Demande directe (CEACR) - adoptée 2021, publiée 110ème session CIT (2022)

Convention (n° 111) concernant la discrimination (emploi et profession), 1958 - Haïti (Ratification: 1976)

Autre commentaire sur C111

Observation

2002

Demande directe

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The Committee notes with deep concern that the Government’s report, due since 2013, has not been received. In light of the urgent appeal made to the Government in 2019, the Committee proceeds with the examination of the application of the Convention on the basis of the information at its disposal.

The Committee recalls that, following its general observation of 2017 on the failure of Haiti to comply with its reporting obligations on the application of ratified Conventions for the fifth consecutive year and the conclusions of the Committee on the Application of Standards of the Conference in 2018, it noted the Government’s letter received on 30 October 2018, in which it requested ILO technical assistance to help in the provision of the reports due, reinforce the inspection services and consolidate social dialogue for the continuation of social reforms. The Committee notes in this regard that an ILO Coordination Office in Haiti is working on these matters in cooperation with the tripartite constituents. The Committee also notes the observations of the Confederation of Public and Private Sector Workers (CTSP), received on 29 August 2018 and reiterated on 1 September 2019, the observations of the Trade Union Federation of Haiti (CSH), received on 1 September 2018, and the observations of the Association of Haitian Industries (ADIH), emphasizing that it is for the Government to provide information on progress in the work of revising the Labour Code, received on 31 August 2018. The Committee requested the Government to provide its comments in this regard and notes that they have not been sent.

Article 1 of the Convention. Legislation prohibiting discrimination in employment and occupation. The Committee recalls that section 3 of the Labour Code provides for equality of all workers before the law and for the abolition of any form of discrimination, and that section 50 provides that any termination of an employment contract on the basis of the worker’s opinions, trade union or religious activities, membership of an authorized social, literary, political, artistic or sporting association, or sex or race, shall be deemed to constitute wrongful dismissal. The Committee recalls that these general provisions are not sufficient to address all the grounds of discrimination prohibited under Article 1 of the Convention. The Committee also notes that the reform of the Labour Code has been ongoing for over ten years, in collaboration with the Office, and notes that the current situation in the country does not appear to permit its adoption in the near future. While recognizing the difficult situation in the country, the Committee requests the Government to provide information on the progress made in the revision of the Labour Code and to ensure that it includes provisions applicable to all workers defining and explicitly prohibiting all direct and indirect discrimination in all aspects of employment and occupation, and covering at least all the grounds of discrimination listed in Article 1(1)(a) of the Convention, namely race, colour, sex, religion, political opinion, national extraction and social origin.

Article 1(1)(a). Discrimination on the basis of sex. Pregnancy. The Committee notes that, in its 2018 observations, reiterated in 2019, the CTSP indicates that many women teachers and other women personnel working in Catholic and Protestant schools or in “other institutions” are victims of termination of employment on grounds of pregnancy and that those who become pregnant outside marriage or in the context of a civil marriage are purely and simply dismissed or their appointments revoked. The Committee recalls that distinctions in employment and occupation “based on pregnancy of maternity are discriminatory, as they can only, by definition, affect women.” It also recalls that not all “distinctions, exclusions and preferences are deemed to be discrimination within the meaning of the Convention. These include: (i) measures based on the inherent requirements of a particular job (Article 1(2) of the Convention); … and (iii) special measures designed for protection and assistance (Article 5 of the Convention)” (2012 General Survey on the fundamental Conventions, paragraphs 784 and 826-831). In this regard, the Committee emphasizes that the exception to the principle of equality envisaged in Article 1(2) concerning the inherent requirements of a particular job must be interpreted restrictively and must be applied only if the fact of not being pregnant is an essential condition to perform the specific job or exercise the occupation. With regard to the protection measures envisaged in Article 5 which would allow pregnant women to be removed from a job or an occupation during pregnancy, they must be strictly limited to jobs or occupations the exercise of which involves a risk to the health of the future child and/or mother. The Committee requests the Government to provide information in response to the allegations of discrimination on the basis of pregnancy against women teachers and personnel in religious and other institutions made by the CTSP. The Committee requests the Government to examine these allegations in light of the fundamental principle of equality and, if necessary, to take specific measures, including measures to raise the awareness of the institutions concerned of the principles of equality and non-discrimination, in collaboration with workers’ and employers’ organizations, with a view to preventing discrimination in employment and occupation, and particularly the termination of the employment of pregnant women.

