Individual Case (CAS) - Discussion: 2014, Publication: 103rd ILC session (2014)



A Government representative emphasized that her country had established the legal foundations to ensure full equality for all persons, upholding the human rights of citizens, whether or not they were Dominicans. Article 38 of the Constitution and Principle VII of the Labour Code established the equality of persons. Moreover, Principle IV of the Labour Code provided that labour laws were of a territorial nature and applied without distinction to Dominicans and foreign nationals, and the migratory situation of workers was therefore irrelevant. Dominican case law and legislation had been constant in reaffirming equality between Dominicans and non-Dominicans. Mention could be made here of the Supreme Court ruling of 2 June 2002 and Act No. 135-11 of 7 June 2011 penalties applicable in cases of discrimination against persons living with HIV and AIDS. The measures taken by the Government included the following: the establishment of the Department of Equal Opportunities and Non-Discrimination with an independent budget coordinated by the Minister of Labour; the signature of memoranda on the dissemination of labour rights; the organization of workshops on labour discrimination, including the themes of gender, equal opportunities and non-discrimination; the provision of technical assistance to workers living with HIV and AIDS; the publication of a handbook concerning equal opportunities and non-discrimination; distribution of more than 8,000 pamphlets translated into Creole to provide information on free services provided by the Department of Judicial Assistance of the Ministry of Labour, which had catered for 748 migrants; the establishment of a gender equality label as certification for enterprises making organizational changes with a view to closing the gender gap; and training for enterprises that were committed to implementing anti-discrimination policies. The supervisory measures that had been taken included: 263 visits to enterprises by the Technical Unit for Comprehensive Care (UTELAIN) for the provision of training on HIV-related issues; ten follow-up meetings in enterprises export processing zones with the participation of the Safety and Health Directorate at the Ministry of Labour, various trade union organizations, the ILO and the Dominican Association of Export Processing Zones (ADOZONA); and 81,319 inspections conducted during the previous 12 months. In collaboration with the ILO, the Government had held workshops on the HIV and AIDS policy in the workplace for the export processing sector in the Dominican Republic with the coordination of the ILO Subregional Office and had implemented the Decent Work Agenda in the 16 most important commercial and tourist municipalities, with the inclusion of the themes of equality and non-discrimination. Regarding the ruling of the Constitutional Court of September 2013 interpreting the constitutional provisions on nationality, Parliament had adopted Act No. 169-14 of 16 May 2014 which established a special regime for persons born on the national territory whose registration in the Dominican civil register had been irregular, and which also dealt with naturalization. The Act envisaged a definitive decision for persons covered by this ruling. Her Government prohibited, condemned and rejected any act of discrimination or inequality. She asked the ILO to continue providing technical assistance with a view to strengthening the institutions responsible for applying and monitoring the policies planned for combating discrimination. The Government undertook to maintain the exchange of information with the ILO with regard to any measures adopted for strengthening institutions and the application of the Convention and to address the subject of discrimination in the Advisory Labour Committee.

The Worker members recalled that the Committee had closely examined this case in 2013, 2008 and 2004, and that for more than ten years the report of the Committee of Experts had contained comments on the same points as those raised today. These recurring issues related to discrimination in employment and occupation against Haitians and dark-skinned Dominicans, discrimination based on sex, including mandatory pregnancy testing and sexual harassment, and discrimination in the form of mandatory testing to establish HIV status. As in 2008 and 2013, the key issue was not the content of the legislation itself, but its application in practice and the means of redress available to the workers, as well as the interpretation of the law by the courts, in particular the Constitutional Court, which constituted an additional problem. In 2013, the Committee’s conclusions, which had been nuanced and paid attention to the various initiatives taken by the Government, had focused on three main areas: the taking of firm steps to ensure that workers were protected against discrimination in practice; the continuation of efforts to raise awareness among the population on these issues; and the guarantee of the efficacy and accessibility to all workers of monitoring and enforcement to combat discrimination. Nevertheless, the Government, which had requested technical assistance from the Office, had not provided the Committee of Experts in 2013 with the report demanded on the three above points. Given the number of years this case had been examined, the failure to submit a report was inexcusable. The Worker members added that since then, the Government was reported to have submitted a Bill to the Chamber of Deputies “establishing a special regime for persons born on the territory of the Dominican Republic incorrectly entered in the civil register and on naturalization”. According to the Government, the Bill was the outcome of a long process of consultation and attempts to reach a consensus with different sectors of society. However, the trade unions had not been included in these consultations, although the ongoing procedure with the Committee fully warranted this, and they regretted that they were not aware of the content of the Bill. Furthermore, in a long reply to the direct request made by the Committee in 2013, the Government had committed itself to transposing the provisions of the Convention into domestic legislation to the best of its ability. Nonetheless, this initiative did not respond adequately to the situation that had been criticized for many years, which primarily involved the implementation of the law in practice, particularly in relation to discrimination based on sex, compulsory pregnancy testing, violence against the women at the workplace, a person’s origin and skin colour, and HIV status. Tolerance and laxity in the face of discrimination at work constituted a violation of human rights. In addition, discrimination constituted a waste of human resources, undermining both enterprises and social cohesion.

Given a situation in which legislation existed but was not applied and in which the perpetuation of discriminatory attitudes was the product of history and the failure of education systems, it was of prime importance to provide the workers who were victims of discrimination with support so that they could finally enjoy the protection provided under the Convention. Furthermore, various ILO instruments might be useful in this respect, such as the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144), which called for a continuous dialogue with the social partners, which had not yet occurred and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), as that the social partners were in the best position to understand the strong cultural component characterizing discriminatory behaviour because they were the closest to the actual realities of the working world. The Government should also undertake to set up a standing committee on all forms of discrimination in occupation and employment, within the Ministry of Labour, which would not only propose improvements in the application of the legislation, but would also provide specific support in proceedings launched by the workers, who were victims of discrimination, and would take part in educational and cultural awareness-raising campaigns in this area. The Worker members denounced the illegal nature of the ruling of the Constitutional Court issued in September 2013, which had been referred to by the Committee of Experts. This ruling concerning the retroactive application of the law denying Dominican nationality to a person born in the country of parents of foreign migrants (Haitians) considered to be in transit or transitionally resident was contrary to the principles of the Convention ratified in 1964 by the Dominican Republic. The Government should follow the recommendations of the Committee of Experts and take all the specific measures needed to guarantee that full effect was given to the existing legislation.

The Employer members recalled that the case had been on the Committee’s agenda since 1990 and thanked the Government for supplying information that showed the progress made in terms of legislation and in the functioning of the country’s institutions. They were however deeply concerned at the lack of any information that might enable them to assess the extent of the problem. The Government had not provided all the information that had been requested by the Committee of Experts on discrimination in employment and occupation, to which Haitians and dark-skinned Dominicans in particular were subjected, on discrimination between men and women, on discrimination based on HIV status and on compulsory pregnancy tests. Consequently, it was difficult to assess the extent of the issue and to determine whether it concerned just a few exceptional cases, or whether the problem was widespread. Since the Constitution and legislation, including the Labour Code, contained provisions relating to equality and non-discrimination, the problem was not one of legislation, but rather of application of national laws and regulations.

The Employer members emphasized that the law adopted in May 2014, to which the Government representative had referred, was designed to resolve the problem of whether the children of Haitian workers in an irregular situation should be granted or denied Dominican nationality. It should provide a satisfactory response to the consequences of the ruling of the Constitutional Court of September 2013 on Haitians living in the Dominican Republic (between 700,000 and 1.2 million persons). Discrimination was a cultural phenomenon, the Worker members had observed laws existed and they needed to be applied, and the focus should be on training and education to correct discriminatory practices. Labour inspectors, who had a role to play in terms of prevention, should also receive appropriate training. The Government had adopted a series of measures, but it still needed to do more to give full effect to the national legislation and to begin to change cultural attitudes.

A Worker member of the Dominican Republic emphasized that the national trade union movement condemned any kind of discrimination that affected the fundamental rights of any person, whether or not they were Dominican Nationals. The Dominican Republic had constitutional and legal provisions that explicitly recognized protection against discrimination, but regrettably there was a strong culture of non-compliance with the legislation and a very weak justice system. Furthermore, the Domestic Workers Convention, 2011 (No. 189), had been ratified in 2013, but for reasons that were unclear, the official instrument of ratification had not been communicated to the ILO and was still in the hands of the Ministry of External Affairs. Consequently, for both his country and the ILO, it was as if the Convention had not been ratified. The report of the Committee of Experts’ highlighted discrimination against Haitian workers and the violation of the fundamental rights of Dominicans of Haitian origin. The United Nations Committee on the Elimination of All Forms of Racial Discrimination had concluded in March 2013 that there was structural discrimination against persons of African origin, who suffered clear exclusion and whose fundamental rights and opportunities for development were restricted. Several calls had been made for a mechanism for the protection of vulnerable workers, in the present case migrant workers who were excluded from the scope of Act No. 87-01 establishing the Dominican social security system. The country’s three trade union confederations, and the trade union movement in general, had strongly condemned the ruling of the Constitutional Court, which had opened up the possibility of retroactively denying Dominican nationality to persons born in the Dominican Republic whose parents were foreign migrants in an irregular situation, a problem that particularly affected workers of Haitian origin. The ruling was morally unjust and legally incompatible with the international human rights treaties signed by the Dominican Republic. The ruling of the Constitutional Court affected more than three generations, who would be deprived of the acquired right of nationality without any valid reason. That violated a number of constitutional principles, including the right of the child to identity and nationality, the principle of non-retroactivity of laws, the binding nature of the decisions of the Inter-American Court of Human Rights, and the principle of equality. In early 1952, the Governments of the Dominican Republic and Haiti had signed an agreement to regularize the temporary immigration en masse of Haitian daily labourers working in the sugar cane harvest. Haitian labour had become indispensable to the booming Dominican sugar industry. It was unjust that people who had been born in the country should be deprived of the nationality of the Dominican Republic, that they were exposed to labour exploitation and were without social protection. With the aim of tackling that situation, the Government had recently adopted a national plan for the regularization of foreign nationals in an irregular migratory situation and also a law on naturalization. Consultations on that law had been held with various civil society organizations, but the trade unions had been excluded from the consultations. It was not just a problem of legislation or of adoption of new provisions to address the situation, but it was a problem of efficacy and control by the part of the State. The systems of inspection and control had failed to adopt specific measures for the elimination of discrimination. Discrimination affected various sections of the population, particularly the most vulnerable, such as migrants, young people, persons over the age of 35, women and workers in export processing zones. The practice of gender-based discrimination, particularly sexual harassment against women workers and mandatory pregnancy testing to fund employment was widespread, and effect was not given to the protective legislation. Discrimination against persons living with HIV and AIS also persisted, and was one of the most serious problems facing the country. In conclusion, he called for the setting up of a special committee to reinforce the technical committee, the establishment of which had been decided at the 102nd Session of the Conference, which would have the function of following up on practical compliance with the legislation relating to discrimination. The participation in this committee of the representatives of the workers from Haiti and the Dominican Republic would have a very positive impact on the dialogue.

