la Empresa Helados Nestlé Dominicana), nor does the collective agreement apply to them, which means that the subcontractors can pay them starvation wages, force them to work overtime without pay, and deprive them of social security contributions.
Public campaign against union: The Dominican union federation of EPZ workers, FEDOTRAZONAS, reported that the management at the TOS Dominicana plant in Bonao carried out a public campaign against members and leaders of the union, including offers of cash incentives and promotions in return for leaving the union. The aim was to stop the union from reaching the membership level required to engage in collective bargaining.
In October, the Labour Ministry established that FEDOTRAZONAS represented the majority of the workers and, as such, was entitled to initiate collective bargaining.
In December, the management instituted legal proceeding against the Ministry's decision, which was later withdrawn, and met informally with the union.
Intimidation and threats following formation of union: In April, a union was formed at CEMEX, a subsidiary of the Mexican multinational. The company immediately launched a campaign of threats and intimidation against its members. The second step was to dismiss all the workers speaking out in favour of the union. An officer of the national police was called on to trail the union leaders, in a bid to intimidate them. They were also informed that they would not be able to find work elsewhere if they insisted on keeping the union. The company succeeded in pressing all the members to leave the union, totally dismantling it, after dismissing over 50 workers and devoting over 30 million pesos to its anti-union campaign.
Road maintenance workers employed by ELSAMEX INT-CODACSA, a Spanish-owned construction company, decided to form a union in July. The company instantly dismissed the union leadership and brought in the military to block the workers' access to the workplace. Following pressure from the national workers' confederation the CNTD (Confederación Nacional de Trabajadores Dominicanos), the company reinstated all the union members but persisted in its strategy to oust the union by demoting unionised workers and denying them promotions or pay rises.
Anti-union tactics to obstruct organising: Anti-union practices at 3MT ENTERPRISE in the San Pedro de Macorís EPZ succeeded in dismantling a union that had existed for over 10 years and had a collective bargaining agreement.
A strong campaign to oust the union was waged at the Consorcio de Banca Real in San Pedro de Macorís.
Trade unionists denied access to export processing zones: Trade union activists and organisers from FENATRAZONAS are forbidden from entering the Santiago EPZ.