May 27, 2008
Report of the Committee of Experts
on the Application of Conventions and Recommendations
(articles 19, 22 and 35 of the Constitution)
Third item on the agenda:
Information and reports on the application
of Conventions and Recommendations
ILO, May 2008. (Complete report)
CUBA
Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) (ratification: 1952)
The Committee notes the Government’s report and its reply to the observations made by the International Confederation of Free Trade Unions (ICFTU, now ITUC – International Trade Union Confederation) on 10 August 2006, which related to pending issues of law and practice, as well as the detention and imprisonment of trade union leaders.
The Committee notes that the Government once again reiterates that the process of revising the Labour Code is continuing and that, for this purpose a broad consultation procedure is being carried out, including with the 19 national branch unions and the Confederation of Cuban Workers. In this respect, the Committee observes that this process has been going on for many years without tangible results as yet being achieved. The Committee hopes that the revision of the Labour Code will be completed in the near future and that the comments made on the application of the Convention, which are examined below, will be taken into account. The Committee reminds the Government that the technical assistance of the Office is at its disposal and requests it to provide a copy of the draft text to which it refers.
Articles 2, 5 and 6 of the Convention. The Committee observes that it has been referring for many years to the need to delete the reference to the Confederation of Cuban Workers from sections 15 and 16 of the Labour Code of 1985. The Committee notes the Government’s statement that the legislation in force and every day practice in all work units guarantees the full exercise of trade union activities and the broadest application of the right to organize. According to the Government, there is no prohibition in the Labour Code on workers being able to opt for the form and structure of trade union of their own choosing and that section 15 of the Labour Code essentially reaffirms the provisions of Article 3 of the Convention. The statutes, rules and principles governing the activity of the 19 national branch unions and the Confederation of Cuban Workers in which they are federated of their own will are discussed and approved by their own congresses, and there is no provision in law setting standards relating to trade union structure. The Government also emphasizes that the Cuban tradition of unity in the trade union movement culminated in the establishment of the Confederation of Cuban Workers in 1939, not under the terms of any legislative provision, but by the free will of the workers. According to the Government, neither the 19 branch unions, nor the Confederation of Cuban Workers nor the trade union chapters numbering over 70,000 have had to seek authorization to exercise their activities freely in work units.
The Committee is nevertheless bound to emphasize once again that trade union pluralism must remain possible in all cases and that the law must not institutionalize a factual monopoly by referring to a specific trade union confederation; even in a situation where at some point all workers have preferred to unify the trade union movement, they should still remain free to choose to set up unions outside the established structures should they so wish and to join the organization of their own choosing (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 96). In these circumstances, the Committee requests the Government to take the necessary measures to ensure that all workers, without distinction whatsoever, are able to establish and join organizations of their own choosing. The Committee further requests the Government to take measures to amend the above sections of the Labour Code and to provide information in its next report on any measure adopted in this respect.
Article 3. The Committee recalls that for several years it has been referring to the need to amend section 61 of Legislative Decree No. 67 of 1983, which confers upon the Confederation of Cuban Workers the monopoly to represent the workers of the country on government bodies. The Committee notes that the Government reiterates that this provision was amended by Legislative Decree No. 147 of 1994 and that Agreement No. 4085 of 2 July 2001 is currently in force. In this respect, the Committee observes that Legislative Decree No. 147 of 1994 does not explicitly repeal the above section and that a copy of Agreement No. 4085 has not been provided by the Government and is not available to the Committee. In these circumstances, the Committee firmly urges the Government to amend section 61 of Legislative Decree No. 67 of 1983 so as to guarantee trade union pluralism, for example by replacing the reference to the Confederation of Cuban Workers by the expression “most representative organization”. The Committee also requests the Government to provide a copy of Agreement No. 4085 of 2 July 2001.
II. Right to strike
In its previous observation, the Committee referred to the fact that the right to strike is not recognized in the legislation and that its exercise in practice is prohibited and it requested the Government to take measures to ensure that no one is discriminated against or prejudiced in their employment for having peacefully exercised this right, and to keep it informed in this connection. The Committee notes the Government’s repeated statement that Cuban legislation does not establish any prohibition on the right to strike, nor does the legislation establish any penalty for the exercise of this right, and that it is the prerogative of trade union organizations to take the respective decisions. Cuban workers benefit from participatory and democratic social dialogue at all levels of decision-making, and an approach based on collaboration rather than conflict has been strengthened, leading to the improvement of wage levels, social security benefits and safety and health measures, among others, as well as the continued development of their capacities. Trade union representatives
participate in all processes of the formulation of labour and social security legislation and on many occasions draft texts are sent for consultation to workers’ assemblies in work units. According to the Government, if Cuban workers ever decided to have recourse to strike action, nothing could prevent them from exercising it. The Committee recalls that the right to strike is one of the essential means through which workers and their organizations may defend their economic and social interests and requests the Government once again to guarantee explicitly in law that no one is discriminated against or prejudiced in their employment for the peaceful exercise of this right.
