Cas individuel (CAS) - Discussion : 2013, Publication : 102ème session CIT (2013)

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

The Government provided the following written information.

On 26 January 2010, the National Congress adopted the final amendment to the Constitution, reaffirming the nation’s commitment to respect the prohibition of any act considered discriminatory. Article 38 stipulates: “The State is founded upon respect for the dignity of the individual and is organized for the real and effective protection of the fundamental rights inherent to every person. The dignity of human beings is sacred, innate and inviolable. Public authorities have a fundamental duty to respect and protect human dignity.” Likewise, principle VII of the Labour Code states that: “Any discrimination, exclusion or preference on grounds of sex, age, race, colour, national extraction, origin, political opinion, trade union activity or religious belief is prohibited, apart from those exceptions made in law for the purpose of protecting individual workers.” Principle IV of the Labour Code stipulates: “Labour laws shall be territorial in scope and shall apply without distinction to Dominicans and foreigners.” This means that the obligations and rights provided for in labour standards apply equally to Dominican and foreign workers, regardless of their migration status, and the benefits deriving from the employment relationship are therefore exactly the same and are provided on an equal footing.

In addition section 6 of Act 135-11 states: “Any person living with HIV or AIDS has the right to work; consequently, any labour discrimination by an employer, whether physical or legal, public or private, Dominican or foreign, is prohibited; and the employer shall not, directly or indirectly, request a test to detect HIV or its antibodies as a condition for obtaining or keeping a post or for promotion.”

As evidence of the integration of policies on migration with the world of work, the inter-institutional agreement reached between the Ministry of Labour, the Ministry of External Relations and the Directorate General for Migration has been used to coordinate action on requests for registration of contracts of employment for people who are not Dominican. Specifically, a visa is issued, once a contract has been offered by an enterprise, then the contract is registered with the Ministry of Labour. Lastly, the migrant worker is issued with an identity document by the Directorate General for Migration. As an example of this procedure, a pilot programme was undertaken at an enterprise in the Dominican Republic’s agricultural sector, under which working visas were granted to 325 workers of Haitian origin. Their contracts were registered and the Directorate General for Migration issued an official document regulating their migration and work status. The Ministry of Labour, the Ministry of External Relations and the Directorate General for Migration have organized three activities in the last seven months: a workshop for employers in the hotel sector; a workshop for the construction sector, held jointly with the National Construction Association; and a workshop for all those in charge of local offices and heads of department of the Ministry of Labour. With regard to comments on wage differences between Dominican and foreign workers in the construction sector, it should be pointed out that the training programme covered the issue of equal pay between men and women and between Dominican and foreign workers, as provided in the Labour Code.

The Government also highlights the work of the Department for Legal Assistance, which operates within the Ministry of Labour and provides free legal assistance to all workers, including workers of Haitian origin. In March this year, with assistance from the International Organization for Migration (IOM), a leaflet produced by the Ministry of Labour was translated into Creole, which gives specific information on how to file any kind of labour-related complaint and on fundamental rights. In 2013, memoranda of understanding have been signed between the Ministry of Labour and the country’s main laboratories.

Resolution No. 39/2012 established the Technical Committee for Equal Opportunities and Non-Discrimination, consisting of experts in the fields of gender and development, the General Directorates of the Ministry of Labour and the Technical Unit for Comprehensive Care (UTELAIN). Two forums were held on equal opportunities and non-discrimination and one on labour relations and human development. The latter was organized to celebrate the International Day for the Elimination of Violence against Women on 25 November, in which representatives of workers, employers and the Government participated. Between January and May 2013, the Government carried out the following actions in the area of equal opportunities and non-discrimination: the “Manual for Women’s Labour Rights” was reviewed by the Committee created by decree to deal with these matters; an awareness‑raising workshop on equal opportunities and non-discrimination was held for heads of regional labour offices; an awareness-raising workshop on equal opportunities and non-discrimination was held for the deputy minister, directors and departmental heads within the Ministry of Labour; an awareness-raising workshop on equality and non‑discrimination was held for technical staff in the Directorate General for Employment, UTELAIN and other units of the Ministry of Labour.

