The law, including related regulations and statues, protects the right of workers, with the exception of security force members, to form and join trade unions of their choice, conduct legal strikes, and bargain collectively. However, the law places some restrictions on these rights. For instance, legal recognition of a new industrywide union requires that the membership constitute a 50-percent-plus-one majority of the workers in an industry and restricts union leadership to citizens.
In addition the process for calling a strike is complex and lengthy, and by law a strike must have the support of 51 percent of a company’s workforce. The president and cabinet may suspend any strike deemed “gravely prejudicial to the country’s essential activities and public services.” The government defined “essential services” more broadly than international standards, thus denying the right to strike to a large number of public workers, such as those working in education; postal services; transport; and the production, transportation, and distribution of energy. Public employees and workers in sectors deemed essential may address grievances by means of mediation and arbitration through the Ministry of Labor’s General Inspectorate of Labor and also directly through the labor courts.
The law prohibits employer retaliation against strikers engaged in legal strikes. However, employers may suspend or fire workers for absence without leave if authorities have not recognized a strike as legal. The law calls for binding arbitration if no agreement is reached after 30 days of negotiation.
A factory or business owner is not obligated to negotiate a collective bargaining agreement unless at least 25 percent of workers in that factory or business are union members and request negotiations. The law prohibits antiunion discrimination and employer interference in union activities and requires employers to reinstate workers dismissed illegally for union-organizing activities.
The government did not effectively enforce legislation on freedom of association, collective bargaining, or antiunion discrimination. Due to a combination of inadequate allocation of budget resources and inefficient legal and administrative processes, the relevant government institutions did not effectively investigate, prosecute, and punish employers who violated freedom of association and collective bargaining laws, or reinstate workers illegally dismissed for engaging in union activities. Inspectors continued to fail to take effective action to gain access to worksites in response to employers’ refusal to permit labor inspectors entry to facilities to investigate worker complaints, including failing to regularly seek police assistance as required. Penalties for labor law violations were inadequate and rarely enforced.
For instance, during one inspection trip to rural areas during the year, labor inspectors attempted to visit at least four agriculture plantations to investigate complaints by workers regarding alleged failures to pay the minimum wage, use of subcontracted labor to avoid labor obligations, poor working conditions, and discrimination. Of the four plantations, only one allowed inspectors full access. Although a second allowed the inspectors access, it did not permit them to interview the workers or have access to the company’s records. The remaining two plantations refused them access. The labor inspectors returned later, and one of the uninspected plantations allowed them access.
The Labor Ministry cannot impose a fine or otherwise sanction employers for labor law violations discovered during inspections but must refer these cases to the courts. Only labor courts have the authority to impose sanctions for violations of the labor law. Employers frequently refused to respect decisions favorable to workers, and courts rarely sanctioned employers for ignoring court orders. Appeals and employers’ widespread use of maneuvers such as reincorporation as a different entity often prolonged reinstatement proceedings. The length of time to process cases regarding the reinstatement of workers and other labor law violations was excessive, often taking two to four years and some lasting more than 10 years. Courts also faced difficulties in providing notification of their orders when employers were listed under incorrect addresses or simply refused access to the court official delivering notification.
The government’s apparent sustained failure to take concrete enforcement action measurably to improve compliance with labor laws led in 2011 to the establishment of an arbitral panel under the Dominican Republic-Central America-United States Free Trade Agreement (CAFTA-DR). The panel was constituted on November 30.
The Special Prosecutor’s Unit for Crimes against Unionists within the Office of the Special Prosecutor for Human Rights in the Public Ministry was responsible for investigating attacks against union members. The unit’s small size limited its effectiveness. According to Public Ministry statistics, the unit achieved no convictions. The International Labor Organization (ILO) reiterated its deep concern about the grave situation of antiunion violence and weakness of the judiciary and noted an impunity rate of 98 percent for which there were no prosecutions or effective convictions.
Procedural hurdles, union formation restrictions, and impunity for employers refusing to receive or ignoring court orders limited freedom of association and collective bargaining in practice. Worker organizations were independent of the government and political parties. The International Trade Union Confederation’s annual report noted numerous and arbitrary obstacles for union registration in practice. The Ministry of Labor stated that during the year it improved internal procedures for the registration of unions in an attempt to shorten the union registration time, noting that it had completed some union registrations within 20 days. However, some labor leaders maintained that the delays approving the formation of some unions continued.