Another Worker member of the Dominican Republic added that the national trade union movement should work with the Haitian trade union confederations, and therefore called for the technical committee to be strengthened with the participation of the Haitian trade union confederations. This was the only way to ensure that the Haitian migrant workers would not be subject to discrimination, or have their rights undermined. Strengthening the working relationship between the trade unions from the Dominican Republic and Haiti would give more impetus to the call for the inclusion in the Social Security Act of all types of work carried out by Haitian workers in agriculture, domestic work and construction and in the informal economy. Haitian workers needed to be adequately protected, without encouraging exploitation by businesses and human traffickers in forced labour, which would have a downward effect on the wages of national workers. Finally, he indicated that the demands of the trade union movements of the Dominican Republic and Haiti must be addressed both to the countries of origin and of destination. Effective measures should also be adopted to prevent the trafficking of persons for profit by civilians and by the military in both countries. He therefore requested ILO support for the creation of a special committee to provide follow up for the fulfilment of commitments in this area.

The Employer member of the Dominican Republic said that the employers in his country rejected all acts of discrimination and supported and respected the national legislation. Article 39 of the Constitution covered the right to equality. All people were born free and equal before the law, received the same protection and treatment from institutions, authorities and other persons, and enjoyed the same rights, freedoms and opportunities without any discrimination on the basis of gender, colour, age, disability, nationality, family relations, language, religion, public or philosophical opinion, or social or personal status. Equality and equity therefore existed for men and women in the exercise of the right to work, and also equality in access to employment. The Dominican Republic recognized the international human rights instruments, including the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the International Convention on the Elimination of All Forms of Racial Discrimination and the Convention on the Elimination of All Forms of Discrimination against Women. Act No. 135-11 concerning HIV/AIDS, guaranteed the dignity of people living with HIV and AIDS. Section 6 of the Act provided that human beings were born free and equal in dignity and rights and were therefore entitled to equal protection against discrimination or incitement to discrimination. As a result, mandatory testing for HIV and its antibodies for people to secure or retain employment was prohibited. In the same spirit of justice, acts of discrimination or exclusion were prohibited. Moreover, all persons were guaranteed access to the judicial system. Efforts had also been made to strengthen labour inspection by increasing the number of labour inspectors. It was planned to recruit a further 75 labour inspection officials in the near future. A national policy on HIV and AIDS would also be developed in export processing zones. Around 25,500 workers had received training related to the elimination of the stigma of HIV in the workplace. The second phase of the project was expected to start this year. In September 2014, the Ministry of Labour would carry out awareness-raising workshops on gender and equal opportunities. He then expressed his perplexity at the term “dark-skinned Dominicans”. Eighty-five per cent of Dominicans were black and mixed race, and he therefore considered the term “dark-skinned” to be discriminatory. Employers in the Dominican Republic advocated a zero-tolerance policy towards discrimination and wished to play an active part in all aspects relating to the implementation of Convention No. 111.

The Government member of Costa Rica, speaking on behalf of the Group of Latin American and Caribbean Countries (GRULAC), said that GRULAC had duly noted the measures adopted by the Government in relation to Convention No. 111 with a view to ensuring protection against discrimination of workers of foreign origin, dark-skinned Dominicans, migrant workers in an irregular situation, women and persons living with HIV and AIDS. GRULAC wished to highlight certain measures taken by the Government, such as the Migration Regulations adopted under the Migration Act, the continued functioning of the Labour Migration Unit of the Ministry of Labour and the Committee on the Promotion of Equal Opportunities and the Prevention of Discrimination at Work, with the aim of guaranteeing compliance with migrants’ rights through inspection procedures, which allowed for the monitoring of compliance with labour laws applicable to foreign nationals, as well as the dissemination of information and awareness raising on their rights. GRULAC noted with interest the recently approved Act No. 169-14 of 23 May 2014 establishing a special regime for persons born on national territory and irregularly registered in the civil registry and concerning naturalization. The objective of this Act was to address the problems arising from the September 2013 ruling of the Constitutional Court for persons born in the country who were children of migrants in an irregular situation, which demonstrated the Government’s commitment on the subject. GRULAC reaffirmed its commitment to the protection and promotion of equality of opportunity, non-discrimination at work and the defence of fundamental human rights, which must be guaranteed and protected without any type of restriction whatsoever. GRULAC appreciated the efforts undertaken by the Government and encouraged it to pursue the measures initiated so as to achieve full compliance with Convention No. 111.

The Worker member of Uruguay emphasized the ruling of the Constitutional Court which denied Dominican nationality to a person born in the country who was the child of Haitian migrants who had been long-term residents in the Dominican Republic, and which ordered the retroactive re-examination of the Dominican nationality granted to children of Haitian immigrants between 1929 and the date of the ruling. The ruling had caused “deep concern” as it represented a clear case of discrimination against a section of the Dominican population (migrant workers, dark-skinned persons and persons of Haitian origin). It was a denial by the Dominican Republic of the essential rights of every person (the rights to identity, personality and nationality), and was a grave violation of the principle of non-discrimination enshrined in universally applicable legal instruments. It should be recalled that member States of the ILO, by the very fact of their membership, had an obligation to respect, to promote and to realize the fundamental principles and rights at work set out in the ILO Constitution and fundamental Conventions, in particular the elimination of discrimination. In the present case, the Constitutional Court, in addition to ignoring fundamental principles of international law on the rank of domestic law, such as the principles of pacta sunt servanda, which provided that international law prevailed over domestic law, and pro homine, under which international and national standards must be interpreted and applied in the manner most advantageous to the human being, failed to recognize essential human rights-related obligations assumed by the Dominican Republic. The Constitution had been amended on 3 January 2010, introducing the principle of parenthood, or jus sanguinis; for the granting of nationality, instead of jus soli, or the granting of nationality to those born on the national territory, the principle that had applied under the previous constitutions, from 1929 to 1966. On 23 May 2014, Act No. 169 had been adopted, which established special rules for children born on Dominican soil to foreign “non-residents” during the period between the adoption of the 1929 Constitution and that of the Constitution of 28 April 2007. The new rules were based on the ruling of the Constitutional Court, reflecting a passage that referred to “deficiencies in migratory policy and in the working of the civil register” that dated from the period immediately after the adoption of the 1929 Constitution. Although Act No. 169 acknowledged that the “Dominican State had been responsible” for the supposed irregularities in civil registration, it virtually obliged those born on Dominican territory and not entered in the civil register, to register within a short time period as “foreign nationals”, thereby abruptly and retroactively divesting them of their acquired rights to nationality, which the 1966 Constitution had granted. Accordingly, persons born in the Dominican Republic had been stateless, by the law, and were condemned to apply, within a very short 60-day period, to be registered as “foreign immigrants in an irregular situation”.

The Government member of the United States expressed concern about the Constitutional Court and its consequences for persons born to “in transit” parents in the Dominican Republic, including the difficulty of accessing social security benefits and services, risks involved in reporting violations of national labour law and a potential financial burden entailed in applying for resident status under the Government’s regularization plan for foreigners in an irregular situation. She looked forward to the publication of the enabling regulations under the Naturalization Act and the processes it would establish, which should ensure its transparent, accessible and comprehensive implementation. She endorsed the request by the Committee of Experts’ for the Government to ensure that court rulings and Government policies did not increase discrimination against workers of Haitian origin, dark-skinned Dominicans or migrant workers in an irregular situation. The Government must ensure that such workers were not subject to exploitative labour practices due to their precarious status. Limited education significantly increased children’s vulnerability to labour exploitation, and the Government should therefore also guarantee that all children received the identity documentation necessary to attend school. The Constitution of the Dominican Republic, as amended in 2010, expressed commitment to the fundamental rights and human dignity of every person, and to the elimination of all kinds of discrimination. The Government must make that commitment a reality for all workers. It should continue to seek and to use technical assistance to address discrimination, as well as to specifically address discrimination based on sex and real or perceived HIV status.

The Worker member of the United States said that the Dominican Republic-Central America-United States Free Trade Agreement (CAFTA-DR), to which the Dominican Republic was a party, required it to comply both with its own national laws and with ILO standards (including Convention No. 111). Nevertheless, the Government had long delayed promised actions to address workplace discrimination faced by women. For example, there was no effective Government policy to combat economic discrimination against women, who received approximately 44 per cent less pay than men for comparable jobs requiring equal skills. Women workers were the first to lose their jobs when the economy slowed and female unemployment was double male unemployment in the Dominican Republic. Women were discriminated against even when looking for work, and for instance it was common for advertisements to state that employers were only looking for women below a certain age and who looked a certain way. Such discrimination illustrated the serious need for the Government to develop effective policies to promote women’s place in the workforce as being equal to that of men. Women continued to report that pregnancy tests comprised part of mandatory medical examinations, the results of which were sent to potential employers. While discrimination based on such tests was illegal on paper, employers often did not hire pregnant women, and often fired women already working for them who became pregnant. Women in certain sectors, such as domestic work, were particularly vulnerable to discrimination. Following pressure from labour unions, a bill that would have extended social security benefits to domestic workers had been introduced in Congress, but had failed to pass. Substantial evidence supported the argument that an increase in employment and incomes of women workers impacted very positively on social and economic development. The Government should therefore strengthen its commitment and capacity to eliminate discrimination against women.

