Observation (CEACR) - adoptée 2009, publiée 99ème session CIT (2010)

The Committee notes the observations of the International Trade Union Confederation (ITUC), dated 29 August 2008 and 26 August 2009, concerning matters already raised by the Committee in its previous observation, in particular the difficulties in exercising trade union rights in the context of an economic and social crisis, ineffective dispute resolution mechanisms and difficulties in exercising the right to strike. In general, the Committee recalls that, while the State has a duty to promote and defend a social climate where respect of the law reigns as the only way of guaranteeing respect for and protection of life, the development of free and independent organizations and negotiation with all those involved in social dialogue is at the same time indispensable to enable a government to confront its social and economic problems and resolve them in the best interests of the workers and the nation. The Committee requests the Government to provide its comments on the matters raised by the ITUC.

Amendment of the legislation. The Committee recalls that it has been asking the Government for many years to amend the national legislation to bring it into conformity with the requirements of the Convention through:

–           the amendment of section 34 of the Decree of 4 November 1983 which gives the Government broad powers of supervision over trade unions;

–           the amendment of sections 185, 190, 199, 200 and 206 of the Labour Code, which allow for compulsory arbitration at the request of only one party to a labour dispute;

–           the amendment of sections 233 and 239 of the Labour Code so as to remove the impediments to the right of association of minors and to allow foreign workers to have access to trade union office, at least after a reasonable period of residence in the country; and

–           the repeal or amendment of section 236 of the Penal Code, under which government consent is required for the establishment of an association of over 20 members. In this regard, the Committee previously recalled that, under Article 2 of the Convention, workers and employers, without distinction whatsoever, shall have the right to establish organizations of their own choosing without previous authorization. Consequently, any legislation which requires prior approval at the discretion of the authorities of the statutes and by-laws of representative organizations of workers or employers is incompatible with the provisions of the Convention.

The Committee notes that the Government’s report mentions the establishment of a committee to consider a reform of the Labour Code with a view to amending the legal framework. The Government also indicates that the revision of the Labour Code will take into account the Committee’s comments on the various matters raised and that, to that end, it is already benefiting from technical assistance from the Office. Finally, the Government indicates that the right of association of minors is in fact now recognized since the ratification by Haiti of the international Convention on the Rights of the Child and will be incorporated into law and that section 236 of the Penal Code is not in fact applied but the Secretariat of State responsible for judicial reform will amend this section of the Penal Code in the context of modernizing the legal texts. The Committee notes the Government’s statements concerning the legislative amendments currently being made. While it is aware of the difficulties that the country is currently facing, the Committee hopes that the Government’s next report will indicate tangible progress in the revision of the national legislation to bring it into full conformity with the Convention on all the points raised. The Committee hopes that the Government will continue to benefit from the technical assistance provided by the Office in this regard and requests it to send a copy of any new text adopted.

The Committee previously requested the Government to take all the necessary measures to ensure that domestic workers and rural workers explicitly benefit from the right to organize. In its report, the Government indicates that workers in the rural sector benefit from the same trade union rights as those in the commercial sector and industry under section 383 of the Labour Code. With regard to domestic workers, a law on the improvement of the living conditions of this category of workers has already been approved by parliament and will be promulgated soon. The Committee notes this information and requests the Government to send a copy of the new law concerning domestic workers once promulgated and to indicate the provisions which recognize the right of these workers to exercise trade union rights in accordance with the Convention.

Finally, the Committee repeats its request to the Government to provide a copy of the Decree of 17 July 2005 amending the 1982 Act issuing the conditions of service in the public service.