A draft Decree on the creation of a tripartite committee on equal opportunities and non-discrimination has been prepared, which will allow employers, workers and State institutions to coordinate and carry out specific actions to benefit both male and female workers in the country, and also to develop programmes on non-discrimination policies. In January 2013, the Ministry of Labour drew up a Strategic Development Plan for 2013–16, which contains a component entitled Equal Opportunities and Non-Discrimination and which built on a similar plan that was implemented in 2009–12. The lack of information for which the Government has been called before the Committee to address does not mean that it has abandoned either its policy of zero tolerance towards any form of discrimination or its efforts to ensure the effective application of the Convention.

In addition, before the Committee, a Government representative reiterated the information contained in the written document submitted by the Government and added that his Government categorically rejected all forms of discrimination, be they directed at Dominicans or foreigners. The Supreme Court had ruled on 2 June 2012, that foreigners who desired or were obliged to make use of the justice system, either as complainant or defendant, did not have to post a bond; they could therefore pursue litigation without cost. The speaker also mentioned the adoption of the Regulations to the General Migration Act, in October 2011, which applied not only to those who wished to enter the Dominican Republic, but also to those living in the country in an irregular situation. The Ministry of Labour was devising a mechanism to monitor all workers through the Labour Registration System (SIRLA). In 2012, 14,676 foreign workers had been registered, of whom 5,662 were Haitian. As of May 2013, 5,585 contracts for Haitian workers had been registered. The Government had introduced an orientation and training programme for employers and workers on relevant legislation in force. The Department for Labour Inspection also operated a preventative inspection system to monitor effective compliance with standards, which included the issue of equal pay. In 2012, the Labour Migration Unit had been established, under decision No. 14/2012.

In 2013, it was agreed with several laboratories that they would not carry out tests that were not covered by the country’s existing standards without the consent of the individuals concerned. In particular, the agreements contained legal provisions expressly prohibiting tests that could give rise to discriminatory acts against men or women. The Government representative also provided information on gender and anti-discrimination training measures for staff of the Ministry of Labour and on other training and awareness-raising activities carried out. His Government requested the Office to continue offering technical assistance and underlined the Government’s commitment to providing information on all measures taken to apply the Convention.

The Employer members recalled that the case had been double footnoted by the Committee of Experts in 2012. The Committee of Experts had made 12 observations on the case. The Employer members thanked the Government for its detailed report on the activities that it had carried out, and for the additional written information provided. They also observed that, in its observation, the Committee of Experts had twice noted with interest elements related to the case. Firstly, concerning measures to address discrimination based on colour, race and national extraction, it had noted with interest the adoption on 19 October 2011 of Regulation No. 631-11 to the General Migration Act, section 32 of which established that the same fundamental rights applying to nationals were guaranteed to resident foreigners. Secondly, with regard to real or perceived HIV status, the Committee of Experts had noted with interest the adoption of Act No. 135-11 on 7 June 2011, section 6 of which prohibited HIV testing as a requirement for obtaining or keeping a job or obtaining a promotion. The Employer members also noted those issues with interest, as well as the additional measures that the Government was taking. It was perhaps as a result of the recommendations of the United Nations Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance and of the Independent Expert on minority issues, cited in the observation of the Committee of Experts, that the Government was taking effective action that was increasingly in line with the Convention. The Employer members noted the Government’s willingness to receive technical assistance from the Office and its commitment to keep the ILO informed of the progress achieved.