The Worker member of Chile expressed support for the denunciation by the Worker members of the Dominican Republic concerning the persistent sexual harassment to which thousands of workers were prey. Sexual harassment was one of the worst forms of discrimination against women and was a form of extreme violence against women in the workplace. It was a violation of the fundamental human right to mental well-being, limited women’s opportunities of progress and personal development and excluded them from political and social life. Sexual harassment was an abuse of power that occurred most when employment relationships were unequal, and when workers, individually and collectively, lacked the protection that should enable them to work in safe conditions, because employers did not fulfil their responsibility to intervene and outlaw such discrimination. The serious threat that sexual harassment represented to workers’ integrity was one of the most difficult scourges to eliminate, and not only in the Dominican Republic, given that it was rooted in macho cultural stereotypes. It was an aggression faced daily by thousands of women workers, especially in export processing zones. An unfavourable cultural environment, the back of a functional justice system and inefficient state mechanisms left women feeling unprotected and unlikely to log complaints, as doing so led to them being dual victims: they suffered not only institutional violence, and were likely to be victims of domestic violence, as they were frequently blamed for having initiated or provoked the harassment. She proposed: the establishment of a tripartite committee on gender equality; the establishment of a justice system better equipped to address discrimination, with more severe sanctions for sexual harassment; more campaigns against sexual harassment in businesses and workplaces; permanent and preferably tripartite cooperation against sexual harassment and discrimination; training for judicial personnel and all the actors who influenced or were involved in handling sexual discrimination, particularly those who interacted directly with victims; more thorough information on harassment at work, explaining how it affected women both at work and at home; workplace campaigns on women’s reproductive and gender-based rights; and a greater voice for migrant women in the country.

The Worker member of Spain, focusing on the issue of HIV and AIDS, considered it vital to adopt a gender perspective to the labour and social discrimination suffered by people living with HIV, as 49 per cent of the people infected with HIV throughout the world were women. HIV and AIDS did not affect women in the same way as men. Women were vulnerable to sexual harassment at work, and more generally to gender-based violence for a number of reason; they were in the majority in the informal economy, where they worked for low wages, without rights or benefits; poverty clearly increased vulnerability to AIDS; they were normally the ones who cared for the sick; and they were exposed to unprotected sex work. The situation in the Dominican Republic regarding HIV and AIDS and the world of work revealed the stigma and discrimination against people living with HIV that limited their employment prospects. A social pact on the issue should be negotiated rapidly between the Government, the social partners and social organizations, with the establishment of action plans, and efforts should be multiplied and resources increased with a view to taking concrete action. Lastly, she expressed the hope that the demands and proposals of the trade unions of the Dominican Republic would be well received and that women workers in the country would soon have the protection and security to which they were entitled so that they could benefit from decent work.

The Government representative stated that, following the discussion in the Committee, he would return to his country with optimism and willingness to continue to move forward towards increased inclusiveness and equality for all workers in the Dominican Republic, including migrant workers. He reaffirmed his Government’s commitment to continue to implement labour policies seeking to achieve compliance with provisions relating to equality and non-discrimination. The Government had declared decent work as a priority goal and was currently taking specific measures at national level with the assistance of the ILO Regional Office in all ILO subject areas, including non-discrimination. A programme of preventive labour inspection had recently been launched in the agricultural sector, where there was a significant presence of foreign workers. The Ministry of Labour, with the support of the ILO and the International Organization for Migration (IOM), had lately developed an electronic database to register labour contracts of migrant workers to render transparent all information normally compiled within a labour relationship (such as hours of work, wages, etc.), with a view to facilitating the compilation of accurate statistics and improving the monitoring of working conditions of migrant workers. This tool was supplemented by the electronic system of labour registration under which employers were required to register their workers with the Ministry of Labour, and which also validated the registration of migrant workers without requiring the types of visa envisaged by the Migration Act. As part of the Ministry of Labour’s plan of action to combat discrimination and equality of opportunity, 14 new labour inspectors had been recruited the previous month, and 60 more inspectors would soon be recruited, which would result in better monitoring of compliance in the area of non-discrimination. With regard to the ruling of the Constitutional Court, he regretted the mistaken direction taken by the discussion in the Committee, emphasizing that both prior to and following the decision, all workers (both men and women), irrespective of nationality and migration status, were guaranteed their labour rights without discrimination. He also referred to the establishment of the Tripartite Committee to Promote Equal Opportunities and Prevent Discrimination at Work under the Ministry of Labour. The national debate triggered by the ruling had resulted in the adoption of Act No. 169-14, which had been the outcome of a broad consensus at national level involving the social partners and civil society, and had been welcomed by the Prime Minister of Haiti. The Act sought to ensure that all workers affected by the ruling would benefit from more participatory and fair measures. The Government had also sought to resolve the problems affecting Dominicans lacking identity documents. To this end, a tripartite committee had recently been set up which had encouraged the various sectors to reach agreement with the social partners so as to ensure that workers without identity documents would be able to benefit from social security. In conclusion, he emphasized that the national labour legislation applied to all workers. A clear distinction therefore needed to be made between two issues, namely, the legal provisions which he assured were fully applied and, on the other hand, the issues related to migrants, which the Government was strived to address in full respect of the human rights of the persons concerned.

The Worker members noted that the present issue concerned the effective implementation of the law, the solution to which depended on the adoption of concrete measures in the three following areas: strengthening penalties against acts of discrimination; guaranteeing free and easy access to dispute settlement mechanisms, particularly labour inspection services and the courts; and act on to combat sexual harassment, mandatory pregnancy tests for recruitment and discrimination on the grounds of HIV and AIDS status. Government agencies, judges, labour inspectors and society as a whole also needed to be made aware of the unacceptable nature of discrimination. They encouraged the Government to establish, in cooperation with the social partners, a standing commission in the Ministry of Labour to deal with questions of discrimination, particularly against workers of Haitian origin. The commission’s functions would be to: monitor and improve the application of the law in practice to eliminate all forms of discrimination in employment and occupation; provide workers who were victims of discrimination, in cooperation with the workers’ organizations, free assistance to institute and complete legal proceedings and ensure enforcement of the final decision; and participate in awareness-raising and education campaigns against discrimination in employment and training. The social partners should also be encouraged to provide tangible and practical solutions through collective bargaining. They recalled that in 2013 the Government had requested ILO technical assistance and they proposed, in order to support that request, the sending of a direct contacts mission, the objectives of which would be to ascertain the conformity of the law and practice with the provisions of the Convention and to carry out, with the Government and the social partners, including representatives of the Haitian workers concerned, any training, awareness-raising and promotion activities necessary with a view to eliminating discrimination.

The Employer members once again welcomed the efforts made by the Government, especially for its handling of the legal consequences arising out of the ruling of the Constitutional Court concerning the granting or refusal of Dominican nationality to the children of Haitian nationals living in the country. Particular mention should also be made of the efforts made to give a tripartite dimension to the institutional solutions identified to deal with the problems of the application of the legislation in practice. This was an important issue. However, it was still difficult to gauge the extent of the problem, in view of the lack of adequate data. The Employer members requested the Government to provide all the information requested since 2013, as well as statistics, broken down by gender and occupation, which would make it possible to carry out an objective evaluation of discrimination in the country, measure women’s difficulties of access to employment and assess the measures adopted in the context of the policy of equality between men and women. These data were indispensable to measure the extent of the problem and assess any progress made in these areas. They called upon the Government to adopt, in accordance with Article 2 of the Convention, a national policy designed to promote equality of opportunity and treatment with a view to eliminating all discrimination in employment and occupation. To ensure its full application, this policy should be the outcome of a social dialogue covering not only the world of work, but also education, with a view to addressing social and cultural stereotypes encountered by children at a very young age. Furthermore, labour inspection needed to be strengthened and inspectors should be able to benefit from appropriate training. They also hoped that the Government’s request for ILO assistance would be granted in order to implement the legislation and eliminate all forms of discrimination.

Conclusions

The Committee noted the oral information provided by the Government representative and the discussion that followed.

The Committee recalled that it had examined this case in 2008 and 2013, and that it raised issues with respect to discrimination in employment and occupation against Haitians and dark‑skinned Dominicans, discrimination based on sex, including sexual harassment, mandatory pregnancy testing and also mandatory testing to establish HIV status. It also recalled that, in its last observation, the Committee of Experts had noted with deep concern Constitutional Court ruling No. TC/0168/13 of 23 September 2013 which retroactively denied Dominican nationality to foreigners and children of foreigners, particularly affecting Haitians and Dominicans of Haitian origin.

The Committee noted the information provided by the Government in relation to the legislative and practical measures taken to address discrimination and promote equality in employment and occupation, including Decree No. 327-13 of 20 November 2013, which established the National Plan for the regularization of foreign nationals and Act No. 169-14 of 23 May 2014, which aimed at resolving the situation of Dominicans of Haitian origin. The Committee also noted the information on legal assistance available to migrant workers; the training for judges and awareness-raising activities in enterprises relating to non-discrimination and gender equality; as well as the Government’s commitment to address the issue of discrimination in the tripartite Advisory Labour Council.

While welcoming the information on the recent legislative steps taken, the Committee stressed the importance of their effective application in practice highlighting the important role of labour inspection in this respect. The Committee therefore urged the Government to strengthen its efforts, in full cooperation with the social partners, to effectively implement the existing legislation addressing discrimination, to reinforce penalties and to ensure that existing complaints procedures were effective and accessible to all workers, including workers of Haitian origin, migrant workers and workers in export processing zones. In this context, the Committee urged the Government to take specific steps, including through educational programmes, to address existing social and cultural stereotypes contributing to discrimination in the country. The Committee also urged the Government to take the necessary measures to ensure the effective application of the legislation that prohibits mandatory pregnancy and HIV testing to gain access and to keep a job, and to adopt appropriate provisions prohibiting sexual harassment in the workplace. With a view to assessing the full nature and extent of discrimination in the country, the Committee requested the Government to provide statistical information, disaggregated by sex, origin and age, on access to employment and occupation and vocational training. Emphasizing the importance of tripartite consultations, the Committee encouraged the Government to establish a standing tripartite committee to address all matters relating to equality and non-discrimination, including those relating to workers of Haitian origin. The Government was also encouraged to develop awareness-raising campaigns on equality issues.

The Committee invited the Government to avail itself of ILO technical assistance with a view to ensuring the effective application and monitoring of anti-discrimination law and policy. The Committee requested the Government to provide a report to the Committee of Experts, including detailed information regarding all the issues raised by the Committee and the Committee of Experts, for examination at its next meeting.