III. Trade union rights and civil liberties. The conviction of trade unionists
The Committee recalls that in its previous comments it referred to trade union leaders being sentenced to between 12 and 26 years in prison for treason and conspiracy and it requested the Government to take the necessary measures for the immediate release of the trade union leaders sentenced to severe penalties of imprisonment. The Committee notes that in its comments of 2006 the ICFTU referred to: (1) the detention of Juan Antonio Salazar of the Free Cuban Workers Union on 10 January 2006 under the accusation of alleged threats of which he had no knowledge; and (2) six of the seven independent trade union leaders convicted to sentences of between 12 and 26 years of imprisonment remained in prison and that the seventh had to serve his sentence at home or in hospital for health reasons. In this respect, the Committee notes the Government’s indication that Mr Salazar was not detained, because he was not representing any group of Cuban workers, but that he had been without work since 1995 with a long criminal record for common offences, and had been prosecuted on several occasions. The Government adds that Mr Salazar left the country on 29 November 2005. With regard to the convictions of the trade union leaders, the Committee notes the Government’s indication that: (1) none of those convicted were trade union leaders as, by their own decision, they had had no employment relationship for several years; (2) those sentenced were engaged in activities to overthrow the political, economic and social system decided upon by the Cuban people and enshrined in the Constitution; (3) the responsibility of all of them was proven for actions that amounted to crimes intended to undermine the sovereignty of the nation and they were penalized under section 91 of the Penal Code and Act No. 88 of 1999 to protect the national independence and economy of Cuba; (4) none of them were convicted or sentenced for exercising or defending freedom of opinion or expressions; (5) all of them had taken action prejudicial to the human rights of the Cuban people, and particularly against the exercise of their rights to free determination, development and peace; (6) at the present time, most of those convicted remain in prison serving the corresponding sentences, although some of them have benefited from extra-penal leave for humanitarian reasons; and (7) the human dignity and physical and psychological integrity of those convicted have been rigorously respected, and the detainees have received in prison the full benefits available to the entire prison population in Cuba.
The Committee nevertheless observes that the Government refers to generic charges, without indicating the tangible acts which gave rise to the conviction of these persons, whose release has furthermore in many cases been requested by the Committee on Freedom of Association. The Committee recalls once again that the freedom of industrial association is but one aspect of freedom of association in general, which must in itself form part of the whole range of fundamental human liberties, all interdependent and complementarity one to another which were enumerated by the Conference in the resolution of 1970, and consist in particular of: (a) the right to freedom and security of person and freedom from arbitrary arrest and detention; (b) freedom of opinion and expression and in particular freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers; (c) freedom of assembly; (d) the right to a fair trial by an independent and impartial tribunal; and (e) the right to protection of the property of trade union organizations. In these circumstances, the Committee once again requests the Government to take the necessary measures to secure the immediate release of the trade union leaders sentenced to severe penalties of imprisonment.
Finally, the Committee notes the observations of the International Trade Union Confederation (ITUC) of 28 August 2007, which refer to the issues of law and practice that are already examined and to specific cases of the detention of workers who are members of the Independent National Workers’ Confederation of Cuba (CONIC), persecution and threats of imprisonment against delegates of the Light Industry Workers’ Union (SITIL) and the confiscation of materials and humanitarian aid sent from abroad to the Single Council of Cuban Workers (CUTC). The Committee requests the Government to provide its observations on these specific cases, in view of the fact that its reply does not specifically address them. Right to Organise and Collective Bargaining Convention, 1949 (No. 98) (ratification: 1952) The Committee notes the Government’s report and its reply to the comments of the International Trade Union Confederation (ITUC) referring to issues which were already addressed, as well as the state control of the employment market, by fixing wages and conditions of work in the state sector.
The Committee notes the Government’s statement that section 9 of Legislative Decree No. 229/2002 establishes the content of collective labour agreements, including specifications with regard to income, promotion, permanent employment in the entity, hours of work and rest periods.
