Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

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

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 102nd Session, June 2013).

The Committee notes the discussion in the Conference Committee in June 2013. In its conclusions, the Conference Committee recalled that the case had last been examined in 2008 and that it raised issues relating to discrimination in employment and occupation against Haitians and dark-skinned Dominicans, discrimination based on sex, and particularly mandatory pregnancy testing and sexual harassment, and mandatory testing to establish HIV status. The Conference Committee requested the Government, in collaboration with employers’ and workers’ organizations, to take firm steps to ensure that workers are protected against discrimination, particularly workers of Haitian origin and dark-skinned Dominicans, migrant workers in an irregular situation, women working in export processing zones and workers in construction and agriculture. It also urged the Government to continue and reinforce its efforts to raise awareness and to bring an end to the practice of pregnancy testing and HIV testing to gain access to and keep a job. The Conference Committee also asked the Government to ensure the efficacy and accessibility of monitoring and enforcement to address discrimination, and to ensure that complaint mechanisms are accessible to all workers in practice, including those not represented by trade unions. The Conference Committee hoped that the technical assistance requested by the Government would be provided in the near future. The Committee observes that the Government’s report in response to the request made by the Conference Committee on the Application of Standards in June 2013 has not been received.

The Committee notes the communication of the International Organisation of Employers (IOE) and the Employers’ Confederation of the Dominican Republic (COPARDOM) of 30 August 2013, which refers to the legal framework relating to non-discrimination and the tripartite activities carried out with a view to preparing a policy on HIV/AIDS in the workplace for export processing zones, as well as training activities on gender violence and harassment. According to these comments, the Migration Act No. 285-04 and the Migration Regulations (No. 631 11) establish a mechanism with a view to issuing a work visa to migrant workers, and pilot initiatives have been adopted in the agricultural sector through which visas were issued to 325 workers and training is provided to migrant workers with a view to their regularization.

In this regard, the Committee notes with deep concern Ruling No. TC/0168/13 of the Constitutional Court, issued on 23 September 2013 which, applying the law retroactively, denies Dominican nationality to a person born in the country who is the daughter of foreign migrants (Haitians) considered to be in transit or transitionally resident. In the same ruling, the Constitutional Court ordered the Central Electoral Board to: conduct a detailed audit of the birth registers of the Civil Registry from 21 June 1929 up to the date of the ruling to identify all foreign nationals registered and set out in a separate list all those registered unlawfully; notify all births contained on this list of persons registered unlawfully to the respective consulates and embassies; forward the list to the National Migration Council so that, under the terms of section 151 of the Migration Act, it can draw up within 90 days a national plan for the regularization of illegal foreign nationals and provide a report to the executive authorities, who shall implement the plan. Although the Government’s report has not been received, the Committee notes the communication sent by the Government to the Office on 28 October 2013 containing its official statement relating to the ruling of the Constitutional Court and indicating its sensitivity to the situation of those persons who consider themselves to be Dominican and whose rights are affected as a consequence of the ruling, with the indication that the National Migration Council will prepare a report within 30 days on the impact of the ruling on the foreign nationals, both in regular and irregular situations, recorded in the registration system. The plan for the regularization of foreign nationals will also be drawn up. The Committee observes that this ruling of the Constitutional Court (as recognized by the Court) affects hundreds of thousands of persons considered to be foreign despite having being born or residing in the country for decades by creating uncertainty regarding their nationality. It particularly affects persons of Haitian origin, who account for the majority of foreign nationals in the country. The Committee recalls that it has been referring for a number of years to the 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 do not result in discrimination based on race, colour or national extraction. The Conference Committee once again examined the situation of workers of Haitian origin in the country in 2013. The Committee observes that Ruling No. TC/0168/13 increases the vulnerability of a significant section of the population which was already recognized as being subject to discrimination on grounds of race and national extraction. The Committee is concerned about the impact of this decision on workers of Haitian origin and migrant workers in an irregular situation pending the adoption of the Regularization Plan envisaged in section 151 of the Migration Act. The Committee requests the Government to take all the necessary measures to ensure that, pending the adoption and implementation of the Regularization Plan, the ruling of the Constitutional Court, under which Dominican nationality is denied to the children of illegal foreign nationals who are born in the country, does not cause additional discrimination against workers of Haitian origin, dark-skinned Dominicans and migrant workers in an irregular situation. The Committee also requests the Government to take all the necessary measures to ensure that the assessment of the impact of the Constitutional Court’s ruling, and in particular with respect to section 151 of the Migration Act, is undertaken without delay and that it takes into account, in particular, the consequences on foreign nationals, with an indication of the number of persons affected and their national origin, and of the direct and indirect consequences on their life and work. The Committee asks the Government to provide detailed information on this subject, and on the preparation, adoption and implementation of the plan for the regularization of foreign nationals.

Discrimination on the basis of sex. The Committee has for a number of years been raising concerns about the persistence of cases of discrimination based on sex, particularly mandatory pregnancy testing, sexual harassment and the failure to apply the legislation in force effectively, including in export processing zones. The Committee once again urges the Government to take specific measures, including through the Committee to Promote Equal Opportunities and Prevent Discrimination at Work of the Ministry of Labour, to ensure the effective application of the legislation in force and to take proactive measures to prevent, investigate and punish sexual harassment, the requirement of pregnancy testing to obtain or keep a job, and to provide adequate protection to victims. The Committee also requests the Government to:

• (i) take the necessary measures to reinforce the penalties against such acts and to ensure that the mechanisms for settling disputes regarding discrimination in employment and occupation are efficient and accessible to all workers, including those in export processing zones;
• (ii) 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 relating to sexual harassment and pregnancy testing, and it expresses the firm hope that the amendments will include an explicit prohibition of both quid pro quo and hostile environment sexual harassment and will establish adequate penalties; and
• (iii) provide detailed information on the training measures for judges, labour inspectors and the social partners on sexual harassment and pregnancy testing, including representative samples of the training materials used.

Real or perceived HIV status. With regard to mandatory testing to establish HIV status, the Committee noted in its previous observation 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 for obtaining promotion. The Committee requests the Government to continue providing information on the measures adopted to prevent and eradicate discrimination based on HIV and AIDS. It requests the Government to provide statistical data on the complaints filed with the administrative and judicial authorities concerning discrimination based on HIV and AIDS, and particularly mandatory HIV and AIDS testing, and the decisions handed down in this respect.

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

[The Government is asked to supply full particulars to the Conference at its 103rd Session and to reply in detail to the present comments in 2014.]