The Worker members observed that the Committee had already been examining for some 20 years the application of the Convention not only to migrant workers of Haitian origin, but also to dark-skinned Dominican nationals. Other serious forms of discrimination included HIV testing, pregnancy testing in export processing zones (EPZs) and cases of sexual harassment in industry. Regarding discrimination based on colour, race or national extraction, a new Regulation on migration had been adopted on 19 October 2011 providing that foreign residents were guaranteed fundamental rights on equal terms with Dominican nationals. According to the report of the Committee of Experts, migrant workers in an irregular situation would be regularized and allowed to work and to benefit from social security coverage on an equal footing with national workers. Nevertheless, the national trade unions still considered that the discrimination problems of Haitian migrants persisted, even the second or third generation who had been born on Dominican territory. It was reported that the poorest inhabitants of the country were of African extraction and included some 800,000 immigrants of Haitian origin, most of whom did not have an identity card and therefore had no access to social security. They were paid significantly lower wages than national workers particularly in the construction and agriculture sectors. It was, therefore, necessary to check the facts on the ground in order to establish the situation of migrants who were non-resident in legal terms, namely those who had no residence permits.

Despite assurances from the Government that national law prohibited all forms of discrimination, thousands of Haitians living and working on the national territory were still without equal rights as a result of being without identity documents, while the only figure put forward by the Government concerned a measure to give legal status to 325 workers in agriculture. Attention should also be drawn to the difficulties faced by these workers, especially young women working in garment factories in EPZs who, in violation of the Convention, were subjected to mandatory pregnancy testing before being hired, with the results of such tests being sent to the employers. However, the Government had not supplied any information on the progress made in the adoption of amendments to the Labour Code in that respect or on the application in practice of section 47(9) of the Labour Code, which prohibited sexual harassment by representatives of the employer. Apart from awareness-raising measures for medical laboratories, the Government had provided no clear indication of its intentions to combat such practices. Regarding real or perceived HIV status, it should be welcomed that under the 2011 Act it was forbidden to require HIV testing as a condition for obtaining or keeping a job, or for promotion, and any dismissal on that basis would be deemed null and void and punishable by heavy fines. It remained to be seen whether those measures would be effective, as there was evidence that HIV detection tests were continuing in practice. The situation was unacceptable and warranted very close scrutiny by the Committee.

The Employer member of the Dominican Republic stated that the current legislation made it possible to strengthen non-discriminatory practices. The legislation established equality of rights for all men and women with any distinction. Under the General Migration Act and its Regulation, it was planned to regularize the status of all foreign nationals living in the country. Act No. 135-11 also guaranteed the rights of persons living with HIV and AIDS. The Directorate General for Migration of the Dominican Republic was not only engaged in regularizing the migratory status of persons in transit, but could also claim other important achievements in that process. Employers were taking up the challenge in relation to those matters. They had promoted, participated in and co-sponsored activities against discrimination and to improve equality of opportunity with the Ministry of Labour. Such meetings had been held in various sectors, such as EPZs, agro-industry and tourism. The tripartite programme developed in the EPZ sector to establish policies for the prevention of HIV and AIDS and to guarantee the rights of those concerned warranted special attention. The participants included the Dominican Association of Free Zones (ADOZONA), workers’ organizations from EPZs, UTELAIN and the National Council for EPZs. Since 2011, the ILO, through its Office in Costa Rica, had been implementing the Bávaro-Punta Cana Regional decent work project. The success of the project had meant that it was being replicated in other areas in the country. The employers in his country considered that the case needed to be examined on the basis of official verifiable information, leaving aside political considerations and they were committed to continue promoting and applying the relevant legislation. He requested that ILO assistance continue with a view to strengthening the inspection system.

The Worker member of the Dominican Republic stated that the workers in the country had been fighting for their human rights for over 50 years and that in the process they had obtained significant advance including with respect to the new Constitution, the Labour Code and the legislation concerning HIV and AIDS. They had been actively involved in drafting those texts, which were very clear. Those texts raised no concerns for the workers. The problem was that often they were not applied, or at least not properly. In this context, there were also serious violations of 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). For example, his organization, the Autonomous Confederation of Workers’ Unions (CASC), worked with Haitian workers, social organizations and the Catholic priesthood to improve the conditions of employment of Haitian workers. The CASC also received complaints of discrimination based on sex or on real or supposed HIV status from workers in EPZs, although this only occurred where there were no workers’ organizations, which demonstrated the relationship between the Convention under examination and other workers’ rights. The Dominican and Haitian Governments had reached agreements for Haitian workers to have official documents; however, the problem of official documents concerned not just Haitians, but Dominican nationals as well, who could not therefore have access to social security. He also referred to the efforts being made so that workers in the informal economy could have access to social security. In general, the situation was changing for the better as a result of the active contribution of the trade unions. He considered that a distinction needed to be made between the law, which was clear, and its implementation, which was where the problems arose. He asked that the ILO provide training. Meanwhile, there would always be some people who engaged in discrimination, and cooperation was needed so that individual cases could be resolved and to achieve full observance of human rights for everyone.

