Observación (CEACR) - Adopción: 1991, Publicación: 78ª reunión CIT (1991)

The Committee notes the discussion in the Conference Committee in 1990 on the application of Conventions Nos. 95 and 105 and the Government's report. It also notes the comments on the application of Convention No. 95 made by the Independent Workers Confederation (CIT) in October 1990, a copy of which was transmitted to the Government so that it could make the observations that it considered appropriate. The Committee notes that the Government has not yet made observations in this respect.

The Committee also notes the report of the direct contacts mission which visited the country from 3 to 21 January 1991 at the request of the Government.

The Committee also refers to its comments under Convention No. 105.

A. Adoption of legislation to give effect to Convention No. 95

In the comments that the Committee has been making for a number of years, it has drawn attention to the need to adopt legislative measures to give effect to Articles 2, 3, 5, 6, 8 (paragraph 2), 10, 13 (paragraph 2), 14 and 15(b), of the Convention. The Committee notes that, with the few exceptions referred to below, the Government has not taken the measures that were requested. In paragraph 543 of the report that it made in 1983, the Commission of Inquiry on the employment of Haitian workers on the sugar plantations of the Dominican Republic also draws attention to the need for legislative changes to ensure the observance of the Convention, particularly in order to prohibit wage payments in the form of negotiable vouchers, to require the payment of wages directly to the worker, to establish a general prohibition for employers to limit the freedom of the worker to dispose of his wages, to regulate the assignment of wages and to provide for information of workers regarding the conditions governing their wages and deductions from wages.

B. Protection of wages in sugar plantations

1. Measures to guarantee observance of the statutory minimum wage. In its previous comments, the Committee requested the Government to take the necessary measures to ensure that all workers employed in plantations are paid the statutory minimum wage, and it requested the Government to supply information on any adjustment of the minimum wage in agriculture and on the rates for the cutting and transport of sugar-cane.

The Committee notes that, in Resolution No. 2/90 of 28 September 1990, the National Wages Commission established for agricultural workers employed in any activity a minimum wage of RD$24.00 for a working day of eight hours, which would be proportionally increased or decreased where the working day is longer or shorter than eight hours.

The Committee notes circular No. 007 of the State Sugar Board (CEA) on rates of pay for cultivating and harvesting for the 1990-91 sugar-cane harvest, which set the rate for cane-cutters at RD$16.00 per tonne for unauthorised burnt cane with a bonus of RD$2.00 per tonne for green cane, to be paid against the corresponding receipts, thereby raising the pay to RD$18.00 per tonne.

The Committee notes with interest the increase in the above rates and the information contained in the report of the direct contacts mission that the new rates for the cutting and transport of sugar-cane improve the chances of a greater number of cane-cutters earning the statutory minimum wage, although it also notes that the increase, while significant, is lower than the increase in the cost of living.

The recommendations contained in paragraphs 533 to 536 of the report of the Commission of Inquiry set plantation administrations the task of guaranteeing the statutory minimum wage to all workers, irrespective of their output, for a working day of eight hours, with a proportional increase for longer hours of work, but without any deduction for periods in which workers who are employed on a regular basis are prevented from working as a result of factors which are not imputable to them. This would require the adoption of more uniform and regular working hours for cane-cutters, including the establishment of a reasonable limit on working hours.

The Committee notes that cane-cutters must cut a minimum of 1.5 tonnes of sugar-cane every day, at the rate of RD$16.00 (the rate per tonne), in order to obtain the statutory minimum wage of RD$24.00, as established for agricultural workers. Sources close to the workers and some of the workers who were consulted during the direct contacts mission stated that the output of cane-cutters depends largely on the quantity and quality of the cane that they are assigned to cut and the efficiency of the transporter in taking the cane to be weighed. Under normal conditions, a cane-cutter can achieve the output that is necessary to earn the minimum wage, although it is frequently the case, particularly in certain plantations, that daily output is decreased by restrictions on cutting that are imposed by the plantation, by the low quality of the cane, by environmental or health problems or by delays by the transporter in taking the cane to the point where it is weighed. Furthermore, cane-cutters are not given paid weekly rest days and therefore need to work all the days of the week. In certain cases the remuneration of cane-cutters is in fact the result of the work of various persons, partly because cane-cutters help each other to load the cane and send in one load the cane that has been cut by two of them, who therefore share the pay, and partly because in certain cases the cane-cutter is assisted by members of his family, women and children, who do not appear in the enterprise's list of workers.

The Committee requests the Government to supply information on the wages that were actually paid to workers during the 1990-91 sugar-cane harvest and to supply, for example, extracts of the payrolls of various state or private plantations, including information on the measures that have been taken to ensure that cane-cutters are paid the minimum wage for an eight-hour day.

2. Weighing the sugar-cane. In its previous comments, the Committee also referred to the recommendation made by the Commission of Inquiry in paragraph 537 of its report, that more effective measures should be taken to ensure the accuracy of the weighing of cane since cheating over the weighing of cane has been described as one of the most serious abuses suffered by cane-cutters.