Article 4 of the Convention. The Committee recalls that in its previous comments, it referred to the need to amend section 14 of Legislative Decree No. 229 on collective agreements and section 8 of the implementing regulations, which require any disputes about the content that arise in the drafting phase of a collective labour agreement (including when first-level unions are concerned) to be referred to the highest levels of the parties concerned (Confederation of Workers of Cuba), with the participation of those affected; and section 17 of Legislative Decree No. 229 and sections 9, 10 and 11 of the implementing regulations, which require any disputes that arise once the agreement has been concluded to be referred, upon exhaustion of the conciliation procedure, for arbitration by the National Labour Inspection Office, with the participation of the Confederation of Workers of Cuba and the interested parties, the office’s decision being binding. The Committee notes that, according to information reiterated by the Government, this system ensures complete autonomy and independence for trade union representatives, workers and administrations with regard to the submission, discussion and approval of draft collective agreements; that the Decree provides for a conciliation procedure between the administration and the trade union with participation of the highest levels for examining and solving disputes that arise to which the parties may, by agreement, have recourse at any stage of the negotiations; that no request for arbitration has been submitted to the National Labour Inspection Office in the five years that the Legislative Decree has been in force. According to the Government, the possibility of arbitration by the National Labour Inspection Office laid down in section 17 of the Decree can only be taken up once the conciliation procedure has been exhausted and with the consent of both parties concerned, in accordance with section 4(a) of resolution No. 20/2007 establishing the national labour inspection system and specifying arbitration with the participation of the Confederation of Workers of Cuba and the parties concerned for the settlement of disputes which arise with regard to collective agreements. As regards the participation of the Confederation of Workers of Cuba in the negotiation and arbitration process, the Government indicates that this is not external interference since the Confederation is not outside the negotiating process, being the trade union organization that, by the wish of its own workers, represents workers and retirees in the various decision-making bodies of the country.
The Committee observes, however, that section 17 of the Legislative Decree and section 11 of the implementing regulations show that the possibility exists in law for just one of the parties to request disputes to be submitted for arbitration to the National Labour Inspection Office, as was also indicated by the Government in a previous report. In this respect, the Committee repeats that arbitration imposed at the request of only one of the parties is contrary to the principle of voluntary negotiation of collective agreements laid down in Convention No. 98 and, hence, contrary to the autonomy of the parties to bargaining. In the Committee’s view, problems of incompatibility with the Convention arise when the law requires collective bargaining to be referred to a higher level (in this case, participation by the Confederation of Workers of Cuba). The Committee requests the Government to take measures to amend the legislation so that in case of disagreement between the parties to the collective bargaining process, the intervention by the authorities or the Confederation of Workers of Cuba is not compulsory and that referral to binding arbitration is possible only with the agreement of all the negotiating parties.
The Committee also referred to the need to amend section 11 of Legislative Decree No. 229 – which states that “discussion of the draft labour collective agreement at a general assembly of workers shall proceed in accordance with the methodology determined for that purpose by the Confederation of Workers of Cuba” – by deleting the express reference to the Confederation of Workers of Cuba and ensuring the autonomy of the parties to collective negotiations. In this respect, the Committee notes the Government’s indication that the methodology for discussion of the draft collective labour agreement is established by the Confederation of Workers of Cuba with the aims and objectives which it is obliged to fulfil in relation to the trade union movement and in conformity with its interests and that it is not for the Government to take measures in this respect. With regard to section 11, the Government points out that this is an affirmation of the fact that it is the trade union which has to prescribe the way in which workers’ assemblies are organized and the way in which collective agreements are drawn up and discussed. The Committee considers, however, that section 11 imposes a methodology established by the Confederation of Workers of Cuba on all trade unions under a system of trade union monopoly established by law (see observation on the application of Convention No. 87), and this, together with the existence of provisions that are too detailed as to how collective agreements are to be concluded, do not afford sufficient encouragement to free and voluntary collective bargaining in accordance with Article 4 of the Convention. Consequently, the Committee asks the Government once again to take the necessary measures to amend section 11 of Legislative Decree No. 229 by deleting the express reference to the Confederation of Workers of Cuba and ensuring the autonomy of the parties to collective bargaining.
The Committee also requested the Government to take measures to repeal section 5 of Legislative Decree No. 229 and section 3 of the implementing regulations under which the National Labour Inspection Office approves the conclusion of collective labour agreements in the units provided for in the budget and in the production and services activities of bodies, sectors, branches and activities that share the same characteristics, when so agreed by the head of the body and the general secretary of the corresponding federation, so as to ensure that full effect is given to the principle of free and voluntary collective bargaining. The Committee notes that the Government reiterates that these sections apply only to exceptional cases involving units in the budget which, with the consent of the head of the entity and of the corresponding federation, decide to request the approval of the National Labour Inspection Office, the aim being to avoid duplicating or copying agreements of centres with similar characteristics so that agreements are adopted to the specific characteristics of each entity. The Committee recalls that the Government indicated, in a previous report, that the provision applied to units in the budget with similar characteristics, such as bakeries, schools, hairdressers, service centres and polyclinics. The Committee considers that the law subjects a wide range of collective agreements to approval by the National Labour Inspection Office and finds this to be contrary to the principle of free and voluntary collective bargaining. The Committee asks the Government once again to take the necessary measures to repeal section 5 of Legislative Decree No. 229 and section 3 of the implementing regulations to ensure that full effect is given to the principle of free and voluntary collective bargaining.