Individual Case (CAS) - Discussion: 2013, Publication: 102nd ILC session (2013)

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.

Individual Case (CAS) - Discussion: 2008, Publication: 97th ILC session (2008)

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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Direct Request (CEACR) - adopted 2023, published 112nd ILC session (2024)

Observation (CEACR) - adopted 2023, published 112nd ILC session (2024)

Direct Request (CEACR) - adopted 2016, published 106th ILC session (2017)

Observation (CEACR) - adopted 2016, published 106th ILC session (2017)

Direct Request (CEACR) - adopted 2015, published 105th ILC session (2016)

Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

Direct Request (CEACR) - adopted 2014, published 104th ILC session (2015)

Observation (CEACR) - adopted 2014, published 104th ILC session (2015)

Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

Direct Request (CEACR) - adopted 2011, published 101st ILC session (2012)

Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

Direct Request (CEACR) - adopted 2010, published 100th ILC session (2011)

Sexual harassment. With reference to its observation, the Committee recalls the Government’s indication that the Labour Code is being amended so that sexual harassment is a criminal offence carrying a severe penalty. It notes that, in the context of the programme Cumple y Gana on the strengthening of labour rights, the Government has prepared a manual on the rights of women at work (Manual de los derechos laborales de las mujeres), which recalls that the Labour Code prohibits employers from engaging in acts in relation to workers which may be considered as sexual harassment, from encouraging this type of behaviour and also from failing to intervene in such circumstances (section 47(9)). The Committee recalls that it had previously requested the Government to consider including in the Labour Code an explicit prohibition of sexual harassment, taking into account in its general observation of 2002. The Committee hopes that the Government will take the occasion of the legislative reform to introduce into the Labour Code an explicit prohibition of all forms of sexual harassment, including quid pro quo harassment and harassment due to a hostile working environment and asks the Government to provide information on the progress achieved in amending the provisions of the Labour Code in this regard. It again requests the Government to provide information on the scope of those protected by section 47(9) of the Labour Code.

Equal access for men and women to employment and occupation. Further to its previous comments concerning women workers in export processing zones, the Committee notes that the Government’s report is confined to indicating that it is making efforts to ensure that the greatest number of active persons have access to the labour market, including through the Employment Promotion Programme. However, it notes the development of a strategic plan on gender for the period 2008–13 by the Department for Gender Equality and Equity of the Secretariat of State for Labour (PEG–SET), the principal objective of which is to reinforce the work of the Secretariat of State through the integration of gender mainstreaming, and to contribute to creating conditions of equity and equality of opportunities for women and men. The Committee once again requests the Government to provide statistical data, disaggregated by sex, on labour force participation in the various sectors, information on the measures adopted to promote the participation of women outside the sectors in which women are predominant, and in positions of responsibility. It also requests the Government to provide information on the impact of the Strategic Plan on Gender on improving women’s access to employment and occupation and also to provide information on the number of complaints lodged for discrimination on the ground of sex.

Equal access for men and women to vocational training. Further to its previous comments concerning the essential role of education in promoting equality, the Committee notes the Government’s indication that, at present, the number of female students has increased by 60 per cent in relation to the number of male students. The Government adds that training is provided to men and women by the Technical Vocational Training Institute (INFOTEP) on an equal footing and that the Autonomous University of Santo Domingo has established childcare facilities for the children of student mothers. The Committee requests the Government to continue providing information on the measures adopted and the initiatives undertaken to ensure that women are able to gain access to vocational training at all levels, particularly in branches in which men are predominantly employed, and especially any information on the strategic plan referred to above and its impact. It also requests the Government to provide information, for example through statistical data disaggregated by sex, on the impact of these measures on the number of enrolments for the training courses provided in the country. The Committee also requests the Government to indicate whether the childcare facilities at the Autonomous University of Santo Domingo are also available to male students with children.

Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

With reference to its previous comments, the Committee recalls the discussion of the Conference Committee on the Application of Standards which took place in June 2008. The Committee notes with regret that the report of the Government contains no information on the specific points raised by the Conference Committee. The Committee is, therefore, obliged to repeat these points below.

The Committee also notes that a new Constitution was adopted on 26 January 2010, article 39 of which establishes the right to equality without discrimination based on gender, colour, age, disability, nationality, family ties, language, religion, political and philosophical opinion, social and personal situation. The Committee asks the Government to provide information regarding the implementation of the new Constitution as it relates to non-discrimination in employment and occupation.

Discrimination on the grounds of colour, race and national extraction. The Committee recalls that it has been raising concerns for a number of years regarding discrimination against Haitians and dark-skinned Dominicans. The Committee notes that the Conference Committee called on the Government to address the intersection between migration and discrimination, and in particular to ensure that migration laws and policies and their implementation did not result in discrimination based on race, colour or national extraction. It noted in this respect that all migrant workers, including those in an irregular situation, must be protected from discrimination in employment and occupation. The Conference Committee also noted the Government’s intention to establish a tripartite committee to follow up the recommendations made jointly by the United Nations Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance, and the Independent Expert on minority issues. The Committee notes the wide range of recommendations of the Special Rapporteur and the Independent Expert, including in particular with respect to developing a national action plan against racism, racial discrimination and xenophobia; establishing an independent institution with authority to combat all forms of discrimination; adopting comprehensive legislation to combat racial discrimination; collecting relevant socio-economic data; ensuring that migration laws and their implementation protect the right to non-discrimination; monitoring sectors such as agriculture and construction, where many Haitians and Dominicans of Haitian descent are employed; targeting multiple discrimination facing minority women, particularly those who are black or of Haitian heritage (A/HRC/7/19/Add.5; A/HRC/7/23/Add.3, 18 March 2008, paragraphs 118–121, 126–128 and 131–132). The Committee urges the Government to take concrete measures without further delay to ensure the effective application of the Convention, in law and in practice, with respect to the grounds of race, colour and national extraction, and in this context to ensure that all migrant workers, including those in an irregular situation, are protected from discrimination in employment and occupation. The Committee requests the Government to indicate whether the tripartite committee to follow up the recommendations of the Special Rapporteur and the Independent Expert has been established, and the progress achieved in implementing the recommendations, in particular those noted above.

Discrimination based on sex. The Committee has been raising concerns regarding the persistence of cases of discrimination based on sex, including pregnancy testing and sexual harassment, and the lack of effective application of the legislation in force, and has raised the issue of pregnancy testing as a requirement to obtain or keep a job in export processing zones. It notes in this regard the Government’s indication to the Conference Committee that the Secretary of State for Labour had created an office responsible for monitoring gender policies in the field of employment, and the Gender Office had submitted a draft amendment to the Labour Code to the Advisory Labour Council with a view to improving labour legislation regarding medical examinations prior to or during employment. Regarding sexual harassment, the Government indicated that the Labour Code was being amended to make sexual harassment a criminal offence carrying a severe penalty. The Conference Committee, while noting this information, questioned the adequacy of the legislation and the complaints mechanisms to address such discrimination, and called on the Government, in collaboration with the workers’ and employers’ organizations, to take additional steps to strengthen protection against discrimination in law and in practice, and in particular to ensure that complaints mechanisms were effective and accessible for men and women working in enterprises where no unions existed. The Committee urges the Government to ensure that the existing anti-discrimination legislation is effectively applied, and in this context to take proactive measures, in collaboration with employers’ and workers’ organizations, to prevent and investigate both sexual harassment, and the requirement of pregnancy testing as a condition for obtaining or maintaining employment. The Committee also asks the Government to take the necessary measures to reinforce the sanctions for sexual harassment and mandatory pregnancy testing as well as the dispute resolution machinery related to discrimination in employment and occupation, to ensure that it is effective and accessible in practice to all workers, including those in export processing zones. The Committee also asks the Government to provide information on the following:

(i)    the status of the adoption of the proposed amendments to the Labour Code regarding sexual harassment and pregnancy testing;

(ii)   measures taken to support and protect victims of sexual harassment and pregnancy testing, including facilitating access to complaints procedures;

(iii)  awareness raising regarding discrimination, including sexual harassment and pregnancy testing, and building the capacity of labour inspectors, relevant government authorities, and the judiciary to detect and address violations in this regard;

(iv)  any specific measures taken to improve the detection of sexual harassment and pregnancy testing in export processing zones; and

(v)   any cases of sexual harassment or pregnancy testing reported to or detected by the labour inspectorate and any relevant administrative or judicial decisions, including the remedies provided and the sanctions imposed.

HIV testing. Regarding its previous comments relating to HIV testing as a condition to be hired or keep a job, and the lack of enforcement of the prohibition of such testing, the Committee notes the Government’s indication to the Conference Committee that involuntary HIV testing is prohibited in all enterprises, there is an HIV/AIDS technical unit within the labour inspectorate, and regular inspections are carried out but no cases concerning discrimination have been reported. The Committee requests the Government to reinforce its efforts to address HIV testing as a condition to be hired or to keep a job in practice, including taking measures to protect workers who lodge complaints, stepping up enforcement by labour inspectors, and building their capacity to detect and address such violations. Please provide detailed information of measures taken in this regard, as well as with respect to any cases of involuntary HIV testing reported to or detected by the labour inspectorate, and any relevant court or administrative decisions.

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

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

The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

1. Sexual harassment. In its previous comments, the Committee noted that section 47(9) of the Labour Code prohibits employers from carrying out any action against workers that may be regarded as sexual harassment, or from supporting or failing to intervene in the event of any such acts carried out by their representatives. The Committee suggested that the Government should examine the possibility of establishing an explicit prohibition in the Labour Code of the two elements of sexual harassment: quid pro quo and hostile working environment, as explained in its general observation of 2002. The Committee once again requests the Government to provide further information relating to the scope of those protected by section 47(9) of the Labour Code. The Committee also requests the Government to consider including an explicit prohibition of the two aspects of sexual harassment in the Labour Code, and to provide information on progress made in this regard.

2. Equality of access for men and women to employment and occupation. The Committee notes that, according to the statistical data provided for 2006, the proportion of women workers in export processing zones is equal to that of men. The Committee further notes that women only account for 31 per cent of the labour force employed in national productive sectors. The Committee also notes that, according to the Government’s report, most export processing zones are engaged in the textile sector, and that jobs in that sector are principally filled by women, as they are considered to be better at producing clothing. The Committee recalls the importance of promoting the participation of women in the various sectors of the economy to guarantee in practice the full application of the principle of equality of opportunity in employment and occupation. The Committee requests the Government to continue providing statistical data on labour force participation, disaggregated by sex and sector. The Committee also requests the Government to provide information on the measures adopted to promote the participation of women outside the so-called female sectors and in positions of high responsibility, as well as to combat stereotypical attitudes of the roles men and women in the labour market.

