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Night Work Convention, 1990 (No. 171) - Dominican Republic (RATIFICATION: 1993)

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Previous comment

Articles 3, 4, 6, 7, 9 and 10 of the Convention. Protective measures for night workers. The Committee notes the Government’s reiteration that a review process to update the Labour Code and bring it into line with ratified international standards is under way in the Labour Advisory Council. The Committee once again emphasizes the need to adopt specific protective measures, in law and practice, to give effect to the Convention. Under these conditions, the Committee firmly hopes that during the review of the Labour Code that has already been announced or by any other method, the Government will take measures ensuring a minimum level of protection for night workers according to the specific requirements set out in Articles 3 (specific protective measures), 4 (free medical assessment), 6 (workers certified as unfit for night work), 7 (maternity protection), 9 (social services) and 10 (consultation of workers’ representatives concerned) of the Convention.

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

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Article 3 of the Convention. Protective measures for night workers. For a number of years, the Committee has been drawing the Government’s attention to the need to adopt concrete protective measures – legislative or others – ensuring a minimum level of protection for night workers according to the specific requirements set out in Articles 4 (free medical assessment), 6 (workers certified as unfit for night work), 7 (maternity protection), 9 (social services) and 10 (consultation of workers’ representatives concerned) of the Convention. The Committee notes the Government’s information contained in its report that a Special Commission was established to review and update the Labour Code in order to bring it in line with international labour standards, including ILO Conventions. The Government also indicates that within this Commission, steps will be taken to ensure the participation of the social partners in the reform process. The Committee refers to its previous comments and trusts that the Government will give due consideration to the issues raised therein. The Committee requests the Government to provide information on any amendments to the Labour Code giving effect to the abovementioned provisions of the Convention.

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The Committee notes that the Government’s report has not been received. It must therefore repeat its previous observation which read as follows:

Repetition
Article 3 of the Convention. Protective measures for night workers. For the last 18 years, the Committee has been drawing the Government’s attention to the need to adopt measures – legislative or others – implementing the specific requirements set out in Articles 4 (free medical assessment), 6 (workers certified as unfit for night work), 7 (maternity protection), 9 (social services) and 10 (consultation of workers’ representatives) of the Convention. The Committee recalls once more that these provisions of the Convention call for concrete protective measures in view of the inherent risks of night work. For instance, Article 4 provides that night workers are entitled to request a free health assessment before they take up an assignment, at regular intervals during such assignment and whenever they experience health problems during the assignment, and also to receive advice on how to reduce or avoid health problems associated with night work. Article 6 provides that workers who are medically certified as unfit to work at night – but may not necessarily be unfit for day work – have to be either transferred to a similar job for which they are fit, or, if their transfer to an alternative position proves impracticable, granted the same benefits (for instance, unemployment, sickness or disability benefits) as those day workers who are generally unfit for work. Article 7 requires that an alternative to night work (e.g. similar or equivalent day work) be available to women workers for a period of at least 16 weeks, of which at least eight weeks before the expected date of childbirth, or for longer periods if this is medically necessary for the health of the mother or child. Recalling that the provisions of the Convention may be implemented by laws or regulations, collective agreements, arbitration awards or court decisions, a combination of these measures or in any other manner appropriate to national conditions and practice, the Committee urges the Government to take prompt action in order to give full effect to the abovementioned requirements of the Convention.

The Committee hopes that the Government will make every effort to take the necessary action in the near future.

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Article 3 of the Convention. Protective measures for night workers. For the last 18 years, the Committee has been drawing the Government’s attention to the need to adopt measures – legislative or others – implementing the specific requirements set out in Articles 4 (free medical assessment), 6 (workers certified as unfit for night work), 7 (maternity protection), 9 (social services) and 10 (consultation of workers’ representatives) of the Convention. The Committee recalls once more that these provisions of the Convention call for concrete protective measures in view of the inherent risks of night work. For instance, Article 4 provides that night workers are entitled to request a free health assessment before they take up an assignment, at regular intervals during such assignment and whenever they experience health problems during the assignment, and also to receive advice on how to reduce or avoid health problems associated with night work. Article 6 provides that workers who are medically certified as unfit to work at night – but may not necessarily be unfit for day work – have to be either transferred to a similar job for which they are fit, or, if their transfer to an alternative position proves impracticable, granted the same benefits (for instance, unemployment, sickness or disability benefits) as those day workers who are generally unfit for work. Article 7 requires that an alternative to night work (e.g. similar or equivalent day work) be available to women workers for a period of at least sixteen weeks, of which at least eight weeks before the expected date of childbirth, or for longer periods if this is medically necessary for the health of the mother or child. Recalling that the provisions of the Convention may be implemented by laws or regulations, collective agreements, arbitration awards or court decisions, a combination of these measures or in any other manner appropriate to national conditions and practice, the Committee urges the Government to take prompt action in order to give full effect to the abovementioned requirements of the Convention.

