Cas individuel (CAS) - Discussion : 2008, Publication : 97ème session CIT (2008)

Convention (n° 111) concernant la discrimination (emploi et profession), 1958 - République dominicaine (Ratification: 1964)

A Government representative welcomed the opportunity to explore and clarify certain points regarding the application of Convention No. 111 by his country. He said that it would represent a milestone along the path being taken by the Dominican Republic to try and leave mistakes and legislative weaknesses behind and open up to an institutional future based on international best practice in this area.

The Dominican Republic had made every effort to comply in a scrupulous and transparent manner with the obligations arising out of the Convention and fully intended to identify any inadvertent or unintentional violations of the commitments made to the ILO, as evidenced by the fact that the critical observations in the report of the Committee of Experts had neither occurred in nor been perpetuated by the national trade union movement.

With regard to the allegations made by the International Trade Union Confederation (ITUC) of detentions and deportations by the Dominican police and/or army on grounds of colour, he said that, under the legislation on migration (Act No. 285 of 15 August 2004), the police and army had no powers to repatriate citizens of other nationalities. This was the preserve of the Directorate General for Migration and its inspectors. If the police or army took such action, it would be illegal and punishable. He said that the allegations also mentioned the repatriation of 2,000 Haitian nationals, including some Dominicans mistaken for Haitians on the grounds of their skin colour. He explained that 80 per cent of the people in his country were black or of mixed race, a proportion that was reflected throughout the state apparatus and at all levels of society, and it would therefore be impossible for someone to be repatriated, even in error, based simply on their colour. He explained that every Dominican citizen over the age of 16 received an identity document and that if someone happened to be detained because of their skin colour, they would only have to present this document in order to be identified. Consequently, he considered that the complaint was untrue, and was unfounded in both law and practice.

He explained that, as a free and sovereign country, sections 6 and 12 of the Migration Act stipulated that illegal aliens would be removed from the territory of the country and that their situation would be considered illegal if they could not prove their status as migrants. He also stated that the 1992 Labour Code, drawn up with ILO assistance, prohibited discrimination on various grounds, including all those set out in the Convention.

In terms of practical application, he reported that over the last five years the Secretariat of State for Labour had carried out training activities on discrimination for the national inspection services. In 2007, 13 workshops had been held, and six had already taken place in 2008 with the participation of employers and workers. This was intended not only to promote the provisions of the Convention, but also to raise awareness among the population in all social categories. In particular, he highlighted campaigns carried out by labour inspectors to promote labour standards in agricultural areas, providing information on and encouraging compliance with those standards. The Secretariat of State for Labour had invested large sums in the programme.

In addition, he said that the Secretariat of State for Labour, in cooperation with the Directorate General for Migration and the Secretariat of State for Foreign Affairs, had instituted the following measures within the framework of Convention No. 111 and in line with the comments made by the Committee of Experts: (1) investigation of migrants being considered for repatriation to establish their identity and migration status; (2) the strict prohibition of the return of undocumented Haitian nationals at weekends, on public holidays and during the night; (3) the improvement of buses for the return of undocumented Haitian nationals; (4) the non-return of undocumented Haitian nationals to their country of origin if they had outstanding wages or work; (5) the non-return of minors unless accompanied by their parents and in possession of their belongings; (6) guaranteed meals during the investigation process and provision of Haitian currency for the journey; (7) the guarantee that, during the return journey, illegal migrants benefit from medical and paramedical assistance; (8) the finalization of regulations to give effect to the new General Migration Act and then the establishment of a national plan to regularize the situation of foreign nationals; and (9) the abolition, in accordance with a Supreme Court ruling, of the employment deposit which every foreign national was formerly required to pay to the courts.

With regard to promoting and guaranteeing the application of the Convention without discrimination on grounds of sex, he said that the Secretariat of State for Labour had created an office responsible for monitoring gender policies in the field of employment. To that end, funds from the Cumple y gana ("profit through compliance") scheme had been used to hold seminars and courses on national and international standards on gender and labour. An information and promotion campaign on the subject had been planned, and the Gender Office, under the direction of the Subsecretariat of State for Labour had submitted a draft amendment to the Labour Code to the Advisory Labour Council with a view to improving labour legislation in the area of medical examinations prior to and during employment.

