Observation (CEACR) - adopted 1994, published 81st ILC session (1994)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Cuba (Ratification: 1965)

The Committee notes the Government's report and the information therein in reply to its previous comments, and the annexes to the report.

1. With regard to students' accumulated school records ("expediente acumulativo del escolor"), the Committee notes that, following a Ministry of Education survey, it was recognized that these records should be simplified so that teaching can be geared to the quality of education required. The Committee notes the ministerial circular adopted after the survey, on 6 February 1993, to provide teachers with guidelines on how to use student accumulated records. According to the Government, the elements of the records on which the Committee commented have now been withdrawn. The Committee asks the Government to provide a copy of the new model students' accumulated school record with its next report.

Conditions of employment

2. The Committee notes the adoption of Resolution No. 1 of 5 January 1993 (sent by the Government and received on 8 October 1993) repealing Resolution No. 590 of 11 December 1980 which listed certain "work merits and demerits" based on political factors, to be recorded in the worker's labour record; thus, information on workers' merits and demerits have now been withdrawn from labour records. In this respect, the Committee refers to the observation it is making under Convention No. 29.

3. The Committee recalls that the Latin American Central Organization of Workers (CLAT) alleged on 19 February 1992 that 14 university teachers were dismissed for having expressed their political opinions in accordance with their constitutional rights in an eight-point "declaration of principles" (calling for, amongst other things, observance of human rights in the country, the opening up of Cuban society by peaceful means, the independence of the universities, democratization of political life, and freedom of expression and conscience, particularly in universities) which they sent to their hierarchical superiors. The Committee notes the Government's reply that the inquiries carried out in this regard showed that the teachers in question no longer had the "essential qualities required for teaching" and that nine of them lodged appeals with the Minister for Higher Education, which were dismissed. The Committee would be grateful if the Government would state what it means by "essential qualities required for teaching" and under what legislation the teachers were dismissed, and if it would indicate what means of redress, other than appealing to the Minister in question, are available to these workers as a means of protection against all forms of discrimination on any of the grounds laid down in the Convention.

4. The Committee recalls that, according to Resolution No. 590 of 4 December 1986 regulating the system of inspection in education, teaching methods and results must be analysed (as regards both objectives and inspection methods) from the point of view of the Communist Party of Cuba (section 2) and must be assessed in the light of their political, ideological and scientific content (section 8). The Committee considered that these criteria could give rise to discrimination on grounds of political opinion in both (i) training of pupils and students; (ii) assessment of the work of teachers subject to inspection; and (iii) conditions of employment and the evaluation of the work of the inspectors themselves.

Furthermore, Legislative Decree No. 34 of 12 March 1980 which is based on the principle that "persons who are in contact with young people in the education process serve as an example in forming young persons as communists" allows the dismissal of members of the staff of higher education and other educational institutions, and staff of any education establishment who come into direct contact with students for, amongst other things, "serious and manifest activities that are contrary to socialist morals and the ideological principles of society". The workers concerned are technicians, professors, teachers, administrative staff or staff of departments coming into direct contact with students and of teaching departments employing technical staff, even if they do not work in teaching establishments or educational institutions. In its previous observations, the Committee noted that the Government intended to amend these texts. It notes the Government's statement in its latest report that it intends to make these amendments in due course in order to bring the texts into line with the particularities of the various sectors and adapt them to present circumstances, and that when it does so account will be taken of the Committee's comments.

The Committee has also examined Resolution No. 2 of 20 December 1989 respecting the reinstatement of educational workers to whom Legislative Decree No. 34/80 applied. It notes that workers dismissed for one of the activities listed in Legislative Decree No. 34/80 may only be reinstated after completing five years' disciplinary work, during which they are excluded from the education sector.

The Committee considers that this legislation is drafted in very broad terms and could therefore give rise to practices which discriminate against any worker coming into contact with young people in the educational context, enforceable by penalties which exclude them from their employment for a long period. It considers that these provisions are not consistent with the principles of the Convention and points out that they would only be in line with the Convention if they dealt with qualification requirements for certain jobs involving special responsibilities. In paragraph 126 of its 1988 General Survey on Equality in Employment and Occupation, the Committee stressed that "Certain criteria may be brought to bear as inherent requirements of a particular job, but they may not be applied to all jobs in a given occupation or sector of activity, and especially in the public service". The Committee asks the Government to ensure that the above-mentioned texts are repealed in the near future, in conformity with Article 3(c) of the Convention. It trusts that the next report will contain information on progress made in this respect.

