Rapport intérimaire - Rapport No. 6, 1953

• Complaints presented by Several Dominican Trade Union Leaders in Exile and by the Inter-American Confederation of Workers Against the Government of the Dominican Republic

A. History of the Case

1. 1014. The Governing Body will remember that the examination of these complaints has passed through several stages.
2. 1015. At its 118th Session (Geneva, 11-14 March 1952), the Governing Body considered that the case called for further examination. The Governing Body also decided that the Government of the Dominican Republic should be afforded an opportunity to discuss with the Committee on Freedom of Association the various questions raised in the complaints before the Committee formulated any further recommendations on the subject.
3. 1016. At its meeting on 29 May 1952, the Committee heard Mr. Franco Franco, representative of the Dominican Republic, and took note of his statement to the effect that the Government consented to the sending of an I.L.O Mission and confirmed the invitation which had been addressed to the Director-General by the Confederation of Dominican Workers.
4. 1017. This statement was confirmed by a letter dated 2 June 1952 from the representative of the Dominican Republic to the Chairman of the Committee. This letter was as follows:
5. (1) In the course of the meeting of the Committee on Freedom of Association over which you presided, and during which the Committee examined the complaint presented by the self-styled "Dominican trade union leaders in exile " against the Government of my country, I hastened to give an affirmative reply to the question I was asked as to whether I thought that my Government would give favourable consideration to the sending of an I.L.O. Mission to the Dominican Republic pursuant to the invitation issued by the Confederation of Dominican Workers.
   • I have the honour hereby to confirm that reply and, as I had occasion to inform you in the course of the visit which I made to you on 31 May last, I have pleasure in stating again that my Government has given favourable consideration to the invitation issued by the Confederation of Dominican Workers, an independent and free trade union organisation and the most representative in the Republic, in order that the Mission in question might examine objectively on the spot the real position of the workers in our country.
6. (2) During the same meeting on 29 May 1952, I had occasion to lay before the Committee, in the name of and in my capacity as representative of my Government, evidence proving the following points:
   • (a) the accusations have been levelled by individuals of no authority or standing inspired only by political interests ; they have been presented in a partisan political spirit in such a way as to abuse the good faith of the Inter-American Confederation of Workers ;
   • (b) the legislation in force in the Republic guarantees the full freedom and independence of the trade unions in relation to the Government, it having been shown, moreover, that the legal text adduced by the complainants was never applied or interpreted as they alleged and that it was entirely repealed in 1940; and
   • (c) all the factual allegations are totally unsupported by evidence, are baseless and false and are inspired, as I have already stated, solely by violent passions and political interests.
7. (3) I have the honour to inform you that the Government of the Republic would have pleasure in receiving an I.L.O Mission if such a Mission should visit the country, in accordance with the decisions taken on this matter-a Mission which could observe, entirely objectively, the freedom enjoyed by the trade unions, the social protection extended to the workers and the work accomplished in the social field in my country during the course of the last 20 years.
8. 1018. At its 119th Session (May-June 1952), the Governing Body approved the conclusions reached by the Committee after it had heard the representative of the Dominican Republic. These conclusions were as follows:
9. (1) The Committee noted that the provisions of the Constitution and of the Labour Code of the Dominican Republic at present in force relating to the right of association and other fundamental freedoms appear to be satisfactory.
10. (2) The Committee noted with satisfaction the formal assurance given by the representative of the Dominican Republic that workers' organisations may not be dissolved by administrative action. It also noted that the provisions in the Labour Code at present in force relating to the suspension and dissolution of trade union organisations offer to those concerned all the guarantees of a normal judicial procedure.
11. (3) The Committee noted with satisfaction the assurance given by the representative of the Dominican Republic that there is nothing to prevent the Confederation of Dominican Workers from adhering to a workers' international organisation.
12. (4) The Committee, on the other hand, considered that, while the legal provisions at present in force in the Dominican Republic appear to respect the fundamental principles of freedom of association, it would be desirable that a mission on the spot should be enabled to verify whether in practice these legal provisions are applied so as to provide an effective guarantee to those concerned of their exercise of their freedom of association.
