2008 Annual Survey of violations of trade union rights - Haiti
|Publisher||International Trade Union Confederation|
|Publication Date||20 November 2008|
|Cite as||International Trade Union Confederation, 2008 Annual Survey of violations of trade union rights - Haiti, 20 November 2008, available at: http://www.refworld.org/docid/4c52ca8c32.html [accessed 2 August 2014]|
|Disclaimer||This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.|
ILO Core Conventions Ratified: 29 – 87 – 98 – 100 – 105 – 111
There has been no progress regarding trade union rights. Collective bargaining continues to be virtually non existent. The Branord brewery was persistent in its anti-union practices, dismissing union members and ultimately closing down. Trade union organisations critical of the government and opposed to the presence of UN troops feel persecuted.
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, 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 the 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; it only establishes the right to compensation. 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 gives 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 to the dangers 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.
Government fails to honour commitment: For several years now, consideration has been given to reforming Haitian legislation in line with ILO standards on trade union rights. The new government has, however, failed to honour its commitment to implement these reforms.
Trade union rights in practice and Violations in 2007
Background: The year 2007 was René Preval's second year in government following the end of the two-year provisional government (2004-2006). The UN stabilisation mission in Haiti (MINUSTAH) also completed its third year and entered its fourth. The social and economic situation in Haiti remains precarious and state institutions continue to be fragile and deficient. The so-called "stabilisation mission", along with the national police, pursued a policy of arresting suspects without warrants on a massive scale and using excessive force against civilians, claiming numerous lives. The trade unions and civil society organisations continued with the international campaign for the removal of UN troops from the country.
No strengthening of trade union rights: Although the right to organise is guaranteed by law, trade union rights and collective bargaining are virtually non-existent in practice. As a result of the political chaos, a climate of violence, record unemployment and the complicity of a weak State, employers have enjoyed absolute freedom. As a result, those trying to organise workers in a union are constantly harassed or dismissed, generally in breach of the labour legislation. The government does little to enforce the law.
To prevent workers from joining unions, employers give bonuses to those who are not union members.
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.
When the tribunals do pronounce in favour of the workers, their rulings are not implemented.
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. The problem lies not only in the lack of funding but also the lack of political will.
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. There were two major strikes in 2007, by telephone company workers and public transport workers.
Progress thanks to IFC clause on respect for trade union rights: On 21 February 2006, the International Finance Corporation, the branch of the World Bank responsible for loans to the private sector, adopted a clause whereby the granting of loans is conditional on performance in terms of labour rights and working conditions. Thanks to this clause, an agreement was signed between the SOKOWA union and CODEVI, the company managing the Ouanaminthe Export Processing Zone. The trade union leaders reported that the union made some progress in 2007 in terms of achieving greater recognition from the company and reasonable relations with the management, but that many of the key decisions, such as those on wages, were still taken without consulting the unions.
Brewery dismisses unionists then closes down following unionisation: On 5 February, the union presented the management of the Branord brewery with the provisional documentation issued by the Ministry for Social Affairs and Employment legally authorising its operation. Shortly afterwards, the union's treasurer was dismissed, followed by another 45 workers, all members of the union.
In mid March, Branord closed down, leaving all the staff out of work and without formally notifying the Ministry of Labour.
Trade union leaders threatened and intimidated: On 18 July, the national union centre Bataille Ouvrière reported that it had been threatened and intimidated after receiving a visit from Brazilian trade unionists, who held various meetings with workers to discuss the military occupation and the exploitation in the country.
The day following the visit in Cap-Haïtien, a group of approximately 10 bandits, armed with knives, sticks and pistols went to the local union office and shouted insults. They attempted to enter the premises, and on failing to do so they threatened to take reprisals against the trade unionists present.
In Port-au-Prince, on the day following the meeting organised by workers from Bataille Ouvrière in Cité Soleil for the same purpose, two MINUSTAH cars parked in front of the union headquarters.