2009 Annual Survey of violations of trade union rights - Haiti
|Publisher||International Trade Union Confederation|
|Publication Date||11 June 2009|
|Cite as||International Trade Union Confederation, 2009 Annual Survey of violations of trade union rights - Haiti, 11 June 2009, available at: http://www.refworld.org/docid/4c52cae832.html [accessed 30 July 2015]|
ILO Core Conventions Ratified: 29 – 87 – 98 – 100 – 105 – 111
Again in 2008, no specific progress regarding trade union rights was reported in Haiti. Although the right to organise is guaranteed by law, enforcement of trade union rights remains difficult. Political instability was fuelled by the consequences of the worldwide food crisis and natural disasters. Anti-union practices including dismissals and persecution of trade unionists continue to be common.
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. In addition, 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.
Trade union rights in practice and violations in 2008
Background: 2008 was a difficult year for Haiti. The human rights situation remains precarious, and poverty and starvation are on the rise. The country was successively hit hard by the worldwide food crisis and by a series of hurricanes and tropical storms – this in a context of political instability. On 12 April, soaring rice and other staples prices provoked the removal from office, via a parliamentary no-confidence vote, of the Prime Minister, Jacques Edouard Alexis, in office since 2006. During the riots, five persons were killed and 200 injured. There were also clashes with United Nations peacekeepers as well as protests against the UN stabilisation mission in Haiti (MINUSTAH) in place since 2004. Three Sri Lankan soldiers were shot and one Nigerian police officer killed on 12 April. Michèle Duvivier Pierre-Louis was nominated as Prime Minister in June. Furthermore, from August to September, Haiti was devastated by a succession of storms causing severe damage to food production. Finally, overall security remains an issue with a high level of weapon ownership in the country. At the end of December, on the 18th anniversary of Jean-Bertrand Aristide's first election as president, there were demonstrations in two of Haiti's main cities, demanding the return of the exiled former president.
No strengthening of trade union rights: 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. 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.
Labour inspectorates are ineffective: charged with enforcing legislation, they 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.
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.