13. (5) In this connection, the Committee, having had before it the telegram of 25 February 1952 by which the General Secretary of the Confederation of Dominican Workers invited the I.L.O to send a Mission to the Dominican Republic to make an objective examination of the genuine situation of the workers, requested Dr. Franco Franco to ask his Government whether it would give its consent to the sending of such a Mission.
14. (6) Dr. Franco Franco informed the Committee, after he had consulted his Government, that the latter agreed to the sending of a Mission from the I.L.O to the Dominican Republic and endorsed the invitation addressed to the Director-General of the I.L.O by the Confederation of Dominican Workers.
15. (7) In these circumstances, the Committee recommends the Governing Body to authorise the acceptance of the invitation received from the Dominican Government, on the understanding that:
    • (a) the Mission should have essentially as its terms of reference the study of the practical application of the legal provisions concerning freedom of association in force in the Dominican Republic;
    • (b) the Director-General should have received, prior to the departure of the Mission, a formal assurance that all facilities would be accorded to the Mission to enable it to carry out its mandate and that, in particular, it would be permitted to make all necessary contacts for this purpose ;
    • (c) the Director-General should also have an assurance, prior to the departure of the Mission, that the Mission would be free on its return to make a report to the Governing Body which might be published.
16. 1019. The Director-General, by a letter dated 3 July 1952, communicated the decisions of the Governing Body to the Government of the Dominican Republic. The text of this letter was as follows:
    • By a telegram dated 15 May 1952 you were good enough, in response to the request which I had made to you in my letter No. TUR. 1-71 of 21 March 1952, to appoint His Excellency Dr. Franco Franco as representative of your Government to discuss with the Committee on Freedom of Association the points contained in the complaints alleging infringements of trade union rights in the Dominican Republic.
    • His Excellency Dr. Franco Franco was heard by the Committee on Freedom of Association on 29 May 1952. Subsequently, he wrote to the Chairman of the Committee, on 2 June 1952, informing him that your Government would be most pleased to welcome an I.L.O Mission for the purpose, in response to the invitation given by the Confederation of Dominican Workers, of examining objectively the situation as to the freedom accorded to trade unions, the social protection enjoyed by the workers and the work which has been achieved in the social field during a period of 20 years in the Dominican Republic.
    • At the conclusion of its examination of the case, the Committee submitted to the Governing Body the recommendations which are contained in its Fifth Report (paragraphs 5 to 50), a copy of which is enclosed. In particular, I would draw your attention to subparagraph 7 of paragraph 50, in which the Committee recommended the Governing Body to authorise the acceptance of the invitation received from the Dominican Government. This report, to which, you will observe, is appended the whole text of the statements made to the Committee by the representative of the Government of the Dominican Republic, was approved by the Governing Body on 27 June 1952, during the course of its 119th Session.
    • In accordance with the decision taken by the Governing Body, I have the honour to inform you that I should be happy to accept the invitation which you have been good enough to extend to me through His Excellency Dr. Franco Franco, and, on the conditions decided by the Governing Body, to send a Mission to the Dominican Republic to study the practical application of the legal provisions concerning freedom of association in force in your country.
    • The Governing Body asked me, in this connection, to request you to be good enough to give me an assurance that every facility will be granted to the Mission in order to enable it to fulfil its mandate, that it will be permitted to make all necessary contacts for this purpose and that, on its return, it may submit a report to the Governing Body which may be published.
    • I have no doubt that you will be in agreement with these proposals and, when you have kindly informed me accordingly, I shall not fail to communicate with you again with reference to the composition of the Mission,and the date on which it might visit your country.
    • I am convinced that the sending of such a Mission to the Dominican Republic cannot fail to contribute greatly to the strengthening of the ties which exist between your country and the International Labour Organisation.
