Individual Case (CAS) - Discussion: 2004, Publication: 92nd ILC session (2004)

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

A Government representative declared that the situation regarding discrimination on grounds of colour, race and sex had changed since the promulgation of the Labour Code of 1992. The Dominican Republic had a population of 8.2 million, of which 80 per cent were dark skinned and 20 per cent of mixed race. There were approximately 1 million Haitian citizens resident in the country carrying out different jobs (construction work, agriculture, guards, taxis, domestic service, teaching and the informal sector). All Haitians in the Dominican Republic enjoyed the same rights as Dominican nationals as far as access to health, education, maternity and integration into the labour market were concerned. Dominican laws were applied without distinction to all workers on Dominican territory. He stressed the significant progress made concerning discrimination, such as, for example, the signing of agreements with Haiti regarding discrimination on grounds of colour, a fact recognized by the Haitian authorities.

He noted that the Labour Code, promulgated in May 1992, had been the result not only of technical assistance from the ILO, but also of the consensus between employers, workers and the Government. It had paved the way for ratification of all fundamental Conventions as well as Conventions Nos. 122, 144, 150, 167, 171 and 172. Similarly, he pointed out that the outlawing of discrimination on grounds of race or colour was established in fundamental principle VII of the Labour Code, which forbade all types of discrimination, exclusion or preference based on grounds of sex, age, race, colour, ancestry, social origin, political opinion, trade unionism or religious belief. Regarding gender discrimination, he pointed out that, in the Ministry of Labour, a Gender Department had been set up, under the responsibility of an Under-Secretary of State for Labour, who handled all complaints related to gender discrimination. Section 47, paragraph 9, of the Labour Code outlawed all actions taken against male or female workers that could be considered as sexual harassment and also condemned failure to intervene in cases where the act was perpetrated by third parties.

He emphasized that in the Dominican Republic the culture of social dialogue was the cornerstone and catalyst of relations between workers, employers and the Government. He was puzzled that his country was included in the list of cases for examination before the Committee, given the activities carried out by the Consultative Labour Council, the advisory body of the Secretary of State for Labour, set up to apply Convention No. 144, which was ratified in 1999. The National Council of Trade Union Unity, which grouped the four biggest unions in the country, had not presented allegations regarding discrimination to the Consultative Labour Council.

Laws banning discrimination had been reinforced by decisions of the Supreme Court of Justice, which on different occasions had declared the inapplicability of section 16 of the Civil Code, which obliged non-resident foreigners without property in the country to deposit a financial guarantee when taking legal action as plaintiff, considering it discriminatory as it did not apply to nationals. In the same way, the Supreme Court of Justice laid down that a foreign worker without papers had the right to take legal action to make a claim for unpaid wages.

In addition, the Secretary of State for Labour set up, in November 2003, a special office at headquarters designed to assist workers affected by HIV/AIDS. These workers could call on a lawyer if they felt themselves victims of discrimination in the workplace on account of their state of health. Similarly, the labour inspection service and the recently created office had distributed numerous information sheets on the subject. It also planned to produce more brochures to create awareness of national and international laws on non-discrimination on grounds of race and colour. In the second half of 2004 workshops were scheduled on the subject.

Regarding maternity protection, in coordination with the Labour Inspectorate, a sensitization campaign had been carried out for workers and employers on the practice of pregnancy testing as a condition of admission to work for women. In addition, information sheets had been distributed and six workshops planned for employers, with the assistance of the Spanish technical assistance programme and in cooperation with the Association of Export Processing Zones' Enterprises. In 2003, more than 20 workshops were held on labour-related issues in which maternity protection was one of the subjects discussed.

He underscored the importance of methods of prevention and noted that, to date, all allegations had been investigated with satisfactory results. An awareness-raising campaign for employers was currently underway and information was disseminated to make workers aware of their rights and obligations, including information on the ban on pregnancy testing before admission to work. Different enterprises in the export processing zones (EPZs) were developing social projects on maternity protection that included childcare centres, personal medical supervision for pregnant workers and postnatal, pre-school education, etc. Such programmes were being developed in the Santiago, Itabo and La Romana EPZs.

The Worker members stated that neither the Committee of Experts nor the Office had received clear and detailed information on efforts undertaken on discrimination in the country. The information available was of a very general nature, despite the fact that the International Confederation of Free Trade Unions (ICFTU) had insisted on acts of discrimination against Haitians and Dominico-Haitians. The ICFTU's communication had noted that some 1 million Haitians lived in the country, some legally, some clandestinely. Such workers had been marginalized and deprived of basic services, resulting in a situation of legal precariousness. This situation made them attractive to certain employers who were aware of their vulnerability and knew that such workers would accept low wages without demanding more decent conditions. The fact that 80 per cent of the Dominican population were dark skinned did not necessarily imply that there was no discrimination, as discrimination could take different forms. Certain human rights organizations had referred in their latest reports to discrimination against Haitians and Dominico-Haitians.

