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 by the Dominican Republic, as well as the report of the direct contacts mission which, at the request of the Government of the Dominican Republic, visited the country from 3 to 21 January 1991. The Committee also notes the Government's report.

The Committee notes with interest the adoption of Decree No. 417/90, of 15 October 1990, respecting the regularisation of the situation of Haitian citizens in the country, the installation of special labour inspection delegations in sugar-cane plantations in order to enforce the terms of employment contracts and ensure that they are strictly observed, and to monitor that the human rights of Haitians workers are respected. Furthermore, the above Decree establishes an obligation on the part of the State Secretariat for Labour to regularly report to the ILO on the observance of the provisions contained in the Decree and on any matter relating to the protection due to these workers.

I. Employment in sugar-cane plantations

In comments that it has been making since 1984, the Committee has drawn attention to the urgent need to take measures to ensure the observance of the Convention in sugar-cane plantations and to end the abuses committed against workers of Haitian origin, in accordance with the recommendations made in 1983 by the Commission of Inquiry set up to examine the observance of the Convention.

In its previous observation, the Committee referred to three groups of measures of priority importance:

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 527 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 of 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 residence status.

The Committee notes section 1 of Decree No. 417/90, by virtue of which:

"The General Directorate of Migration is instructed to continue, with the greatest speed, the work of regularising the presence on our territory of all Haitian nationals and to determine their status as immigrants with temporary residence permits or daily-workers for a fixed period, especially as regards those who work as labourers in the sowing, cultivation, cutting and transport of sugar-cane, and in the bateyes, factories and offices of sugar-cane plantations.

Paragraph.- Persons and other legal entities which use these Haitian citizens as workers, irrespective of the type of work they perform, shall be obliged to register them with the authorities in order to comply with the provisions of the above section. Non-compliance with this obligation shall be punishable with the penalties set out in section 14(b) and (c) of Act No. 95 of 14 April 1939."

The Committee notes that the National Directorate of Migration has taken measures to apply the above Decree, including in particular the organisation of a census of Haitian workers and their families and the preparation of temporary residence permits.

The Committee notes that at the present time it is estimated that some 50,000 thousand Haitians have been registered by the census; this figure is well below the approximate number of Haitians in the Dominican Republic, which is estimated to be more than one million.

The Committee notes that in January work began on the preparation of permits that are to be issued to Haitian citizens who have been registered at the Migration Office on form MH-1 (Haitian Migration), established for this purpose and that the direct contacts mission was able to examine some of these permits, without, at that time, being able to estimate the number of persons who had received such permits. The Committee notes that the permits which have been prepared do not distinguish between temporary and definitive residence.

The Committee notes that Decree No. 417/90 does not refer to the regularisation of the descendants of Haitian citizens who were born in the Dominican Republic.

The Committee has referred in previous comments to the situation of these persons who, by virtue of the law of the Dominican Republic, are Dominican nationals, and to the difficulties encountered by parents of Haitian nationality to register their children born in the Dominican Republic on the Civil Register.

The Committee notes that form MH-1 contains data on the place of birth of the children of registered workers.

The Committee notes the announced intention of the authorities to carry out the census and issue the present permits as a first step which will then make it possible to establish the type of permit that will be issued to persons who have been permanently resident in the country for a long time or who come to work in the sugar-cane harvest, and which will also make it possible to issue documents to persons who were born on the territory of the Dominican Republic.

The Committee requests the Government to state whether subsequent texts have 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 requests the Government to supply information on the process of regularisation that has been launched, and particularly on the results of the census of Haitian population residing in the country and the number of workers who where engaged for the 1990-91 sugar-cane harvest. The Committee also requests the Government to supply information on the number of permits that have been issued, indicating the sector of activity in which those who have obtained permits work.

The Committee requests the Government to supply information on the measures that have 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.

2. The regularisation of the hiring procedure and residence in the country of workers entering the country to work on the sugar-cane harvest (paragraphs 521 and 522). The Committee noted that in so far as the entry of new workers into the country is recognised as being necessary to the operation of the national economy, measures should be taken by the Dominican Government, either within the framework of an inter-governmental agreement or outside it, so that the process operates in an orderly manner and the workers concerned enjoy the necessary safeguards concerning their free choice of employment and their terms and conditions of employment, without the intervention of the armed forces. These measures should include the following:

(a) the determination of the number of workers whose engagement by the various employers would be authorised;

(b) the establishment of placement offices at appropriate locations where such workers seeking employment in the Dominican Republic could be hired for the sugar-cane harvest, and be given a medical examination and issued with the necessary documents (residence and employment permits);

(c) the provision of clear information to the workers concerned on their terms and conditions of employment, by means of individual contracts of employment or a written statement (which should also be available in Creole);

(d) the transportation of the workers to their places of employment.

