Section 7. Worker Rights
a. Freedom of Association and the Right to Collective Bargaining
Labor relations are established and regulated by a special provision of the 1961 labor code as revised in 1984. The code provides for the right of some workers, excluding public-sector employees, to form and join unions of their choice and strike, with restrictions. The code allows for collective bargaining and requires employers to conclude a collective contract with a union if that union represents two-thirds of the workers and requests a contract. Strikes are legal provided they are approved by at least one-third of a company’s workers. The code prohibits firing workers based on union activities, and employers are subject to a monetary fine for each individual violation. The code does not, however, require employers to reinstate workers illegally fired for union activity, although illegally fired workers have the right to recoup any compensation to which they are entitled.
The code places several restrictions on workers’ rights. It requires that any union obtain prior authorization from the government to be recognized. The code limits legal strikes to four types: striking while remaining at post, striking without abandoning the institution, walking out and abandoning the institution, and striking in solidarity with another strike. Public utility service workers and public-sector enterprise workers may not strike. The code defines public utility service employees as essential workers who “cannot suspend their activities without causing serious harm to public health and security.” A 48-hour notice period is compulsory for all strikes, and strikes may not exceed one day. Some groups were able to strike despite these restrictions by being present at their workplace but refusing to work. Furthermore, the law allows for compulsory arbitration at the request of only one party to halt a strike. The code does not cover freelance workers or workers in the informal economy.
The government made efforts to enforce labor laws, although its efforts were not fully effective. Government officials, unions, and factory-level affiliates also continued to expand their dialogue. Labor courts, which function under the supervision of the Ministry of Social Affairs and Labor, are responsible for adjudicating private-sector workplace conflicts. There is one labor court in Port-au-Prince. Outside of Port-au-Prince, plaintiffs have the legal option to use municipal courts for labor disputes. The code requires ministry mediation before filing cases with the labor court. In the case of a labor dispute, the ministry conducts an investigation to determine the nature and causes of the matter and facilitate a resolution. In the absence of a mutually agreed-upon resolution, the matter is referred to court.
During the year the labor ombudsperson for the apparel sector and the Ministry of Social Affairs and Labor provided mediation services to workers and employers in Port-au-Prince, Caracol Industrial Park, and Ouanaminthe. Due to limited capacity and procedural delays in forwarding cases from the Ministry of Social Affairs and Labor to the courts, the mediation services of the apparel sector’s labor ombudsperson and the conciliation services of the ministry were often the only official recourse for workers’ grievances regarding better pay and working conditions. The labor ombudsperson intervened to improve relationships between employers, workers, and trade union organizations, either upon formal request by workers, unions, or employers’ representatives, or based on observations by the International Labor Organization’s (ILO) Better Work Haiti (BWH) program. The Office of the Ombudsperson used different methods, including telephone conversations, exchange meetings, factory visits and meetings, and advisory support.
The penalty under the code for interference with union activities is 1,000 to 3,000 HTG ($14.40 to $43.20). The fines were not sufficient to deter violations, and authorities did not impose or collect them. During the year the government required some factories to remedy labor violations, including violations related to freedom of association.
Antiunion discrimination persisted, although to a lesser extent than in previous years. Workers continued to report acts of suspension, termination, and other retaliation by employers on the grounds of legitimate trade union activities, membership, collective action, and other associational activity.
There were strikes and other work stoppages in the apparel sector during the year, including disruptions in several facilities in Port-au-Prince and the North and Northeast departments as workers launched demonstrations prior to and following the announcement of the new minimum wage in October.
The ILO and International Finance Corporation’s BWH program noted incidents of employer interference in union activity.
b. Prohibition of Forced or Compulsory Labor
The law prohibits all forms of forced or compulsory labor; however, the government did not effectively enforce the law in all sectors of the economy. The labor ombudsperson, however, did not record any instances of intimidation or employer abuse. Penalties for violations of forced labor laws range from 1,000 to 3,000 HTG ($14.40 to $43.20) but were insufficient to deter violations.
There were reports that forced or compulsory labor occurred, specifically, instances of forced labor among child domestics, or restaveks (see section 7.c.). Children in the following situations were vulnerable to forced labor: private and NGO-sponsored residential care centers; workers in construction, agriculture, fisheries, domestic work, and street vending; IDPs, including those displaced by Hurricane Matthew and the 2010 earthquake; members of female-headed, single-parent, or large families; and LGBTI youth often left homeless and stigmatized by their families and society (see section 7.c.).
