Hours of Work (Industry) Convention, 1919 (No. 1) - Cuba (RATIFICATION: 1934)

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C.30, C.52 and C.101

In order to provide a comprehensive view of the issues relating to the application of ratified Conventions on working time, the Committee considers it appropriate to examine Conventions Nos 1 (hours of work in industry), 14 (weekly rest in industry), 30 (hours of work in commerce and offices), 52 (holidays with pay), 101 (holidays with pay in agriculture) and 106 (weekly rest in commerce and offices) in the same comment.

Legislative developments. The Committee notes the information provided by the Government in its reports on the adoption of: (i) the National Constitution proclaimed on 10 April 2019; and (ii) the Labour Code, promulgated by Act No. 116 of 20 December 2013, and its Regulations, promulgated by Decree No. 326 of 12 June 2014.

Hours of work

Article 2 of Convention No. 1 and Articles 3 and 4 of Convention No. 30. Daily and weekly limits on hours of work. Variable distribution within weekly limits. The Committee notes the Government’s indication that under section 87 of the Labour Code: (i) daily working time is a minimum of eight hours on five days per week; (ii) taking account of existing technical and organizational conditions and the needs of production or services, working time on specific days of the week can include one additional hour, provided that the limit on weekly hours of work is not exceeded; and (iii) weekly working time can be set at between 40 and 44 working hours, depending on the tasks to be performed and the need to reduce costs. The Committee notes this information.

Article 7(1)(c) of Convention No. 1. List of exceptions to daily and weekly limits on hours of work. Further to its previous comments, the Committee notes the Government’s indication that: (i) Decision No. 187 of 2006, establishing exceptions to normal hours of work, was repealed following the entry into force of the Labour Code and its regulations in 2014; and (ii) section 86 of the Labour Code establishes permanent exceptions to normal hours of work for specific jobs or activities because of the type of work, control complexities, or its location in inhospitable or inaccessible places or those far from the worker’s area of residence.

Article 6(2) of Convention No. 1 and Article 7(3) of Convention No. 30. Limit on additional hours in respect of permanent exceptions. The Committee notes that section 86 of the Labour Code provides that heads of organizations, national entities and higher management organizations, with regard to specific jobs or activities, can approve exceptional working arrangements where required, because of the type of work, control complexities, or its location in inhospitable or inaccessible places or those far from the worker’s area of residence, with a due correspondence between hours of work and rest during the periods concerned. In this regard, the Committee notes that section 86 does not establish the maximum number of overtime hours that can be authorized. The Committee requests the Government to provide information on the measures taken or envisaged to ensure that, should permanent exceptions to normal working hours be authorized, the relevant regulations establish the maximum number of additional hours authorized, in accordance with Article 6(2) of Convention No. 1 and Article 7(3) of Convention No. 30.

Article 6(2) of Convention No. 1 and Article 7(4) of Convention No. 30. Remuneration of overtime. Further to its previous comments, the Committee notes the Government’s indication that, under section 122 of the Labour Code, overtime is paid at the rate of 25 per cent more than the normal wage. The Committee notes that section 122 of the Labour Code also provides that, exceptionally, collective labour agreements can include compensation in the form of rest periods in proportion to the wage paid. The Committee also notes that, under section 147(a) of the Regulations, the cases in which workers receive a wage that includes payment for a number of hours of work in excess of normal hours are not classified as overtime for the purposes of remuneration. The Committee requests the Government to indicate the measures taken or envisaged to ensure that overtime is paid at the rate of 25 per cent more than the normal wage in all cases, including when compensatory rest is granted and when the wage includes payment for a number of hours of work in excess of normal hours, in accordance with these Articles of the Conventions.

Article 8(1)(c) of Convention No. 1 and Article 11(2)(c) of Convention No. 30. Record of additional hours. The Committee notes that section 33 of the Labour Code establishes the obligation to compile and update workers’ employment files, in which hours worked and wages paid are recorded. The Committee also notes that, under section 17 of the Regulations implementing the Labour Code, the obligation to compile and update employment files applies to workers who are hired for an employment relationship lasting more than six months. The Committee requests the Government to indicate the manner in which it ensures compliance with the obligation to keep a record of all overtime worked and the amount of remuneration in respect of workers who are hired for an employment relationship lasting less than six months.