With reference to the determination of the number of workers whose employment will be authorised and the establishment of placement offices (points (a) and (b)), the Dominican authorities state that there has been an increase in Haitian migration and note the negative impact of this migration, although new workers are required each year to work on the sugar-cane harvest since many of those who arrived in previous years proceed to other sectors of activity which offer better terms and conditions of employment.

The Committee notes that in recent years attempts to conclude an inter-governmental agreement between the Dominican Republic and Haiti on the engagement of Haitian workers for the sugar-cane harvest have failed and that at the present time these workers are engaged directly.

The process of engaging workers for the sugar-cane harvest

In its previous comments, the Committee drew attention to the need to establish placement offices at appropriate locations. In this connection, it notes that four frontier posts have been set up for the engagement of Haitian workers, and that these are located in Pedernales, Jimani, Elias Piña and Dajabón and that officials of the health and migration authorities and of the State Sugar Board (CEA) work together in order to carry out examinations of these workers to detect malaria, to have them fill in the form MH-1 of the General Directorate of Migration, to sign individual employment contracts and to organise their transport to the plantations.

The Committee notes that the use of buses has made it possible to improve the conditions in which the workers are transported to the sugar-cane plantations.

The Committee notes from the report of the direct contacts mission that, through its direct interviews with workers being engaged at the frontier for the sugar-cane harvest, the mission observed that the immense majority of such workers are illegal immigrants who have arrived in the Dominican Republic without identity documents, visas or work permits. Paradoxically, this illegal immigration is carried out in this case with the consent of Dominican authorities and the State Sugar Board.

A. Recruitment in Haiti

The Committee notes the persistence the traditional form of recruitment in Haiti, which is carried out through the intermediary of the so-called "buscones" in return for the payment of a sum of money for each worker recruited.

The Committee notes that although there has been a certain reduction in military involvement in recruitment, the system of seeking workers in Haiti through the so-called "buscones" persists and that it is currently the most important element in the provision of labour to sugar-cane plantations.

The Committee notes the numerous witnesses heard by the direct contacts mission who referred to the deceitful manner (false promises and information as regards wages and other living and working conditions) under which they were recruited in Haiti by so-called "buscones", who in most cases were of Haitian nationality.

The evidence that was gathered all points to the conclusion that the Haitian "buscón" receives a sum of money for each Haitian who is delivered to the CEA's "buscón" at the frontier.

In the military fortress at Jimani, located a couple of kilometers from the frontier post of Malpaso, the direct contacts mission was able to observe that a bus loaded with Haitian workers was being organised by persons dressed as civilians, but who were armed, and who had been responsible for recruitment in Haiti, in some cases 50 kilometers from the frontier, according to the driver. The various types of recruiters, the so-called "buscones", have the power and resources to seek workers in Haiti, where they seem to be able to move freely, which would not appear to be possible without the co-operation of the military authorities in that country, at least those located close to the frontier.

The generalised nature of this system of recruiting workers was confirmed by the testimony of Haitian workers, who were fraudulently persuaded to cross the frontier at Alias Peña, where they waited for one month before being delivered to the CEA's "buscon". Other workers referred to similar cases in Pedernales.

The Committee notes that the activity of the "buscón" is authorised and is currently essential for the engagement of workers and that the "buscones" are given a great deal of independence in the way in which they recruit workers, which leaves room for abuses.

B. Recruitment in the Dominican Republic

"Buscones" are also active in the territory of the Dominican Republic, in various manners. Certain of these persons seek cane-cutters for a sugar-cane plantation, and find them in population centres or in the "bateyes" (living areas) of other plantations, so that workers brought by the CEA have become the objects of trafficking and are displaced towards private plantations or farms. Thus, private employers profit from CEA recruitment without any great cost to themselves and without taking their responsibilities. The same trafficking occurs between different plantations of the State Sugar Board. In order to prevent an exodus of workers to other plantations rural guards have used coercive methods, such as keeping the belongings of the workers (in most cases their clothes) or locking them in when they sleep.

The Committee notes Resolution No. 23/90, of 30 October 1990, of the Secretariat of State for Labour respecting intermediaries in the recruitment of workers, by virtue of which "it is recommended that employers, and in particular employers on sugar-cane plantations, refrain from using intermediaries or from engaging Haitian workers through intermediaries, particularly for temporary work in the national sugar-cane industry; they are urged to engage such workers directly, through public offers of employment brought to the knowledge of those concerned by the press or other means, thus ascertaining the freedom of the worker to accept the employment offered and to sign a written contract setting out his rights and obligations and his ability to return to his country of origin".

