CORRECTED: PROPOSAL FOR LABOR JUSTICE ACTIVITIES

UNCLAS SANTO DOMINGO 000778

SIPDIS

SIPDIS

DEPT FOR WHA/CAR, WHA/PPC MIKE PUCCETTI, DRL/IL PAT DEL
VECCHIO, DEPT. OF LABOR JANE RICHARDS;
DEPT PASS USAID FOR LAC/RSD BARRY MACDONALD

E.O. 12958: N/A
TAGS: ELAB EAID ETRD KJUS DR
SUBJECT: CORRECTED: PROPOSAL FOR LABOR JUSTICE ACTIVITIES
IN THE DOMINICAN REPUBLIC

REF: A. STATE 26123


B. SANTO DOMINGO 761 (CANCELLED)


1. Summary: This is the corrected 2006 Embassy request for
funding of a Dominican Republic Labor Justice capacity
building program to support implementation of the Free Trade
Agreement between the Dominican Republic and the United
States and enforcement of the Dominican Labor Law. This
program builds on the Embassy's highly successful justice
sector strengthening program; additional funding is required
to extend activities to the labor jurisdiction. Inability to
implement these activities would put in serious risk the
ability of the Dominican government to comply fully with the
labor provisions of DR-CAFTA.


2. Background and Situation: While the Dominican Republic
benefits from a well crafted Labor Code consistent with ILO
core labor principles and international law, successful
implementation of DR-CAFTA requires more effective
enforcement of the labor law and better service delivery in
labor dispute resolution. The proposed approach includes
high level policy dialogue, technical assistance for
institutional capacity building, training of sector
officials, and assistance with policy and procedural reform.
These are necessary to assure compliance with DR-CAFTA and to
maximize its benefits. End Summary.


3. This cable lays out a three year program of assistance
estimated to cost USD 1.5 million per year for a total of USD
4.5 million.

Characteristics of the Labor Justice System in the Dominican
Republic
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4. A study of case load in labor jurisdictions conducted in
2000 documented that the majority of labor cases are claims
of wrongful separation from employment (86 percent),followed
by salary issues (8 percent). The average case resolution
time was 15.3 months in courts of first instance and 16.4
months in appeals courts, unworkably long considering family
economic livelihoods are at stake. Only 4.5 percent of cases
were conciliated in the court system. Others were conciliated
at the level of the Labor Ministry, but no statistics are
available to document the numbers. The study reports
significant inequity in access to justice, a grossly
inadequate number of labor jurisdiction public defenders, and
generally negative impressions of the efficacy of the system.
Generally, workers are not aware of their rights or of how
to register a claim. Significant levels of corruption and
influence peddling are reported, particularly involving
collusion between private lawyers, prosecutors, and judges to
lower claims and "buy" cases from workers who cannot afford
to wait months for a final settlement. The labor law
introduces "vocales" (spokespersons) who are low paid lay
representatives (one each for the plaintiff and the
defendant) who receive no training or supervision. They are
appointed annually by labor and employer representatives in
each jurisdiction to assume the role of conciliators but in
reality do not play this role.

Expected Results
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5. The following results are expected:

a. Make labor jursdiction officials familiar with DR-CAFTA
obligations and their application of Dominican labor law.
b. Reduce labor case processing time.
c. Increase access and quality of service delivery in labor
jurisdictions.
d. Improve protection of worker rights and make possible
timely and equitable redress of grievances.
e. Vastly increase the percentage of labor cases resolved
through conciliation rather than full trial procedures.

Specific Activities
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6. These cover three years.

Year 1:

a. Complete a diagnostic study of the labor dispute
resolution system (justice sector and Ministry of Labor)
including case load, resolution times and mechanisms,
analysis of institutional capacity, percent of cases

conciliated, percent of salary decrease in final resolution
for litigated and conciliated cases, and 'pre-judicial' case
load (cases resolved before entering the court system). An
analysis of labor court procedures will also identify reforms
that can be implemented through administrative decree so to
increase efficiency and access. This study will update
similar work from 2000, serve as a baseline for later measure
of results, and guide reform initiatives.

b. Train 50 percent of labor justice personnel on the content
and application of the Dominican labor law and international
labor law standards. (officials currently in labor
jurisdiction: 70 judges, 68 labor specific public defenders,
40 prosecutors, 220 vocales and 172 investigators)

c. Train 200 judicial personal in conciliation authority,
procedures, and techniques (emphasizing vocales,
investigators, and judges).

d. Train all labor jurisdiction public defenders (68
currently) in defense procedures, techniques, case
investigation and presentation.

e. Procedural/administrative reform: begin consensus
building and drafting of an administrative order to clarify,
regularize, and assure the efficacy of the 'vocal' function.