Weekly rest

Article 5 of Convention No. 14 and Article 8(3) of Convention No. 106. Compensatory rest. The Committee notes that the labour legislation does not establish any provision which guarantees compensatory rest for workers covered by temporary exceptions to the principle of weekly rest. The Committee requests the Government to provide information on the manner in which it ensures that workers who go without their weekly rest under the terms of section 120 of the Labour Code are granted compensatory rest, in accordance with Article 5 of Convention No. 14 and Article 8(3) of Convention No. 106.

Annual holidays with pay

Article 4 of Convention No. 52 and Article 8 of Convention No. 101. Prohibition on relinquishing the right to an annual holiday with pay. Further to its previous comments, the Committee notes the information provided by the Government regarding section 107 of the Labour Code, which provides that, in exceptional circumstances requiring the worker to remain at work, the employer, after obtaining the views of the trade union, may postpone the annual holiday or agree with the worker on the simultaneous payment of accumulated holidays and wages for the work done, guaranteeing a minimum period of seven days off work per year. The Committee also notes that, under section 101 of the Labour Code, persons under 16 years of age, including apprentices, are entitled to one month of annual holidays with pay for every 11 months of work. The Committee notes that, under section 107 of the Labour Code, the annual holiday for this category of workers can be postponed or they can be paid cash in lieu in exceptional circumstances that require the worker to remain at work, guaranteeing a minimum period of seven days off work per year. The Committee recalls that Article 4 of Convention No. 52 and Article 8 of Convention No. 101 provide that any agreement to relinquish the right to an annual holiday with pay, or to forgo such a holiday, shall be void, on the understanding that this principle applies to the duration of the annual holiday with pay established in every Member State which has ratified the Conventions, whatever the duration. The Committee requests the Government to indicate the measures taken or envisaged to bring sections 101 and 107 of the Labour Code into conformity with these Articles of the Conventions.

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Article 2 of the Convention. Weekly limit on hours of work. The Committee recalls its previous comment in which it noted that section 67 of the Labour Code sets the weekly limit on hours of work at 44 hours on average without however defining the reference period (that is, the number of weeks) over which these weekly hours should be averaged. The Committee recalls that the Convention permits the averaging of hours of work in either shift work (Article 2(c)) or in exceptional cases where the normal hours of work would be inapplicable (Article 5). The Committee therefore requests the Government to clarify whether section 67 of the Labour Code should be understood, in its literal meaning, as authorizing the variable distribution of working hours over a period longer than a week, in which case steps should be taken to ensure that the averaging of hours of work is authorized only in the limited cases provided for in the Convention and also that the applicable reference period is clearly established.

Article 6(2). Remuneration of overtime. In its previous comments, the Committee noted that section 78 of the Labour Code, which provides that overtime hours may be compensated either in the form of extra time off or in cash, is not fully consistent with the requirement of Article 6(2) of the Convention. In its latest report, the Government indicates that, in practice, overtime work is compensated by extra time off. The Committee again recalls that the Convention requires the payment of an extra 25 per cent overtime premium in all cases, irrespective of any compensatory rest. The Committee accordingly requests the Government to take all necessary action in order to bring the national law and practice into line with this Article of the Convention.

Article 7. List of exceptions to daily and weekly limits on hours of work. The Committee notes the Government’s explanations concerning the scope and purpose of Resolution No. 187/2006 which allows for exceptions to normal hours of work, particularly in the case of temporary, cyclical or seasonal activities, subject to approval from the Ministry of Labour and Social Security and prior agreement with the workers’ organization concerned. The Committee requests the Government to provide an updated list of all exceptions (categories of workers and types of establishments concerned and applicable working time arrangements) which may have been so far authorized pursuant to Resolution No. 187/2006.