17. 1020. On 24 November 1952, Mr. Peynado, representative of the Dominican Republic, informed the Director-General that the Government of the Dominican Republic was not disposed to receive a Mission from the I.L.O, the sending of which might have the appearance of being a consequence of the complaint now pending before the Committee on Freedom of Association. The views of the Government of the Dominican Republic were embodied in a memorandum which Mr. Peynado handed to the Director-General during the conversation, and the text of which is as follows:
    • The Government of the Dominican Republic has entrusted its diplomatic representative in Berne with the duty of informing the International Labour Organisation, through the Director-General, of its firm point of view with regard to an untruthful accusation submitted for examination to the Committee on Freedom of Association, which has given rise to a plan to send a commission of investigation to the national territory. The salient facts in this matter are as follows:
    • Following the presentation of a complaint made by Dominican political agitators residing abroad alleging that restrictions are placed on freedom of association in the Dominican Republic, the Director-General invited the Government of this country to send a representative to the meeting of the Committee on Freedom of Association which had been called upon to examine and give a decision on the complaint in question. In his letter of invitation to the Dominican Government, the Director-General gave the text of a recommendation made by the Committee and approved by the Governing Body to the effect that, with reference to the case concerning the Dominican Republic, the Governing Body should give the Government an opportunity to discuss with the Committee the points raised in the discussions before the Committee made any recommendations on the case to the Governing Body. The recommendation added, and this must not be forgotten, that the Committee hoped that these discussions might result in the Government concerned indicating steps which it is taking or would be prepared to take to give effect to the principle of freedom of association.
    • Out of deference for the Organisation and being anxious to respond favourably to the invitation made by the Director-General, the Dominican Government, without delay, entrusted the duty of representing it to His Excellency the Ambassador Tulio Franco Franco, being convinced that it would be easy for him to demonstrate to the Committee the lack of basis of this slanderous complaint and its ill-concealed political design and, at the same time, to inform the Committee as to the present legal situation with regard to freedom of association in the Dominican Republic. It also appeared to be a favourable opportunity to put the Committee on its guard against the danger of finding itself becoming involved in this political manoeuvre which might create a most unfortunate precedent. The Government also intended to take advantage of this opportunity to enable it by a more direct approach to make those responsible for the direction at the highest level of the I.L.O aware of the progress achieved in the Dominican Republic with regard to the protection of the workers, thanks to the industrious and continuous activity of the Government and thanks also to the fruitful lessons drawn from close contact for many long years with the I.L.O.
    • Contrary to all expectations and in spite of the fact that the representative of the Government was able to demonstrate to the Committee why the complaint was irreceivable, both through its own defects and through defects in the procedure followed the matter has been allowed to develop until, as will be shown subsequently, it has given rise to a serious misunderstanding which must be cleared up.
    • The Confederation of Dominican Workers felt that it should invite the I.L.O to send to the Dominican Republic a delegation chosen by the latter in order to obtain information on the spot as to the achievements attained in various fields of labour activity and of workers' protection. Having been informed of the step taken, the Ambassador made it known to the I.L.O that such a visit, for the purpose mentioned above, would certainly have the approval of the Government which has every reason to be proud of the social work which, without ignoring the manifold problems with which it had to cope, the Government has succeeded in achieving within the space of a few years in a young country in the full tide of development and without any previous experience of social affairs. The communication made by the Dominican representative gave rise to an erroneous impression that the Government of the Dominican Republic had addressed an official invitation to the I.L.O to send a commission of investigation to study on the spot the practical application in the country of the legal provisions respecting freedom of association and that the invitation had been issued as a consequence of the decisions taken by the Committee with respect to the complaint referred to above. In these circumstances, it is necessary to clarify the situation as follows:
      • (a) It is with the keenest regret that the Government of the Dominican Republic finds it necessary to state that at no time has it addressed any invitation either to the Committee on Freedom of Association or to any other I.L.O body to send such a commission to its territory.
      • (b) Whatever may be the decision adopted or to be adopted by the Committee on Freedom of Association with regard to the despatch of such a Mission or of a Mission in consequence of the complaint already referred to, it cannot in any way be binding upon the Government of the Dominican Republic as this country has not ratified Convention No. 87 concerning freedom of association. Consequently, the Dominican Government is not bound to accept any of the obligations which may result from ratification of international instruments dealing with this question.
      • (c) The Dominican Republic wishes to emphasise once again that the sending of a representative to the meeting of the Committee must be regarded as a mark of courtesy to the Organisation and to its Director-General ; it does not mean in any way that it intends to encourage the malevolent actions of persons moved and blinded by political passion.
    • The Government did its duty by giving information as to the present situation and with regard to its legislation respecting freedom of association. Likewise, it in no way failed to give the necessary assurances. In these circumstances, it had a right to hope that more credibility would be attached to the statements made by its delegate than to untruthful allegations made by persons whose earlier activities, being illegal, have been punished according to the law.