The Committee notes that, according to the report of the direct contacts mission, many of those who were interviewed agreed that irregularities in the weighing of cane continued to exist and that they were generally perpetrated by weighers for their own benefit, and that the direct contacts mission was able to observe that in some cases cane-cutters were not present at the moment of weighing.

The Committee notes that in the "La Romana" a procedure has been introduced whereby cane-cutters are recompensed in proportion to the difference in weight between two weighings of the cane, if the first weighing is unknowingly imprecise.

The Committee notes that section 2 of Decree 417/90 provides that the special labour inspection delegations set up in plantations shall ensure the application of the terms of the contract of employment concluded by the worker.

The Committee requests the Government to supply information on the measures that have been taken to ensure that workers can monitor the weighing operation through their own representatives. It also requested the Government to supply copies of reports of the inspection services concerning the monitoring of weighing operations, any violations that are reported and the penalties that are imposed in state plantations and in plantations that do not belong to the CEA.

3. Articles 3 and 7 (Payment of wages in cash and enterprise stores). In paragraph 538 of its report, the Commission of Inquiry recommended that the practice of permitting the negotiation of wage tickets by workers in favour of third parties be discontinued and that, instead, arrangements be instituted to enable the workers to receive cash advances, as was already the case in "La Romana". There would be no objection to allowing workers to cash their wage tickets at stores to be established on the state-owned plantations in collaboration with the Price Stabilisation Institute, on the understanding that this would take the form of an advanced payment of wages by the employer to the worker and would be without any deduction or discount.

The Committee notes from the report of the direct contacts mission that, in CEA plantations, the "Casa Vicini", and in private plantations, cane-cutters continue to receive a chit when the cane is weighed, on which the tonnes and corresponding value are marked. Cane-cutters should receive their wages in cash every fortnight upon presentation of their chits. Nevertheless, because they have no savings, workers do not wait for payday but are obliged to exchange their chits for food in the private stores ("colmados") that exist in each "batey" (living area of plantations), or for cash from money-lenders, and that in each case there is a high discount. Subsequently, the persons who have been given the chits present them to the enterprise for payment, so that it may be said that in practice these chits, on which the amounts of cane that has been cut and delivered are marked, become a means for the payment of wages and circulate as negotiable papers in the "batey", as previously noted by the ILO supervisory bodies. The CEA authorities stated that the stores set up by the Price Stabilisation Institute (INESPRE), which exist in certain "bateyes", are a partial solution to prevent deductions in "colmados", but recognise that it would be difficult to cash the cane-cutters' chits more frequently.

The Committee notes that the Government refers in its report to the plantations of "La Romana" in which there are sales points for essential products for the workers. The Committee notes that the report of the direct contacts mission corroborates this statement. The Committee also notes that in CEA plantations the programme of agricultural diversification and social assistance has not been extended.

The Committee hopes that the Government and the CEA will take the necessary measures to ensure that the system for the payment of wages prevents the extortion of a proportion of the wages by private individuals through the negotiation of chits and, it also hopes that information will be supplied on the implementation of the agricultural diversification and social assistance programmes.

4. Article 14 (Workers' information). The Committee notes that the CEA circulars on rates of pay were adopted at the end of November 1990 and have been publicised through various media, including the radio, so that many of the persons interviewed by the direct contacts mission knew of these circulars, even though there appeared to be a certain confusion over some of the details of Circular No. 007 in which the rates of pay are set down.

The Committee notes that workers who arrive at the harvest for the first time are not in possession of precise information concerning the conditions governing their wages, since they have sometimes not concluded a contract, and even if they have done so, many of them are illiterate and do not understand the terms of the contract.

The Committee requests the Government to supply information on any measure that is taken to ensure that all workers are informed of the conditions in respect of their wages.

C. Enforcement

In paragraph 544 of its report, the Commission of Inquiry pointed out the need for effective administrative services for the enforcement of legislation in order to ensure that effect is given to ratified international labour Conventions. In relation to the employment of workers on Dominican plantations, the primary responsibility for ensuring such enforcement must rest with the Government of the Dominican Republic. The Commission of Inquiry recommended that labour inspection services of the Secretariat of State for Labour be developed so as to be an effective instrument for ensuring observance of labour laws and of the workers' rights on the plantations.

The Committee notes with interest that Decree no. 417/90 of 15 November 1990, provides in section 2 for the establishment of special labour inspection delegations responsible for implementing employment contracts and ensuring that their terms are strictly applied.

The Committee requests the Government to supply copies of labour inspection reports for the 1990-91 harvest containing information on the effect given in practice to provisions respecting the level and procedure for the payment of wages.

