TODAYS CLASS Collective Bargaining 22-10-2010

TODAYS CLASS Collective Bargaining 22-10-2010 - TODAY´S...

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Unformatted text preview: TODAY´S CLASS: TODAY´S COLLECTIVE BARGAINING BY BY IRAIMA CAPRILES IRAIMA OCTOBER 22, 2010 COLLECTIVE BARGAINING COLLECTIVE Labor Management Act of 1947 Dominican Labor Code of 1952 The amendment to the National The Labor Relations Act of 1935 Labor Dominican Labor Code Law 16-92 Labor relationships in the Labor Dominican Republic are governed by Law No. 16-92 of May 29, 1992, commonly known as the Labor Code, which is characterized Labor which by its strong and sometimes inflexible protection of the rights of the individual employee. the The Act is the fundamental The legislative basis for private sector union-management relationships in the United States. COLLECTIVE BARGAINING COLLECTIVE LBMA-NLRA ACTORS: ACTORS: Employees Employees Employer-HR Rep Union Union representative Union representative to the Union process of collective bargaining bargaining Dominican Labor Code ACTORS: Employees Employer-HR Rep Union Union representative Union representative to the Union process of collective bargaining bargaining COLLECTIVE BARGAINING COLLECTIVE LMRA – NLRA Rights of employees Section 7 Section Dominican Labor Code Rights of employees COLLECTIVE BARGAINING COLLECTIVE 1. Self organization Section 9 2. the right to refrain from 2. organizing organizing 3. The right to bargain 3. collectively Section 8 d collectively Elections among union Elections members Sectionb9b and 9 c members 3. Wages Wages must be paid in cash Wages and cannot be below the established minimum wage. (Arts. 192 and 193). The interval between salary payments cannot exceed one month (Art. 198). Nonpayment of wages by the employer is considered a criminal offense punishable by a fine and up to five years in prison (Arts 198 and 211). prison COLLECTIVE BARGAINING COLLECTIVE Collective bargaining Collective mandatory subjects are pensions, bonuses, group insurance, seniority, layoff, recall, discipline, grievance procedure, safety practices, procedures for discharge,and union shop. discharge,and Non mandatory wages, Non hours, and other conditions of employment. 3.1.Minimum Wage Minimum wages are Minimum established by the National Salary Committee, a dependency of the Ministry of Labor, and vary according to the different type of business and their installations and/or holdings. Current minimum wages are specified in the side table. side COLLECTIVE BARGAINING COLLECTIVE Termination or Termination modification of the agreement or labor contract, achieved through collective bargaining: Section 8 d bargaining: 3.2.Overtime Every hour above the 44hours weekly limit is to be hours paid at 135% of the normal hourly wage (Art. 203). Every hour in excess of 68 hours a week is to be paid at 200% of the normal hourly wage. Nigh hours are paid at an additional 15% (Art. 204). COLLECTIVE BARGAINING COLLECTIVE Employer is defined in the law Employer as including “any person acting as an agent of an employer, directly or indirectly”. directly A person is defined to include person “one or more individuals, labor organizations, partnerships, associations, legal representatives, trustees, trustees in bankruptcy, or receivers”. receivers”. 3.4.Profit Sharing Employers must share 10% of Employers their net profits with their employees. The Labor Code, however, allows employers to cap the amount distributed as follows: an employee with less than three years on the job will receive a maximum of 45 days’ salary; an employee with three years or more, will receive a maximum of 60 days’ salary (Art. 223). (Art. COLLECTIVE BARGAINING COLLECTIVE The term labor organization The means any organization, agency, or employee representation committe or plan in which employees participate and that exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rate of pay, hours of employment, or conditions of work. work. 4.1.Leaves of Absence An employee has the right to An paid leaves of absence in the following cases (Art. 54): (i) Marriage, five days; ( ii) Death of grandparent, parent, offspring or spouse or three days; (iii) Wife or companion giving birth, two days, and ( iv) Maternity leave, six weeks before the birth of the child and six weeks after. of COLLECTIVE BARGAINING COLLECTIVE 4.3.Holidays Public holidays in the Public Dominican Republic are listed on a table provided each year by the Labor Ministry COLLECTIVE BARGAINING COLLECTIVE .2.Vacations Employers must grant their Employers employees a yearly minimum of 14 working days of paid vacation (Art. 177). After five years on the job, vacation time increases to 18 working days per year. An employee acquires the right to vacation after a year on the job. vacation Vacations cannot be fractioned for Vacations periods shorter than a week and may not be replaced with additional payment or any other form of compensation (Art. 182). The salary for the vacation period must be paid by the employer on the day prior to the beginning of vacation (Art. 181). the COLLECTIVE BARGAINING I COLLECTIVE Christmas Salary In addition to his regular salary, every In employee in the Dominican Republic receives, on or before December 20, a so-called “Christmas salary” equal to one-twelfth (1/12) of the total regular salary earned during the year (Art. 220). To calculate the Christmas salary, only the regular salary received is taken into account, excluding tips, overtime and benefits received from profit sharing. The Labor Code establishes a maximum Christmas Salary of five times the minimum wage. However, many employers waive this limitation and pay employees who have worked the whole year a full extra monthly salary. year The Christmas Salary is exempt from The income tax (Art. 222). income COLLECTIVE BARGAINING I COLLECTIVE Unions Dominican Law Dominican acknowledges the right of employees to associate into unions in order to defend their interests (Art.8, Section 11 of the Constitution). Unions must have a minimum of 20 members (Art. 324). Union officials receive special protection from termination by their employer (Art. 391). 