Any complaints or situations which could be considered discriminatory on gender grounds were channelled through the National Department of Labour Inspection. Four local labour representatives with the rank of labour inspector had received higher diplomas in gender and discrimination. With regard to sexual harassment, he said that very few cases of sexual harassment had been brought, but that the Labour Code was being amended to make sexual harassment a criminal offence carrying a severe penalty. Regarding equality between men and women, the Secretariat had held 15 workshops on Conventions Nos 100 and 111 in 2007.

Concerning workers living with HIV, he said that the practice of HIV testing in his country was voluntary and that Dominican legislation prohibited the use of HIV testing as a condition for obtaining or retaining employment. This prohibition applied not only in export processing zones and the tourism industry, but in all enterprises registered with the Secretariat of State for Labour. The Secretariat of State had 38 local labour offices and 199 inspectors throughout the country. Labour inspectors had carried out 79,484 inspections in 2007 and 34,852 so far in 2008, and no complaints of discrimination on grounds of HIV status had been reported. A Technical Labour Unit on HIV/AIDS had been established at the Secretariat's main office to receive complaints in that regard, but none had been received. The Unit worked in conjunction with the Health and Safety Department of the Secretariat of State for Labour, which was responsible for the constant monitoring of registered enterprises through health and safety committees. In 2007, 1,364 such committees had been established at enterprises on a tripartite basis. During 2007 and the first half of 2008, the Health and Safety Department had organized 32 workshops in areas with the highest concentration of export processing zones, in which the ILO Subregional Office had participated. Seminars had been held on HIV/AIDS and labour relations, intended to raise awareness among and train the high- and medium-level staff of the Secretariat on sexual and reproductive rights, stigmatization and discrimination, and HIV/AIDS, in accordance with sections 55-93 of the AIDS Act. Section 12 of the Act provided that the Secretariat of State for Labour, in coordination with the trade union federations, would undertake information activities on prevention and transmission for employers and workers in all public and private enterprises.

He concluded by stating that the Dominican Republic was taking tangible steps to bring its legislation into line with ILO standards on a basis of social dialogue and tripartism, the cornerstone of the strengthening of democracy and respect for human values. The Employer members thanked the Government representative for the information provided. They recalled that Convention No. 111 was a promotional Convention which required the ratifying country to adopt and fully implement policies addressing various forms of discrimination with a view to their elimination. According to the comment by the Committee of Experts, in most respects the case was in the same situation as when it had last been discussed in 2004.

The first issue raised by the Committee of Experts concerned discrimination on grounds of colour, race and national extraction, and particularly the detention and deportation of nationals of Haiti by the police, army or migration officials. When the case had last been discussed, the Government had been requested to investigate complaints in this regard. However, the Government had not yet provided information on this point, although the Government representative had referred to awareness campaigns and action by the labour inspectorate.

The observation by the Committee of Experts referred to the report of the United Nations Independent Expert on the situation of human rights in Haiti, according to which the deportations were in violation of the Government's immigration legislation (Act No. 95 and Regulation No. 275) and of an agreement concluded between the Governments of the Dominican Republic and Haiti in 1999. The Employer members noted that the Government had provided a certain amount of information in response to the request by the Committee of Experts for data on the prevention and elimination of discrimination in this respect.

The second matter raised by the Committee of Experts concerned discrimination on grounds of sex, particularly in the form of compulsory pregnancy testing and sexual harassment. The Committee of Experts had requested the Government to take proactive measures to penalize acts of sexual harassment and to prohibit pregnancy testing as a condition for employment. The Government representative had indicated that acts of sexual harassment would be criminalized, but had not appeared to refer to compulsory pregnancy testing.

The third matter raised by the Committee of Experts concerned HIV testing as a condition for employment. The Government representative had referred to a series of measures in this respect, including labour inspection. The Employer members said that the case was unusual in that it involved migration policy between two neighbouring countries, one of which was among the poorest in the world. This meant that there was the potential to take undue advantage of the citizens of another country. The Government was being called upon to ensure the effective implementation of the Convention through the elimination of discrimination in all its forms. The case was therefore inherently related to migration, both legal and illegal, between two countries on the same island, and the prevention of discrimination would have the consequence of protecting the rights of the individuals concerned. Although there had been certain improvements, the Government would need to remain vigilant in view of the inherent difficulties involved in the situation.