The Worker members commended the efforts made by tripartite dialogue. Nevertheless, they deplored certain restrictions on freedom of association. In fact, of the 180 trade unions operating in EPZs only five had signed collective agreements whereas 165 had been dismantled. Union repression and absence of union organization were combined with discrimination and lack of protection of workers. There were numerous allegations regarding pregnancy tests as admission to employment in an EPZ. In this respect, the most eloquent voice was that of the Human Rights Watch report on "Sexual discrimination of pregnancy testing in EPZs".

The Worker members considered that the efforts undertaken by the Government so far were insufficient. The Government had to supply more specific and detailed information to the Committee of Experts concerning its national policy aiming at the promotion of equality in accordance with the provisions of Convention No. 111. Information should also be provided concerning the judicial and extra-judicial investigations conducted following complaints for sexual discrimination. To conclude, the Worker members expressed the hope that measures would be taken immediately to eliminate discrimination and ensure respect for workers' dignity.

The Employer members noted that the Committee of Experts' observation was based only on comments supplied by the ICFTU in October 2002. Although recognizing the existence of laws prohibiting discrimination on grounds of colour and race, the ICFTU had indicated that discrimination nevertheless existed in practice. The Employer members observed that the Committee of Experts had not endorsed the allegations from the ICFTU, but had only requested the Government to provide information in relation to these allegations.

The Employer members observed that the Committee of Experts had noted in earlier comments the existence of discrimination against Haitians and members of the dark skinned Dominican population, and the joint declaration by the Dominican Republic and the Republic of Haiti on prevention of discrimination in the recruitment of migrant workers, both Dominican and Haitian. They noted the statement of the Government representative indicating that there had been no complaints of such discrimination and that 80 per cent of the Dominicans were dark skinned.

They also noted that the Committee of Experts had simply reminded the Government that the Convention required the formulation of a national policy to prevent discrimination on all grounds mentioned in Article 1 of the Convention. In that sense, the Committee of Experts had requested the Government to provide information and had not requested the adoption of new anti-discrimination legislative measures. The Employer members considered that the joint declaration by the Dominican Republic and the Republic of Haiti on prevention of discrimination in the recruitment of migrant workers, as well as the other measures mentioned by the Government representative were part of an anti-discrimination policy as required under the Convention. This information provided to the Conference Committee needed to be transmitted to the Committee of Experts in writing.

Turning to the allegations of the ICFTU, according to which, although gender discrimination, including pregnancy controls and sexual harassment, was prohibited by law, it existed in practice, the Employer members observed that the Committee of Experts simply had described the allegations of the ICFTU without making a statement on its own. Only with regard to the application of the Equal Remuneration Convention, 1951 (No. 100), the Committee of Experts had observed violations of the labour standards protecting maternity, and had requested the Government to indicate the machinery for prevention and investigation to combat practices that discriminate against women, such as pregnancy testing at the time of admission to employment. In this respect, the Employer members noted the statement of the Government representative on the measures taken to amplify the existing measures designed to guarantee maternity protection. The Employer members concluded that the Government should supply a report to the Committee of Experts containing detailed information on the issues raised.

The Employer member of the Dominican Republic expressed doubts about the motives which had led to the discussion of this case at the Conference Committee, taking into account that the Labour Minister of the Dominican Republic had been elected President of the current session of the Conference. He recalled that the spokesperson of the Workers' group had stated in the plenary session of the Conference that the Workers approved the Dominican Labour Minister because human rights and labour standards were being respected in the country. The speaker pointed out that the AFL-CIO had opposed the conclusion of a free trade agreement between Canada, the United States and the countries of Central America and the Caribbean (CAFTA), which explained the exclusively political purpose of this discussion. The opinions of an international confederation should not have more weight than those of the Dominican organizations. He emphasized that in the Dominican Republic there were more than enough laws and regulations prohibiting discrimination. In addition to the 80 per cent of Dominican dark-skinned population, the Vice-President of the Republic was a woman, as well as the vice-presidents of the two employers' federations of the country. Finally, the speaker stressed that the Dominican society did not tolerate sexual harassment.