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Articles 2(c) and 4 of the Convention. Shift work. The Committee notes the Government’s statements to the effect that some construction brigades which were carrying out urgent work or particular work which had to be done by successive shifts, were authorized on an exceptional basis to adopt a working hour scheme as that provided for in Article 4 of the Convention. It also notes that, according to the Government, the trade union concerned agreed to such a scheme and the workers themselves were consulted, the work periods then being incorporated into the collective agreements. The Committee notes that the information supplied by the Government does not state the rules which were applied in the context of fixing the working hours. In any case, it reminds the Government, as it emphasized in its General Survey of 2005 on hours of work (paragraph 106), that the flexibility offered by Article 4 of the Convention is only applicable to industries in which work is necessarily continuous for technical reasons (for example, a blast furnace, which cannot be extinguished). The construction sector does not appear to belong to this category of industry. Consequently, shift work must respect the limits laid down by Article 2(c), of the Convention, namely the average number of working hours over a period of three weeks or less must not exceed eight per day and 48 per week. The Committee hopes that the Government will soon adopt the necessary measures to ensure that this rule is observed by all construction brigades engaged in shift work. It also requests the Government to send copies of collective agreements which make provision for such an arrangement.

Article 5. Exceptions. The Committee notes that, under section 3 of resolution No. 187/2006 issuing regulations on working hours and work periods, which applies to all branches of activity, the heads of work units are not required to respect normal hours of work (namely, eight hours per day and, on average, 44 hours per week) in a number of cases, particularly temporary, cyclical or seasonal activities, subject to approval from the Ministry of Labour and Social Security (clause (a)). It notes that such exceptions may also be established in “other cases provided for by law” (clause (f)). The Committee reminds the Government that, under Article 5 of the Convention, the limits fixed by Article 2(b) may only be circumvented in exceptional cases, namely when such limits have been recognized as inapplicable. The hours of work must then be fixed by an agreement between the employers’ and workers’ organizations concerned, and this must be subsequently confirmed by the national authorities. In any case, average working hours may not exceed 48 hours per week. The Committee therefore requests the Government to explain the manner in which the exceptional nature of situations justifying such exceptions is established, to send copies of the relevant collective agreements and indicate the measures taken to ensure that the average 48-hour weekly work limit is respected.

The Committee also notes that the Government refers in its report to the first transitional provision of resolution No. 187/2006, which states that the heads of organizations, national bodies and provincial executive boards must notify the Ministry of Labour and Social Security of any changes in working hours which have been effected, for evaluation and approval. It notes the Government’s statement to the effect that the measures contemplated, which are designed to make working hours for construction brigades appropriate to the actual nature of the sector, are currently being analysed. However, the Committee notes that, under the terms of the first transitional provision, the notification of contemplated measures had to be effected within the 30 days following the date of adoption of the regulations, (21 August 2006), and the evaluation had to be undertaken within the 30 days following the receipt of the required information. The Committee trusts that, more than two years after the adoption of these regulations, the evaluation procedures provided for by the first transitional provision will be completed as soon as possible and requests the Government to supply detailed information on the measures taken in this context for the various sectors of activity and, in particular, the construction sector.

Article 6, paragraph 1(b). Temporary exceptions. The Committee notes that section 72 of the Labour Code allows the performance of additional work in the form of a double day’s work, additional hours, or work during weekly rest days. It also notes that, under section 77 of the Labour Code, a worker may not be obliged to work more than four additional hours for two consecutive days or work more than two double days in one week. However, the State Committee for Labour and Social Security may set other limits in the light of the nature of the work performed in certain sectors of activity. The Committee draws the Government’s attention to the fact that, under Article 6, paragraph 1(b), of the Convention, temporary exceptions may only be granted to deal with exceptional cases of pressure of work. These exceptions must be laid down by regulations adopted after consultation with the organizations of employers and workers concerned. It requests the Government to indicate whether other legal provisions specify the cases in which overtime work is authorized. The Government is also requested to indicate whether a maximum number of additional hours per month or per year has been laid down.

Article 6, paragraph 2. Remuneration of overtime. The Committee notes that section 78 of the Labour Code provides that additional hours must be remunerated in cash, or compensated for by extra time-off, at a rate to be determined by law. It refers to its previous comments on this point and again requests the Government to indicate the steps taken to give effect to this provision of the Labour Code. The Committee recalls in this regard that Article 6, paragraph 2, of the Convention prescribes a rate of pay of at least 25 per cent extra for overtime.

Part VI of the report form. The Committee requests the Government to give a general description of the manner in which the Convention is applied in practice, including, for example, extracts from the reports of the inspection services indicating the number and nature of contraventions reported, and also further details on the number of workers covered by the legislation, in particular the number of workers belonging to construction brigades.