The Committee also notes the open attitude shown by the CEA authorities, according to the report of the direct contacts mission, concerning the problems that were raised with regard with the current methods of engaging workers.

The Committee notes, nevertheless, that in most cases workers continue to be engaged by the fraudulent means used by intermediaries known as "buscones" to induce Haitians to work on the sugar-cane harvest. It also notes that the CEA continues to pay intermediaries and observes that these recruitment practices have implications and repercussions that cannot be considered part of a free employment relationship.

The Committee requests 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 requests the Government to supply information on developments in the situation as regards the conclusion of an inter-governmental agreement with the Republic of Haiti on the engagement of Haitian workers for the sugar-cane harvest.

With regard to contracts of employment (point (c)), the Committee notes section 2 of Decree No. 417/90, under the terms of which:

"The Secretariat of State for Labour shall establish special labour inspection delegations in all sugar-cane plantations with the objective, inter alia, of enforcing an employment contract, drawn up in Spanish and the language of the worker, in which shall be set out the amount and system of payment of the wages, the hours of work, the rest days, social security, the maximum work-week, the regulations governing the work that may be performed by children over 14 years of age, bonuses and other incentives, and all relevant rights accorded by national law and by the international Conventions and resolutions to which the Republic has subscribed, as well as the conditions in which the work is to be performed.

Paragraph 1. The above contract shall explicitly set out the right of the workers to resign, and thereby to rescind the contract that has been signed, and to move to another workplace or to their country of origin."

The Committee notes the model employment contracts drawn up by the CEA and the Central Romana Corporation Limited, both of which are written in Spanish and Creole. It also notes from the report of the direct contacts mission, that the process of issuing contracts is being carried gradually, that not all the workers interviewed had signed contracts, and that some of those who had believed that these were residence permits.

The Committee also notes that, by virtue of Decree No. 417/90, the State Secretariat for Labour reported that 18 inspectors had been appointed to the labour inspection delegations provided for in the Decree, and that guidelines were issued on 31 December 1990 for their activities.

The Committee notes the information contained in the report of the direct contacts mission concerning the effect that is given in practice to the provisions concerning wages, hours of work, and other conditions of employment of workers employed on sugar-cane plantations. With regard to wages, the Committee refers to its comments in relation to the application of the Protection of Wages Convention, 1949 (No. 95). The Committee notes that hours of work continue to be excessive and that social security is almost non-existent. Despite the fact that contributions are deducted from wages, most workers receive no pension in their old age or, if they do receive a pension, its level does not enable them to subsist. In the event of sickness, the workers receive no medical care or medicaments.

The Committee requests the Government to supply information on the application of section 2 of Decree No. 417/90 as regards employment contracts and the supervision carried out by the special labour inspection delegations. The Committee requests the Government to supply a copy of the inspection reports made during the 1990-91 sugar-cane harvest, including data on the number of contracts that were concluded for the 1990-91 harvest and the effect given in practice to the terms of the contracts, the number and nature of the violations that have been reported and the penalties imposed.

3. Protection by the competent authorities of the rights and freedoms of workers. The Committee had requested the Government to take the necessary measures to:

(a) prevent by all the means at its disposal the recurrence of round-ups of persons for work in plantations and enforce the application of appropriate sanctions to those responsible.

In its previous comments, the Committee referred to coercive methods of recruitment used through round-ups during the course of the sugar-cane harvest in order to compensate for the lack of workers for the harvest.

The Committee notes that round-ups are no longer used systematically and generally, and that the cases that were reported in the 1989-90 and 1990-91 harvests were isolated ones.

The Committee notes, with reference to the freedom to resign set out explicitly in section 2 (1) of Decree No. 417/90, that many of the workers interviewed stated that in order to prevent workers transferring to other "bateyes", the rural guards kept their belongings (generally their clothing) thereby obliging the workers to remain in the plantation or lose their belongings if they decided to leave. They also stated that, on occasion, if it is suspected that a worker wishes to leave, he is locked in while sleeping. The Committee also notes that during the harvest, military check-points on roads check the occupants of buses in order to find Haitian citizens, who are made to pay in order to be able to continue their journey, irrespective of whether they are returning to Haiti or travelling in the Dominican Republic. This practice forms part of the system of extortion known as "macuteo" through which workers are stripped of the cash and goods that they carry with them.

(b) The Committee also 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 clear intention shown by the authorities to recognise the application of labour legislation without distinction on grounds of nationality. Nevertheless, various trade union organisations informed the direct contacts mission that foreign nationality had been used to deny the registration of a number of agricultural trade union organisations.

(c) The measures that were requested also included the setting up, in addition, in "bateyes" of the CEA and in private plantations, of civil administration structures such as exist in other population centres.

