Report in which the committee requests to be kept informed of development - Report No 211, November 1981

Case No 1025 (Haiti) - Complaint date: 27-JAN-81 - Closed

1. 253. The Committee already examined this case at its May 1981 Session when it submitted an interim report to the Governing Body. Since then, the Government has supplied its observations in a letter dated 30 September 1981.
2. 254. Haiti has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 255. The initial complaint of the world Confederation of Labour (WCL) related primarily to the refusal to grant legal recognition to the Autonomous Confederation of Haitian Workers (CATH) established in accordance with legal requirements, the occupation by the police of the headquarters of that Confederation, the confiscation of bank assets, the arrest on 22 December 1980 of its Secretary-General, Mr. Yves Richard, his deportation to Curacao and the arrest of other trade union leaders. In addition, the complaint alleged that 48 workers had been dismissed without grounds from the National Brewery, 6 from the Textile Look factory and 3 from the Dress Martin factory.
2. 256. More recently, the WCL also alleged that the trade unionist Jean-Baptiste Siméon was shot dead by the police force when leaving a trade union meeting and that 45 CATH trade unionists, whose names it supplied, had been imprisoned.
3. 257. At its May 1981 Session, the Committee, having noted the partial observations supplied by the Government on certain aspects of the case, requested it, in the absence of information on other points, for its comments on the allegations relating to the death of Mr. Jean-Baptiste Siméon, the imprisonment of 45 trade unionists mentioned by the complainant organisation, the breaking into trade union premises and the freezing of bank accounts.
4. 258. The Committee also noted in connection with the failure to recognise the CATH that this Confederation had not complied with the normal legal formalities provided for by the labour legislation but gathered that apparently it had in any case continued its activities without being registered.

B. The Government's reply

1. 259. In a communication dated 30 September 1981, the Government states that the provisions of the Labour Code governing the operation of trade union organisations are consistent with Convention No. 87 and that if the CATH has continued its activities without being registered, it has done so illegally and without having acquired trade union status at any time. No registered trade union has claimed to belong this Confederation, which appears to be only a project or wishful thinking on the part of its leaders, and in no case can its activities be equated to trade union activities.
2. 260. In reply to the various allegations made by the complainant organisation, the Government states, concerning the occupation of the CATH headquarters that, even if it were proved that premises had been occupied by the police, the premises in question could not have been the headquarters of a trade union. The Government further states that it does not see in what capacity this body could have been authorised to collect union dues or to open a bank account in the name of a trade union.
3. 261. Regarding the imprisonment of 45 CATH members whose names were communicated to it, the Government states that the inquiry it carried out showed that none of the workers in question were under arrest and that all were going about their usual occupations.
4. 262. Concerning the death on 22 December 1980 of the trade unionist Jean-Baptiste Siméon, the Government acknowledges that his death occurred during a police raid carried out, according to it, to suppress a plot against the internal security of the State. His death, the Government claims, was justified by his resistance to the police force and Mr. Siméon, an active militant of the opposition and a notorious anarchist, was not a trade unionist since his name does not appear in any trade union files.
5. 263. Concerning the allegation that Mr. Yves Richard was Secretary-General of the CATH at the time of his arrest, the Government challenges the validity of Mr. Richard's claim to- that office since, under section 276(5) of the Labour Code, members of a trade union executive Committee are required to have been members of the trade for at least six months, a requirement that he did not fulfil. The Government adds that the activities held against the few persons who had formed the Confederation in question, without legal status, were subversive activities and that those persons threatened the internal security of the State. Consequently, the action taken against Mr. Yves Richard, allegedly Secretary-General of the CATH, could not have been taken because of his trade union activities or in violation of the legal provisions governing the operation of trade union organisations.
6. 264. Concerning the dismissal of 48 workers from the National Brewery, 6 from the Textile Look factory and 3 from the Dress Martin factory, the Government acknowledges that, according to the minutes drawn up by the Conciliation and Arbitration Department of the General Directorate of Labour, the workers dismissed from the National Brewery were dismissed on grounds of participation in an illegal strike, in accordance with the provisions of the Labour Code. An employment contract may be terminated on grounds of participation in an illegal strike without entailing any liability for the employer and without prejudice to the penalties that may be taken by the public authorities against the strikers. The dismissals in the other two enterprises, of 3 and 6 workers respectively, were due to fluctuations in production and administrative reasons warranting application of the provisions of the Code. Most of the dismissed workers in this case freely accepted the severance pay owing to them. The Government concludes that those who chose instead to bring a lawsuit for unfair termination of their contracts subsequently waived the action initiated and accepted the legal benefits owing to them.