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Article 2 of the Convention. Weekly working hours. The Committee notes that, under section 67 of the Labour Code, the normal working day is eight hours and the normal working week is 44 hours on average. It also notes that the Labour Code does not define a reference period by which average weekly working hours must be calculated. Nor does the Code lay down an absolute limit on the length of the working week. The Committee recalls that Article 2 of the Convention sets the maximum length of the working week at 48 hours. Averaging the working week with the 48-hour limit exceeded in certain weeks is only permitted in specific exceptional cases (for example, shift work, covered by Article 2(c), of the Convention). Hence the Committee is bound to conclude that section 67 of the Labour Code, which provides for the averaging of weekly working hours without any restriction, is not in conformity with the provisions of the Convention. The Committee trusts that the Government will soon take the necessary steps to amend its legislation to allow the 48-hour working week to be exceeded, in the context of the averaging of weekly working hours, only in the circumstances provided for by the Convention. It requests the Government to supply information on any developments in this regard.

Furthermore, the Committee notes that the 1989 General Regulations on construction brigades establish a 12-hour working day, with a six-day working week and 26 working days per month (section I.6 of the Regulations). In reply to the Committee’s previous comments on the Regulations, the Government stated that, because of the “special period” that the country was undergoing, this system was not applied in practice, owing to a lack of raw materials and fuel. The Committee understands that the “special period”, marked by a major economic crisis, is now over, as indicated by the fact that Resolution No. 187/2006 issuing regulations on working hours and work periods repeals, inter alia, Resolution No. 13 of 23 October 2001, which provided for reduced working hours in certain cases and was adopted during the initial phase of the “special period”. If this is the case, the Committee requests the Government to state whether the provisions of the General Regulations on construction brigades are again being applied in practice. In this regard, it recalls that the standards laid down by these Regulations (12 hours per day and 72 hours per week) far exceed the limits authorized by Article 2 of the Convention. The Committee trusts that the Government will take the necessary steps as soon as possible to amend these Regulations in order to bring them into conformity with the provisions of the Convention.

The Committee is also addressing a direct request to the Government on a number of other matters.

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In addition to its observation, the Committee requests the Government to provide information on the following points.

Articles 4, 5, 6 and 7 of the Convention. The Committee asks the Government to send an updated list on exceptions under Article 4 of the Convention, which the Government provided in 1992. In addition, the Committee requests the Government to inform it on any regulation issued under section 70 of the Labour Code of the Republic of Cuba and to supply it with copies. Furthermore, the Committee notes from the Government’s report that certain collective bargaining agreements regulate hours of work and overtime regulations. The Committee asks the Government to provide it with copies of such agreements.

Moreover, the Committee requests the Government to inform it on the number of workers currently working in the construction brigades.

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The Committee notes that proposals for new regulations on working hours in the construction industry are under consideration to replace the current system applying to the construction brigades with a working day of up to ten and 12 hours, which was the subject of comments by the Committee for a number of years. The Committee trusts that the new regulations will be adopted in the very near future in line with the provisions of the Convention and requests the Government to inform it on any progress made.

The Committee raises further points in a request addressed directly to the Government.

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The Committee notes the information supplied by the Government in response to its direct request of 1993. It notes the Government's statement that the system applying to the construction brigades, which depends on the circumstances of the "special period", is still in force. The Committee is bound to recall that in its last report the Government indicated that the system was to apply temporarily and that normal working time of eight hours a day and 44 hours a week, set in section 67 of the Labour Code, would be re-established as soon as circumstances allowed. The Committee also notes that the statistics of the Labour Inspectorate for 1997 show a working day of up to ten hours for a very large majority of the workers. It recalls that, where working time is distributed unevenly over a week, maximum daily overtime may not exceed one hour according to Article 2(b) of the Convention. It also wishes to recall that, under Article 5 of the Convention, when the average number of hours worked is reckoned on the basis of a period longer than one week, the length of the period must be set in advance by the authority or the competent body. In these circumstances, the Committee trusts that the Government will embark upon the necessary action in the near future to re-establish, in law and in practice, hours of work which are consistent with the prescriptions of the Convention.

The Committee notes the information on the content of the provisions of section 70 of the Labour Code. It recalls the abovementioned prescriptions of Article 5 of the Convention and asks the Government to provide copies of any regulations which may have been issued by the competent authority pursuant to this Article.