Sexual harassment. The Committee recalls that the Labour Code that is currently in force does not contain any provisions respecting sexual harassment. It notes the allegation by the CTSP that practices of sexual harassment are becoming more common. While reiterating its concern at the absence of a Government report, the Committee takes due note of the following positive developments: the adoption of the new Penal Code, the entry into force of which is envisaged in 2022, and the inclusion in the Penal Code of provisions respecting both quid pro quo and hostile working environment harassment. It notes that section 307 defines harassment as “the imposition on a person, repeatedly, of remarks or behaviour with a sexual connotation which undermine their dignity by reason of their degrading or humiliating nature and create an intimidating, hostile or offensive situation for them” and provides that they shall be punishable by imprisonment for six months to one year and a fine of between 10,000 and 25,000 gourde (HTG), or one of these penalties. With regard to the definition of sexual harassment contained in the Penal Code, the Committee wishes to draw the Government’s attention to the fact that the requirement for acts to be committed repeatedly could have the effect of limiting the protection of workers against sexual harassment. It also recalls that it considers that addressing sexual harassment only through criminal proceedings is normally not sufficient for its elimination due to the sensitivity of the issue and the higher burden of proof, which is harder to meet, especially if there are no witnesses (which is often the case) (2012 General Survey, paragraph 792). It also wishes to emphasize that what is important is the dissuasive and accessible nature of the penalties and their effectiveness, irrespective of whether they are set out in criminal, labour, civil or administrative law. Within the context of the reform of the Labour Code, the Committee requests the Government to examine the possibility of including provisions defining and prohibiting quid pro quo and hostile working environment sexual harassment and of providing remedies, compensation and appropriate sanctions. It also requests the Government to review the definition contained in the Penal Code in order to eliminate the requirement for acts to be repeated to constitute sexual harassment. While awaiting the adoption of the new Labour Code, the Government is also requested to take measures without delay to: (i) inform and raise the awareness of public and private employers with a view to the prevention and elimination of sexual harassment in employment and occupation; and (ii) inform men and women workers and employers, and their organizations, of their respective rights and duties in this regard in the public and private sectors. The Committee further requests the Government to provide information on the action taken by employers in response to any recommendations by the labour inspection services in this regard, as well as information on any complaints dealt with by the competent authorities.

Discrimination on the basis of religion. The Committee notes the allegations of the CTSP according to which practitioners of voodoo are subject to discrimination at work by reason of their religion and cannot work in certain institutions. The Committee recalls that the Convention “aims to provide protection against religious discrimination in employment and occupation, which often arises as a result of … intolerance towards persons of a particular faith [or] a different faith”. “The expression and manifestation of religion is also protected.” It also recalls that measures “to promote tolerance and coexistence among religious … minorities and awareness-raising on the existing legislation prohibiting discrimination are therefore essential to achieving the objectives of the Convention.” Recalling that Article 1(2) of the Convention relating to the inherent requirements of a particular job envisages an exception to the principle of equality, the Committee emphasizes that this exception must be interpreted restrictively and applied only where the fact of practicing or not practicing a religion is an essential prerequisite for the performance of the specific job or the exercise of the occupation (2012 General Survey, paragraphs 798-801 and 826-831). The Committee requests the Government to provide information in response to the allegations of discrimination on grounds of religion made by the CTSP. The Committee requests the Government to examine these allegations in light of the fundamental principle of equality and, if necessary, to take specific measures, including measures to raise the awareness of the institutions concerned, in collaboration with workers’ and employers’ organizations, with a view to preventing religious discrimination in employment and occupation.