The Government member of Colombia, speaking on behalf of the Government members of the Committee, which were members of the Group of Latin American and Caribbean Countries (GRULAC), said that they had listened carefully to the details provided by the Government representative concerning the action taken in relation to the Convention and the comments made by the Committee of Experts. Those comments related to the Regulation to the General Migration Act and the establishment in 2012 of a labour migration unit in the Ministry of Labour with the objectives of ensuring compliance with the rights of migrants through inspection procedures, guaranteeing compliance with labour laws applicable to foreign nationals and disseminating information on the rights of foreigners. She also stated that in 2012 the Ministry of Labour had established the Committee for Equal Opportunities and Non‑discrimination, which sought to raise the awareness of workers and employers concerning the application of labour laws from the perspective of equality and equity between all the partners in the world of work. She reiterated the commitment of GRULAC to the protection and promotion of equality of opportunity and non-discrimination in employment in all parts of the world. They welcomed the efforts made by the Government and encouraged it to continue with the measures taken with a view to the successful implementation of the Convention.

The Worker member of the United States recalled that the Dominican Republic – Central America–United States Free Trade Agreement (CAFTA–DR), signed in 2004 by the Governments of the Dominican Republic, the United States and other countries, required the Dominican Republic to comply with its national laws and ILO standards. However, the Government had long delayed the promised action to address persistent problems of workplace discrimination faced by women, people of colour and migrant workers. For a number of years, the Committee of Experts had raised concerns about the persistence of discrimination based on sex, and particularly mandatory pregnancy testing, sexual harassment and the failure to apply the legislation effectively, especially in EPZs. Although the action taken included training and awareness-raising efforts, the Government had failed to provide adequate information on the related laws and on practices to prevent or eliminate such recurring practices. Moreover, workers and unions continued to report systematic practices of gender discrimination in EPZs and elsewhere. Most workers in EPZs were poor, young, unmarried mothers between the ages of 19 and 25, whose workplace experiences left them devastated. Many reported pressure to have sex with their supervisors under threat of dismissal or punishment if they refused. Others continued to report compulsory pre-employment HIV and pregnancy tests, as well as recurrent questions on their marital status. If they tried to form unions to put an end to harassment, they were dismissed. Although women’s employment had a strong positive impact on social and economic development in most countries, that could only happen when it was decent work in terms of wages, and the right to organize and to non-discrimination. She also drew attention to a recent case concerning discrimination in supply chains. Following the dismissal of 84 Haitian coconut peelers from a coconut farm, the plant owner had closed the facility and disappeared without paying the wages and severance payments due after up to 13 years of service. Dominican union leaders who had accompanied representatives of the workers found that many of those concerned had been brought to the country illegally, some as children, to work in inhumane conditions. Disturbingly, the Ministry of Labour had approved the plant closure without any investigation into the wages, severance and other payments due to the workers, who were all Haitian migrants. Similar problems had been made concerning the supply chain for aloe-based products. Although the focus was most frequently on problems of freedom of association in global supply chains, the examples provided showed that the private voluntary audit and certification systems used by multinational corporations and major brands failed almost completely to identify serious workplace discrimination on grounds of gender, race and the national origin of migrant workers.