The Worker member of the Dominican Republic stated that social dialogue had existed in the Dominican Republic for 15 years thanks to the ILO's assistance and the Catholic Church. He underlined the substantive progress made in order to advance democracy, especially with regard to the combat against discrimination on the basis of colour, race and sex. This was exemplified by the reform of the Labour Code, social security and vocational training as well as by the fight against the worst forms of child labour.

Discrimination was not a generalized practice in the Dominican Republic and, when a case of discrimination was detected, it was brought before the labour administration and the competent labour courts. Although discrimination used to exist at an earlier time, the promulgation of the Labour Code in 1992 had strengthened social dialogue through the Consultative Labour Council which was a tripartite body. Moreover, bilateral dialogue existed between the employers' organizations and the trade union movement, which had led to a reduction in discriminatory practices, thus taking a significant step. He mentioned as an example the recent signing of a protocol between the workers' federations and the Dominican Association of Export Processing Zones' Enterprises in order to guarantee productivity, put an end to labour conflicts and harmonize the relations between trade unions in this sector by promoting collective bargaining. Trade unions and collective agreements existed despite the actual problems in the EPZs' sector.

As to discrimination on the basis of gender, he stated that the Labour Department, through the Labour Inspectorate, gave a rigorous suit to the denunciations made to them. In conclusion, the speaker underlined the significant contribution of the ILO to improving the conditions of work in the country through its active participation in the modification of labour legislation and social security, the strengthening of tripartite social dialogue and the follow-up to fundamental rights at work.

The Government member of Costa Rica (Minister of Labour and Social Security) expressed his surprise at the allegations directed against the Dominican Republic. The denunciations were disconnected from reality and clearly had ideological intentions. They aimed at raising obstacles to the conclusion of free trade treaties between Canada, the United States and the Central American and Caribbean region. This could be observed by the fact that four of the seven countries which had concluded the CAFTA had been included in the list of cases to be examined by the Committee. This constituted geographical discrimination.

The speaker shared the opinions expressed by the delegation of the Dominican Republic. In the Dominican Republic, the Labour Code prohibited discrimination and whoever violated the Code was subject to legal prosecution. Moreover, the Dominican Republic had an undersecretariat on gender that many countries did not have. The RELACENTRO project (freedom of association, collective bargaining and labour relations in Central America, Panama, Belize and the Dominican Republic) had held a meeting in Santo Domingo in order to establish the agenda for social dialogue in the subregion.

The Worker member of France stated that under the Convention, it pertained to the Government of the Dominican Republic to prevent discrimination and order an investigation of the allegations which concerned in particular obligatory pregnancy tests and sexual harassment to which women were subjected in EPZs. According to the conclusions of a report by the International Labour Rights Fund Institute on sexual harassment in EPZs, the production of which was destined primarily to the United States market, the Government did not seem to face up to its responsibilities in this respect. The numbers contained in the report depicted a situation which did not coincide with the trivial assessments of sexual harassment made by the Government. The establishment of free trade zones was based on political decisions in the areas of taxes, customs and infrastructure, and the female workers in these zones were under particularly significant pressures as testified by various accounts. It was incumbent upon the Government to formulate policies and ensure the application of the existing laws in order to ensure the protection of female workers. A constructive influence was exerted by trade unions in this respect and, as a result of the initiatives of the ICFTU, the World Bank had ensured that the situation of female workers in EPZs was taken into consideration in the framework of the granting of a loan to a private enterprise.

The Worker member of Venezuela referred to a report produced by a human rights organization which claimed that the number of people affected by HIV/AIDS in the Dominican Republic was one of the highest in the region, spreading faster among women than men. HIV/AIDS-affected women suffered greater discrimination as demonstrated by the mandatory HIV/AIDS tests, the results of which were made available to future employers. Mandatory HIV/AIDS tests to retain or obtain employment had a negative impact on both men and women but mainly affected the latter who preferred not to seek work if they suspected that they were infected. Public information campaigns and sex education in the Dominican Republic had not adequately addressed the issue of social preconceptions, which increased the risk of contagion. Most women would opt voluntarily for HIV/AIDS tests if they received adequate information and a guarantee of confidentiality of the results, while others would opt not to have recourse to essential health services if they knew that they would be subjected to HIV/AIDS tests against their will. A major opportunity to save lives and prevent the spread of disease was being lost by these methods.

The speaker was concerned by discrimination on grounds of pregnancy in EPZs where workers and applicants were being subjected to pregnancy testing as a condition of maintaining or obtaining a job. Dominican law outlawed sexual harassment at the workplace but it was important that the Government take energetic steps to eliminate such conduct and punish the guilty. In addition, she stressed the importance of obtaining more information on the treatment of Haitian workers. She finally stated that the opposition to CAFTA shown by the AFL-CIO was shared by the Venezuelan National Workers' Union (UNT).

