Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Cuba (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 – the 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.

I.         Trade union monopoly

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.