Observación (CEACR) - Adopción: 1992, Publicación: 79ª reunión CIT (1992)

The Committee notes the discussion in the Conference Committee in 1991 concerning the application of Conventions Nos. 95 and 105 by the Dominican Republic, and the report of the mediation mission to the Dominican Republic and Haiti from 10-23 August 1991. The Committee also notes the Government's report.

In its previous observation, the Committee noted the legislative and administrative measures that had been taken, with regard to the matters raised in the various recommendations made by the Commission of Inquiry and the comments of the Committee of Experts, with a view to improving the situation of Haitian workers.

The Committee requested the Government to supply information on the other measures that had been taken to supplement and give effect to the measures which had been adopted respecting the regularisation of the situation of Haitian workers who came to the country to work in the sugar-cane harvest, those who were permanently resident in the country and the descendants of Haitian citizens born in the Dominican Republic as well as the regularisation of the hiring procedure. The Committee also requested the Government to supply information on any measure taken to ensure observance of the terms of employment contracts and of the rights and freedoms of the workers, especially as regards their freedom of movement, their physical safety and moral well-being and their freedom to terminate their employment relationship, as well as their coverage on equal terms by the labour legislation.

1. The regularisation of the status of Haitians who have lived and worked in the country for a given period of time and the issue of identity papers to persons born in the Dominican Republic (paragraph 527 of the report of the Commission of Inquiry). In paragraph 525 of its report, which was published in 1983, the ILO Commission of Inquiry indicated that it is not legitimate for a State to leave in a status of illegality workers whose employment it accepts as necessary to the functioning of the economy, all the more so when they are employed in undertakings belonging to the State. The Commission of Inquiry made recommendations to resolve the situation in view of the fact that many of the violations of international Conventions in question are due to the fact that most of the Haitian workers in the Dominican Republic have no legal status.

The Committee noted in its previous observation that under section 1 of Decree No. 417/90, the General Directorate of Migration was made responsible for the work of regularising the presence of Haitian nationals.

The Committee requested the Government to state whether subsequent texts had been issued to clarify the terms of Decree No. 417/90 respecting the process of regularising the status of the Haitian population resident in the country, especially with regard to the criteria used to regularise their status and the various types of permits issued.

The Committee also requested the Government to supply information on the process of regularisation that had been commenced, and particularly on the results of the census of Haitian population residing in the country and the number of workers who were engaged for the 1990-91 sugar-cane harvest, as well as on the number of permits issued, indicating the sector of activity in which those who obtained permits worked.

Furthermore, the Committee requested the Government to supply information on the measures that had been taken to issue documents to regularise the situation of the descendants of Haitians, who are generally known as "Dominican-Haitians", who were born in the Dominican Republic.

The Committee notes that the Government refers in its report to the provisions of the draft Labour Code respecting the permits that have to be issued by the authorities for work in agro-industrial enterprises. The Committee notes that, according to the data supplied by the Goverment, the census of Haitians in cane-growing areas showed that over 100,000 Haitians were present in those regions and that the number of cane-cutters engaged under contract for the sugar-cane harvest of 1990-91 was 14,597. The Committee notes that, in the report transmitted in May 1991, the Government stated that up to that month the situation of 36,109 persons had been regularised and that 55,799 names were included on the list for the purposes of registration. Documents were being issued for 28,289 persons, while 9,252 children of Haitian nationals had been registered.

The Committee notes the information contained in the report of the mediation mission to the Governments of the Dominican Republic and Haiti, from 10-23 August 1991, according to which, with reference to the regularisation of Haitians, Decree No. 233/91 was adopted on 13 June 1991 by the President of the Republic ordering "the repatriation, at the expense of the State and in the best conditions, of foreigners under 16 years of age who had been working in the cultivation, cutting and transport of sugar-cane, as well as of persons over 60 years of age resident in state or privately-owned "bateyes" following payment of their work".

The Committee notes that, according to the mission's report, repatriation was carried out in an indiscriminate manner, in spite of the fact that the Decree referred only to persons under 16 years of age and over 60 years of age, whose repatriation, moreover in the latter case, would not appear to be justified since they had worked for many years in the Dominican Republic and were, in some cases, pensioners. According to the report, men and women of all ages, including persons born in the Dominican Republic, who either possessed residence permits or had no papers, but who had been in the country for a number of years, were also repatriated. This information was confirmed to the mission by Dominican trade union leaders and non-governmental organisations.