Lastly, the Committee notes the brief indications supplied by the Government concerning the system of remuneration for overtime established in Chapter IV of the Labour Code, and again asks the Government to supply any regulations issued under the above chapter by the competent authority.

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Further to its previous comments, the Committee notes the information communicated by the Government in its report. It notes the adoption of resolution No. 13/91 of 23 October 1991.

Articles 2(b) and (c) and 3 of the Convention. The Committee notes from the report that construction brigades are based on the voluntary participation of workers and that the working day - in order to respond to needs which are vital for development - is of 12 hours for these brigades. Resolution No. 20/88 authorizes a ten-hour day in the construction sector, and this is also the length of the working day for microbrigades. The Government has explicitly recognized that, in these cases, the limits set by Article 2(b) and (c) have been exceeded. The Government has stated that the country is passing through a special period, and that the conditions of work to which it has referred are not applied in practice. Instead of the ten hours a day provided for, the working day is of eight hours or even less. Even when the working day is reduced for lack of materials, wages (compared to the previous rates) have not been affected.

The Committee also notes that resolution No. 13/91 of 23 October 1991 provides, in Part IV, that the working day is of eight hours, with a 44-hour week or 190.6 hours a month. In some cases the working day is reduced to seven hours (Part II(c) and (d)). The reductions in the hours result in remuneration at 70 per cent of the fixed wage (Part III).

This system, which depends on the circumstances of the "special period", is temporary, and the normal working day should be re-established as soon as conditions allow (Part VI).

The Committee notes that it was because of particular circumstances that labour standards of eight hours a day and 44 hours a week were adopted. It hopes that the Government will be able to take measures to reorganize these hours as soon as there is a return to a normal situation, in order to ensure that its law and practice are in conformity with the Convention.

In particular, the authority given in Article 2(b) to exceed the hours set should not be for more than one hour; i.e., under the conditions laid down by this provision the limit may be raised to nine hours a day, but higher limits would not appear to be acceptable under the Convention.

The Committee requests the Government to communicate all appropriate information on this question.

Article 4. Further to its previous direct request, the Committee again requests the Government to communicate information on the system of continuous team work as provided for in section 70 of the Labour Code, and to send copies of any regulations which may have been adopted under this provision.

Article 6. Further to its previous direct request, the Committee again requests the Government to communicate information on the system for remuneration for overtime provided for in Chapter IV of the Labour Code, and in particular to communicate any regulations which may have been adopted under this Chapter.

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The Committee notes the report of the Government for the period ending 30 June 1991 and the reply to its previous observation concerning comments submitted by the ICFTU alleging various violations of the Convention. In this connection, and after it had examined these allegations, the Committee would be grateful if the Government, in its next report, would supply further particulars on the following Articles of the Convention:

Article 2, subparagraph (b), of the Convention. At issue is the application of the provision which allows for a distribution of working hours where the hours of work on one or more days of the week are less than eight. By agreement between employers' and workers' organisations or by sanction of the competent public authority, the eight-hour limit may be exceeded, in no case, however, by more than one hour daily.

With reference to the regimes governed by the General Regulations on Construction Brigades, resolution No. 20/88 and resolution No. 5765/86, the Committee requests that the Government provide additional factual information on the actual functioning of these regimes. In particular, the Committee would like to know whether under any of these regimes, working hours are distributed where work hours on one or more days of the week are less than eight hours and, if such distribution does take place, whether the daily limit is exceeded by more than one hour.

Article 2, subparagraph (c). At issue is the application of the provision which states that where persons are employed in shifts, it shall be permissible to employ persons in excess of eight hours in any one day and 48 hours in any one week, if the average number of hours over a period of three weeks does not exceed eight per day and 48 per week.

With reference to the regimes governed by resolution No. 20/88 and resolution No. 5765/86, the Committee would like to know whether under either of these regimes shift work is carried out and, if so, whether the hours of work of those shiftworkers conform to the provisions of the Convention.

With reference to the regimes governed by the General Regulations on Construction Brigades, the Committee requests that the Government provide additional factual information on the actual functioning of these regimes. In particular, the Committee would like further details on the conformity vel non of the shift-work regime operative under the aforecited regulations to this provision of the Convention.