Finally, the Committee draws the Government’s attention to the conclusions of the ILO Tripartite Meeting of Experts on Working Time Arrangements, held in October 2011, according to which the provisions of existing ILO standards relating to daily and weekly hours of work, weekly rest, paid annual leave, part time and night work, remain relevant in the twenty-first century, and should be promoted in order to facilitate decent work. The Experts also emphasized the importance of working time, its regulation, and organization and management, to: (a) workers and their health and well-being, including opportunities for balancing working and non-work time; (b) the productivity and competitiveness of enterprises; and (c) effective responses to economic and labour market crises.

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Article 3 of the Convention. Minimum protection measures for night workers. Further to its previous comments, the Committee notes that the Government’s report does not contain any new information concerning the points that it has been raising for many years. Indeed, since the ratification of the Convention in 1993, the Committee has been drawing the Government’s attention to the absence of tangible measures to give effect to the provisions of Articles 4 (free medical assessment), 6 (workers certified as unfit for night work), 7 (maternity protection), 9 (social services) and 10 (consultation of workers’ representatives) of the Convention, which lay down a number of measures that need to be taken as a minimum for the protection of night workers. In this respect, the Committee has always recalled that the provisions of the Convention, even though they may be applied progressively, are not however optional and therefore remain binding. Accordingly, indicating that the social partners consider that there is no divergence between the national legislation and the requirements of the Convention calling for any amendment of the laws in force, does not absolve the Government from its obligation to give effect to all of the provisions of the Convention in law and practice. The Committee therefore once again requests the Government to take all necessary measures to give full effect to the provisions of the Convention and to keep the Office informed of any progress achieved in this respect.

[The Government is asked to reply in detail to the present comments in 2010.]

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The Committee notes the Government’s succinct report which replies only partially to the detailed points to which the Committee has been drawing attention for a number of years.

Article 3 of the Convention. Minimum protective standards for night workers. The Committee has been commenting on the Government’s failure to implement some of the specific measures required by the Convention in order to protect the health of night workers and assist them to meet their family and social responsibilities. In particular, the Committee has been requesting that concrete action be taken to give effect to the provisions of Articles 6 (workers medically unfit for night work), 7 (maternity protection), 9 (social services) and 10 (consultation with workers’ representatives) of the Convention, which lay down some of the measures that need to be taken as a minimum for the protection of night workers. The Committee recalls that as provided for in Article 3, paragraph 2, of the Convention, these measures may be applied progressively but they do remain binding in nature and have to be ultimately implemented.

In its last report, the Government states that since its social partners who are the main actors in the world of work take the view that there is no inconsistency between the national legislation and the requirements of the Convention, it does not consider it necessary to introduce any legislative amendments. Under these circumstances, the Committee wishes to emphasize the Government’s responsibility for bringing the national legislation into full compliance with each and every binding provision of an international labour Convention that it decides to ratify. It therefore asks the Government to take appropriate action, in consultation with the employers’ and workers’ organizations concerned, to ensure that the abovementioned provisions of the Convention are fully incorporated into the national legislation. While recalling the possibility for progressive implementation afforded by the Convention, the Committee asks the Government to keep it informed of any progress made in this respect.

Article 4. Free health assessments. In the absence of a concrete reply on this point, the Committee once more requests the Government to specify the provision(s) of Act No. 87–01 of 9 May 2001 on social security which provide for free medical examination of night workers: (i) before they take up their assignment; (ii) at regular intervals during such assignment; and (iii) at any time if they experience health problems caused by the performance of night work, as prescribed by the Convention.

Article 11 of the Convention and Part V of the report form. The Committee notes the Government’s indication that no collective agreements exist containing detailed provisions on night work regulation. The Committee asks the Government to collect and transmit in its next report all available information on the practical application of the Convention, including for instance, statistics on night workers, broken down – if possible – by sex, age and sector of employment, labour inspection results showing the number and nature of any infringements observed and the penalties imposed, copies of official documents or studies addressing labour issues related to night working, etc.