The Worker members recalled that the case concerned discrimination on grounds of colour, race and national extraction and directly concerned the issue of Haitian nationals. It also concerned gender-related discrimination and the issue of HIV/AIDS and pregnancy testing.

The Worker members emphasized that, in addition to the question of bringing the national legislation into line with the principles of Convention No. 111, the Governments should be invited to carry out awareness-raising and information activities on the content of the Convention, which would otherwise be confined to paper only.

According to a periodic report submitted to the United Nations Committee on the Elimination of Racial Discrimination, the Dominican Republic had a population of 8.2 million inhabitants, of which 80 per cent were black and 20 per cent were of mixed race. Approximately 1 million Haitians lived in the country, without necessarily having any legal status and their children were born there without being registered, which exacerbated the adverse consequences of their irregular status. Haitians were engaged in various occupations, including construction, agriculture, domestic service and in the informal economy. In theory, all workers, whether Dominican nationals or foreigners enjoyed the same rights in terms of access to health care, education, maternity services and integration into the labour market. It appeared that the Government was making an effort to honour its commitments. An office for gender equality had been established to receive complaints relating to gender-based discrimination and the protection of women's rights in the workplace. With regard to the protection of maternity, a campaign had been conducted to raise public awareness of the prohibition of pregnancy testing as a condition for access to employment. Information had been made available, in the form of an official communiqué, on the prohibition of testing workers for HIV/AIDS before they were hired and a system of legal aid gave free assistance to workers who considered that they were victims of discrimination in the workplace as a result of being HIV positive. It was not enough, however, simply to introduce legislation because, as the Committee of Experts had rightly pointed out, the law in such cases applied to the citizens of the Dominican Republic, and Haitian workers were often not considered to be citizens, but illegal migrants.

The real difficulties were more practical and related to informing workers who were victims of discriminatory treatment that they could lodge complaints, speak out and have full access to legal process. The extent to which the law was applied appeared to be very different depending on the size of the enterprise, sector of activity and the union presence in the enterprise. In order to remedy the violations of Convention No. 111, the Worker members propose that the following measures be taken: inform not only workers, but society as a whole, of the antidiscrimination legislation that was in place and of the socially unacceptable nature of such violations; provide this information as early as possible to children and teenagers and make it readily accessible; secure the involvement not only of workers and employers, but also of teachers, public officials, labour inspectors and judges; establish information offices that were easily accessible to workers, where they could seek advice in total confidence and confidentiality; help workers who were victims of discrimination to submit complaints through these offices; and adopt legislative measures to lighten the burden of proof on workers in cases involving discriminatory treatment against them and to protect them against retaliatory dismissal. These measures should be implemented with ILO technical assistance.

The Worker member of the Dominican Republic considered it very important for the social partners and the Government to undertake a major campaign at the national level on the content of Convention No. 111. He deplored the fact that violations had occurred of this important Convention.

With regard to violations of the law in relation to HIV/AIDS, sexual harassment and maternity tests, he said that they occurred in enterprises where there were no trade unions. The workers did not complain through fear and ignorance of their rights. He said that this was a constant concern of the Labour Advisory Council was the full application of the Convention, as well as Convention No. 87 and the other ILO Conventions and Recommendations.

With regard to awareness-raising activities on the content of the Convention, he indicated that in February 2008 an important programme had been agreed upon with the Presidential Council on AIDS and the World Bank addressing the subjects of HIV/AIDS, sexual harassment and pregnancy tests.

With reference to the situation of Haitian workers, he said that the Workers' Autonomous Trade Union Confederation (CASC) had been working for the past three decades with the organization of Haitian workers in the Dominican Republic in collaboration with the Confederation of Haitian Workers (CTH) in Haiti. The Socio-cultural Movement of Haitian Workers (Moschta) and the organization El Buen Pastor were affiliates of the CASC, which offered manifest proof of the commitment of his union to organize and defend the rights of Haitian immigrant workers in the Dominican Republic.