The Worker member of Brazil stated that the situation in Haiti was forcing Haitians to migrate to various neighbouring countries, with the majority going to the Dominican Republic. Haitians suffered systematic discrimination in terms of wages and social security, among other areas. The documentation problems that they suffered from as a result of not being appropriately regularized made them especially vulnerable and employers took advantage of that vulnerability to increase their own profits and to pay them less or not at all. The lack of documents made it much more difficult for those workers to exercise their rights. There was legislation in the Dominican Republic which, if applied, would resolve the problem and guarantee Haitian workers the same rights as the rest of the population. He mentioned a coconut husking enterprise in San Cristóbal where workers had not received their wages and had protested for 20 days in front of the Ministry of Labour. Worse still, the closure of the enterprise had been authorized by the Ministry of Labour without paying the workers, which was unacceptable. If people could be hired and dismissed without being paid, there was a serious problem which could not be resolved merely through discussion in this Committee. There should be a mission to address these problems in the country through a process of dialogue with all the social partners.

The Worker member of Costa Rica emphasized the gravity of the situation faced by women in the Dominican Republic. Discrimination against women took various forms. The requirement for negative pregnancy tests prior to recruitment was highly discriminatory as it was in violation of the protection required for reproduction. Women should only inform employers that they were pregnant if they needed protection, for example against dismissal. Such information should not be required in the interests of employers. Equality of opportunities and of remuneration did not exist for women, even though they were engaged in work of equal value requiring the same level of skills as the work performed by men. The existence of sexual harassment was a matter of concern in EPZs, transport and the banana industry. Many employers also required HIV testing, which was in violation of a whole series of ILO standards. Haitian women migrant workers were subjected to extreme levels of discrimination. The Government had failed to provide them with the necessary papers, which meant that their children, who were often born in the Dominican Republic but not issued with birth certificates, were denied access to school and were condemned to a life of extreme poverty. The United Nations Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance had called on the country to adopt a policy and legal strategy, supplemented by an ethical and cultural strategy to eradicate the deep-rooted causes of racism and racial discrimination in the country and bring an end to the invisibility and silence of minority groups and other persons who were victims of discrimination. However, the Government had not expressed any interest in the adoption of such strategies. International trade union confederations would remain vigilant concerning the Dominican Republic and other countries in the subregion which continued to violate human rights systematically and would denounce them to the international community.

The Government representative indicated that the comments made by the various members of the Committee, and the indications provided by the Employer and Worker members with a view to improving the application of the Convention were appreciated. In no country in the region, and even in the world, was there so much solidarity with Haitians. In the Dominican Republic, Haitian women crossed the border so that they could give birth a few hours later in Dominican hospitals. His country offered opportunities for work, land and housing to Haitian workers, and education for Haitian children. His Government challenged anyone who so wished to ask the thousands of Haitian and dark-skinned Dominican workers how they felt working in the Dominican Republic in the tourism, telecommunications, telemarketing and construction sectors. With regard to discrimination on grounds of sex, he indicated that the previous week discussions had recommenced on possible amendments to the Labour Code, with the establishment of a tripartite commission for that purpose. In January 2013, the Ministry of Labour had prepared a strategic plan for 2013–16, which contained a component on equality of opportunities and non-discrimination, and which built on a similar plan for 2009–12. A total of 81 seminars had been organized for private sector enterprises on the prohibitions contained in Act No. 135-11 on HIV and AIDS. Workshops had also been organized for persons responsible for communication in the Ministry, and in particular a workshop organized by the ILO had been held with broad participation by trade union federations and EPZs. Some 22 memoranda of understanding had been concluded with private enterprises.

With reference to the allegations concerning the lack of equality for Haitian workers, he emphasized that acts of discrimination were minimal, as indicated by the Worker member of the Dominican Republic. What would happen to Dominican workers when they arrived in Puerto Rico in small boats and were detained by the authorities? Were they able to demand that they be regularized by the authorities of Puerto Rico? In relation to the references made to an enterprise in the coconut sector which had closed in accordance with the national legislation, his Government would produce a document from the lawyers representing the trade union federations requesting the labour court of San Cristóbal to suspend the execution of the measures ordered and to shelve the case as a result of an amicable settlement. That implied that the case had been set aside and a definitive solution reached. The rights of the workers had been ensured. The Government reaffirmed its commitment to the continued application of policies resulting in equality for men and women without any type of discrimination, in accordance with the Convention and the national legislation.