3. Equality of access for men and women to vocational training. The Committee notes with concern that, according to the Government’s report, all of the apprenticeship contracts concluded in 2006 were exclusively for men and that in export processing zones, in one of the sectors with the greatest number of women workers, there was only one apprenticeship contract. The Committee reminds the Government of the essential role of education in promoting equality and emphasizes that access to training is fundamental as it is often a precondition to the actual opportunities available to women of gaining access to a broad range of jobs and occupations. The Committee emphasizes that the adoption of legal provisions in the field of equality of opportunity in employment and training is not sufficient to comply with the obligations of the Convention and that it is the responsibility of the Government to take proactive measures to ensure that women have access in practice to the various training programmes. The Committee requests the Government to continue providing information on vocational training activities and on the measures adopted to promote the participation of women at the various levels of training, including types of training that are traditionally undertaken by men.

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.

Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

1. Sexual harassment. In its previous comments, the Committee noted that section 47(9) of the Labour Code prohibits employers from carrying out any action against workers that may be regarded as sexual harassment, or from supporting or failing to intervene in the event of any such acts carried out by their representatives. The Committee suggested that the Government should examine the possibility of establishing an explicit prohibition in the Labour Code of the two elements of sexual harassment: quid pro quo and hostile working environment, as explained in its general observation of 2002. The Committee once again requests the Government to provide further information relating to the scope of those protected by section 47(9) of the Labour Code. The Committee also requests the Government to consider including an explicit prohibition of the two aspects of sexual harassment in the Labour Code, and to provide information on progress made in this regard.

2. Equality of access for men and women to employment and occupation. The Committee notes that, according to the statistical data provided for 2006, the proportion of women workers in export processing zones is equal to that of men. The Committee further notes that women only account for 31 per cent of the labour force employed in national productive sectors. The Committee also notes that, according to the Government’s report, most export processing zones are engaged in the textile sector, and that jobs in that sector are principally filled by women, as they are considered to be better at producing clothing. The Committee recalls the importance of promoting the participation of women in the various sectors of the economy to guarantee in practice the full application of the principle of equality of opportunity in employment and occupation. The Committee requests the Government to continue providing statistical data on labour force participation, disaggregated by sex and sector. The Committee also requests the Government to provide information on the measures adopted to promote the participation of women outside the so-called female sectors and in positions of high responsibility, as well as to combat stereotypical attitudes of the roles men and women in the labour market.

3. Equality of access for men and women to vocational training. The Committee notes with concern that, according to the Government’s report, all of the apprenticeship contracts concluded in 2006 were exclusively for men and that in export processing zones, in one of the sectors with the greatest number of women workers, there was only one apprenticeship contract. The Committee reminds the Government of the essential role of education in promoting equality and emphasizes that access to training is fundamental as it is often a precondition to the actual opportunities available to women of gaining access to a broad range of jobs and occupations. The Committee emphasizes that the adoption of legal provisions in the field of equality of opportunity in employment and training is not sufficient to comply with the obligations of the Convention and that it is the responsibility of the Government to take proactive measures to ensure that women have access in practice to the various training programmes. The Committee requests the Government to continue providing information on vocational training activities and on the measures adopted to promote the participation of women at the various levels of training, including types of training that are traditionally undertaken by men.

Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

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 matters in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 2006, published 96th ILC session (2007)

1. Export processing zones. The Committee notes from the Government’s report on the application of the Equal Remuneration Convention, 1951 (No. 100), that the statistics reflect the increase in the percentage of women compared with men employed in export processing zones. It further notes that, according to the Government, minimum wages in these zones are agreed by the parties with active participation of the federations of workers in export processing zones. The Committee again asks the Government to provide information in its next report on the main causes of the tendency to hire female labour in the export processing zones, including statistics on the distribution of jobs and posts disaggregated by sex.

2. Vocational training. The Committee notes that, according to the Government, in 2004 the Directorate of Vocational Training of the Ministry of Labour offered 159 apprenticeship contracts requested by 80 enterprises for various activities, 57 per cent of which were for men and 43 per cent for women. It also notes the information that the National Institute for Technical Vocational Training (INFOTEP) provides training in textile trades in export processing zones as well as elsewhere and that in 2004, 643 apprenticeship contracts were offered, of which 434 went to women and 209 to men. The Committee requests the Government to continue to provide information on the vocational training activities carried out by the Government and on their impact, particularly in the export processing zones, with a breakdown by sex.

3. Sexual harassment. The Committee notes the Government’s statement that educational and advocacy measures to prevent sexual harassment are being implemented through the Secretariat of State and the General Directorate for Gender of the Ministry of Labour. The Committee again asks the Government to envisage the possibility of adopting a definition of sexual harassment in the Labour Code that takes account of the comments made by the Committee in its general observation of 2002; and, with regard to section 47(9) of the Labour Code under which employers are prohibited from carrying out any action against workers that may be regarded as sexual harassment and from supporting or failing to intervene in, any such action carried out by their representatives, to provide information or further details on the coverage of the persons protected by this provision, the scope of the protection, the administrative machinery for dealing with sexual harassment, including procedures for protection of the victims and of those accused of harassment, education and advocacy measures taken or envisaged and cooperation with organizations of employers and workers to deal with sexual harassment through policies and collective agreements.

Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

1. The Committee takes note of the information supplied by the Government at the Conference Committee on the Application of Standards in June 2004 in response to matters raised by the Committee in earlier comments. It also notes the discussion that ensued. The Conference Committee concluded by asking the Government for detailed information on the practical effect given to the Convention, including statistics and information on the machinery for the prevention of sexual harassment and pregnancy testing in the maquila sector (export processing zones), the outcome of inquiries into complaints and all measures taken to deal with discrimination at work. The Committee also notes the observations of 31 August 2005 of the International Confederation of Free Trade Unions (ICFTU) and the Government’s reply of 17 March 2006.

2. Discrimination on grounds of colour and race. In its previous observation the Committee noted that according to the ICFTU, although discrimination on the ground of race is prohibited by law, it exists in practice. The Committee noted in earlier comments that the Committee on the Elimination of All Forms of Racial Discrimination (CERD) had expressed concern about reports of racial prejudice not only against Haitians but also against darker-skinned Dominicans (CERD/C/304/Add.74 of 12 April 2001, paragraph 7). The Committee also took note of the Declaration by the Dominican Republic and the Republic of Haiti for the prevention of discrimination in the hiring of migrant workers, both Dominican and Haitian. In its communication of 2005, the ICFTU stated that between the end of July and mid-August, 2,000 persons detained by the police, the Dominican army or migration officials were deported to Haiti because of their colour or their inability to speak Spanish and that they had no opportunity to demonstrate that they were legal immigrants, recover their documents or contact the diplomatic authorities of their country. Nor were they allowed to claim payment of wages due. Even some Dominican nationals were deported, having been taken for Haitians. The Committee notes that the Government once again states that there is no discrimination based on colour, since 80 per cent of Dominicans are dark-skinned, and that the policy to repatriate Haitians who are not lawfully in the country is applied in accordance with the agreement on repatriation mechanisms concluded by Haiti and the Dominican Republic in 1999 and the Memorandum of Understanding on Migration Matters. The Government states further that it gives preferential treatment to Haitian nationals allowing them to demonstrate that they are legal immigrants and, where applicable, to retrieve their families and recover their belongings and any work-related entitlements before being repatriated. It also indicates that the Haitian authorities have filed no complaints with the foreign service authorities for these human rights violations.

3. The Committee notes that the Government refers to the legislation but supplies no information on its application in practice or on any inquiries into the matters raised by the ICFTU. The Committee recalls that as early as 2004, the Conference Committee indicated that according to the information available, the problems were not with the legislation but with the way it was applied in practice and that having noted the Government’s determination to investigate the allegations made in the complaints and improve supervision of its laws against discrimination, it requested the Government to send to the Committee of Experts detailed information in writing, including statistics, on the practical effect given to the Convention, on the outcome of the investigations and on all measures taken to deal with discrimination at work.

4. The Committee notes with regret that the Government’s report does not contain the practical information requested by the Conference Committee or any information on the case referred to by the ICFTU. It therefore reiterates the request for information made by the Conference Committee in 2004 and asks the Government to provide information on the case referred to by the ICFTU and on any inquiries carried out in this connection.

5. Discrimination on ground of sex. In its previous observation, the Committee took note of a communication from the ICFTU reporting that although the law bans discrimination on the ground of sex, including pregnancy testing and sexual harassment, both exist and are allowed in practice. The Committee notes that according to the Government, the Labour Inspection Department has a policy on pregnancy testing, which it applies actively and consistently in all enterprises, particularly in the export processing zones and that it coordinates its work with the Labour and Gender Departments. The Committee also notes that the Government again states that there have been no complaints concerning pregnancy testing. The Committee again asks the Government to send information in its next report on the machinery for prevention and investigation in place to deal with practices that discriminate against women, particularly those alleged by the ICFTU, and on the application of the legislation in practice and, with regard to the cases cited, information on any investigations conducted and on their outcome.

