Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Cuba (Ratification: 1952)

The Committee notes the comments of the Independent National Confederation of Cuba (CONIC) (the trade union status of which is contested by the Government), dated 10 August 2009, and the comments of the International Trade Union Confederation (ITUC), of 26 August 2009, referring to matters that are already under examination. The Committee also notes the Government’s reply to these comments.

The Committee further notes the comments of the Workers’ Central Union of Cuba (CTC), which were forwarded with the Government’s report.

Article 4 of the Convention. The Committee recalls that in its previous comments it referred to the need to amend or repeal the following provisions to bring them into conformity with the Convention:

–           Section 14 of Legislative Decree No. 229 on collective agreements and section 8 of its implementing regulations, which require any disputes 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.

The Committee notes the Government’s indication that the implementing regulations of Legislative Decree No. 229/2002 (Resolution No. 27 of 2 July 2002) have been repealed by Resolution No. 78/2008, issuing new implementing regulations. In this respect, the Committee notes that section 8 of the new Regulations, which amends section 8 of the previous Regulations, provides that where any disputes occur in the process of drafting, amending or revising the agreement, the parties may refer them to the respective higher levels or, where appropriate, to arbitration, during or after the negotiation phase, as applicable. The Committee notes the Government’s indication that this wording confirms the voluntary nature and the total autonomy of the parties in the process of negotiating, amending or revising collective labour agreements in seeking solutions to disputes which may arise, as the procedure to be adopted has to be by common agreement between the parties, and that furthermore such a procedure is voluntary and not compulsory.

In this respect, the Committee expresses appreciation for this development; nevertheless, with a view to achieving greater legislative coherence and avoiding confusion, the Committee also requests the Government to amend section 14 of Legislative Decree No. 229 in the same manner as section 8 of the new implementing regulations, that is to ensure that any dispute during the process of the formulation of a collective labour agreement can be resolved with the intervention of the authorities and the Confederation of Workers of Cuba only where both parties to the dispute so request.

–           Section 17 of Legislative Decree No. 229 and sections 9, 10 and 11 of its implementing regulations, which require any disputes that arise once the agreement has been concluded to be referred, when the conciliation procedure has been exhausted, for arbitration by the National Labour Inspection Office with the participation of the Confederation of Workers of Cuba and the parties concerned, with the decision that is adopted being binding.

The Committee takes due note of the Government’s indication that sections 9, 10 and 11 of the implementing regulations are null and void as they are totally repealed by the second final provision of the new implementing regulations of 2008.

The Committee nevertheless observes that section 17 of the Legislative Decree has not been amended. This provision establishes that “disputes which arise during the process of the formulation, amendment or revision of the collective labour agreement or while it is in force, concerning the interpretation of its provisions or failure to comply with its clauses, after the conciliation procedure described above has been exhausted, shall be submitted for arbitration to the National Labour Inspection Office with the participation of the Confederation of Workers of Cuba and the parties concerned. The final decision adopted shall be binding”. In this respect, the Committee recalls once again that, except in the public service and in essential services in the strict sense of the term, compulsory arbitration by the authorities is contrary to the principle of the voluntary negotiation of collective agreements laid down in Convention No. 98 and, hence, contrary to the autonomy of the parties to bargaining. The Committee also considers that legislation which requires the referral of disputes relating to collective bargaining to the administrative authority, and which also provides for the participation of the Confederation of Workers of Cuba, also raises problems of incompatibility with the Convention. The Committee requests the Government to take measures with a view to the amendment of section 17 of Legislative Decree No. 229 in order to ensure that where disputes arise between the parties in the process of collective bargaining, the interference or intervention of the authorities and the Confederation of Workers of Cuba is not imposed as an obligation and that, except in the public service and in essential services in the strict sense of the term, recourse to binding arbitration is only possible with the agreement of all the parties to the negotiations.

–           Section 11 of Legislative Decree No. 229, which provides 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”.

In this respect, the Committee notes the Government’s indication that, in accordance with the principle of the independence and autonomy of trade unions, the Government cannot prevent trade unions from adopting the decisions that they consider appropriate. The Government refers to the comments sent by the Confederation of Workers of Cuba, according to which the workers, far from considering the participation of the CTC and its methodology in bargaining processes and the resolution of disputes as an undesired interference, perceives it as a benefit. The CTC adds that it is the workers who immediately refer matters to the CTC through its various bodies to obtain the necessary support and guidance for their claims and interests, which does not prejudice the will of the parties, but ensures the necessary guidance, without undermining the principal role played by first-level unions in negotiation. With regard to the methodology itself, the CTC indicates that it consists of the application of the law which assists the national trade union organization to guide and instruct its affiliates, which represent 95 per cent of the workers in the country. Furthermore, the methodology and the other instruments guiding this action are not imposed, but are analysed and discussed in the various bodies of the trade union movement at both the central and sectoral levels, and in many cases by the workers themselves.

The Committee nevertheless considers that, in the context of the monopoly trade union system of the Confederation of Workers of Cuba as set out by the legislation (see the observation on the application of Convention No. 87), section 11 imposes upon all trade union organizations a methodology for the discussion of draft collective agreements established by the Confederation which, when combined with the existence of overly detailed provisions on the manner in which negotiations are to be held, does not adequately promote free and voluntary collective negotiations within the meaning of Article 4 of the Convention. The Committee therefore once again requests the Government to take the necessary measures to amend section 11 of Legislative Decree No. 229 by deleting the explicit reference to the Confederation of Workers of Cuba and ensuring the autonomy of the parties to collective bargaining.

–           Section 5 of Legislative Decree No. 229 and section 3 of the implementing regulations, which provide that the National Labour Inspection Office shall approve the conclusion of collective labour agreements in the units provided for in the budget and in the production and service activities of bodies, sectors, branches and activities that share the same characteristics, when so agreed and requested by the head of the body and the Secretary-General of the corresponding federation.

The Committee observes that the former section 3 of the implementing regulations has been amended by the new regulations and that it no longer refers to this matter. With regard to section 5 of Legislative Decree No. 229, the Committee notes the Government’s reiteration that: (1) the provision is of an exceptional nature and is only applied when so requested by common agreement between the head of the body and the corresponding trade union; (2) it does not apply to all sectors, nor to all the entities belonging to the same sector, but to small local service units with the same or similar characteristics in relation to working conditions; (3) the objective of the provision is to ensure that the collective agreements that are adopted in these units are specifically adapted to these specific characteristics; and (4) this procedure is not made compulsory in the legislation, but it is a possibility that is allowed when it is assessed by common agreement, and in exceptional cases requested by the parties.

The Committee recalls that in a previous report the Government indicated that the provision applied to units in the budget with similar characteristics, such as bakeries, schools, hairdressers, service centres and polyclinics. The Committee emphasizes that the law subjects the conclusion of collective agreements in a broad sector of activities to approval by the National Labour Inspection Office. More specifically, the text of section 5 provides that: “the units provided for in the budget and the production and service activities of bodies, sectors, branches and activities that share the same characteristics may, on an exceptional basis, conclude collective labour agreements, when this is advisable in view of the similarity or analogue nature of the working conditions, where so agreed by the head of the body and the corresponding national union with the prior approval of the Ministry of Labour and Social Security.” The Committee considers that this situation is contrary to the principle of free and voluntary negotiation and once again requests the Government to take the necessary measures to repeal section 5 of Legislative Decree No. 229 with a view to ensuring that full effect is given to the principle of free and voluntary negotiation.