Informe definitivo - Informe núm. 388, Marzo 2019

1. 311. The complaint is contained in a communication of the National Confederation of Trade Union Unity (CNUS), the National Union of Nursing Workers (SINATRAE) and the National Union of Health Technicians and Employees (SINATESA) dated 7 June 2017.
2. 312. The Government sent observations in a communication dated 21 February 2018.
3. 313. 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. The complainants’ allegations

1. 314. In their communication of 7 June 2017, the complainants allege that the Government of the Dominican Republic, through the National Council on Aging (hereinafter “the health body”), an official body attached to the Ministry of Health, has committed a series of violations of the principles of freedom of association and collective bargaining.
2. 315. The complainants indicate that on 12 August 2016, SINATRAE, SINATESA and other trade unions from the health sector of the Dominican Republic signed an agreement with the Ministry of Health awarding nurses, bioanalysts, psychologists, dental surgeons and pharmacists a salary increase from January 2017, pension calculation based on the last full salary, and incentives based on performance and seniority. The complainants state, however, that the health body refused to apply the agreement, including the negotiated salary increases, to nurses, technicians and employees providing services in the old people’s homes and centres that are under its management. This led to a series of peaceful protests that, according to the allegations, resulted in the following retaliatory action: (i) Mr Julio Cesar García Cruceta and Ms Argentina Abreu, directors of the complainant organizations, were prevented from accessing the facilities of the health body and the old people’s homes and centres; and (ii) among others, Ms María Teresa Valladares Curro and Ms Francia Ybelice Rodríguez Heredia, nurses who are members of SINATRAE, were prevented from returning to work and have not received their salaries since April 2017, despite the fact that no disciplinary proceedings had been instituted against them.
3. 316. As the health body declined to meet with the directors of SINATRAE and SINATESA, the complainants indicate that efforts to resolve the conflict and restore the rights that had been breached were unsuccessful. Consequently, the complainants allege that the practices of the health body, implemented by its director, violated the principles of freedom of association and the right to due process in accordance with the Constitution of the Republic and Act No. 41-08 on the Public Service, as well as ILO Conventions Nos 87 and 98. On that basis, the complainants seek an end to the antiunion practices, and in particular: (i) recognition of SINATRAE and SINATESA as legitimate representatives of nurses and the technicians and employees, respectively, who provide services in the old people’s homes and centres that are under the responsibility of the health body, and access for their directors to the facilities of the health body; (ii) application of the terms of the agreement signed in August 2016 by SINATRAE, SINATESA and other trade unions with the Ministry of Health to the workers of the health body, in particular with regard to the negotiated salary increase; and (iii) the return of Ms María Teresa Valladares Curro and Ms Francia Ybelice Rodríguez Heredia to their usual tasks and payment of the salaries due to them until they are reinstated in their respective posts.

B. The Government’s reply

1. 317. In its communication of 21 February 2018, the Government indicates that SINATRAE and SINATESA are duly registered, and that there had never been any reports of their being prevented from representing nurses and the technicians and employees who provide services in old people’s homes and centres. As to the alleged refusal of the health body to meet with representatives of SINATRAE and SINATESA, the Government states that on 20 April 2016, Mr Julio Cesar García Cruceta and Ms Argentina Abreu were received at the facilities of the health body. According to the executive director of the health body, on that occasion SINATRAE demanded that the union dues of the nurses affiliated to it be remitted to it, which in accordance with Act No. 41-08 on the Public Service was not possible without the explicit authorization of the nurses. The director of the health body alleges that because the demand to automatically remit the union dues to SINATRAE was denied, this led to the trade union accusing her of irregular management of funds.
2. 318. With regard to the alleged obstruction of access to the facilities of the health body and the old people’s homes and centres, the Government states that on 8 June 2016, as on other occasions, members of SINATRAE and SINATESA, including Mr Julio Cesar García Cruceta and Ms Argentina Abreu, were present in the San Francisco de Asís old people’s home, where they promoted strikes and stoppages, despite the fact that Act No. 41-08 on the Public Service prohibits organizations of public servants from encouraging, initiating and supporting strikes in those public services whose disruption may endanger the life, health or safety of citizens. The Government indicates that persons providing this category of service are entitled to submit the labour dispute for the consideration of the human resources committee of the corresponding body, but that the said trade union organizations did not exhaust that process.
3. 319. Concerning the alleged non-application of the salary increase agreed upon with the Ministry of Health to the nurses who provide services in the various old people’s homes and centres of the health body, the Government indicates that since the issuance of Decree No. 83-15 on 6 April 2015, said nurses have been part of the health body’s workforce, and no longer that of the Ministry of Health, which is why they are excluded from the application of the agreement with the Ministry. However, the Government indicates that annual performance reviews have awarded a salary increase for all staff working in the health body.
4. 320. Lastly, with respect to the alleged prevention from returning to work, specifically concerning Ms María Teresa Valladares Curro and Ms Francia Ybelice Rodríguez Heredia, the Government reports that both were dismissed from their posts for having committed, respectively, the following third-degree offences under article 84 of Act No. 41 08 on the Public Service: “3. Failing to be present at work for three (3) consecutive working days, or three (3) days in the same month, without authorization from the competent authority, or without good cause, thereby constituting job abandonment” and “20. Committing any other offences similar in nature or seriousness to the foregoing in the judgement of the authority that applies sanctions”.