[The Government is asked to reply in detail to the present comments in 2008.]

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With reference to the Government’s last report, the Committee wishes to draw its attention to the following points.

Further to its previous comments regarding the application of Articles 3 (minimum standards), 6 (workers medically unfit for night work), 7 (maternity protection), 9 (social services) and 10 (consultation with workers’ representatives) of the Convention, the Committee notes with regret that no concrete progress has so far been achieved other than an inconclusive examination of the Committee’s comments by the tripartite Advisory Labour Commission. While noting the importance of fully consulting with the social partners, the Committee is obliged to recall that the Government bears ultimately the responsibility for introducing the necessary legislative changes and bringing the national legislation and practice into conformity with the requirements of the Convention. The Committee therefore urges the Government to take the necessary steps without further delay to ensure that full effect is given to those provisions of the Convention which are not yet reflected in the national legislation.

Article 4. The Committee takes note of the Government’s statement that the new Act on Social Security is in conformity with the Convention since it provides for health assessment for workers experiencing health problems related to night work. The Committee, however, has not been able to identify any provision in Act No. 87-01 of 9 May 2001 on social security giving effect to the specific requirements set out in subparagraphs (a), (b) and (c) of Article 4(1) of the Convention. It therefore requests the Government to supply further clarifications in this respect.

Article 11 and Part V of the report form. The Committee requests the Government to indicate whether any collective agreements exist, either at the branch or at the enterprise level, containing provisions on night work regulation, and if so, to forward copies of such documents. The Committee would also be grateful to the Government for providing general information on the manner in which the Convention is applied in practice, including for instance, extracts from inspection reports, recent studies on the social aspects of night work, and any available statistics on the number and categories of male and female workers employed at night.

[The Government is asked to reply in detail to the present comments in 2006.]

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The Committee notes the information provided by the Government in its report, and particularly with regard to the application of Articles 1, 2 and 5 of the Convention.

Article 3. In its previous comments, the Committee noted that the national legislation contains no measures providing special protection for workers performing night work, but that collective agreements on working conditions and labour inspection are designed to protect health and promote the development of workers performing night work. It also noted that, under section 204 of the Labour Code, the wages corresponding to the night period are increased by at least 15 per cent in relation to those for normal hours. The Committee notes the Government's indication that the Committee's comments will be submitted to the Advisory Labour Commission for examination. It notes the Government's intention to take the necessary measures to bring its legislation into conformity with the Convention, in cooperation with the organizations of employers and workers. It requests the Government to provide information on any progress achieved in this respect.

Article 4. The Government states in its report that, although the Labour Code does not guarantee the right to a health assessment for workers before taking up an assignment as a night worker or at regular intervals during such an assignment, all workers are entitled to health assessments by the Dominican Social Security Institute. The Committee once again requests the Government to take the necessary measures to bring its legislation into conformity with the Convention so that no ambiguity remains on this matter. It requests the Government to provide information on the application of Article 4, paragraph 1(c).

Article 6. The Committee notes the Government's statement to the effect that, in cases where the labour or social insurance inspectorate declares a worker to be unfit for night work, the employer shall reassign the worker to a similar position during the day or, where that is not possible, pay the compensation provided for by the law in the event of dismissal. The Committee recalls the Government's statement that there were no provisions giving effect to this Article of the Convention. It therefore requests the Government to take the necessary measures to adopt provisions which give effect to this Article and to provide information on any progress achieved in this respect.

Article 7. In its previous comments, the Committee noted the provisions of sections 236 and 237 of the Labour Code, under which a pregnant woman is entitled to compulsory pre- and post-natal leave for a period of 12 weeks (six weeks before the expected date of childbirth and six weeks afterwards). The Committee recalls that, according to paragraph 1(a) of the Article, measures shall be taken to ensure that an alternative to night work is available before and after childbirth, for a period of at least 16 weeks of which at least eight weeks shall be before the expected date of childbirth. The Committee notes the Government's indication that its comments will be submitted to the Advisory Labour Commission for examination with a view to the adoption of the necessary measures to extend the rest period before and after childbirth for women workers who cannot be freed from night work. It requests the Government to provide information on any progress achieved in this respect.

