Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

The Committee notes the discussion that took place in the Conference Committee on the Application of Standards in June 2008 and the resulting conclusions of the Conference Committee. However, the Committee notes that the Government’s report, although specifically requested by the Conference Committee, has not been received. It must therefore repeat its previous observation which read as follows:

1. Discrimination on grounds of colour, race and national extraction. In its previous observation, the Committee examined a communication of 2005 from the International Confederation of Free Trade Unions (ICFTU), now International Trade Union Confederation (ITUC), according to which, between the end of July and mid-August of that year, 2,000 persons were detained by the police, the Dominican army or migration officials, and were deported to Haiti because of their colour or their inability to speak Spanish, and that during the deportation process they had no opportunity either to demonstrate that they were legal immigrants, or to recover their documents or contact the diplomatic authorities of their country, nor were they to allowed to claim payment of wages due. The Committee also noted the indication in the ICFTU’s report that even some Dominican nationals were deported, as they were taken for Haitians. The Committee recalls that in June 2004 the Conference Committee on the Application of Standards noted the Government’s determination to investigate the allegations made in the complaints and to improve the supervision of its laws against discrimination. The Committee nevertheless notes that in its latest report the Government does not provide information on the action taken for this purpose and confines itself to stating that there is no discrimination against Haitian citizens, whether they are legal or illegal. However, the Committee notes the report submitted by the United Nations Independent Expert on the situation of human rights in Haiti (E/CN.4/2006/115), according to which the forced repatriation of Haitians from the Dominican Republic occurs frequently in violation of the guarantees provided for under Dominican immigration legislation (Act No. 95 and Regulation No. 275) and the Agreement concluded between the two Governments in December 1999, and without taking into account the recommendations of the Inter-American Commission on Human Rights calling for each individual case to be heard by an independent judicial authority. In view of the above, the Committee welcomes the fact that the Government accepted the request of the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance, to visit the country in October 2007 together with the Independent Expert on minority issues (Human Rights Council, A/HRC/4/19/Add.1). The Committee notes that the Independent Expert and the Special Rapporteur will present their findings and recommendations to a forthcoming session of the Human Rights Council. The Committee requests the Government to provide information on the measures adopted or envisaged to implement the recommendations relating to this visit with a view to preventing and eliminating discrimination on grounds of race, colour and national extraction. The Committee urges the Government to adopt the necessary measures to ensure that full effect is given in practice to the principle of non-discrimination on grounds of race, colour and national extraction and to provide information in this respect. The Committee once again requests the Government to provide information on the progress achieved in clarifying the situation with regard to the cases of illegally deported Haitians and Dominicans referred to by the ICFTU and to provide the information requested in 2004 by the Committee on the Application of Standards.

2. Promoting and guaranteeing the application of the Convention in practice. Discrimination on the ground of sex. The Committee recalls the ICFTU’s communication indicating the persistence of cases of discrimination based on gender, including pregnancy testing and sexual harassment, as the authorities are not ensuring the effective application of the legislation that is in force. The Committee notes that, according to the Government’s report, the labour inspection services and the Gender Department are continually calling for complaints to be lodged where there has been sexual harassment. The Committee also notes that 58,394 regular inspections were carried out by the Government during the course of 2006. The Committee notes the Government’s indication that, despite the measures adopted to improve information to workers on their rights, the national inspection services and the labour courts have not received any complaints of sexual harassment. The Committee emphasizes that the absence of complaints is not necessarily an indication that sexual harassment does not take place. The Committee further expresses its continued concern with regard to pregnancy testing as a requirement to obtain or keep a job in export processing zones, and notes that the Government’s report does not provide information on the measures taken in practice to prevent and eliminate these types of discriminatory practices against women. The Committee requests the Government to take proactive measures to prevent, investigate and penalize sexual harassment and the requirement of pregnancy testing as a condition for obtaining or maintaining employment, in collaboration with employers’ and workers’ organizations, and to keep it informed in this respect. The Committee asks the Government to provide information on measures to support and protect victims of sexual harassment and pregnancy testing, education and training provided regarding sexual harassment and pregnancy testing including measures to assist labour inspectors to detect violations in this regard. Please also provide information on the intensification of supervisory activities in export processing zones and on whether such action has been taken in cooperation with employers’ and workers’ organizations. The Committee further requests the Government to continue providing information on any cases of sexual harassment reported by the labour inspectorate and on court rulings in relation to sexual harassment.

3. Application of the legislation. HIV testing. In its previous comments, the Committee noted the information supplied by the ICFTU that men and women workers were required as a matter of course to undergo HIV testing, often against their will and in breach of the principle of confidentiality, in order to be hired or to keep their jobs. The Committee also noted the information indicating that the problem principally affects women workers in export processing zones and the tourist industry, and the allegations of the ICFTU that the authorities do not enforce the prohibition of such testing. The Committee regrets that the Government has not provided information in this respect and, therefore, hopes that it will make every effort to provide information in its next report on the following points: (a) the measures adopted to guarantee the confidentiality of complaints made relating to violations of the prohibition of HIV testing; (b) the measures adopted to protect workers who lodge complaints; (c) the measures that ensure the enforcement of the prohibition by labour inspectors; (d) information, awareness-raising and training activities on subjects relating to the problem, particularly for officials and employees in the labour inspectorate and their impact in practice; and (e) complaints or charges that are made for violations of this prohibition and, where appropriate, the outcome of the cases, accompanied by the related administrative or court decisions.

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

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