Also see the Department of State’s Trafficking in Persons Report at www.state.gov/j/tip/rls/tiprpt/.
c. Prohibition of Child Labor and Minimum Age for Employment
The minimum age for employment in industrial, agricultural, or commercial companies is 15 years. The minimum age for work outside of these three sectors is 14, although children 12 and older may work for up to three hours per day outside of school hours in family enterprises, under supervision from the Ministry of Social Affairs and Labor. The law allows children age 14 to be contracted apprentices; children 14 to 16 may not work as apprentices more than 25 hours a week. A September 2017 amendment to the labor code stated that it is illegal to employ children under the age of 16; however, it was unclear whether this provision would supersede the older statues that create the sectoral exceptions mentioned above.
The law prohibits young persons and children from performing any work that is likely to be hazardous; interferes with their education; or is harmful to their physical, mental, spiritual, moral, or social health and development, including the use of children in criminal activities. The law also prohibits minors from working under dangerous or hazardous conditions, such as mining, construction, or sanitation services, and it prohibits night work in industrial enterprises for minors under 18. The September 2017 amendment doubles penalties for employing underage children at night. Prohibitions related to hazardous work, however, omit major economic sectors, including agriculture. No apparel factories were reported noncompliant with respect to child labor during the year. A report by the ILO’s BWH for the period of October 2017 to October 2018, however, found two cases of noncompliance for child labor because two factories failed to request proper identification for some workers during the hiring process.
There are no legal penalties for employing children in domestic labor. The law requires employers to pay domestic workers over age 15, thereby allowing employers of domestic workers to use “food and shelter” as a means of unregulated compensation for those under 15.
Persons between the ages of 15 and 18 seeking employment must obtain a work authorization from the Ministry of Social Affairs and Labor unless they are employed in domestic service. The labor code provides for penalties for failure to follow procedures, such as obtaining work authorization to employ minors between 15 and 18 legally, but it does not provide penalties for the employment of underage children. The limited penalties of between 3,000 and 5,000 HTG ($43 to $72) were not sufficient deterrents to protect children against labor exploitation.
The Ministry of Social Affairs and Labor, through the IBESR, is responsible for enforcing child labor laws. While enduring resource constraints hindered the IBESR’s ability to conduct effective child labor investigations, the IBESR and the BPM responded to reports of abuse in homes and orphanages where children worked. The government does not report on investigations into child labor law violations or the penalties imposed. Although the government and international donors allocated supplemental funds for the IBESR to acquire a new administrative space and hire more staff, the IBESR continued to lack sufficient social protection programs and effective legislation to eliminate the worst forms of child labor.
New members were appointed to the National Tripartite Committee against Child Labor, which included civil society actors, unions, and employers to address the issue of child labor and discuss the challenges associated with implementing new laws on child labor. As of September the committee had failed to meet due to lack of cohesion among labor union representatives.
The BPM is responsible for investigating crimes against children and referred exploited and abused children to the IBESR and partner NGOs for social services. Although the BPM has the authority to respond to allegations of abuse and apprehend persons reported as exploiters of child domestic workers, the BPM did not pursue restavek cases for investigation because there are no legal penalties it could impose on those who exploited children in these cases. A law with specific protections for child trafficking victims does not exist.
Children under age 15 commonly worked in the informal sector to supplement family income. Activities and sectors in which children worked included domestic work, subsistence agriculture, and street trades, such as selling goods, washing cars, serving as porters in public markets and bus stations, and begging. Children also worked with parents on small family farms, although the high unemployment rate among adults kept significant numbers of children from employment on commercial farms.
The worst forms of child labor, including forced child labor, continued to be problematic and endemic–particularly in domestic service. Exploitation of restaveks typically included families forcing them to work excessive hours on physically demanding tasks without commensurate pay or adequate food, refusing to provide an education, and subjecting them to physical or sexual abuse. Girls were often placed in domestic servitude in private urban homes by parents who were unable to provide for them, while boys more frequently were exploited for labor on farms. Restaveks who did not run away from families usually remained with them until the age of 14. Many families forced restaveks to leave before age 15 to avoid paying them wages as required by law. Others ignored the law, often with impunity.