C. The Committee’s conclusions

1. 321. The Committee observes that this case refers, firstly, to the non-application of the Agreement between the National Government and the Workers’ Organizations of the Health Sector, signed on 12 August 2016, to the nurses, technicians and employees who provide services in the old people’s homes and care centres managed by the health body and, secondly, to alleged antiunion acts following protests conducted by the trade union organizations with a view to obtaining the application of the said agreement.
2. 322. With regard to the non-application of the collective agreement of 12 August 2016 to the workers of the health body, the Committee notes that the Government states that, under Decree No. 83-15, since 6 April 2015, the nurses under the direction of the health body report to that body for administrative purposes and no longer to the Ministry of Health, and therefore the Committee observes that there is a discrepancy between the parties on the scope of the aforementioned agreement. The Committee emphasizes, firstly, that it is not for the Committee to resolve disputes over the interpretation of the scope of clauses in collective agreements, as that is the responsibility of the national judicial organs or the specific bodies designated for that purpose by the same collective agreement. In this respect, the Committee recalls that, in the event of conflicting interpretations of a collective agreement in the public sector, the definitive interpretation should not be that of the public administration, which would be acting as judge as well as party in the case, but rather that of an independent authority [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 1476].
3. 323. In the light of the foregoing, and observing that the parties make no reference to the existence of any judicial proceedings concerning the interpretation of the 2016 collective agreement or to a process of dialogue to determine the arrangements for the exercise of the right to collective bargaining for the workers of the health body, the Committee trusts that the dispute over the scope of the 2016 collective agreement will be resolved rapidly, whether through dialogue between the parties or through a decision of an independent authority. The Committee also emphasizes that, whatever the decision on the applicability of the collective agreement of 12 August 2016 to the workers of the health body, the Government must ensure that those workers can exercise their right to collective bargaining.
4. 324. With regard to the alleged antiunion acts in response to the protests conducted by SINATRAE and SINATESA to obtain the application of the agreement, the Committee notes that the complainants allege that, despite being peaceful, the protests resulted in the following retaliatory action: (i) the health body’s lack of recognition of SINATRAE and SINATESA as legitimate representatives of the workers of the body, and the directors of those trade unions being prevented from accessing the facilities of the health body; and (ii) the exclusion of Ms María Teresa Valladares Curro and Ms Francia Ybelice Rodríguez Heredia, nurses who are members of SINATRAE, from their respective jobs, who have not received their salary since April 2017, despite the fact that no disciplinary proceedings were initiated against them.
5. 325. The Committee notes that the Government states that there have never been any reports of the directors of SINATRAE and SINATESA having been prevented from representing nurses and the technicians and employees who provide services in the old people’s homes and centres, and that on various occasions, the most senior directors of both unions accessed the health body’s facilities, including to promote strikes and stoppages, despite a statutory prohibition on encouraging, initiating and supporting strikes in those public services whose disruption may endanger the life, health or safety of citizens. The Committee notes that the Government adds that the workers who provide this category of service are entitled to submit the labour dispute for the consideration of the human resources committee of the corresponding body but that the said trade union organizations did not use that process. Lastly, the Committee notes the documents provided by the Government showing that the nurses, Ms María Teresa Valladares Curro and Ms Francia Ybelice Rodríguez Heredia, were dismissed as a result of third-degree offences, in accordance with article 84 of Act No. 41-08 on the Public Service. According to the copies of the communications sent by the Government, Ms María Teresa Valladares Curro breached paragraph 3 of article 84: “Failing to be present at work for three (3) consecutive working days, or three days in the same month, without authorization from the competent authority, or without good cause, thereby constituting job abandonment”, and Ms Francia Ybelice Rodríguez Heredia breached paragraph 20 of article 84: “Committing any other offences similar in nature or seriousness to the foregoing in the judgement of the authority that applies sanctions”.
6. 326. As to the alleged non-recognition of SINATRAE and SINATESA as legitimate representatives of the workers of the health body, and the alleged denial of access of their directors to its facilities, the Committee observes that the Government denies these claims. In view of the differing versions of the Government and the complainant organizations, the Committee trusts that within the health body the right of the mentioned trade union organizations to access the working place of their members is fully respected .
7. 327. As to the situation of the nurses, Ms María Teresa Valladares Curro and Ms Francia Ybelice Rodríguez Heredia, while duly noting the documents provided by the Government on the dismissal of the two workers, the Committee observes that the Government does not respond to the allegation that the workers had not been subject to the disciplinary proceedings provided for in Act No. 41-08 on the Public Service, and that the offence that resulted in the dismissal of Ms Rodríguez is not specified. With a view to ensuring that the mechanisms affording appropriate protection against antiunion discrimination have been applied, the Committee requests the Government to take the requisite measures to verify that the disciplinary proceedings provided for in the legislation have been duly applied to both workers and to ensure that the grounds for the dismissals are not contrary to the principles of freedom of association.