      • (d) In the opinion of the Government of the Dominican Republic, the decisions adopted by the Committee on Freedom of Association in the present case and also the procedure which has been followed in order to reach these decisions are vitiated because they are null and void. In this connection it must be emphasised yet again that Convention No. 87, which may form the basis for the procedure which has been instituted, has not been ratified by the Dominican Republic and, consequently, cannot validly be applied to the present case. Furthermore, it may be useful to point out that one of the reasons for non-ratification of the said Convention is the fact that the certified Spanish copy requested from the I.L.O by the Government has not yet been received, with the result that its consideration by the competent authorities and any decisions which might be made with respect to the Convention have been delayed.
      • (e) The attitude of the Dominican Government has been and will be that it will not interfere in any way in connection with the visit of any I.L.O commission organised as a consequence of and in the spirit of the initiative taken privately by the Confederation of Dominican Workers ; but the Government will never allow any commission to come to make investigations in its territory in connection with a complaint emanating from offenders who have been judged guilty of acts which endangered internal peace and the external security of the Republic and is even less disposed to allow it when, in order that such a visit may be made, the request for guarantees addressed to the Government is not free from prejudices and vexatious reservations which the Government of the Dominican Republic regards as inadmissible.
      • (f) From the beginning, the Dominican Government considered, and its point of view has not changed, that the matter had been brought before the I.L.O under such irregular circumstances that, once this was explained, the rejection of the complaint and the suspension of the procedure would necessarily follow. But, even if the matter was not to develop as expected, the Government knew that it could go beyond the recommendation of the Committee by stating what it had already accomplished and not what it intended to do to ensure freedom of association according to the request made to it. The Dominican Government is astonished, moreover, by the fact that the I.L.O has already announced, without strict adherence to the true facts, that a commission of investigation, that is to say, a commission of an entirely different character from that proposed by the Confederation of Dominican Workers, would visit the country; this announcement was made even before the I.L.O had received the Government's reply to the request addressed to it by the I.L.O for its authorisation with respect to the publication of the information which the said commission might assemble. It is on the basis of these facts that the Government feels that it can only note with the deepest regret the lack of impartiality and responsibility with which this affair has been pursued against a Member which has never failed to demonstrate its adherence and fidelity to the International Labour Organisation.
      • (g) The Dominican Government is happy to reiterate the formal and absolute assurance given to the I.L.O that, in the Dominican Republic, both under the Constitution and under the Trujillo Labour Code, the principles governing the application of which in the field of activities regulated by it are based on the Constitution, freedom of association exists, is exercised and is respected as it deserves. The Government is firmly convinced that this assurance in itself will be sufficient to provide a criterion on the basis of which the I.L.O can judge this case and, consequently, will be led to the conclusion that it must reject the unjust and baseless accusation on which it is founded.
      • (h) In view on the foregoing considerations, the Dominican Government, having confidence in the spirit of justice and high understanding of the directive organs of the I.L.O, evidence of which other Members in similar circumstances had had the satisfaction of observing, repeats its demand that the complaint which forms the basis of this complaint, and the nature and objects of which are known to everyone, should be rejected.
    • Geneva, 24 November 1952.
18. 1021. A further communication was subsequently received from the Dominican Government in the form of a report on Dominican legislation and practice concerning the questions dealt with in the Freedom of Association and Protection of the Right to Organise Convention, 1948, presented by the Dominican Government on 5 January 1953 in accordance with Article 19 of the I.L.O Constitution. The text of this report is as follows:
19. 1. Under the régime instituted by the Constitution of the Republic, which guarantees freedom of association as one of the inherent rights of man, industrial associations both of workers and of employers have developed in our country in complete freedom and in harmony with the essentially democratic character of our Government.
    • Promulgated on 24 October 1951, the Trujillo Labour Code, the crowning development in our labour legislation, lays down in its Fifth Book complete and uniform legal rules determining the organisation and operation of industrial association, in full conformity with the provisions of the Freedom of Association and Protection of the Right to Organise Convention (No. 87), this Convention, while it has not yet been ratified by our Government, is in fact applied in full under our legislation, having regard to the economic and social characteristics of our people.
    • It should be pointed out that the procedure for ratifying this Convention has been initiated in anticipation of the receipt of the authentic Spanish text requested by our Government from the International Labour Office.