He said that his union was aware of the problem of Haitian migrant workers and that there were ever increasing numbers of Haitian workers in an illegal situation, who were seeking work, healthcare, education, etc. Thousands worked in the construction sector, the informal economy, in agriculture and other sectors, but were often paid inadequate wages and did not benefit from the protection of the law because they were illegal. He said that his country needed to find solutions for the major problem of illegal immigration and to continue making the necessary efforts to give effect to the law and prevent all forms of discrimination and injustice. He added that major efforts were being made by his union to provide training, principally through its Haitian and Dominican affiliates, and in the population in general, with a view to achieving greater awareness and social integration.

He called upon the ILO, member States and workers' and employers' organizations, and in particular the ITUC-TUCA (Trade Union Confederation of the Americas), to engage in cooperation on an urgent basis with a view to achieving a solution in the short, medium and long term to the situation of the people of Haiti, the poorest country in the American region. He emphasized that the Dominican Republic should not be left to face this major challenge on its own, particularly as it was a country in which over 50 per cent of the population was on the poverty threshold.

The Government member of Cuba said that she had carefully examined the observation of the Committee of Experts, and thanked the Government representative for the information provided. She said that the observation was based on comments made by the ITUC which had not been verified and on which there had been no response from the Government to the Committee of Experts. She thanked the Government for the information on its efforts to give effect to the Convention in practice. Under the circumstances, it appeared more appropriate, in order to allow assessment on the basis of reliable data, for the Government to send the necessary reports on Convention No. 111 so that they could be examined by the Committee of Experts.

With regard to the situation of Haitian workers allegedly deported and returned to their own country, she recalled that Haiti was one of the world's poorest countries and one of those most in need of international aid; getting aid to the country was a matter of urgency. At the same time, it had to be acknowledged that the Dominican Republic was a developing country which was not immune to the economic and social problems that were exacerbated by the most negative effects of globalization. She emphasized that the case was an extremely complex one, and that the Committee did not have all the elements it needed to make a balanced assessment. It was therefore necessary to request more information from the Government so that the situation could be examined by the Committee of Experts.

The Government representative of the Dominican Republic said, with regard to the deportations, that it was important to be clear that Convention No. 111 did not refer to questions of migration. There was no state policy of discrimination against migrant workers. The competent authorities took steps to apply the sanctions provided for in law in cases of complaints regarding violations of the Convention. The Dominican Republic faced strong migration pressures, especially from Haitian workers, and in that context measures had been taken that was in compliance with human rights and reciprocal regulations concerning repatriation. He said that the repatriations that had occurred concerned migrant workers in irregular situations in the country and were not motivated by racial or national discrimination.

With regard to the issue of sexual harassment, very few cases had been reported to the judicial authorities. That might be a consequence of fear on the part of the individuals concerned of possible reprisals or pressure. The Government was making systematic efforts to correct that perception. Whenever an instance of such abuse was reported, the authorities endeavoured to investigate the case and come up with a definitive and transparent solution. It was, however, undoubtedly true that in a population of more than 9 million people, there were those who perpetrated sexual harassment, and there were unscrupulous people who would exploit the vulnerability of immigrants. He emphasized the importance of making it clear that the State did not permit impunity in such cases.

With regard to the matter of HIV testing, he said that moves would be made immediately, not to revise the laws and regulations in force in the country, which had been established in accordance with the best practices of UNAIDS, the institution which provided advice in this area, but instead to ensure, with the aid of the governmental body, the Presidential Council on AIDS (COPRESIDA), and an entire network of NGOs specializing in health and AIDS in particular, to promote compliance with these laws and regulations in all cases. He therefore appreciated the comments made, and gave assurances that UNAIDS and the governmental and labour institutions involved would continue to ensure full compliance with the right of all men and women to health and confidentiality.

With regard to the comments and statements made concerning the report of the United Nations Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance, the best proof of the goodwill and willingness of Dominican society and its Government to overcome difficulties, make progress and achieve improvements in the human rights field was the fact that it was the Government that had invited the Special Rapporteur and the Independent Expert on minority issues to visit the country. Neither then nor now was there anything to hide. The report had been released and discussed in Geneva in the last week of March. It was however important to bear in mind that only a few weeks later presidential elections had been held in the country in mid-May, which was why the Government, in consultation with the country's various social actors and employers, was analysing the details of the report to decide on the strategies and programmes to be adopted in the light of the recommendations and advice contained in the report. He said that for that reason, it would not now be possible to outline the options under consideration. Lastly, he said that the report of the Special Rapporteur did not contain any point, observation or complaint that specifically concerned any aspect of labour law or labour issues.