The Committee notes that, according to the mission's report, the adoption of the Decree 233/91 gave rise to violent round-ups and repatriation accompanied, in many cases, by violations of human and employment-related rights. The mission observed the efforts made by the Secretary of State for Labour to moderate the effects of the repatriation measures, although his efforts were obstructed by emigration officials who were only concerned with filling the weekly quota of around 200 repatriations. The Committee notes that, according to the report, the Director of Migration would not receive the mission.

The Committee notes that the mission found that the adoption of Decree No. 233 interrupted the beginnings of the process of the regularisation of the status of Haitian residents in the Dominican Republic, which had commenced under Decree No. 417/90.

The Committee requests the Government to supply information on the application of Decree No. 417/90 in which reference is made to the regularisation of the status of Haitians who have lived and worked in the country for a certain period and the issue of identity documents to persons who were born in the Dominican Republic. The Committee also requests the Government to supply information on the cases to which it refers in its report of persons whose status has been regularised, indicating the sector of activity in which the persons concerned worked.

2. The hiring procedure. The Committee requested the Government to supply information on the measures that have been taken to put an end to the illegal practices which still persist in the engagement of workers for the sugar-cane harvest, and on the results obtained regarding the application of the recommendations set out in Resolution No. 23/90 of the Secretariat of State for Labour on the use of intermediaries in the engagement of workers. The Committee also requested the Government to supply information on developments in the situation as regards the conclusion of an intergovernmental agreement with the Republic of Haiti on the engagement of Haitian workers for the sugar-cane harvest.

The Committee notes the provisions of the draft Labour Code, and particularly section 148, under which the use of intermediaries or the intervention of military personnel is prohibited in the hiring, transport or recruitment of foreign workers for the sugar industry. The same section provides that the contract of employment must establish the worker's right to unilaterally terminate the contract, to the payment of the full remuneration due in cash and in person to the worker, and the statutory minimum wage. It also provides that the contract must contain guarantees for the weighing of the sugar-cane, recognition of the right of freedom of association and the protection of the social security legislation. The Government adds that up to now no agreement has been concluded with the Republic of Haiti concerning the hiring of Haitian workers for sugar-cane cutting. It refers to the ILO mediation meeting, which initiated negotiations between the Government of Haiti and the Dominican Republic and states that the events in Haiti have made it difficult to continue the negotiations. It also states that, with regard to the hiring of sugar-cane workers, new hiring systems should be introduced for the 1991-92 sugar-cane harvest.

The Committee requests the Government to supply information on the above systems of hiring introduced for the last harvest (1991-92) and to continue supplying the reports of the relevant inspection services containing data on the effect given in practice to the terms of contracts, the number and type of contraventions reported and the sanctions imposed. The Committee also requests the Government to supply information on the situation regarding hiring in plantations which do not belong to the State Sugar Board (CEA).

In addition, the Committee requests the Government to provide information on the progress made in adopting the Labour Code.

3. Protection by the competent authorities of the rights and freedoms of workers. The Committee requested the Government to take measures to ensure that labour legislation is applied to sugar-cane workers, in accordance with Basic Principle III of the Labour Code, under which labour legislation is of a territorial nature and applied to citizens of the Dominican Republic and aliens without distinction.

The Committee notes the information supplied by the Government concerning the registration on 7 May 1991 of the Trade Union of Cane-Cutters of the Barahona Plantation, which is largely composed of Haitian cane-cutters and whose Secretary-General is of Haitian nationality. It also states that some of the officers of the Ozama Plantation Trade Union are of Haitian nationality.

The Committee also requested that measures be taken to set up, in addition, in "bateyes" of the CEA and in private plantations, civil administration structures such as exist in other population centres.

The Committee notes that the division of the national territory is the responsibility of the National Congress and that "bateyes" are located in municipalities in which justices of the peace are responsible for administering justice in relation to civil, penal and labour matters.

The Committee requests the Government to indicate whether other "bateyes", in addition to the Consuelo plantation, have been declared municipal districts and to supply information on any other measure taken to protect the rights of workers and their families in plantations.