Violence and threats against trade unionists and worker activists remained serious problems. Several labor leaders were killed or reported death threats and other acts of intimidation. For instance, on March 24, Luis Ovidio Ortiz, member of the executive committee of the National Health Workers Union, was killed, and on June 1, Manuel de Jesus Ramirez, Conflict Secretary of the Workers’ Union of the Public Defenders’ Institute, was killed. On December 21, the Public Ministry announced that the National Police had arrested five gang members as suspects in the attack that killed Ovidio and noted that the attackers did not appear to have targeted Ovidio. The cases continued under investigation at year’s end.
There continued to be reports that management or persons hired by management harassed and threatened workers who did not accept employer dismissals or refused to forfeit their right to reinstatement. Most acts of violence and threats were not thoroughly investigated and went unprosecuted, often making it difficult to identify motives for killings. At year’s end no arrests were made in connection with the 2011 killings of Banana Workers Union of Izabal (SITRABI) members Oscar Humberto Gonzalez Vasquez, Idar Joel Hernandez Godoy, Henry Anibal Marroquin Orellana, and Pablino Yaque Cervantes. Local unions continued to urge authorities to investigate the killings of unionists and called for increased security for union leaders and members.
Employers routinely resisted union formation attempts, delayed or only partially complied with labor agreements, and ignored judicial rulings requiring the employer to negotiate with recognized unions. There were credible reports of retaliation by employers against workers who tried to exercise their rights, including numerous complaints filed with the Ministry of Labor and Public Ministry alleging employer retaliation for union activity. Common practices included termination and harassment of workers who attempted to form workplace unions, creation of illegal company-supported unions to counter legally established unions, blacklisting of union organizers, and threats of factory closures. Employers threatened not to renew contracts or not to offer subcontracted workers permanent employment if the worker joined a union or refused to disaffiliate.
In October a local bank, the Banco de los Trabajadores, fired an estimated one-third of its union members who worked as security guards, as well as the six members of the union’s board. The bank indicated that it fired the security workers to comply with a new law requiring security services be provided by a registered security company. Union members claimed that the bank fired them in an attempt to break the union and that the bank continued to harass remaining union workers. According to the union, the bank subsequently hired security personnel from a private security company and filed criminal charges with the Public Ministry against five of the fired union board members, accusing them of trying to cause financial panic due to the protest they led in front of the bank for its firing of the union members.
There were reports during the year that some companies in the growing call center industry heavily relied on subcontractor or other work arrangements to divide larger call centers into several smaller companies, making it difficult for a company to reach the 20-worker threshold needed to register a union.
During the year workers who suffered illegal dismissal won court injunctions ordering reinstatement, but in practice employers often failed to comply with reinstatement orders. This was often due to the inability of labor courts to enforce their court orders and legal ambiguity that allowed employers to appeal reinstatement orders without complying with them. Employers, often with impunity, failed to pay the full amount of legally required severance payments to workers or to pay court-ordered fines.
For instance, in early 2011 the National Registry of Persons (RENAP) dismissed (or according to RENAP, did not renew the temporary contract) of up to 446 workers. Some of these workers were members of a RENAP union approved by the Ministry of Labor in 2010. Some of these workers subsequently obtained a court order for their reinstitution. According to the dismissed union members, the government institution refused to obey that labor court order by, among other things, denying entry to the labor court representative to deliver the court orders. The labor court’s judges claimed the government institution must physically receive the court order to be legally bound to obey it; the union workers contested this claim and believed the judges were misinterpreting the law. Also according to the union members, an appellate court upheld the initial court order, but RENAP obtained from the Supreme Court a preliminary injunction against the workers’ reinstatement, so they were not yet reaccepted at RENAP at year’s end. Similarly, the national Tax Superintendency refused to accept a court order to reinstate workers it had fired in the summer, and it appealed the order to an appeals court. The government institution claimed it acted within the law and would comply with the final decision from the appeals court on whether it should reinstate the workers or not.
Local unions reported that businesses also continued to use fraudulent bankruptcies, ownership substitution, and reincorporation of companies to circumvent legal obligations to recognize newly formed or established unions, despite legal restrictions on such efforts.
An active solidarismo (solidarity association) movement continued. Although the law stipulates that trade unions have an exclusive right to negotiate work conditions on behalf of workers, unions continued to assert that management promoted solidarity associations to discourage the formation of trade unions or to compete with existing labor unions.