National extraction and access to the public service. The Committee recalls that, following the Constitutional amendment of 2012, the restriction of access to the public service for persons who are not of Haitian origin (article 12(2)) was removed. However, it notes that the new version of article 12 of the Constitution refers in general terms to “privileges reserved for persons of Haitian origin”. The Committee also notes that the preliminary draft text of the new Constitution, published in January 2021, no longer contains this reference and that the draft text was due to be submitted to a referendum during the course of 2021. The Committee notes the allegations of the CTSP that, more generally, access to employment in the public administration is not based on merit. According to the CTSP, while the Human Resources Management Office (OMRH) is indeed beginning to hold competitions for the recruitment of certain managerial personnel in the public service, recruitment competitions are almost no longer held in State and government bodies. The CTSP also alleges that the salaries of personnel in the administration are not based on any objective criteria, but on the social origin, economic and political background or other criteria for each worker. The Committee requests the Government to provide information on the adoption of the new Constitution and to indicate whether the requirement of national extraction for access to the public service has indeed been repealed. It also requests the Government to provide information on the requirements for access to the public service and the remedies available, with an indication of the applicable legal framework, and on recruitment procedures in practice.

General observation of 2018. With reference to the above points, and in more general terms, the Committee wishes to draw the Government’s attention to its general observation on discrimination on grounds of race, colour and national extraction adopted in 2018. In this general observation, the Committee notes with concern that discriminatory attitudes and stereotypes based on the race, colour or national extraction of men and women workers continue to hinder their participation in education, vocational training programmes and access to a wider range of employment opportunities, resulting in persisting occupational segregation and lower remuneration received for work of equal value. The Committee therefore considers that it is necessary to adopt a comprehensive and coordinated approach to addressing the obstacles and barriers faced by persons in employment and occupation because of their race, colour or national extraction, and to promote equality of opportunity and treatment for all. Such an approach should include the adoption of interlocking measures aimed at addressing gaps in education, training and skills, providing unbiased vocational guidance, recognizing and validating the qualifications obtained abroad, and valuing and recognizing traditional knowledge and skills that may be relevant both to accessing and advancing in employment and to engaging in an occupation. The Committee also recalls that, in order to be effective, these measures must include specific measures, such as laws, policies, programmes, mechanisms and participatory processes, remedies designed to address prejudices and stereotypes and to promote mutual understanding and tolerance among all sections of the population. The Committee draws the Government’s attention to its general observation of 2018 and requests it to provide information in reply to the questions contained in that observation.

Articles 1and 2. Discrimination on the basis of sexual orientation and gender identity. The Committee notes the CTSP’s allegation that, once adopted, the Bill on reputation and the certificate of good life and morals, already approved by the Senate, with have the effect of preventing lesbian, gay, bisexual, transgender, queer and intersex persons (LGBTQI) from gaining access to employment, and particularly public employment, and to university. According to the CTSP, under the terms of the Bill, the certificate of good life and morals, which will be indispensable to work in the public administration and many enterprises, could be denied to LGBTQI persons, thereby aggravating the discrimination to which they are already subject in practice in employment and occupation. The Committee requests the Government to review the provisions of the Bill on reputation and the certificate of good life and morals in light of their potential effects on the access of LGBTQI persons to employment and higher education. It also requests the Government to provide information on any cases of discrimination on the basis of sexual orientation in employment and occupation that come to its knowledge.