Evaluation of workers

5. The Committee recalls that section 3 of Resolution No. 50 of 21 September 1987 regulating the evaluation of the work of journalists, sets out parameters for evaluating the results of their work which include "the political, ideological, economic and social scope of the work performed" (subsection (b)). The Committee pointed out in its previous comments that the outcome of the evaluation affected the wage level of the workers in question since an evaluation that is not "positive" has the effect of lowering the worker's wage to the level below the current one (section 27). Furthermore, a "non-positive" biennial evaluation of the employment relationship of the person concerned can lead to dismissal (section 28). The Government indicated previously that the performance of journalists is assessed solely on the basis of their qualifications and the results of their work, and in its latest report it merely takes note of the Committee's comments and undertakes to inform it of any amendment to the Resolution. In the Committee's view, provisions which refer to ideological and political factors may affect both access to and security of employment as well as conditions of work. Consequently, the Committee again asks the Government to remove the political and ideological elements from the criteria for the evaluation of journalists laid down in section 3(b) of Resolution No. 50/87 so that, in both law and practice, these workers are assessed on the basis of their qualifications and the results of their work. The Committee hopes that, in its next report, the Government will be able to provide information on the measures taken in this respect.

Access to training

6. Further to its previous comments, the Committee notes that the Government reiterates its earlier statements concerning admission to post-secondary or higher education and specifies that each resolution governing the admissions system applies only for one academic year. The Committee notes Resolution No. 1 of 11 February 1992 and observes that, as the Government points out in its report, the criteria set out in this text for admission to higher education refer to the candidates' qualifications which are ascertained by assessments based on a student's "academic index" which is determined by examinations. The Committee noted in its previous observation that, according to the Government, all information that was not linked to the education process would be withdrawn from the new model school records, and asked the Government to provide information on the role played in this respect by the students' collective and the trade union since the new records came into effect. The Committee again asks the Government to provide this information. Furthermore, it asks the Government to explain the nature of the consultations provided for in section 20 of Resolution No. 1/92 between the university authorities and, inter alia, the Communist Party of Cuba and the trade union and to indicate, in the context of these Resolutions, the criteria other than qualification criteria that are used to assess and, if the case arises, exclude a candidate.

Access to employment

7. With regard to the "personal verification form" containing information on a worker's moral attitude and social conduct, the Committee notes the Government's statement that the general inquiry into the internal rules of certain enterprises has shown that the moral qualities and social conduct required for recruitment are not different from requirements elsewhere, in any country or enterprise. The Government states that these requirements are a part of any normal employment relationship and are not among the criteria banned by the Convention. The Government states, however, that it plans to pursue the inquiry and to review the above-mentioned regulations so as to remove all ambiguity and ensure consistency with the principles of equality laid down in the Labour Code.

The Committee points out that under Article 1, paragraph 2, of the Convention, only distinctions, exclusions or preferences based on the requirements of a particular job are not deemed to be discrimination. Moreover, in the above-mentioned General Survey, the Committee recalls in paragraph 126 that, "although it may be admissible, in the case of certain higher posts which are directly concerned with implementing government policy, for the responsible authorities generally to bear in mind the political opinions of those concerned, the same is not true when conditions of a political nature are laid down for all kinds of public employment in general or for certain other professions". Consequently, the Committee draws the Government's attention to the fact that requirements that refer to moral qualities and social conduct could only be admissible if they were closely linked to the requirements of a specific post. The Committee hopes that the above-mentioned regulations will be reviewed in the near future and that the Government will be able to provide information in this respect in its next report.

8. The Committee notes that the Government repeats that Resolution No. 702 of 29 December 1981 of the Ministry of Education (which lays down political and ideological criteria for the assignment of graduates) was tacitly repealed by the adoption of Resolution No. 51 of 12 December 1988 regulating the implementation of employment policy, which, according to the Government's previous statements, is to be reviewed, the new text being under discussion on a tripartite basis. Since the draft regulations on employment policy define, amongst other things, the content of professional records, the Committee would be grateful if the Government would indicate in its next report the stage reached in the review and if it would provide a copy of the text as soon as it has been adopted.

9. With regard to posts in the administration of the State, the Committee notes that the ones which are controlled by the Communist Party of Cuba are those falling within the institutional structure established by Legislative Decree No. 67 of 1983 respecting the organization of the central administration of the State; the only posts involved are certain political and high-level offices (ministers, deputy ministers, presidents, vice-presidents and certain executive posts which each institution determines according to its specific requirements). The Committee refers to paragraph 126 of its General Survey, which it has already mentioned above, and recalls that requirements of a political nature must be restricted to certain high-level posts directly related to government policy in order to be consistent with the Convention. The Committee asks the Government to continue to provide information on any developments in this respect.

10. The Committee raises certain other points in a request addressed directly to the Government.