6. HIV testing. The Committee notes the information supplied by the ICFTU to the effect that men and women workers are required as a matter of course to undergo HIV testing in order to be hired or to keep their jobs, often against their will and in breach of the principle of confidentiality, and that the problem mainly affects women workers in the export processing zones and the tourist industry; furthermore, the machinery set up by the Government to prevent HIV testing has produced no results, labour inspectors do not enforce the ban on such testing, safety and health committees lack the necessary training and the workers file no complaints because they are unaware of the complaints procedures set up by the Government or because they are afraid that their HIV-positive status will be disclosed. The Committee takes note of the Government’s statement that the legislation in force bans HIV testing as a condition for being hired or keeping one’s job and that there have been no complaints by either men or women workers of any breach of this provision in any of the 37 local offices of the Ministry of Labour (SET) located throughout the country, nor have there been any reports or complaints from inspectors in the course of their regular visits or from the SET’s AIDS Unit. The Committee also notes that the Health and Safety Department ran training and awareness-raising workshops on AIDS and labour rights, some of which were aimed at workers of both sexes and others for SET officials. The Committee takes note of Act No. 55-93 on AIDS which provides that the SET, in coordination with the trade union federations, are to promote information, education and communication campaigns intended for employees and employers in all public and private enterprises, on how sexually transmitted diseases and AIDS are transmitted, and on prevention. The Committee requests the Government to provide information on the manner in which it ensures the confidentiality of complaints of breaches of the ban on HIV testing and on the adoption of other measures to protect workers filing complaints or reporting violations and on measures to ensure enforcement of the ban by labour inspectors. Please also continue to provide information on campaigns for information and awareness-raising, on training in subjects related to this problem, particularly for labour inspectorate officials and employees, and on the impact of such activities in practice. The Committee would also appreciate being kept informed of any reports or complaints of breaches of the ban and any action taken on them, including any administrative or judicial decisions.

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

Direct Request (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee notes the information supplied by the Government in its report and the attachments thereto. Referring to comments it has made in an observation, the Committee requests the Government to provide additional information on the following points.

1. The Committee notes the information supplied by the Government in its report to the effect that the National Wages Commission approved new minimum wage rates in 2002. The Committee again observes that minimum wages in all regulated sectors, occupations or branches of activity, have in general undergone an increase higher than the one applied in the industrial export processing zones. Noting that a large percentage of minors and women work in these zones, the Committee requests the Government to provide information in its next report on the main causes of this trend and on the measures adopted or envisaged to place minimum wages in the export processing zones on a par with those of the other sectors of the economy.

2. The Committee again notes that, according to the Government’s report, the contracts of apprenticeship concluded - in this case by the National Institute of Vocational Technical Training (INFOTEP) - were mainly for men and that only 13 per cent of them were granted to women. The Committee notes that the Government provides no information on the number of women who benefited from the 190 contracts of apprenticeship concluded by the Labour Training Department of the Secretariat of State for Labour. The Committee requests the Government to consider the possibility of increasing the percentage of women who have access to such contracts. It again asks the Government to provide more detailed information on INFOTEP’s vocational training courses for workers in export processing zones which took place in 2000.

3. With reference to the comments made by the International Confederation of Free Trade Unions (ICFTU) to which it referred in its observation, the Committee notes that, according to the Government, under section 47(9) of the Labour Code, employers may not carry out any action against workers which may be regarded as sexual harassment, or support or fail to intervene in any such action carried out by their representatives. The Committee observes that there is no definition of sexual harassment in the Labour Code and requests the Government to envisage the possibility of adopting a definition that takes into account the elements mentioned in its general observation of 2002. The Committee also notes that, according to the Government, no complaints of sexual harassment have been filed with the labour courts.

4. The Committee would be grateful if in its next report the Government would supply information, or further details, on the following points:

-  the coverage of the persons protected, ranging from applicants for courses or jobs to full-time workers;

-  the scope of the protection, for example vocational education and training, access to employment, conditions of employment and work in the various occupations;

-  the administrative machinery for dealing with sexual harassment, including procedures for the protection of the victims and of those accused of harassment;

-  measures for education and awareness raising;

-  cooperation with organizations of employers and workers to deal with sexual harassment through policies and collective agreements.

Observation (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee notes the information supplied by the Government in its report and the attachments thereto. The Committee also notes the comments of October 2002 sent by the International Confederation of Free Trade Unions (ICFTU), concerning discrimination on grounds of colour, race, and sex, together with the comments thereon that the Government sent to the Office. The Committee requests the Government to provide information on the following points:

1. Discrimination on grounds of colour and race. The ICFTU indicated that although discrimination on grounds of race is prohibited by law, it exists in practice. In earlier comments the Committee noted the concern expressed by the Committee on the Elimination of All Forms of Racial Discrimination (CERD) regarding the reports received on the existence of racial prejudice not only against Haitians but also against dark-skinned Dominicans (CERD/C/304/Add.74 of 12 April 2001, paragraph 7). The Committee notes the Declaration by the Dominican Republic and the Republic of Haiti to prevent discrimination in the hiring of migrant workers, both Dominican and Haitian. The Committee notes the comments sent by the Government in its report to the effect that there have been no complaints of such discrimination and that Haitian workers have the same conditions of health and hygiene as Dominican nationals; furthermore, there is no discrimination on grounds of colour, 80 per cent of Dominicans being dark skinned. The Committee recalls that the Convention requires the Government to formulate a national policy and to adopt educational and administrative measures to prevent discrimination on all grounds as mentioned in Article 1, in particular colour and race, and to promote equality of opportunity and treatment both in law and in practice. In this sense, the Committee would be grateful if the Government would provide information on measures adopted, indicating their impact in terms of avoiding in practice the occurrence of discrimination of the type alleged.

2. Discrimination on grounds of sex. The Committee notes that, according to the ICFTU, although gender discrimination, including pregnancy controls and sexual harassment, is prohibited by law, it exists and is allowed in practice. The Committee notes that according to the statistics provided by the Government in its report on the application of Convention No. 100, there were 42 instances of breach of the labour standards protecting maternity. The Committee again requests the Government to provide information in its next report on the machinery for prevention and investigation to combat practices that discriminate against women, such as pregnancy testing at the time of admission to employment. The Committee also notes the information in the Government’s report to the effect that, although there have been no complaints alleging pregnancy testing in the industrial export processing zones, the Government will hold a thorough investigation into the matter. The Committee trusts that the Government will be in a position to send the results of the investigation in its next report.

Direct Request (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee notes the information supplied by the Government in its report and in the attached annex.

1. The Committee notes the concern of the Committee on the Elimination of Racial Discrimination (CERD) regarding the reports received on the existence of racial prejudice not only against Haitians but also against dark-skinned Dominicans (CERD/C/304/Add.74 of 12 April 2001). The Committee requests the Government to supply information on the measures adopted or envisaged to eliminate any such distinctions, exclusions or preferences made on the basis of race, colour, national extraction or social origin which have the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation.

2. The Committee notes with interest the labour statistics produced by the Secretariat of State for Labour and in particular the statistics on cases of loss of employment by women as a consequence of pregnancy. The Committee notes that section 233 of Act No. 16-92 approving the Labour Code lays down that dismissal of a woman who is pregnant or within six months after the date of confinement must be submitted in advance to the Department of Employment or to the local authority which exercises its functions. According to the statistics supplied by the Government, no petitions have been brought before the courts on the basis of violation of the principle of equality of treatment in employment and occupation. The Committee would be grateful to know whether such violations are included in one of the other topics cited or whether in fact there have been no petitions in this respect. The Committee requests the Government to continue sending detailed information on labour violations that have been noted in the courts concerned with discrimination in employment and occupation, including maternity protection which, according to the statistics supplied by the Government, amount to 47 cases. The Committee also observes that the Government’s report contains no information about existing prevention and investigation machinery to combat discriminatory practices against women such as pregnancy testing at the hiring stage and reiterates its request that the Government should supply such information in its next report.

3. The Committee notes that during the year 2000, 147,221 workers (76,422 men and 70,799 women) followed occupational training courses with the National Institute of Occupational Technical Training (INFOTEP) for workers in free exporting zones. The Committee requests the Government to supply more detailed information on the apprenticeships and specialization courses cited, and particularly the purpose and content of the training.

4. The Committee notes that the National Wages Commission approved new minimum wage rates in 1999. The Committee observes that minimum wages in all sectors, occupations or regulated branches of activity are subject to an increase of 35 per cent over the previous rates with the exception of those in the industrial free zones where the rise is only 15 per cent. Although questions of equal remuneration are dealt with under Convention No. 100, the Committee reminds the Government, as it has done on previous occasions, that indirect discrimination is related to situations, regulations or practices which are apparently neutral but which, in reality, create inequality in respect of people with special characteristics. On this matter, the Committee refers the Government once again to paragraph 26 of the Special Survey (1996) on equality in employment and occupation. The Committee also requests the Government to supply information in its next report about specific programmes that it has developed or intends to develop to encourage and promote access of women to better jobs and wages.

5. The Committee notes that 98 per cent of apprenticeship contracts concluded were for men, with only three women being engaged, out of the 155 contracts. The Committee refers the Government to paragraphs 82 and 83 of the 1988 General Survey on equality in employment and occupation in which the Committee highlights the importance of adopting measures for encouraging firms to recruit apprentices regardless of sex or apprentices of one sex to be trained in occupations traditionally performed by persons of the other sex.

Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee notes the comments made by the International Confederation of Free Trade Unions (ICFTU), received by the Office on 4 October 2002, which contain information on discrimination on grounds of sex, race, colour and national extraction, and which have been forwarded to the Government. The information received will be examined at the next session of the Committee, together with the Government’s responses to these comments and to the direct request made in 2001.

Direct Request (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee notes the information supplied by the Government in its report and in the attached annex.

1. The Committee notes the concern of the Committee on the Elimination of Racial Discrimination (CERD) regarding the reports received on the existence of racial prejudice not only against Haitians but also against dark skinned Dominicans (CERD/C/304/Add.74 of 12 April 2001). The Committee requests the Government to supply information on the measures adopted or envisaged to eliminate such distinctions, exclusions or preferences made on the basis of race, colour, national extraction or social origin which have the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation.

2. The Committee notes with interest the labour statistics produced by the Secretariat of State for Labour and in particular the statistics on cases of loss of employment by women as a consequence of pregnancy. The Committee notes that section 233 of Act No. 16 92 approving the Labour Code lays down that dismissal of a woman who is pregnant or within six months after the date of confinement must be submitted in advance to the Department of Employment or to the local authority which exercises its functions. According to the statistics supplied by the Government, no petitions have been brought before the courts on the basis of violation of the principle of equality of treatment in employment and occupation. The Committee would be grateful to know whether such violations are included in one of the other topics cited or whether in fact there have been no petitions in this respect. The Committee requests the Government to continue sending detailed information on labour violations that have been noted in the courts concerned with discrimination in employment and occupation, including maternity protection which, according to the statistics supplied by the Government, amount to 47 cases. The Committee also observes that the Government’s report contains no information about existing prevention and investigation machinery to combat discriminatory practices against women such as pregnancy testing at the hiring stage and reiterates its request that the Government should supply such information in its next report.