    • The articles of the Trujillo Labour Code which are related to the provisions of the unratified Convention No. 87 and the measures adopted by our Government to improve the social conditions of the workers and the protection accorded by the Government to all registered industrial associations have created in our country an atmosphere which is favourable to the development of trade union activities in general.
20. 2. A brief analysis is given below of the provisions in the Labour Code which give effect to the provisions of the unratified Convention No. 87.
    • The Code, while it is adapted to the characteristics of the Dominican people, is inspired by the universal principles enunciated by the International Labour Organisation. It includes a series of provisions which give full effect to Convention No. 87 concerning freedom of association, although that Convention has not yet been ratified by our country.
    • As an example we analyse below the articles in the Trujillo Labour Code which are related to the Articles of the unratified Convention No. 87:
    • Article 2 of the Convention
    • This Article in the Convention embodies the principle that workers should freely constitute their organisations, subject only to the condition that the members shall conform to the rules of those organisations. This same principle is formulated in our legislation by articles 296 and 297 of the Trujillo Labour Code:
    • Article 296. Industrial unions may be formed by persons who habitually follow the same occupation or business, or an allied occupation or business, irrespective of the undertaking for which they work.
    • Article 297. Employers' associations may be formed by employers who pursue the same or similar activities.
    • Article 3 of the Convention
    • This Article deals with the right which workers and employers should have to draw up their Constitutions and rules in full freedom without any interference.
    • The guarantee prescribed by this Article of the Convention is ensured by articles 304 and 305 of our Code:
    • Article 304. Industrial associations may prescribe in their rules further conditions in addition to those prescribed by the law for the admission of members.
    • Article 305. All industrial associations shall be completely free to establish in their rules the manner of dismissing members. All decisions taken in this respect by the organs and officials of the association in conformity with its rules shall be final and shall not be subject to any appeal.
    • Article 4 of the Convention
    • This Article prohibits the dissolution or suspension of workers' and employers' organisations by administrative authority. The same principle is embodied in our legislation by articles 352 and 356 of the Code:
    • Article 352. The rules may establish special grounds for the dissolution of the association.
    • Where the rules do not contain any provisions for dissolution, the general meeting may decide on dissolution.
    • Article 356. The registration of the association may be cancelled by a decision of the courts if the association pursues activities not connected with its lawful objectives.
    • Cancellation of registration shall automatically entail dissolution of the association.
    • It is evident from these two articles that our legislation provides for only two methods of dissolution or suspension of workers' and employers' organisations, namely : dissolution by agreement and dissolution or suspension by the courts. In other words, there can be no dissolution or suspension by the administrative authority.
    • Article 5 of the Convention
    • This Article establishes the right of workers' and employers' organisations to establish federations and Confederations. The same right is embodied in article 357 of our Code, which provides that:
    • Article 357. Industrial associations shall be permitted to form communal, provincial, regional or national federations.
    • Such federations shall be permitted in their turn to form Confederations on the affirmative vote of two-thirds of the members at a general meeting.
    • Article 6 of the Convention
    • This Article provides that the provisions of Articles 2, 3 and 4 apply to federations and Confederations of workers' and employers' organisations. This provision is in fact applied by articles 358 (in fine) and 360 of the Code:
    • Article 358. The provisions applying to industrial associations in general shall also apply to all federations and Confederations.
    • Article 360. All federations and Confederations of industrial associations shall be subject to the rules respecting registration prescribed for industrial associations by this Code.
    • Article 7 of the Convention
    • This Article, which deals with the legal personality of workers' and employers' associations, is applied by virtue of article 311 of the Code:
    • Article 311. All industrial associations shall by virtue of registration with the Secretariat of State for Labour acquire legal personality.
    • Consequently, they shall have the right to sue and be sued, to acquire without administrative authorisation, either by gift or against payment, personal or real property and shall in general be entitled to perform any legal act or business having for its object the attainment of the objectives of the association.
    • Article 8 of the Convention
    • This Article establishes the principle that workers and employers and their respective organisations shall respect the law of the land. The same principle is affirmed by article 306 of the Code, which provides:
    • Article 306. No industrial association shall directly or indirectly restrict the freedom to work or take any steps to compel any employee or employer to be a member of the association or to remain therein.