The Employer members thanked the Government representative for the additional information provided. They observed that the issue of discrimination was among the most difficult in any society. A variety of strategies were required, including awareness raising, a complaints system and an effective labour inspectorate. They recalled that Convention No. 111 was a promotional instrument which created an ongoing obligation to take action for the elimination of discrimination. In the present case, the task was complicated because of the involvement of migration. In view of the intersection between migration and discrimination in the present case, ILO technical assistance would be of value.

The Worker members indicated that measures had been taken for the elimination of discrimination in employment, in accordance with Convention No. 111. However, it was unacceptable that they were not applied effectively. The observations made by the ITUC and the AFL-CIO were based on objective elements, which had been recognized by the Committee of Experts. In their introductory presentation on the case, the Worker members had made tangible and straightforward proposals which could inspire not only the Government, but also employers and workers, so that they could work together to change mentalities. Moreover, the fact that so few complaints had been filed was not significant in itself, as workers had to have the courage to file a complaint. The Worker members finally indicated that ILO technical assistance would be of great benefit in developing the capacities of all the partners in the field.

Conclusions

The Committee noted the information provided by the Government representative and the discussion that followed. The Committee observed that this case concerned discrimination, in practice, based on race, colour and national extraction against Haitian migrant workers and dark-skinned workers of the Dominican Republic; the protection of women from discrimination and sexual harassment; and allegations concerning involuntary HIV/AIDS testing.

The Committee noted the information provided by the Government concerning activities, including training seminars, undertaken to raise awareness of the legislation among workers, employers and labour inspectors. It also noted the information on a legislative initiative to penalize sexual harassment and the establishment of institutions to address discrimination issues, such as the Office for Gender Equality and the HIV/AIDS technical unit within the labour inspectorate. The Government indicated that involuntary HIV/AIDS testing was prohibited in all enterprises. It stated that regular labour inspections were being carried out, but no cases concerning discrimination had been reported. With regard to the deportation of Haitian migrant workers referred to in the Committee of Expert's observation, the Government indicated that these had been carried out in accordance with the existing migration policy of the State and were not based on the race, colour or national extraction of the workers concerned.

The Committee welcomed the training and awareness-raising activities carried out by the Government. However, the Committee expressed concern that the labour inspections carried out did not appear to have identified any cases of discrimination in employment and occupation. It observed that this situation raised issues as to the adequacy of the existing legislation and complaints mechanisms to address such discrimination. The Committee therefore requested the Government, in close consultation and cooperation with the workers' and employers' organizations, to take additional steps to strengthen protection from discrimination in employment and occupation, in law and in practice. The Committee considered it particularly important to ensure that complaints' mechanisms were effective and accessible for all workers in practice, in particular for men and women working in enterprises where no unions existed. It urged the Government to ensure that workers were protected against retaliation for filing a complaint and were given free access to justice.

The Committee called on the Government to address the intersection between migration and discrimination. In this regard, it requested the Government to ensure that migration laws and policies and their implementation did not result in discrimination based on race, colour and national extraction, contrary to the Convention. The Committee observed that all migrant workers, including those in an irregular situation, must be protected from discrimination in employment and occupation. In this context, the Committee noted the announcement by the Government of the establishment of a tripartite committee to follow-up on the recommendations made by the United Nations Special Rapporteur on contemporary forms of racism, racial discrimina- tion, xenophobia and related intolerance and the Independent Expert on minority issues following their visit to the country in October 2007. It expressed the hope that the Government would soon be in a position to report on the concrete measures taken to follow-up on those recommendations.

The Committee regretted that the Government's most recent report under article 22 of the ILO Constitution did not contain complete information in reply to the Committee of Experts' comments, including information on the measures taken to investigate alleged cases of discrimination. It therefore urged the Government to provide complete replies to the Committee of Experts' comments in its report due this year, as well as information on all the issues raised by this Committee. The Committee encouraged the Government to seek technical assistance from the ILO with a view to strengthening the application of the Convention, in law and in practice.