The Employer members noted the full information provided by the Government and the concerns expressed by the various Worker members. In particular, amendments had been made to the Constitution and to the legislation respecting labour, migration and access to work on health grounds. The Employer members noted that the new legislation prohibited employers from requiring HIV tests prior to recruitment and that there was full equality of rights between Dominican and foreign workers. They hoped that the legislative amendments would be applied in practice so as to resolve the problems raised by the Committee of Experts at its sessions in 2011 and 2012. They noted with interest the Government’s request for the Office to extend its cooperation and technical assistance with a view to achieving the objectives set out in the Strategic Development Plan 2013–16 and to issuing a decree on the functions of the Tripartite Committee on Equal Opportunities and Non-discrimination. They hoped that the Government would provide further information reporting additional progress.

The Worker members emphasized the serious problems that arose in the application of the Convention with hundreds of thousands of migrants of Haitian origin living and working in the Dominican Republic who did not enjoy equality of treatment with Dominican nationals, and who were without identity documents and excluded from social security. Although it knew of the situation, the Government pretended to be unaware of it. The Committee should therefore continue to follow the case closely. In addition to noting that the legislation was not in full conformity with the Convention, attitudes would have to change with a view to attaining greater mutual respect between individuals. The points raised by the Committee of Experts needed to be resolved without delay as it was a long-standing case, which had warranted a double footnote in 2012. The Government should therefore: (i) report to the Committee of Experts on the measures taken to give full effect to Regulation No. 631-11 of 2011 of the General Migration Act and to ensure that migrant workers did not suffer any discrimination based on any of the grounds set out in the Convention; and (ii) take measures requiring employers to comply with the provisions of the Labour Code, with particular reference to such despicable practices as pregnancy tests prior to recruitment and tests for HIV status. Information demonstrating the effective implementation of these measures needed to be provided to the Committee of Experts for its 2013 session. The Government should be called upon to avail itself of ILO technical assistance on those issues.

Conclusions

The Committee took note of the oral and written information provided by the Government representative and the discussion that followed.

The Committee recalled that it had last examined this case in 2008, and that it raised issues with respect to discrimination in employment and occupation against Haitians and dark-skinned Dominicans, discrimination based on sex, including mandatory pregnancy testing and sexual harassment, and mandatory testing to establish HIV status.

The Committee noted the information provided by the Government in relation to recent developments, including with respect to the strengthened legislative and regulatory framework addressing discrimination generally, and discrimination against migrants in particular, as well as clearly prohibiting HIV testing as a requirement for obtaining or keeping a job. It also noted the inter-institutional agreement aimed at ensuring coordinated action regarding requests for registration of employment contracts of migrants and the issuance of visas and identity documents, as well as the awareness-raising activities that had been undertaken. It noted further the establishment of the Technical Committee for Equal Opportunities and Non-discrimination, and the elaboration of the Strategic Development Plan, 2013–16.

Welcoming the initiatives taken by the Government, the Committee also noted that the practical impact of these measures remained unclear. The Committee, therefore, requested the Government, in collaboration with employers’ and workers’ organizations, to take firm steps to ensure workers were protected against discrimination in practice on all the grounds enumerated in the Convention, including 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 in agriculture. It also urged the Government to continue and reinforce its efforts to raise awareness in this context and to bring an end to the practice of pregnancy testing and HIV testing to gain access to and to maintain a job. The Committee also asked the Government to ensure the efficacy and accessibility of monitoring and enforcement to address discrimination, and to ensure that complaints mechanisms were accessible to all workers in practice, including for those not represented by trade unions.

The Committee welcomed the Government’s request for ILO technical assistance in order to continue to make tangible progress in the application of the Convention, and hoped that such assistance would be provided in the near future. The Committee requested the Government to provide a report to the Committee of Experts, including detailed information regarding all issues raised by this Committee and the Committee of Experts, for examination at its next meeting.