The Government member of El Salvador associated herself with the statement made by the Government representative of the Dominican Republic on the significant progress made in order to eliminate discrimination on the basis of race, sex or colour. She underlined that, through the tripartite dialogue conducted by the Central American Council of Ministers, which included the Dominican Republic, workshops and seminars had taken place on the application of the Convention. She underlined the importance of the statement made by the Worker member of the Dominican Republic who had noted the existence of a culture of tripartite social dialogue as a means to seek solutions in this field.

The Government member of Nicaragua acknowledged the progress made in the Committee with regard to the list of individual cases, especially through the diversity of subjects and the detachment from cases on Conventions Nos. 87 and 98. However, she regretted that the case of the Dominican Republic had been included in the list with regard to a fundamental Convention since the Dominican Republic had taken initiatives which had led to progress in the implementation of Convention No. 111.

The speaker indicated that the combat against racism, racial discrimination, xenophobia and the related forms of intolerance had regained great importance after the holding of the World Conference against Racism in Durban, South Africa, in 2001. The Latin American countries had initiated a process for the implementation of national and international measures to fight against all forms of discrimination. No country could find itself at the margin of the international commitments in this area.

Since the Dominican Republic was a country with 80 per cent coloured population, the failure to implement the Convention would have involved an unawareness of the country's own multicultural and multi-ethnic identity. Finally, the speaker endorsed the statement of the Government representative of the Dominican Republic with regard to the examination of this case which demonstrated that the concentration of cases in the Central American region showed the deficiencies of the Committee's working methods.

The Government representative stated that in his country denunciations of discrimination on the basis of gender, colour and race were made before the competent bodies. He insisted that in 2004 only one denunciation had been registered. Since the country was afflicted by poverty, there was also social marginalization which affected not only the Haitians but also the Dominicans. The speaker emphasized the tripartite consensus which existed in his country on the application of the Convention.

The Worker members emphasized the importance of tripartite social dialogue in this area and acknowledged the Government's efforts to resolve the problems. One of the ways to arrive at a solution would have been to integrate the problem of discrimination in the social dialogue, in order to analyse Convention No. 111 in depth and introduce the necessary modifications in law and in practice. The Worker members insisted on the need for the Government to send detailed and practical information to the Committee of Experts on the national policies for the promotion of equality. They urged the Government to adopt administrative and educational policies in order to prevent all types of discrimination and to promote equality of opportunity and treatment in law and in practice. The Worker members finally stated that the Government should provide information on the judicial and extrajudicial investigations which had taken place on sexual discrimination.

The Employer members observed that this was a rare case in as far as the representatives of the Government, the Employers and the Workers of the Dominican Republic had expressed similar views. They recalled that this case was dealing with the issue of discrimination, and not with issues related to freedom of association. The Employer members also recalled that the majority of the interventions made had not invoked that the Convention had been violated. The allegations based on documents prepared by non-governmental organizations, which had not been considered by the Committee of Experts, were no basis for the conclusions of the Conference Committee. They recalled that this Organization had a tripartite structure and that non-governmental organizations were not included in the ILO.

The Committee took note of the detailed information provided in the Government's statement and the discussion which took place thereafter. It noted that there was no indication that the legislation was not in conformity with the Convention, but that the discussion at the Conference concerned the comments of the ICFTU on discrimination exercised in practice on the basis of colour, race and sex as well as the Government's response. The allegations had referred concretely to the discriminatory practices against the Haitian workers and dark-skinned Dominicans, pregnancy testing and sexual harassment. The Government had expressed its preoccupation concerning these issues. Laws had been adopted and in fact, an undersecretariat on gender had been created. The Dominican Republic had made a joint statement with the Government of Haiti in order to prevent discrimination in the course of hiring Haitian migrant workers. Moreover, the Committee took note of the Government's decision to investigate these allegations and improve the control of its anti-discrimination laws, and also took note of the measures taken in the maquila sector for the protection of pregnant women and mothers, including bilateral agreements in the maquila sector, and of the social dialogue on discrimination. The Committee was pleased by these constructive efforts and requested the Government to transmit detailed information in writing to the Committee of Experts on the application of the Convention in practice, including statistics, indications on the prevention of sexual harassment and of pregnancy tests in the maquila sector, on the result of the investigations of the complaints and on all the measures taken in order to deal with discrimination at work.