Working on the streets exposed children to a variety of hazards, including severe weather, vehicle accidents, and crime. Abandoned and runaway restaveks constituted a significant proportion of the population of children living on the street, many of whom criminal gangs exploited in prostitution or street crime, while others became street vendors or beggars.
d. Discrimination with Respect to Employment and Occupation
The constitution provides for freedom of work for all citizens and prohibits discrimination based on sex, origin, religion, opinion, or marital status. For public-sector employment, the constitution sets a minimum quota of 30 percent for women. The labor code does not define employment discrimination, although it sets out specific provisions with respect to the rights and obligations of foreigners and women such as the conditions to obtain a work permit, foreign worker quotas, and provisions related to maternity leave. The law does not prohibit discrimination based on disability, language, sexual orientation or gender identity, social status, or HIV-positive status.
The government took some steps to enforce the laws through administrative methods, such as through the Ministry of Women’s Conditions and the BSEIPH. In the private sector, several work areas, which had been predominantly male oriented, began employing female workers at the same pay scale, including the public transportation and construction industries. Despite these improvements, discrimination related to gender remained a major concern, although there was no governmental assessment or report of work abuses. During the BWH’s most recent assessment of 28 factories between October 2017 and October, one case of noncompliance related to gender discrimination was identified. The factory where the case occurred took immediate action following the assessment to terminate the harassers. The BWH reported improvement in addressing sexual harassment, although this remained an issue of concern in the industry.
e. Acceptable Conditions of Work
The law provides for a national minimum wage. The Superior Wage Council published new minimum wage levels on October 8. The current daily minimum wage for all sectors ranges from 215 HTG ($3.00) per day for domestic workers to 500 HTG ($7.20) per day in certain professions, including finance, telecommunications, and private educational institutions. In the apparel export sector, the minimum daily wage was set at 420 HTG ($6.00). At 215 HTG, the national minimum wage for domestic workers was slightly above the official poverty income level.
In September 2017 the parliament passed a new law that organizes and regulates work over a 24-hour period divided into three 8-hour shifts known as the (3*8 law). This law set the standard workday at eight hours and the workweek at 48 hours for industrial, commercial, agricultural, and tourist establishments as well as for public and private utilities. The 3*8 law repealed numerous provisions of the labor code, including those that covered working time, overtime payment, weekly rest day, and certain paid annual holidays. According to the ombudsman for industrial affairs, the 3*8 law did not cause any major shift in the labor market and needed additional government circulars to guarantee its implementation.
The law establishes minimum health and safety regulations and requires certain provisions in regards to workers’ health and safety, including quotas for onsite nurses per factory, permanent medical services, and annual medical checks. The law allows workers to notify the employer of any defect or situation that may endanger their health or safety and to call on the ministry or police if the employer fails to make the necessary ameliorations. Occupational safety and health standards are appropriate for the main industries, but these standards were not always enforced.
Although the law charges the ministry with enforcement of a range of labor-related issues, legislation on wage and hour requirements, standard workweek, premium pay for overtime, and occupational safety and health was not effectively enforced. Penalties were not sufficient to deter violations, and authorities often did not impose them. The penalty for not applying the occupational safety and health provisions of the labor code is 200 to 2,000 HTG ($2.90 to $29) or up to three months in prison. The penalty for violating the minimum wage or hours of work provisions of the labor code ranges from 1,000 to 3,000 HTG ($14.40 to $43.20). There were no prosecutions for the individuals accused of violating the minimum wage or hours of work.
The ministry’s capacity to enforce the labor provisions in national and international law was limited by human resource and other constraints. Labor inspections in the capital and elsewhere faced challenges that included a lack of funding, questionable professionalism, and lack of support from law enforcement.
There were some reports of noncompliance with overtime provisions in apparel factories.
Most citizens worked in the informal sector and subsistence agriculture, for which minimum wage legislation does not apply. There continued to be reports of noncompliance regarding compensation, paid leave, social security and other benefits, contracts, health services and first aid, and worker protection in the industrial and assembly sectors.
Noncompliance with safety and health standards remained a major concern. The ILO BWH program continued to report nearly all factories failed to provide the legally required number of medical facilities and staff. Other noncompliance issues included unsafe storage of chemical and hazardous materials, lack of adequate training regarding handling of chemical and hazardous materials, and lack of protective equipment or safety warning signs.
The ILO BWH program also reported cases where several workers exposed to work-related hazards failed to receive free annual exams. By law the exams are the responsibility of the Office of Labor Insurance, Maternity, and Accident (OFATMA). While some factories began conducting medical checks-up independently, OFATMA continued efforts to increase its capacities and continued performing medical checks at a number of factories. The ILO Better Work Haiti program continued to work with factories, and OFATMA to improve compliance with this requirement.
No group collected formal data, but unions alleged job-related injuries occurred frequently in the construction and public-works sectors.