With regard to the protection of wages, the Committee notes that the system of remuneration of cane-cutters does not guarantee that the workers receive the minimum wage for a working day of eight hours. Furthermore, even though in some cases there have been improvements in the system for weighing cane, workers and their organisations continue to make frequent complaints, at least in certain plantations, concerning the fraudulent weighing of sugar-cane, with the additional disadvantage that, by reason of the form in which wages are paid, workers have to negotiate their chits, vouchers or receipts for the work performed in order to obtain cash for which they pay high rates of interest or in order to purchase goods at the store ("colmado") of the "batey", for which they also have to pay a higher price.

The Committee requests the Government to re-examine in the light of the Convention the procedures for determining and paying wages. It also requests the Government to examine the possibility of associating workers' organisations and other social organisations with the monitoring of the weighing of sugar-cane so that this process is more transparent. Finally, the Committee hopes that programmes to sell food at low prices such as those undertaken by the INESPRE and "La Romana", and programmes for allotting parcels of land to families to grow crops, will be continued with greater energy.

The Committee requests the Government to supply information on the points raised above.

D. The Committee notes the comments made by the Independent Workers Confederation (CIT) in which it alleges that the rights set out in the Convention have been violated. The Committee requests the Government to make observations in this respect.

The Committee refers to its comments on this matter under Convention No. 87, as follows:

The Committee notes the Government's report, the numerous documents attached to it and the written information transmitted to the Conference Committee in June 1990. It also notes the comments made by the Independent Workers Confederation (CTI) dated 19 October 1990.

1. Trade union rights in free trade zones

With reference to its previous comment, the Committee notes that, according to the Government, the trade union rights of workers employed in free trade zones in the country are guaranteed by the Labour Code and other labour legislation. It also notes the Government's statement that there is no discrimination in law or practice as regards the establishment, registration and operation of trade union organisations on condition that the formalities set out in the law are respected. However, in its comments, the CTI indicates - as had already in previous comments the General Workers' Confederation (CGT) and the "Classistas" Confederation of Workers - that in practice trade union rights are not respected in view of the violence carried out against workers, the dismissal of activists and the refusal to register organisations.

Referring to the documents transmitted by the Government, the Committee notes that between 1987 and 1989 three applications to register trade unions in free trade zones were made to the authorities, but that they were refused under section 349 of the Labour Code on the ground of non-conformity with the legal procedures. Furthermore, the Committee notes from the same sources that only five trade unions are registered in all the free trade zones in the country (which cover around 200 companies), in contrast with the registration of 84 trade unions, ten federations and one confederation, as reported by the Government, for the rest of the country during the years 1989-90.

The Committee notes the low rate of unionisation of the workers employed in free trade zones compared with the figures provided for the rest of the country and requests the Government to supply information on the reasons underlying this situation. It requests the Government in particular to supply information on the nature of the formalities which were not respected by trade unions whose applications for registration were refused and on the practical obstacles which may be encountered by workers in the establishment of organisations.

2. Workers in agricultural enterprises employing no more than ten workers

As regards these workers, who are excluded from the Labour Code under the terms of section 265, the Government points out that this provision is not an obstacle to their unionisation since any occupational or trade union has to have at least 20 members to be legally constituted. The Government adds that, although this provision has not yet been amended, it is still its firm intention to repeal or amend it and that this should be done during the next session of the legislature. The Committee requests the Government to indicate any progress made in this regard.

3. Public officials and other workers and technicians in the public sector

The Committee also notes that the situation as regards these workers has not changed. However, the Government states that measures are currently being examined in order to include personnel of this type within the scope of the Labour Code and to modify the provisions of Act No. 56 of 24 November 1965, Act No. 520 respecting non-profit making associations and Act No. 2059 of 22 July 1949, which contain important restrictions on the trade union rights which these workers should enjoy (prohibition of all trade union propaganda within public or municipal administrations and autonomous institutions of the State, and the administrative dissolution of the associations established by public officials).

4. Restrictions on the right to strike

The Committee once again notes the Government's statement that this question is also undergoing an examination which should result in amendment of the provisions of the Labour Code limiting this right (section 371 which bans strikes in services which are not essential in the strict sense of the term; section 373, and section 1(2) of Act No. 5915, which prohibit sympathy strikes; section 374 which lays down the obligation to obtain too high a majority in a strike vote; and section 376 respecting compulsory arbitration).

In addition, the Committee refers to the conclusions reached by the Committee on Freedom of Association in Case No. 1549 (277th Report, February-March 1991) and draws the Government's attention to the need to ensure that when strikes are limited or prohibited in essential services - namely, those whose interruption would endanger the life, personal safety or health of the whole or part of the population - the workers benefit from compensatory procedures for the settlement of disputes and the presentation of their demands.

In view of the above, the Committee is bound to point out that the serious divergencies between the national legislation and the provisions of the Convention have been the subject of its comments for many years without any change in the situation. The Committee therefore urges the Government to take measures in the near future to bring its legislation into conformity with the Convention and requests the Government to supply information in its next report on the progress made in these fields.