Article 3. At issue is the question of temporary exceptions to the hours-of-work regime set forth at Article 2 of the Convention, under which work hours may be exceeded in cases of accident, urgent work to be done, and of force majeure, but only so far as may be necessary to avoid serious interference with the ordinary working of the undertaking.

With reference to the regimes governed by the General Regulations on Construction Brigades, resolution No. 20/88 and resolution No. 5765/86, the Committee wishes to know how long and to what extent such regimes have functioned in practice and whether or to what extent they continue to function at the present day. Finally, the Committee would like the Government to present its views on whether it regards any or all of these regimes as expressions of "temporary exceptions" in the sense of Article 3 of the Convention and, if so, to state its reasons therefor.

Article 4. At issue is the question of averaging in the case of continuous shift work, under which system of averaging, working hours may not exceed 56 in the week.

The Committee observes that under section 70 of the Labour Code (Codigo de Trabajo (1986)), situations of continuous shift work may be envisaged. Section 70 provides, inter alia, that conditions governing such regimes are established by the State Committee on Labour and Social Security, together with other state bodies, and require the agreement of the appropriate national organisation of workers. The Committee would request that the Government provide further information on regimes governed by section 70 of the Labour Code. In particular, the Committee would request the Government to furnish it with regulations promulgated under section 70 which may be of relevance to the application of this provision of the Convention.

With reference to the regimes governed by the General Regulations on Construction Brigades, resolution No. 20/88 and resolution No. 5765/86, the Committee wishes to know how such regimes function in practice and whether, in fact, under such regimes continuous shift work is carried out.

Article 5. At issue is the question of the exceptional cases where it is recognised that the provisions of Article 2 cannot be applied. In such cases the workers' and employers' organisations may, by agreements, fix the working hours, provided that the average number of hours worked during a prescribed period of time, shall not exceed 48 hours per week.

The Committee observes that under section 70 of the Labour Code, a regime of work under which hours are averaged across a determined period may be envisaged. Section 70 provides, inter alia, that conditions governing such regimes are established by the State Committee on Labour and Social Security, together with other state bodies, and require the agreement of the appropriate national organisation of workers. The Committee would request that the Government provide further information on regimes governed by section 70 of the Labour Code. In particular, the Committee would request the Government to furnish it with regulations issued under section 70 which may be of relevance to the application of this provision of the Convention.

With reference to the regimes governed by the General Regulations on Construction Brigades, resolution No. 20/88 and resolution No. 5765/86, the Committee wishes to know how such regimes function in practice and whether, in fact, under such regimes, work which is averaged across a determined period is carried out.

Article 6 of the Convention. At issue is the question of regulations made by the public authority treating work regimes in which permanent and temporary exceptions are involved, following consultations with organisations of employers and workers. Also prescribed is the rate of overtime pay, which shall not be less than one and one-quarter times the regular rate.

The Committee observes that, under Chapter IV of the Labour Code, provision is made for the remuneration of hours worked beyond the normal working hours and that regulations promulgated under this Chapter are to be established by law. The Committee would request that the Government provide further information on regimes governed by Chapter IV of the Labour Code. In particular, the Committee would request the Government to furnish it with regulations promulgated under that Chapter.

With reference to the regimes governed by the General Regulations on Construction Brigades, resolution No. 20/88 and resolution No. 5765/86, the Committee further observes that, considering together the aforecited legislation and the explanations furnished by the Government in its report, labourers working under these regimes apparently are remunerated at a rate which exceeds the statutory rate. Nevertheless, it still is not wholly clear to the Committee whether, given the factual conditions of labour under such regimes, the overtime remuneration scales applicable thereto are the substantial equivalent of overtime as prescribed by this provision of the Convention.

Accordingly, the Committee would request that the Government provide it with additional factual and legal information regarding the actual functioning of these regimes, including information about the remuneration of workers for work performed in excess of hours of work prescribed under this Convention.

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The Committee notes a communication from the International Confederation of Free Trade Unions (ICFTU), dated 31 January 1991, a copy of which has been transmitted to the Government by a letter dated 19 February 1991. The ICFTU alleges that effect is not given to the provisions of the Convention concerning hours of work and the rules respecting overtime hours. The Committee would be grateful if the Government would make its own observations on these allegations so that the Committee can examine the substance of the question at its next session.

The Government is asked to report in detail for the period ending 30 June 1991.