C. The Committee's conclusions

1. 265. In this case, the World Confederation of Labour (WCL) has based its complaint on the information it received from the Haitian national organisation affiliated to the Latin American Central of Workers (CLAT), which in turn is affiliated to the WCL: the Autonomous Confederation of Haitian Workers (CATH), an organisation representing one of the tendencies of the country's trade union movement.
2. 266. The Committee recalls that this Confederation was refused registration of its by-laws by the administrative authorities on 2 June 1980. It nevertheless observes that the CATH has continued to carry out de facto activities and that, according to the complainant, repressive action was subsequently taken against leaders and members of this organisation, including the death of a trade unionist, the arrest of numerous members and the deportation of its Secretary-General.
3. 267. The Government considers that the CATH has no legal existence since- it has not been registered and that in no case can its activities be equated to trade union activities.
4. 268. In this respect, the Committee wishes to recall that, during its first meeting in January 1952, it established the principle that it has full discretion to decide whether or not an organisation is to be regarded as an industrial association within the meaning of the ILO Constitution and that it does not consider itself bound by any national definition of this term. In the case in question, the Committee considers that the fact that a workers' organisation has not registered its by-laws, as may be required by national law, is not sufficient reason to make its Complaint irreceivable since the principles of freedom of association demand precisely that workers shall be enabled, without previous authorisation, to establish organisations of their own choosing.
5. 269. As to the substance, the Committee observes that repressive action was taken following an attempt to establish a trade union organisation and a meeting held by that organisation.
6. 270. In the Committee's opinion, the severity of the repressive action taken has created within that organisation an atmosphere of intimidation that can only be detrimental to the development of its activities and even perhaps to further steps required for obtaining legal status. Consequently, the Committee considers that the principle that workers should be able to establish organisations of their own choosing without previous authorisation has been violated.
7. 271. In these circumstances, the Committee deplores the violent death of Mr. Jean-Baptiste Siméon who, according to the statements of the Secretary-General of the CATH, was a trade unionist leaving a union meeting at the time when he was killed, and the arrest, followed by deportation, of the Secretary-General of that organisation.
8. 272. The Committee notes that the 45 members of the CATH who were arrested are free. It nevertheless considers that the Government's statements do not contain a formal denial of the allegations of the complainant organisation that the persons in question had been arrested. On this point, the Committee recalls the importance it attaches to the principle that the arrest by the authorities of trade unionists against whom no subsequent charge is brought may involve restrictions to freedom of association and that the authorities should take appropriate measures to prevent the dangers involved for trade union activities by measures of arrest.
9. 273. Regarding the dismissal of 48 strikers from the National Brewery, the Committee notes that, according to the Government, those workers were dismissed for having taken part in an illegal strike on this point, the Committee, after examining the national legislation in force governing labour disputes, observes that sections 195, 199 and 212 of the Labour Code contain provisions whereby legal exercise of the right to strike may be considerably restricted. Under this legislation, labour disputes may be settled by compulsory arbitration by the Higher Arbitration Board. The Committee has always regarded the right to strike as one of the essential means for protecting the economic interests of workers. The Committee has nevertheless acknowledged that this right may be restricted, and even prohibited, in certain essential services when a strike in those sectors might have highly prejudicial effects for the national community. However, it has held that this principle might well become meaningless if it were so interpreted as to permit prohibition of a strike in an undertaken not providing an essential service in the strict sense of the term, i.e. a service whose interruption would endanger the existence or well-being of the whole or part of the population. In the case in question, it does not seem to the Committee that the National Brewery is an essential service according to this criterion.
10. 274. Accordingly, the Committee considers that it would be appropriate for the Government to take steps to facilitate the reinstatement of the dismissed workers.

The Committee's recommendations

1. 275. In these circumstances, the Committee recommends the Governing Body to approve the following conclusions:
   • The Committee deplores the repressive action taken following an attempt to establish a trade union organisation, the Autonomous Confederation of Haitian Workers, and in particular the violent death of Mr. Jean-Baptiste Siméon who, according to the Secretary-General of that Confederation, was a trade unionist, the arrest and subsequent deportation of Mr. Yves Richard, Secretary-General of the CATH, an organisation affiliated to the complainant organisation, as well as the alleged arrest of numerous trade unionists. On this last point, however, the Committee notes that, according to the Government, these persons are free.
   • In this case, the Committee considers that the principle of freedom of association that workers should be able to establish organisations of their own choosing without previous authorisation has been violated by the measures adopted and wishes to draw the attention of the Committee of Experts on the Application of Conventions and Recommendations to this aspect of the case.
   • Concerning the dismissal of 48 workers from the National Brewery accused of having taken part in an illegal strike, the Committee considers that the National Brewery can hardly be considered to be an essential service in the strict sense of the term.
   • Consequently, in view of the importance which it attaches to the exercise of the right to strike as one of the essential means which workers should have for protecting their occupational interests, the Committee considers that it would be appropriate for the Government to take steps to facilitate the reinstatement of the workers dismissed and requests it to keep it informed of any steps it takes to that end.