Articles 9 and 10. In its previous comments, the Committee noted the Government's statement that up to now no measure had been taken in relation to these Articles. The Committee notes the Government's indication that its comments will be submitted to the Advisory Labour Commission for examination. It notes the Government's intention to take the necessary measures to bring its legislation into conformity with these Articles of the Convention. It requests the Government to provide information on any progress achieved in this respect.

Article 11. With reference to the specific questions raised above, the Committee requests the Government to provide information on the measures which have been taken or are envisaged to ensure that all the provisions of the Convention are implemented by national laws or regulations, and on the consultations held with employers' and workers' organizations on this subject.

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The Committee notes the information provided by the Government in its report.

Article 1 of the Convention. In its previous comments the Committee noted the provisions of section 149 of the Labour Code under which the night period is that between 9 p.m. and 7 a.m. and the mixed period is that which includes hours from both the night and day periods, provided that the night period is less than three hours; otherwise it is considered as a night period. The Committee observed that, in accordance with the above system, work performed immediately after 4 a.m. does not comply with the provisions of the Convention, according to which night work means work performed during a period of not less than seven consecutive hours, including the interval from midnight to 5 a.m. The Committee notes the statement made by the Government according to which the legislation is being brought into full conformity with the text of the Convention so that under article 149 of the Labour Code the night period shall be considered as that between 9 p.m. and 7 a.m. Under national law, work performed immediately after 4 a.m. and up to 7 a.m. is done during the night period. The Committee observes that according to the last paragraph of article 149 of the Labour Code, "the mixed period is that which includes day and night periods, provided that the night period is less than three hours; if it is more than three hours it is considered as a night period". In this respect, the Committee refers to the provisions of Article 1(a) of the Convention, which defines night work as all work which is performed during a period of not less than seven consecutive hours, including the interval from midnight to 5 a.m. The Committee observes that in accordance with the above system, work performed immediately after 4 a.m. does not comply with the provisions of the Convention.

The Committee once again requests the Government to take the measures necessary to bring the legislation into conformity with the Convention and to provide information on the progress made in this respect.

Article 2. The Committee notes that economic reasons and supervisory mechanisms currently prevent the rules on the night period from being extended to domestic workers. It also notes that this exclusion was discussed and agreed with the representative organizations of employers and workers.

Article 3. In its previous comments the Committee noted the statement made by the Government, according to which within national legislation no measures have been envisaged to provide special protection for workers performing their duties during the night period. The Committee notes the statement made by the Government, according to which the collective agreements on working conditions and labour inspection duties are combined in order to protect health and to assist the development of workers providing services during the night period. It also notes that, in accordance with section 204 of the Labour Code, the wages corresponding to hours worked during the night period are paid at a rate of not less than 15 per cent above the normal hourly rate. The Committee recalls that the measures provided for in paragraph 1 of this Article may be applied in practice. The Committee hopes that the Government will take the measures necessary to bring the legislation into conformity with the Convention. It requests the Government to indicate clearly the progress made in this respect.

Article 4. In its report the Government reiterates that although the Labour Code does not envisage the right to a preliminary or regular health assessment for workers providing their services during the night period, all workers have the right to a health assessment by the Dominican Social Security Institute. The Committee once again requests the Government to take the measures necessary to bring the legislation into conformity with the Convention in order to ensure that no ambiguity remains in this respect. It requests the Government to provide information on the application of Article 4, paragraph 1(c).

Articles 5 and 6. The Committee notes the statement made by the Government, according to which it is common practice for enterprises in which night work is performed to offer suitable first-aid facilities. In cases where the labour inspection or social security services declare that a worker is not fit to perform night work, an employer must transfer him to a similar daytime post and, should this not be practicable, must grant him the labour benefits accorded by the law in case of dismissal. The Committee requests the Government to provide information on the progress made in this respect.

Article 7. In its previous comments the Committee noted the provisions of sections 236 and 237 of the Labour Code under which a pregnant woman worker is entitled to compulsory pre- and postnatal leave for a period of 12 weeks (six weeks before the probable date of childbirth and six weeks afterwards). The Committee recalled that under the provisions of paragraph 1(a) of the above Article, the period of leave before and after childbirth is at least 16 weeks of which eight shall be taken before the expected date of childbirth. The Committee previously requested the Government to provide information on any progress made in this respect. The Committee now observes that no progress has been made. It requests the Government to take the measures necessary to bring the provisions of the above articles into full conformity with the Convention.