Year 2:

f. Support recruitment, training, and supervision of career
prosecutors, recruited using merit-based, competitive
criteria for the labor jurisdiction (to end the practice of
appointing prosecutors as political patronage, as is now the
case).

g. Train remaining 50 percent of labor justice personnel on
the content and application of the Dominican labor law and
international labor law standards.

h. Support recruitment, training, and supervision of career
labor jurisdiction public defenders, recruited using
merit-based, competitive criteria for the labor jurisdiction
(to end the practice of appointing public defenders as
political patronage, as is now the case).

i. Train an additional 200 judicial personal in conciliation
authority, procedures, and techniques (emphasizing vocals,
investigators, and judges).

j. Support drafting, consensus building, and passage of an
administrative order to be issued by presiding justice of
the Supreme Court to clarify, regularize, and assure the
efficacy of the 'vocal' function, which currently does not
function or creates obstacles for efficient labor case
resolution.

Year 3 :

k. Support consensus building, drafting and congressional
debate on reform of the Labor Code to include greater
emphasis on conciliation, revision of the 'vocal' function,
on procedural reforms to improve flexibility, and on rapid
and effective case resolution, and to decrease discretionary
decision-making.

l. Train new-hire career public (labor) defenders in defense
procedures, techniques, and strategies and train new-hire
career prosecutors in labor law, criminal law as related to
labor issues, international labor rights and practical skills
development.

m. Support the implementation of the administrative order
(approved in year 2) to clarify, regularize, and assure the
efficacy of the 'vocal' function.


Link with US policy objectives and current assistance program
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7. The 'White Paper' on trade and labor from April 2005
developed by CAFTA regional labor ministries established as
top priorities the modernization of the labor justice system
and strengthened capacity to enforce laws, conduct
inspections, and resolve disputes . The DR-CAFTA agreement
identifies as priorities the increased respect and

recognition of local labor laws and international standards
and expanded capacity, enforcement and compliance in order to
protect the region's workers.


8. Activity implementation and achievement of results
specified would be possible with a USD 4.5 million budget and
a three-year time-frame, as these activities directly
complement to the on-going USG justice program focused on the
criminal jurisdiction. Adding similar activities in the
labor jurisdiction would equire a minimal additional
investment, as relationships are already established with
sector institutions and NGOs. Similarly, the USG public
diplomacy program is already focused on these issues,
although in the criminal context. This proposal allows for
leveraging results in the labor jurisdiction by piggy-backing
on the current USG justice strategy.


9. The Department of Labor's "Cumple y Gana" project has a
good track record for its work with the Dominican Labor
Ministry. Stakeholders agree that the training provided to
labor inspectors has greatly increased their skills and
performance, and institution building activities have been
successful. We understand that this activity will continue
with FY05 ESF funds allocated to USDOL and will include new
education/awareness activities on worker rights and means for
redress. For this reason, this project does not focus
primarily on the Ministry of Labor. It is recommended that
DOL include the creation of an internal inspection unit in
the Ministry of Labor to manage whistle blowing and
assertions of official corruption.

Cost
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10. Estimated cost to achieve results above is $1.5m per
year. Activities will be implemented through direct grants
to the National Judicial School to conduct training
activities and through grants to Dominican NGOs and small
firms to implement other activities.


11. Summary Project Annual Budget:

a. Training of justice sector officials
USD 500,000
b. Legal education campaign and outreach
USD 300,000
c. Technical assistance for institutional/procedural reform
USD 200,000
d. Legal and policy advocacy
USD 200,000
e. Program administration
USD 300,000


12. This proposal lays out activities and results over a
three year time frame. Approximately $1.5 million per year
is required to achieve these high level, sustainable
institutional changes, assure protection of worker and
employer rights under the CAFTA-DR agreement, and improve
efficiency in adjudication and conciliation.

Degree of Local Buy-In
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13. This proposal has been developed in conjunction with
representatives of the Ministry of Labor, including a former
minister, a subject-matter specialist, labor judges, the
national judicial training school, the Attorney General's
Office, the professional association of attorneys, and legal
advocacy NGOs. There is consensus among all actors that the
actions proposed here are feasible, that they would target
priority weaknesses in the labor justice system and that once
in place, they would significantly improve the access,
quality, and protections provided by the system.
KUBISKE