Article 2. Policy of non-discrimination and equality. Gender equality. The Committee notes that it does not have recent information on the implementation of a gender equality policy. It notes the CTSP’s observation that there is no public policy on gender equality in employment and occupation, even though the quota of 30 per cent women imposed by the Constitution (article 17(1)) represents progress. The Committee notes that, in the report entitled “Replies of Haiti to the list of issues in relation to its second periodic report” provided to the United Nations Human Rights Committee, the Government indicates that: “In December 2019, with the support of [UNWomen], the Ministry for the Status of Women and Women’s Rights held a workshop on discriminatory Haitian laws in order to present the strategy put in place to ensure the equality of women and girls before the law by 2030” (CCPR/C/HTI/RQ/2, of 30 September 2020, paragraph 26). The Committee also notes that, in its concluding observations of 2016, the United Nations Committee on the Elimination of Discrimination against Women (CEDAW) notes with concern that women “are concentrated in the informal sector in non-skilled and low-paid jobs, where they are not covered by social protection and often face sexual harassment; … Women face high unemployment rates, persistent horizontal and vertical segregation in the labour market as well as a gender wage gap, particularly in the private sector”. In this regard, the Committee notes the observations of the Trade Union Federation of Haiti, which indicates that there is no discrimination in Haiti, but refers to “female occupations” and “male occupations” for cultural reasons and emphasizes the need to resolve this through formal and informal education. In its concluding observations, the CEDAW also noted with concern the “lack of congruence between the vocational subjects pursued by girls at the National Institute for Vocational Training and labour market needs” (CEDAW/C/HTI/CO/8-9, of 9 March 2016, paragraphs 31(b) and (c) and 29(e)). The Committee requests the Government to provide information on the outcome of the workshop on discriminatory laws held in December 2019, with an indication of the legal provisions identified and the measures envisaged for their repeal, and the “strategy to ensure the equality of women and girls before the law by 2030”. Recalling that the implementation of a genuine equality policy presupposes the adoption of a range of specific measures, which generally include a combination of legislative and administrative measures, collective agreements, public policies, affirmative action measures, dispute resolution and enforcement mechanisms, specialized bodies, practical programmes and awareness-raising, the Committee once again requests the Government to provide information on the measures adopted for the implementation of such a policy for men and women in employment and occupation, and particularly measures to improve the access of women to salaried employment and self-employed economic activities, and to combat sexist stereotypes and prejudices concerning their aspirations, capacities and vocational aptitudes. It once again requests the Government to provide information on any measures taken, particularly in rural areas, to promote the enrolment and maintenance of girls at school and in vocational training subjects, including in subjects that are traditionally followed by boys and in subjects that are matched to the needs of the labour market.

Domestic work. The Committee recalls that the Domestic Work Act, adopted in May 2009, amends section 257 of the Labour Code to extend the rights of domestic workers, especially with regard to holidays and rest days, and to ensure that they are covered by the provisions of sections 316 et seq. of the Labour Code respecting the work of women (gender equality, equal pay for work of equal value, and maternity protection). The Committee notes that, according to the information provided by the ILO Coordinator in Haiti, the 2009 Act had still not been promulgated or published in 2020 (see the ILO information letter on Haiti, No. 6, June 2020). It also notes that, according to the CTSP, the Inter-Union Commission of Haitian Women (CISFH) has undertaken a campaign for the ratification of the Domestic Workers Convention, 2011 (No. 189), and the Social Security (Minimum Standards) Convention, 1952 (No. 102), and that in so doing it has raised the awareness of many actors concerning the issue of the rights of men and women domestic workers. The Committee requests the Government to take the necessary measures without delay for the entry into force of the provisions of the Domestic Work Act and for their incorporation into the current Labour Code. It also requests the Government to indicate the measures adopted to raise the awareness of men and women workers and employers, and their respective organizations, labour inspectors and magistrates concerning the rights of domestic workers in accordance with the provisions that have been adopted. The Government is also requested to provide information on any complaints made by men or women domestic workers that have been dealt with by the competent authorities and their outcome.

Persons with disabilities. The Committee notes the CTSP’s allegation that the Act of 11 May 2012 on the integration of persons with disabilities, which is intended to promote the employment of persons with disabilities in public administrations in Haiti, is not applied in practice and the Secretariat of State for the Integration of Persons with Disabilities does not have an adequate budget or the political support necessary to discharge its mission. The Committee notes that, in its concluding observations of 2018, the United Nations Committee on the Rights of Persons with Disabilities noted with concern the “extremely low level of employment of persons with disabilities in the public and private sectors, resulting in a higher rate of poverty among persons with disabilities” and the “lack of a designated body for monitoring and sanctioning non-compliance with labour quotas in both the public and private sector [and] the absence of specific measures to improve the employment of persons with disabilities in the public and private sectors” (CRPD/C/HTI/CO/1, of 13 April 2018, paragraph 48(b) and (c)). The Committee requests the Government to provide information on the measures adopted for the implementation of the Act of 2012 for the integration of persons with disabilities in employment and occupation and the promotion of their labour market integration.