2007 Annual Survey of violations of trade union rights - Haiti
|Publisher||International Trade Union Confederation|
|Publication Date||9 June 2007|
|Cite as||International Trade Union Confederation, 2007 Annual Survey of violations of trade union rights - Haiti, 9 June 2007, available at: http://www.refworld.org/docid/4c52ca2cc.html [accessed 9 October 2015]|
ILO Core Conventions Ratified: 29 – 87 – 98 – 100 – 105 – 111
Haiti's difficult political and economic situation continued to provide an excuse for little to be done to ensure the respect of trade union rights, which have little protection in law. Despite the stated desire of the new government to harmonise legislation with the ILO's fundamental standards, no steps had been taken to that effect by the end of the year.
In the export processing zone of Ouanaminthe, the management of the CODEVI factory refused to recognise the union's outgoing executive committee, preferring to bolster a minority group.
Trade union rights in law
Restrictive labour code: The 1987 Constitution provides for freedom of association and the right to strike in all sectors. The Labour Code, which mainly covers the private sector, dates back to the Duvalier dictatorship and is very restrictive. It excludes many categories of workers, such as domestic employees and miners from its coverage, and prevents foreign workers from holding trade union leadership posts.
Only ten members are needed to form a union. Once it is formed, a union must inform the employer of its existence and provide the name of at least one of the leaders. However, Article 236 of the Penal Code requires prior authorisation by the government for the establishment of any association comprising more than 20 people, if the latter is to obtain government recognition. Article 51 of the Labour Code explicitly bans dismissal of workers on account of their union activities. However, it does not provide for the reinstatement of trade unionists who have been unfairly dismissed. Also, the legislation contains no provisions protecting workers against anti-union discrimination on recruitment.
Civil servants, agricultural workers, freelance workers and workers in the informal economy are not covered by the Labour Code.
Collective bargaining: The Labour Code does not oblige employers to meet or negotiate with trade union organisations.
A decree dating back to 4 November 1983 allows the Department for Labour and Social Welfare the authority to intervene in the drafting of collective agreements.
Dispute resolution: The Labour Code stipulates that parties must try to resolve their differences by using mediation, conciliation and arbitration processes under the auspices of the Ministry for Social Affairs and Employment. Disputes are submitted to the Labour Directorate and if agreement cannot be reached, they then go to a tripartite Arbitration Committee. If no agreement is reached, a tripartite Consultation and Arbitration Committee gives a final ruling on the dispute.
In practice, it is not possible to appeal against the Committee's rulings. Several labour lawyers have pointed out the dangerous effects of these arrangements. They argue the creation of a new jurisdiction "outside" the legal system increases the chances of contradictions between the law and the judicial role played by the Committee, in resolving labour disputes.
The law also provides for the existence of an industrial tribunal, the task of which is supposed to be to resolve conflicts resulting from violations of provisions in the Labour Code. However, the tribunal is not competent to rule on labour disputes arising in the public sector.
Restriction on the right to strike: The right to strike is recognised by the Labour Code, but with restrictions. The Code defines three types of strike. Any strike that does not fit one of those definitions is considered illegal. Once a strike has been deemed illegal, the workers may be sacked for breaking their contracts – after three days' absence. The parties in a dispute must take steps towards conciliation prior to calling a strike. A 48 hour notice period is compulsory and strikes may not exceed one day.
Strikes are illegal in public sector enterprises. Mediation is the only method available for resolving conflicts. If strikes occur, the Code allows the State to intervene and use force in order to re-open the enterprise.
Promise by the new government: For several years now consideration has been given to reforming Haitian legislation in line with ILO standards on trade union rights. In March the newly-elected government undertook to take the measures needed to protect workers against any form of anti-union discrimination and any form of interference in trade unions' internal affairs. It promised to make provisions for promoting the development of the widest possible use of voluntary bargaining procedures and to amend the legal measures that allow the government powers to control trade unions, impose compulsory arbitration at the request of only one of the parties to a dispute and exclude a whole series of workers from the scope of application of the labour code. However, by the end of the year none of those promises had been acted on.
Trade union rights in practice
Employers abuse rights: In practice, the right to organise and collective bargaining are virtually non-existent. As a result of political chaos, a climate of violence, record unemployment rate and the complicity of a weak State, employers have enjoyed absolute freedom. In most cases, employers set wages unilaterally. Working conditions are generally disgraceful and do not meet sanitary and safety standards. On the pretext that Haitians are willing to work at any price, employers regularly behave abusively by making general reductions in wages and even ignoring the minimum wage enshrined in national legislation. Many workers are employed without contracts and are unaware of the existence of the Labour Code. Occasionally, workers do not even know the name of the company they are working for and so are unable to protect their rights. As a result, those people trying to organise workers in a union are constantly harassed or dismissed, generally in breach of labour legislation. To prevent workers from joining unions, employers give bonuses to those who are not union members.
Failings of governments: Successive governments have taken no concrete measures to enforce the law. The Minister of Justice and Public Security under the Aristide administration even told representatives of an international trade union mission that visited Haiti in February 2005, that teachers and journalists in Haiti "should not be allowed" to join trade unions. Corruption within the administration has continued to constitute a barrier for trade unionists when attempting to get their organisations registered.