    • Article 9 of the Convention
    • The application of the guarantees provided for in Convention No. 87 to the armed forces and the police appears to be incompatible with the neutrality, impartiality and security which should characterise these institutions with respect to social and political matters.
    • Article 10 of the Convention
    • This Article, which defines the meaning of the term " organisation " in the Convention, corresponds to article 293 of our Code:
    • Article 293. An " industrial association " shall mean any association of employees or employers constituted in accordance with this Code for the purpose of the study, advancement and protection of the common interests of its members.
    • With respect to collective labour agreements, the Trujillo Code contains complete and detailed regulations in its articles 92 to 118. Articles 96, 98, 99 and 100 indicate the role and duties of trade unions with respect to collective labour agreements.
    • With respect to the procedures applicable where necessary, with regard to co-operation between employers' and workers' organisations, reference should be made to Part I of Book VI of the Trujillo Labour Code concerning the settlement of economic disputes.
21. 3. (a) As is apparent from the foregoing, the national legislation was amended during 1951 in order to give effect to all the provisions of Convention No. 87, which, up to the present, has not been ratified by our country. This amendment of the earlier legislation, with a view to giving effect to Convention No. 87, is precisely the amendment made by the Trujillo Labour Code, which came into force on 24 October 1951.
    • (b) The ratification of Convention No. 87 presents no difficulty for our country which could prevent or delay such ratification. On the contrary, as indicated above, the Convention has already been put into application through our national legislation.
    • (c) The reply to this question is apparent from the foregoing survey.
22. 4. Reports concerning the application of Convention No. 87 are always communicated to the Federation of Dominican Workers and to the Employers' Confederation of the Dominican Republic.

B. Conclusions

1. 1022. The Committee, having noted the memorandum presented by Mr. Peynado, and having noted also a communication from the Director-General giving the date on which six separate despatches of copies of the Spanish version of the text of the Freedom of Association and Protection of the Right to Organise Convention, 1948, were made to the Government of the Dominican Republic, and having noted, further, the report presented by the Dominican Government concerning the position under its national legislation and practice with regard to the matters dealt with in the Freedom of Association and Protection of the Right to Organise Convention, 1948, has reached the following conclusions.
2. 1023. The Committee deplores that the Government of the Dominican Republic has refused to give its consent to the sending of a Mission under the conditions stipulated by the Governing Body at its 119th Session (May-June 1952), whereas it appeared evident from the letter sent by its representative on 2 June 1952 to the Chairman of the Committee that the Government not only endorsed the invitation issued to the I.L.O by the Confederation of Dominican Workers but had also expressed its own willingness to receive the Mission. The Committee expresses its regret that the Government of the Dominican Republic has considered it necessary to retract the statement made by its representative to the Committee on Freedom of Association to the effect that it would be prepared to receive a Mission to study the practical application of the legal provisions in force with respect to the right to organise.
3. 1024. The Committee notes that the provisions in the Constitution and in the Labour Code of the Dominican Republic at present in force with respect to the right of association and other fundamental liberties appear to be satisfactory. At the same time, the Committee wishes to emphasise the importance that it attaches to the fact that workers and employers should in actual practice be able to form and join organisations of their own choosing in full freedom.
4. 1025. The Committee notes the formal assurance given by the Government of the Dominican Republic that workers' organisations may not be suspended or dissolved by administrative action. It also notes that the provisions in the Labour Code at present in force with respect to the suspension and dissolution of trade union organisations offer to those concerned all the guarantees afforded by normal judicial procedure. The Committee nevertheless wishes to emphasise the importance it attaches to the fact that these provisions should be fully applied.
5. 1026. The Committee notes the assurance given by the Government of the Dominican Republic that there is nothing to prevent the Confederation of Dominican Workers from affiliating with an international organisation of workers. Here again, the Committee wishes to emphasise the importance that it attaches to the fact that no obstacle should be placed in the way of the affiliation of workers' organisations in the Dominican Republic, in full freedom, with any international organisation of workers of their own choosing.
6. 1027. The Committee notes the assurance given by the Government of the Dominican Republic that it will take steps without delay with a view to ratifying the Freedom of Association and Protection of the Right to Organise Convention, 1948, and expresses the hope that the Government will be able to give effect rapidly to this intention in order thus to ensure to the workers the permanent guarantee of the free exercise of trade union rights.