3. The Committee notes that during the year 2000, 147,221 workers (76,422 men and 70,799 women) followed occupational training courses with the National Institute of Occupational Technical Training (INFOTEP) for workers in free exporting zones. The Committee requests the Government to supply more detailed information on the apprenticeships and specialization courses cited, and particularly the purpose and content of the training.

4. The Committee notes that the National Wages Commission approved new minimum wage rates in 1999. The Committee observes that minimum wages in all sectors, occupations or regulated branches of activity are subject to an increase of 35 per cent over the previous rates with the exception of those in the industrial free zones where the rise is only 15 per cent. Although questions of equal salary are dealt with under Convention No. 100, the Committee reminds the Government, as it has done on previous occasions, that indirect discrimination is related to situations, regulations or practices which are apparently neutral but which, in reality, create inequality in respect of people with special characteristics. On this matter, the Committee refers the Government once again to paragraph 26 of the Special Survey on equality in employment and occupation. The Committee also requests the Government to supply information in its next report about specific programmes that it has developed or intends to develop to encourage and promote access of women to better jobs and wages.

5. The Committee notes that 98 per cent of apprenticeship contracts concluded were for men, with only three women being engaged, out of the 155 contracts. The Committee refers the Government to paragraphs 82 and 83 of the 1988 General Survey on equality in employment and occupation in which the Committee highlights the importance of adopting measures for encouraging firms to recruit apprentices regardless of sex or apprentices of one sex to be trained in occupations traditionally performed by persons of the other sex.

Direct Request (CEACR) - adopted 1999, published 88th ILC session (2000)

1. The Committee notes with interest that, by an agreement between the National Institute of Occupational Technical Training (INFOTEP) and the Dominican Association of Free Exporting Zones (ADOZONA), a percentage of the amount collected in the free-exporting zone enterprises has been earmarked for the purpose of occupational training to provide apprenticeship and specialization courses for workers in these enterprises, 56 per cent of whose workforce are women. The Committee requests the Government to send more detailed information on the apprenticeship and specialization courses mentioned including, if possible, the objectives and content of the training with indications of the number of workers who have benefited from it, disaggregated by sex and subject or course. It also requests information disaggregated in the same manner on the occupational training courses and seminars in the rest of the country. The Committee recalls that occupational training and guidance are of primary importance as they affect possibilities of access to employment and occupation and that it is important for women to have access to training options in fields different from those considered traditionally feminine.

2. The Committee welcomes the information supplied by the Government that the Secretary of State for Labour is carrying out an investigative study for the purpose of determining the percentage of men and women who provide services in various branches of activity and for comparing salaries on the basis of sex, and that the study will be communicated to the Office as soon as it is completed.

3. The Committee notes that, according to the Government, in regard to the measures adopted to protect women workers against all discrimination or arbitrary dismissal in the event of pregnancy, including measures to dissuade employers from the practice of pregnancy testing, the Labour Code guarantees to women the right to work and to maternity leave of three months. The Government further indicates that abuses in this area are decreasing (Committee on Economic, Social and Cultural Rights, 17th session, E/C.12/1997/SR.30). The Committee recalls that the discriminatory nature against women of distinctions based on pregnancy, childbirth or its possible medical consequences, are clear from the simple fact that they can affect only women. Given that pregnancy testing is a discriminatory mechanism frequently used at the hiring stage, in which it is difficult for the labour inspection service to intervene, the Committee requests information on the prevention and investigation machinery that exists in order to discourage this practice, whether it falls under the labour inspection service or within the ambit of specialized bodies. The Committee draws the Government's attention to paragraph 193 in fine and paragraphs 193-215 of its 1988 General Survey on equality of employment and occupation.

4. The Committee requests information on the activities of the Labour Inspectorate on the areas covered by the Convention and whether there have been reports of discrimination to that body, to administrative or judicial tribunals, or to specialized bodies.

Direct Request (CEACR) - adopted 1997, published 86th ILC session (1998)

1. The Committee notes with interest the information supplied by the Government in regard to the points raised in its previous direct request, and particularly the statistical data supplied for 1996 regarding participation by men and women in occupational training courses. Furthermore, it notes the information supplied in the "Study on minimum wages in the Dominican economy" which was prepared at the request of the Department of State for Labour.

2. The Committee observes that the Study indicates that in the free exporting zone enterprises studied, which was based on a sample of 2,746 workers, 64 per cent are women, while in the public sector enterprises with 73,625 employees, 62 per cent are women. The Committee notes that, according to the Study, in the free zones surveyed there is a clear link between the hierarchical level of the worker and gender in that the more senior positions, associated with higher wages, are usually occupied by men. In the firms covered by the sample, 66 per cent of the women and only 38.2 per cent of the men fall into the categories with wages of 3,000 Dominican pesos and below. Sixteen per cent of the men earn over RD$4,000 per month, while only 4.2 per cent of women are in this wage bracket.

3. This relationship, however, is not maintained in the public sector institutions covered by the Study (which use a large number of professionally qualified personnel) where there is a clear difference in favour of women since only 9.9 per cent of the women as opposed to 19.95 per cent of the men earn RD$2,000 or less. Those who earn RD$4,000 and above constitute 66.4 per cent of the women and only 57 per cent of the men.

4. Although the matter of equal wages will be dealt with under Convention No. 100, the Committee recalls that indirect discrimination is related to situations, regulations or practices which are apparently neutral but which, in reality, create inequality in respect of people with specific characteristics. Such situations arise when identical conditions, treatment or criteria apply to everyone but their effects have a highly unfavourable impact on some people due to reasons based, inter alia, on sex and do not have a direct link with the requirements of the work. This can be the case when women are excluded from certain posts requiring the exercise of authority simply because they are women and because they encounter negative prejudice in the matter. On this question, see paragraphs 26 and 120 of the 1996 Special Survey on equality in employment and occupation. The Committee therefore requests the Government to inform it whether there exist plans or projects which assist women workers, particularly those who work in the free exporting zones, to have access to better jobs and better wages.

Direct Request (CEACR) - adopted 1995, published 83rd ILC session (1996)

1. The Committee notes the statistical information provided by the National Institute for Technical and Vocational Training (INFOTEP) for 1994 indicating the number of women enrolled in training courses at the Institute. Noting that women appear to be strongly represented in courses for sewing, secretarial and restaurant services and accountancy, whereas men dominate in courses relating to agricultural production, mechanics, soldering, vehicle maintenance, electrical installations, plumbing and painting, the Committee requests the Government to inform it in its next report of any positive measures taken so as to increase the participation of women in training courses, and in institutions of higher education, which would give them a wider choice of occupation upon graduation. In this respect, it refers the Government to paragraphs 82 and 83 of its 1988 General Survey on equality in employment and occupation, where the Committee warns of the limitations of sex-based segregation in training and stereotyped attitudes to the type of training open to women.

2. With reference to the absence of any specific provisions to guarantee non-discrimination in admission to the civil service in the Civil Service and Administrative Careers Act, No. 14/91, the Committee notes the Government's firm statement that there is no discrimination in employment and occupation in the customs and practices of the country. The Committee requests the Government to provide information in its next report on any special measures taken or contemplated to ensure the implementation of the principle of non-discrimination in recruitment, appraisal and promotion in the civil service. In this context, it takes note of the Government's request to the National Office of Administration and Personnel for statistical information on the structure of employment in the public sector with particular reference to: (a) the number of women employed in the public administration; (b) the number of women in high-level posts; and (c) the percentage of women as compared with men employed in the public sector. The Committee looks forward to receiving these indications of non-discrimination from the Government in its next report.

Direct Request (CEACR) - adopted 1995, published 82nd ILC session (1995)

The Committee notes the Government's report, in particular the information that no specific legislation has been adopted providing for protection other than that laid down in the 1992 Labour Code.

1. The Committee notes with interest that, under Act No. 116 of 1980 which established the National Institute for Technical and Vocational Training (INFOTEP), there are no restrictions on women's access to this type of training, and that the statistics for 1993 concerning women's access to training show that women are well-represented in many courses, including some which were traditionally for men. It asks the Government to keep it informed in its future reports on women's participation in this type of training and in higher education courses.

2. The Committee notes the Government's statement that the Civil Service and Administrative Careers Act, No. 14/91, establishes no distinction whatsoever for reasons of sex, age, race or colour, religious or political beliefs, for admission to the civil service. It observes, however, that there are no specific provisions guaranteeing non-discrimination in this Act, except for sections 71 and 149(c) which provide, respectively, that the performance appraisal of temporary workers must be fair and objective and that breaches of discipline must be judged and sanctioned according to their gravity, on the basis of strict criteria of lawfulness, equity and objectivity. Recalling that the Labour Code does not apply to the public service, the Committee asks the Government to provide information on the texts which ensure compliance with the principle of the Convention in the civil service, together with information on the promotion of this principle in practice.

3. With regard to the point raised above, the Committee again asks the Government to send the report, mentioned in its 1990 report, which was being prepared by the labour authorities and was to contain statistics on the structure of employment in the public sector. The Committee hopes that it will indicate in particular the number of women employed in the public administration and in state enterprises, as well as the number of women in high-level posts and their percentage as compared with that of men employed in the public sector.

Observation (CEACR) - adopted 1995, published 82nd ILC session (1995)

1. With regard to its previous comments on the need for detailed information on the activities of the Labour Inspectorate concerning the application of the legislation prohibiting discrimination in employment against Dominican workers of Haitian origin, the Committee notes the Government's statement that the Labour Inspectorate has been engaged in efforts to prevent such discrimination and to ensure proper compliance with the relevant provisions of the labour law. It notes in particular the Government's statement that, in practice, there have been no occurrences which indicate that there is discrimination against Dominican workers of Haitian origin. It also notes the report of the Labour Inspectorate for the period January to May 1992 (including the statistics), which describes inspections of sugar plantation installations to supervise, in particular, cane weighing, pay and conditions of hygiene, but which does not state whether there are any cases of discrimination against these workers.

The Committee asks the Government to refer to its comments under Convention No. 105 on protection by the competent authorities of the rights of sugar-cane workers.

2. The Committee is addressing a request directly to the Government on certain other aspects of the Convention.

Direct Request (CEACR) - adopted 1993, published 80th ILC session (1993)

With reference to its previous comments, the Committee notes the information supplied by the Government in its reports.