Like its predecessors, the new government has failed to respond to the urgent appeals by the Committee on Freedom of Association regarding a complaint filed in 2004 by the CSH and the ICFTU concerning various anti-union practices. Once again it turned up at the International Labour Conference without having nominated a workers' representative.
Employer impunity: Despite a provision in the Labour Code, the government has never fined an employer for interference in a union's internal affairs. Enquiries into abuses committed against trade unionists rarely produce results.
Mediation is virtually non-existent: Workers' organisations have been questioning the work of the Tripartite Committee. Since the cases submitted to it are never resolved, the Committee has failed in its task of helping to create a regulatory environment that encourages workers to take their disputes to it.
The industrial tribunals system is completely dysfunctional. Trials are rarely fair, judges are poorly trained and deadlines are not respected. Using a lawyer is often prohibitively expensive. Sometimes lawyers flatly refuse to defend someone if they are offered too little money. As a result, workers hardly ever use industrial tribunals.
Ineffective labour inspectorates: The labour inspectorates, charged with enforcing legislation, are often short-staffed, poorly equipped and badly trained, or even directly threatened by employers. A report by the American Center for International Labor Solidarity (ACILS/AFL-CIO) in 2003, showed that inspectors often fail to understand their role and enforce their authority. An inadequate budget is a problem, together with a lack of political will on the part of successive governments.
Right to strike restricted: As the law makes it virtually impossible to hold strikes legally, workers often hesitate to exercise this right, particularly owing to the required notice period.
Nevertheless, despite the ban against their doing so, public service workers have exercised the right to strike.
Industrial zones and export processing zones: The CODEVI (Industrial Development Company) free trade zone was set up in Ouanaminthe, on the border with the Dominican Republic, under the management of the clothing group Grupo M in August 2003. The company, based in the Dominican Republic, built the plant using a $20 million loan from the International Finance Corporation (IFC) – the World Bank's private sector lending arm. The loan was conditional on the company's respect for freedom of association and the right to collective bargaining. However, workers' rights were regularly abused and attempts to form a union met with dismissals, including the mass dismissal of 350 workers in June 2004. That situation now appears to have changed. Further to a national and international campaign, the workers have been reinstated, the union has been recognised and a collective agreement was signed at the end of 2005.
The five industrial parks in and around the Haitian capital strongly resemble the majority of EPZs in the Americas in terms of trade union rights. The only real difference is their name and the fact that they offer investors few fiscal incentives. Trade unions are not welcome and organisers face intimidation.
The garment workers, mainly women aged 25 to 35, are pushed by poverty into accepting wages of between €2 and €3.50 a day, three times lower than in the neighbouring Dominican Republic.
International Finance Corporation: international agreement on respect of trade union rights achieved by Haitian pilot project in the Ouanaminthe EPZ: On 21 February 2006, the International Finance Corporation, the branch of the World Bank responsible for making loans to the private sector, adopted a rule whereby the granting of loans was made conditional on performance in terms of labour rights and working conditions, thereby forcing companies to comply with international labour standards, preventing any use of forced labour, child labour or discriminatory practices, and requiring respect of all trade union rights.
That regulation was based on a proposal by the ICFTU to make a loan to the Dominican textile company Grupo M, for setting up a production unit in the Ouanaminthe EPZ, conditional on the company's respect of fundamental labour standards. Following several months of collective action, the regulation helped lead to the signing in December 2005 by the union SOKOWA and the CODEVI factory of a first, historic collective agreement providing for wage increases and improvements in working conditions.
Violations in 2006
Background: On 7 February, following several delays, the Presidential elections were held against a background of relative calm, thereby ending a transitional period. They resulted in the unchallenged election of René Préval. Despite the presence of a "stabilisation force", violent struggles resulted between rival gangs and political groups, which have undermined human rights and good governance in the country.
Refusal to reinstate a union treasurer fired by brewery: Although the dismissal of Semeran Philome, the trade union treasurer of the union at the "La Couronne" brewery who had been sacked at the end of 2005 for alleged assault of a worker, was deemed illegal by the Social Affairs Ministry, the management had taken no steps to reinstate him by the end of 2006. At a meeting with the leaders of the trade union federation Premier Mai Batay Ouvriye, the employers stated that the international solidarity campaign led by Batay Ouvriye had spoilt the chances of the union treasurer being reinstated.
Interference in the union elections of SOKOWA coupled with threats: Following an internal conflict in the union SOKOWA based on the results of the union elections held in April, the management of the CODEVI factory refused to recognise the outgoing executive committee, preferring to support a minority group. As the employers chose not to negotiate with the legitimate representatives, working conditions worsened and many workers were sacked. Thanks to the intervention of the Social Affairs Ministry in May, an agreement was reached between the trade union factions, however the management continued to refuse to meet the members of the executive committee and threatened to sack them all. In June, following a stoppage by the workforce, the management threatened to close down the factory and to sack the 700 employees, repeatedly blaming all the problems on Batay Ouvriye.