The Committee notes that the Consuelo Plantation has been declared to be a municipal district, which has make it possible to establish a court to examine cases of violation of penal legislation. The Committee hopes that the Government will take measures towards the recognition of "bateyes" (living areas of plantations) as territorial divisions so that public authorities protect the rights of workers and their families in plantations.

Living conditions in "bateyes"

In paragraph 512 of its report, the Commission of Inquiry referred to the need for the Dominican sugar industry to recruit large numbers of Haitian workers, notwithstanding high unemployment among the country's own rural population, and indicated that this was due in large measure to the low remuneration and poor conditions of work and life on many of the plantations concerned. The Commission added that it is against this background that various measures contrary to the Conventions on forced labour have been taken, both to retain workers on the plantations for the duration of the harvest and, at times of labour shortage, to take workers there against their will.

The Commission stressed the need to pursue a policy aimed at the humanisation of conditions on the plantations, which finds expression, inter alia, in material improvements.

The Committee notes that section 5 of Decree No. 417/90 provides that:

"The national Government, and in particular the State Sugar Board and private enterprises in the sugar industry, in so far as permitted by the available resources, shall continue to carry out, on an increasingly broad scale, programmes in the fields of health, education, food, social security, electrical energy, drinking water and housing for all the workers in the country and particularly for those who work in the cane-fields, "bateyes" and factories of plantations."

The Committee notes that the CEA has initiated some programmes to improve a number of the problems referred to above. It notes, however, that in general the living, health and safety conditions continue to be very bad in the "bateyes".

The Committee requests the Government to report any measure that is taken to improve the living conditions in sugar-cane plantations.

Period between harvests

In paragraph 516 of its report, the Commission of Inquiry recommended that land be set aside on state plantations for cultivation by workers, thus enabling them to supplement their earnings and to meet subsistence needs outside the harvesting period.

The Committee notes that during the low period between harvests, the situation of workers residing on plantations worsens considerably due to lack of earnings. Various workers who were heard by the direct contacts mission referred to the hunger suffered by workers and their families during the months of the low period between harvests. The Committee notes that the Government has not followed up the recommendation to place at the workers' disposal small parcels of land for subsistence crops. The Committee notes that, according to the testimony heard by the direct contacts mission, workers who in their need grow small crops on the lands of the plantations have their produce taken from them by the plantation authorities and, in some cases, the crops are destroyed.

The Committee requests the Goverment to take the necessary measures to give effect to the recommendation that land for cultivation be placed at the disposal of workers who remain on plantations during the periods between the harvests.

The Committee notes with interest the legal and administrative measures that have been taken pursuant to the various recommendations made by the Commission of Inquiry and the comments of the Committee of Experts and which may lead in practice to substantial progress in improving the situation of Haitian workers. The Committee also notes the improvements that have resulted from the demilitarisation of "bateyes", the reduction in the number of round-ups and the use of better means of transport.

The Committee notes nevertheless that there remain problems that merit energetic and sustained action by the authorities. The Committee requests the Government to supply information on the measures that are taken to supplement and make more effective current activities in relation to the regularisation of the situation of Haitian workers who come to the country to work on the sugar-cane harvest, of those who are permanently resident in the country and of the descendants of Haitian citizens who were born in the Dominican Republic, and also to regularise the procedures for the engagement of workers. The Committee also requests the Government to provide information on any measure that has been taken to enforce the terms of employment contracts and the rights and freedoms of workers, particularly as regards their freedom of movement, respect for their physical and moral integrity, and their freedom to terminate the employment relationship, as well as the application of the labour legislation under conditions of equality.

II. Other matters

Article 1(c) of the Convention. The Committee referred in previous comments to Act No. 3143, of 11 December 1951, as amended by Act No. 5225 of 1959, under which workers who have not completed their work on the agreed day or in the established time-limits, when they have been paid in advance for such work, are punishable by prison sentences involving compulsory labour.

In its report the Government states that "the national authorities have examined measures to resolve labour disputes occurring in relation to the above Act by administrative or judicial means".

The Committee requests the Government, in order to avoid any ambiguity as regards the application of Act No. 3143, to take the necessary measures to repeal or amend the Act and to report on the progress achieved to this effect.

Article 1 (d). In its previous comments the Committee referred to sections 370, 373, 374, 378 (paragraph 16) and 679 (paragraph 3) of the Labour Code, under which sentences of imprisonment involving compulsory labour may be imposed for participation in strikes. The Government stated in one of its previous reports that the necessary measures had been taken to amend or repeal these sections. The Committee hopes that the above provisions will be amended or repealed as soon as possible so as so ensure that full effect is given to the Convention in this respect.