Articles 9 and 10. In its previous comments, the Committee noted the statement made by the Government according to which no measures have been taken thus far with regard to the above Articles. The Committee observes that according to the Government's statement no measures have yet been taken in this respect. The Committee hopes that the Government will take appropriate measures to ensure that Articles 9 and 10 of the Convention are applied and will provide information on any progress made in this respect.

Article 11. In its previous comments the Committee noted the statement made by the Government according to which the provisions of the Convention have been partially incorporated into the Labour Code (articles 149, 204, 232, 233, 234, 235, 236, 237, 238, 239, 241 and 242). The Committee observes that according to the Government's statement no measures have yet been taken in this respect. The Committee requests the Government to provide information on the measures prescribed or taken to ensure that the provisions of the Convention are fully incorporated into the national legislation.

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The Committee notes the information supplied by the Government in its first report.

Article 1 of the Convention. The Committee notes that, under section 149 of the Labour Code, the night period is that between 9 p.m. and 7 a.m. and the "mixed period" is composed of hours from both the night and day periods, but no more than three hours from the night period, otherwise it is treated as a night period. The Government observes that, according to the above system, work carried out immediately after 4 a.m. is not consistent with the provisions of the Convention in which night work means work done during a period of not less than seven consecutive hours, including the interval from midnight to 5 a.m.

The Committee asks the Government to take the necessary measures to bring the legislation into line with the Convention in this respect and to keep it informed of any progress made.

Article 2. The Committee notes the provisions of section 261 of the Labour Code, under which domestic work is not subject to any timetable, but domestic workers must have a rest period of at least nine consecutive hours between two working days. In addition, the Committee notes the Government's statement that these workers are excluded only from the night work provisions (section 149 of the Labour Code). The Committee observes that, although such an exclusion is allowed under the provisions of paragraph 2 of this Article of the Convention, the Government provides no information on the reasons for the exclusion or on consultations held with representatives of the employers and workers concerned. The Committee asks the Government to indicate the reasons for excluding domestic workers from night work provisions and to state whether consultations were held with the relevant representative organizations of employers and workers.

Article 3. The Committee notes the Government's statement that the national legislation provides for no specific measures for the protection of workers who perform their work during the night period. In this connection, the Committee refers to the provisions of Article 3 of the Convention and hopes that the legislation will be brought into line with the Convention. It asks the Government to keep it informed of any progress made in this respect.

Article 4. The Government indicates in its report that, although the Labour Code establishes no right to a health assessment before taking up, and at regular intervals during, an assignment as a night worker, all workers are entitled to a health assessment by the Dominican Social Security Institute. The Committee therefore asks the Government to take the necessary steps to bring the legislation into line with the Convention in order to remove any ambiguities in this respect. It asks the Government to provide information on the application of paragraph 1(e) of Article 4.

Articles 5 and 6. The Committee notes the Government's statement that no measures have been adopted pursuant to the provisions of the above Articles. The Committee draws the Government's attention to these provisions and asks the Government to supply information on any measures taken or envisaged to harmonize the legislation with the Convention in this respect and to indicate progress made.

Article 7. The Committee notes the provisions of sections 236 and 237 of the Labour Code under which pregnant women must be granted 12 weeks' pre- and post-natal leave (six weeks before the expected date of childbirth and six weeks after). The Committee recalls that under paragraph 1(a) of the above Article, the period of pre- and post-natal leave must be of at least 16 weeks, of which at least eight must be before the expected date of childbirth. The Committee asks the Government to take the necessary measures to bring the provisions of the above-mentioned sections of the Labour Code into full conformity with the Convention. It asks the Government to supply information on any progress made in this respect.

Articles 9 and 10. The Committee notes the Government's statement that no measures have yet been taken concerning the above-mentioned Articles. The Committee hopes that the Government will take appropriate steps to ensure the application of Articles 9 and 10 of the Convention and will provide information on any progress made in this respect.

Article 11. The Committee notes the Government's statement that the provisions of the Convention have been partly reproduced in the Labour Code (sections 149, 204, 232, 233, 234, 235, 236, 237, 238, 239, 241 and 242). The Committee asks the Government to provide information on the measures taken or envisaged to include all the provisions of the Convention in the national legislation.