Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Dominican Republic (Ratification: 1964)

The Committee notes the observations of the Autonomous Confederation of Workers’ Unions (CASC) and the Employers’ Confederation of the Dominican Republic (COPARDOM), which were attached to the Government’s report and refer to matters pending. The Committee also notes the new observations submitted by the CASC, the National Trade Union Confederation (CNUS) and the National Confederation of Dominican Workers (CNTD), and requests the Government to send its observations thereon.

Discrimination based on colour, race and national extraction. The Committee has for a number of years been referring to discrimination against Haitians and dark-skinned Dominicans and recalls that in 2008, the Conference Committee called on the Government to address the intersection between migration and discrimination with a view to ensuring that migration laws and policies did not result in discrimination based on race, colour or national extraction. The Committee also recalls that in its previous observation it took note of observations by the CNUS, the CASC and the CNTD, asserting that foreign workers, mainly Haitians, were paid lower wages than national workers in the construction sector. The Committee notes with interest the adoption on 19 October 2011 of Regulation No. 631-11 to the General Migration Act, section 32 of which establishes that the same fundamental rights applying to nationals are guaranteed to resident foreigners. Section 35(III) provides that the Ministry of Labour must ensure that the equality guaranteed in the Constitution is applied to the conditions of work of immigrants and that the labour law is enforced. The Committee notes that the Government indicates that as a result of the application of the Regulation, unregistered immigrants will be given legal status and be issued with documents, and will be authorized to work and to avail themselves of the national social security system on an equal footing with Dominican workers. The Government adds that the Legal Assistance Department will also afford help to foreign workers. The Committee further notes that, according to the Government, the Dominican Labour Observatory (OMLAD) submitted a study in February 2012 on the participation of Haitian immigrants in the Dominican labour market, specifically in the construction and banana sectors. The Committee notes that the study highlights a marked wage gap between immigrant and Dominican workers in these sectors and the need to ensure that the fundamental rights of immigrant workers are respected, that the supervisory mechanisms are reinforced and that access to justice is guaranteed. Furthermore, a labour migration unit has been established in the Ministry of Labour (Resolution No. 14/2012), the aim of which is to oversee compliance with the labour regulations applying to foreigners, disseminate information on the rights of foreigners and ensure respect for migrants’ rights through inspection procedures. The Committee also notes that a committee has been established to promote equal opportunities and prevent discrimination at work within the Ministry of Labour. While taking due note of all the measures adopted by the Government to address the issue of discrimination against Haitians and dark-skinned Dominicans, the Committee recalls that is has been dealing with these concerns for a number or years and highlights the need to complement the measures adopted with practical implementation. The Committee accordingly asks the Government to take the necessary measures to ensure that the Regulation to the General Migration Act, No. 631-11 of 2011, is fully implemented to ensure there is no discrimination against migrant workers based on any of the grounds enumerated in the Convention and to provide specific information in this regard. Furthermore, it hopes that the measures adopted by the labour migration unit and the committee to promote equal opportunities and prevent discrimination at work will enable the Convention to be fully applied and will ensure that workers of Haitian origin and dark-skinned Dominicans will not suffer discrimination based on race, colour or national extraction, including irregular workers, and asks the Government to provide information in this regard, and on the following:

• (i) the specific measures adopted pursuant to the OMLAD study on the participation of Haitian immigrants in the construction and banana sectors;
• (ii) complaints filed with the administrative and judicial authorities for discrimination based on race, colour or national extraction, and on the processing of these complaints; and
• (iii) whether a tripartite committee has been established to follow up the recommendations of the Special Rapporteur and the independent expert referred to in earlier observations; and on progress made in implementing those recommendations.