1. In connection with its accompanying observation, the Committee notes that Fundamental Principle VII of the new Labour Code of 1992 prohibits any discrimination on a number of grounds, other than those provided for in the legislation itself for the purposes of protecting the worker. It asks the Government to provide information on whether any special protective legislation, other than that set out in the Code, has been adopted and, if so, to indicate the measures of consultation taken in accordance with Article 5(2) of the Convention.

2. The Committee notes, however, that no information is given on the measures adopted to facilitate women's access to technical and vocational training given by institutions in this field, and it once again requests the Government to provide such details in its next report, as well as statistical data, disaggregated by sex, on the rate of enrolment in these institutions and on the occupations for which training is given.

3. Noting that in its report for the period ending 30 June 1990 the Government stated that it was hoping to introduce a Bill on the civil service and administrative careers in the National Congress before its mandate expires on 16 August 1994, but that there has been no information provided on this since then, and observing that the new Labour Code does not apply to the civil service, the Committee reiterates its hope that such legislation will be able to be adopted in the near future and will contain provisions which expressly prohibit any discrimination in employment for this sector based on the grounds listed in Article 1, paragraph 1(a), of the Convention.

4. The Government previously indicated that the labour authorities were preparing a report containing statistical data on the structure of employment in the public sector, which was to be transmitted to the Office. The Committee asks the Government to provide any such data and hopes that they will indicate the number of women employed in the public administration and in state enterprises, including the number of women holding posts of responsibility and their percentage compared with the number of male public sector employees.

Observation (CEACR) - adopted 1993, published 80th ILC session (1993)

The Committee notes the Government's reports which also refer to information supplied in the Government's reports on the application of Conventions Nos. 95, 100 and 105.

1. Further to its previous comments, the Committee notes with satisfaction that Fundamental Principle VII of the Labour Code adopted on 29 May 1992 (Act No. 16-92), expressly prohibits "(a)ny discrimination, exclusion or preference based on grounds of sex, age, race, colour, national origin, social origin, political views, trade union activity or religious belief" and thus covers the grounds of discrimination listed in Article 1, paragraph 1(a), of the Convention.

2. The Committee also notes with satisfaction that the Labour Code adopted on 29 May 1992 has repealed the provisions and amendments of the 1951 Labour Code which required women (but not men) wishing to take up employment to provide a medical certificate attesting physical fitness for work.

3. The Committee also notes the Government's statement that by law, workers of Haitian origin in sugar plantations, as well as those engaged in agricultural work, stock-raising and in informal employment and other sectors of activity, enjoy the same rights and benefits as other workers with Dominican nationality. The Committee again requests the Government to provide detailed information on labour inspection activities for the enforcement of legal provisions prohibiting discrimination and other measures that have been taken to ensure that, in practice, Dominican workers of Haitian origin are not subject to any discrimination in employment, in accordance with the Convention.

4. The Committee is addressing a request directly to the Government on other aspects of the Convention.

Direct Request (CEACR) - adopted 1991, published 78th ILC session (1991)

With reference to its previous comments, the Committee takes note of the information supplied by the Government in its report. It also refers to the observation made on the application of this Convention.

1. The Committee once again expresses the hope that, in the framework of the revision of the Labour Code, measures will be taken to amend section 210 thereof which provides that any woman who wishes to take up employment in an undertaking must prove, by means of a medical certificate, her physical fitness to carry out the work to be done in such employment. Given that this provision does not only refer to hazardous or harmful work (which are mentioned in section 217) and that this requirement only applies to women, the Committee requests the Government to examine ways of guaranteeing equality of treatment between men and women on this point in conformity with the Convention, by providing that the medical certificate attesting fitness for work be required for all workers irrespective of their sex, or by limiting, in consultation with the organisations of workers and employers, the physical fitness examination for women to cases where the work could endanger her health or pregnancy.

2. The Committee again requests the Government to communicate details on the measures adopted to facilitate the access of women to technical and vocational training given by institutions in this field, as well as statistical data, broken down by sex, on the rate of enrolment in these institutions and on the occupations for which training is given.

3. As for the public sector, the Government states that it is hoping to introduce a Bill on the civil service and administrative careers in the National Congress before its mandate expires on 16 August 1994. The Committee again hopes that this legislation will be able to be adopted in the near future and will contain provisions which expressly prohibit any discrimination in employment for this sector based on any of the reasons listed in the Convention. The Government also indicates that the labour authorities are preparing a report containing statistical data on the structure of employment in the public sector and that this will be sent to the Office in the shortest possible time. The Committee hopes that these statistics will indicate the number of women employed in the public administration and in state enterprises, including the number of women holding posts of responsibility and their percentage compared with the number of male public sector employees.

Observation (CEACR) - adopted 1991, published 78th ILC session (1991)

Further to its previous comments, the Committee notes the report of the Government which also refers to information supplied in the Government's report on the application of Convention No. 105.

1. The Committee requests the Government to refer to the observation on the application of Convention No. 105 as concerns the situation of Haitian workers or workers of Haitian origin in sugar plantations, particularly as regards the discriminatory practices to which they are subject in their conditions of work and wages.

2. The Committee again requests the Government to provide details on the situation of Haitian workers or workers of Haitian origin who are, according to the information furnished previously by the Government, engaged in other sectors of activity such as agricultural work, stock-raising or construction.

3. The Committee notes the statement of the Government according to which it expects to complete revision of the Labour Code in 1992. The Committee reiterates its firm hope that the revision of the Labour Code, to which the Government has been referring for a number of years, will be completed very shortly and that the new Code will contain provisions formally prohibiting all discrimination in employment and occupation (particularly in respect of working conditions and wages) on the grounds of race, colour, sex, religion, political opinion, national extraction or social origin, in accordance with Article 1, paragraph 1(a), of the Convention.

Direct Request (CEACR) - adopted 1990, published 77th ILC session (1990)

1. With reference to its previous comments, the Committee notes the information provided by the Government in its report (which was received too late to be able to be examined last year). It notes that the draft of the revised Labour Code, which was to contain provisions prohibiting discrimination on the grounds set out in the Convention, has not yet been adopted, but that the authorities responsible for the revision plan to eliminate all discriminatory provisions from the Code which is now in force, in order to guarantee fully equality of opportunity and treatment for all workers in the private sector. The Committee hopes that it will be possible for the revision to be completed in the near future and that the Government will not fail to indicate the measures taken to give statutory effect to the national practice whereby, according to the Government, equality of opportunity and treatment in respect of employment and vocational training is guaranteed to all residents in the country without any distinction as to race, colour, sex, religion, political opinion, national extraction or social origin, in accordance with Article 1, paragraph 1(a), of the Convention.

2. The Committee also hopes that it will be possible, as part of the revision of the Labour Code to amend section 210 of the Code which provides that a woman wishing to work in an enterprise, whatever its nature, must establish, by means of a medical certificate, her physical aptitude to perform the work involved. Since this provision does not concern work liable to endanger life or health (which is covered by section 217) and imposes this obligation only on women, the Committee requests the Government to examine the means of guaranteeing equal treatment of men and women in this respect, in accordance with the Convention, either by establishing that medical examinations for physical fitness for employment shall apply to all workers, irrespective of sex, or by limiting - after consultation with the employers' and workers' organisations - physical fitness examinations for women to jobs liable to endanger their health or their ability to bear children.

3. In its report, the Government states that all residents, Dominican nationals or foreigners, enjoy equal rights in respect of access to employment, the various occupations and occupational training, and it refers to certain training schools including the National Institute of Technical and Vocational Training. It adds that there are ample opportunities for admission to such establishments. The Committee takes note of this information and asks the Government to supply particulars of the measures taken to facilitate the access of women to the technical and vocational training provided by these establishments, and to provide statistics, by sex, of the attendance rate at these establishments and of the trades taught.

4. With regard to the public sector, the Government again states that the draft Bill on the civil service and employment in the administration, which is to govern all aspects of employment in this sector, must still go before the National Congress but that, in practice, there is no discrimination as regards appointments and promotions in the public administration. The Committee hopes that this Bill will be enacted in the near future and that it will contain provisions formally prohibiting discrimination in employment in this sector on all the grounds listed in the Convention. The Committee asks the Government to keep it informed of any progress made in this respect and to provide statistics on the number of women employed in the public administration and in state enterprises (including the number of women holding higher level posts) and on the percentage of women as compared to men in the sector.

Observation (CEACR) - adopted 1990, published 77th ILC session (1990)

In its previous observation, the Committee referred to the comments that it has been making for a number of years in connection the Abolition of Forced Labour Convention, 1957 (No. 105) concerning the situation of Dominican workers of Haitian origin employed in the sugar plantations and the enterprises of the State Council for Sugar (CEA) who are the subject of discriminatory practices, particularly with regard to their working conditions and the regular payment of their wages. It requested the Government to provide information on any measures taken or under consideration to abolish such practices and to guarantee effective equality of opportunity and treatment, in accordance with Convention No. 111, in employment and occupation for all Dominican nationals of Haitian origin.

In reply to that observation, the Government referred the Committee to its report on Convention No. 105 containing general information on all Haitian workers engaged in the sugar industry. The Committee has examined this information and the discussions that took place in the Conference Committee in June 1989 on Convention No. 105 and notes, in particular, the measures taken to increase the number of labour inspectors and to step up the work of the labour inspection services in the plantations and the various agricultural undertakings. It also notes that a committee has been set up to examine the possibility of finding humane and legal solutions to the problem of Haitian agricultural workers or agricultural workers of Haitian origin, in general. The Committee asks the Government: (a) to provide details of the results of the work of the inspection services, particularly with regard to Dominican workers of Haitian origin who are engaged not only in the agricultural sector but also in construction or other private sector enterprises; and (b) to provide information on the work of the above-mentioned committee, its recommendations and their implementation. In addition, it again expresses the hope that the revision of the Labour Code, to which the Government has been referring for a number of years, will be completed very shortly, and that the new Code will contain provisions formally prohibiting all discrimination in employment and occupation (particularly in respect of working conditions and wages) on grounds of race, colour, sex, religion, political opinion, national extraction or social origin, in accordance with Article 1, paragraph 1(a), of the Convention.

The Committee also asks the Government to refer to its comments on Convention No. 105, as well as to a request concerning certain points which is being addressed directly to the Government on Convention No. 111.