391). COLLECTIVE BARGAINING I COLLECTIVE Strikes The Labor Code The recognizes the right to strike by unions. Strikes can only involve the peaceful interruption of the work carried out by the employees (Art. 402). Strikes in essential services, such as utilities, communications and hospitals, are illegal (Arts. 403 and 404). 403 COLLECTIVE BARGAINING I COLLECTIVE Before striking, unions must Before give a 10-day notice to the Ministry of Labor stating the following: (i) the economic conflict or infringement of rights which the strike aims to solve; (ii) how previous attempts to solve the conflict without striking have not been successful; (iii) that the strike has the approval of at least 51% of the union members and( iv) that the services affected by the strike are not essential to the public (Art. 407). (Art. COLLECTIVE BARGAINING I COLLECTIVE Social Security The Dominican Social The Security system established by Law No. 87-01 contemplates insurance for health and labor risks and an incapacity/retirement fund, to be funded by salaryto based contributions to be based made by both employee and employer. and COLLECTIVE BARGAINING I COLLECTIVE Employers are responsible Employers for payment of social security contributions, withholding their employees’ share from the payroll. Contributions are capped at twenty times the minimum salary. Any amount above this cap is not taken into account to calculate the monthly contribution. contribution. Domestic Workers Domestics do not benefit Domestics from many of the provisions of the Labor Code (Art. 4). Domestics are defined as workers dedicated to household chores, such as cooking and cleaning, when carried out outside of a business (Art. 258). Condominium employees are not considered domestics. considered Domestics are not subject to Domestics any regular work hours although every domestic must have a minimum of nine hours per day of uninterrupted rest and a weekly rest of 36 hours without interruption (Arts. 261 and 262). Domestics do not have the right to receive severance pay when dismissed. However, domestics do have the right to two weeks of paid vacation a year after their first year at work and to receive a Christmas salary as regular workers do. Termination implies a permanent break in the Termination effects of the employment contract. Several types of termination are contemplated under the Labor Code. the 5.1. At Will Termination (“Desahucio”) Any party to an employment contract has the Any right to terminate it unilaterally without the need to specify a cause (Art. 75). The terminating party must give 7, 14 or 28 days advance notice of this decision to the other party depending on whether the agreement has been in force for more than 3, 6 or 12 months respectively (Art. 76). A late notice or no notice at all will entail a penalty of one day’s salary for every day of noncompliance (Art. 79). Employers who exercise their right to terminate their employees without cause must make severance payments to the terminated employee as detailed below in 5.3 (Art. 80). (Art. COLLECTIVE BARGAINING I COLLECTIVE For Cause Termination (“Despido” and For “Dimisión”) “Dimisión”) Employers may dismiss their employees Employers alleging one or several of the specific causes listed under Article 88 of the Labor Code. listed For cause termination by an employer For (“despido”) requires evidence of the commission by his or her employee of one or several of the listed grounds for termination (Art. 87). It also requires that the employer give notice of the termination and the grounds on which it is based to the Department of Labor within 48 hours of the dismissal (Art. 91). Failure to prove cause or to render the notice within the stated 48 hours will make the employer liable for payment of severance to the employee (Arts. 93 and 94). The right of the employer to base the dismissal on a specific cause for termination expires 15 days after the employee has committed the act alleged as grounds for termination (Art. 90). alleged COLLECTIVE BARGAINING I COLLECTIVE The advice of legal The counsel is strongly recommended before proceeding to terminate an employee for cause. for COLLECTIVE BARGAINING I COLLECTIVE An employee may resign An from his or her job for cause (“dimisión”). For cause termination by employees also requires evidence of the commission of one or several of the listed grounds for termination (Art. 96 and 97). If proven, the employee has the right to receive severance from the employer (Art. 101). the COLLECTIVE BARGAINING I COLLECTIVE Termination Due to Termination Incapacity or Death of the Employee Employee In the event of incapacity In or death of the employee, the employer shall pay the employee, or his/her heirs, economic assistance in the amounts shown below (Art. 82). (Art. COLLECTIVE BARGAINING I COLLECTIVE EconomicAssistance Time Employed Time Assistance 3 to 6 months 5 to days’ salary 6 to 12 months 10 to days’ salary Over 1 year 15 days’ Over salary per year salary COLLECTIVE BARGAINING I COLLECTIVE Severance Pay Severance pay, due in the Severance circumstances described above, varies depending on the duration of the employment contract as shown (Art. 80). When applicable, any sums owed by the employer must be paid within 10 days of the termination (Art. 86). Noncompliance entails a penalty of one day of salary for every day of delay (Art. 86). every COLLECTIVE BARGAINING I COLLECTIVE Severance PayTime Severance EmployedSeverance EmployedSeverance 3 to 6 months 6 days’ to salary salary 6 to 12 months 13 to days’ salary days’ 1 to 5 years 21 days to per year per Over 5 years 23 days Over per year per COLLECTIVE BARGAINING I COLLECTIVE COURTESY OF THE WEBSITE OF THE COURTESY LEGAL OFFICE ...
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