Discrimination based on sex. The Committee has for a number of years been raising concerns about the persistence of instances of discrimination based on sex, particularly mandatory pregnancy testing, sexual harassment and the failure to apply the legislation in force effectively, especially in export processing zones. The Government states that judges and labour inspectors receive ongoing training on all forms of discrimination, including discrimination based on sex. It lists the measures taken to provide training and awareness raising for workers, employers and public servants about sexual harassment and pregnancy testing. The Committee notes, however, that the Government provides no information on progress made in adopting the amendments to the Labour Code that concern sexual harassment and pregnancy testing, or on the measures to support and protect victims of sexual harassment and mandatory pregnancy testing to which the Committee referred in its previous observation. It notes that the Government provides no information on the scope of section 47(9) of the Labour Code, which prohibits employers from “carrying out any action against a worker which may be regarded as sexual harassment, or supporting or failing to intervene in any such action on the part of the employer representatives”. The Government indicates that the Penal Code punishes sexual harassment by a one-year prison term and a fine ranging from 5,000 to 10,000 pesos. The Committee recalls that sexual harassment at work and pregnancy testing as a requirement for entering and remaining in employment constitute serious violations of the Convention and must be adequately and effectively addressed in legislation and practice with a view to their elimination and prevention. Furthermore, the Committee recalls that addressing sexual harassment only through criminal proceedings is not sufficient due to the sensitivity of the issue, the higher burden of proof, which is harder to meet, especially if there are no witnesses (which is often the case), and the fact that criminal law generally focuses on sexual assault or “immoral acts” and not the full range of behaviour that constitutes sexual harassment in employment and occupation (see General Survey on fundamental Conventions, 2012, paragraph 792). The Committee again urges the Government to take specific measures, including through the Committee to promote equal opportunities and prevent such discrimination at work, to ensure that the legislation in force is effectively applied, and to take proactive measures to prevent, investigate and punish sexual harassment and pregnancy testing as a requirement for obtaining and keeping a job, and to provide adequate protection for the victims. The Committee also requests the Government as follows:

• (i) to take the necessary measures to increase the penalties for such acts and to ensure that the mechanisms for settling disputes regarding discrimination in employment and occupation are efficient and available in practice to all workers, including those in export processing zones;
• (ii) to provide information on the scope of section 47(9) of the Labour Code and on the status of the proposed amendments to the Labour Code dealing with sexual harassment and pregnancy testing, and expresses the firm hope that the amendments will include a provision expressly prohibiting both quid pro quo and hostile environment sexual harassment and will establish appropriate penalties; and
• (iii) to provide detailed information on training for judges, labour inspectors and the social partners on sexual harassment and pregnancy testing, including representative samples of the training material used.

Real or perceived HIV status. With regard to mandatory testing to establish HIV status, the Committee notes with interest the adoption of Act No. 135-11 of 7 June 2011, section 6 of which prohibits HIV testing as a requirement for obtaining or keeping a job or obtaining a promotion. Furthermore, under sections 8 and 9, any dismissal on the ground of HIV status is automatically null and void. Under the Act, mandatory testing is subject to a fine ranging from 25 to 50 times the minimum wage in the private sector, and in the public sector gives rise to civil liability. The Committee also notes that, according to the Government, the Technical Unit for Comprehensive Care (UTELAIN) has carried out a number of training projects that include training on the HIV and AIDS Recommendation, 2010 (No. 200) for labour inspectors, lawyers and the social partners. Furthermore, an agreement has been signed for inter-institutional cooperation between the Ministry of Labour, the National Council on HIV and AIDS (CONAVIHSIDA), the National Council for Export Processing Zones and the Dominican Association of Export Processing Zones, with a view to devising policies and establishing certification for enterprises in export processing zones. The UTELAIN has signed 169 agreements with enterprises on the implementation of anti-discriminatory policies relating to HIV and AIDS. The Committee requests the Government to continue to send information on the measures adopted to prevent and eradicate discrimination based on HIV and AIDS. It requests the Government to provide information on the number and nature of complaints filed with the administrative and judicial authorities for discrimination based on HIV and AIDS, including for mandatory HIV and AIDS testing, and on the decisions handed down.

The Committee is raising other points in a request addressed directly to the Government.