Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

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

The Committee notes the comments of 4 August 2011 by the International Trade Union Confederation (ITUC), referring to matters already under examination. It also notes the Government’s reply.

The Committee further notes the comments of the Central Organization of Workers of Cuba (CTC), forwarded with the Government’s report, and the comments of 13 August 2011 by the Independent Trade Union Coalition of Cuba (whose trade union status is contested by the Government) referring to matters that pertain to application of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).

Article 4 of the Convention. In its previous comments, the Committee referred to the need either to repeal or to amend the following provisions to bring them into line with the Convention:

• – section 14 of Legislative Decree No. 229 should be amended along the lines of the amendment made to section 8 of the new implementing regulations of the abovementioned Legislative Decree, so as to avoid any confusion and to ensure that the text of the Decree itself likewise establishes that any disputes arising in the process of drafting a collective agreement may be settled with intervention by the authorities and the CTC, only if both parties to the dispute so request;
• – section 17 of Legislative Decree No. 229 has not been amended. This provision establishes the following: “Any disputes that arise during the process of formulating, amending or revising the collective labour agreement and while it is in force, about the interpretation of its provisions or failure to comply with its clauses, shall be referred, once the conciliation procedure described above has been exhausted, to the National Labour Inspection Office for arbitration, with the participation of the Confederation of Workers of Cuba and the parties concerned. The final decision shall be binding” (the Government notified the repeal of sections 9, 10 and 11 of the implementing regulations to Legislative Decree No. 229, but not of section 17). The Committee again reminded the Government 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 the bargaining. The Committee also expressed the view that legislation which sets a requirement of referral to the administrative authority of disputes relating to collective bargaining, and which moreover provides for the participation of the Confederation of Workers of Cuba, also raises problems of incompatibility with the Convention. The Committee asked the Government to take measures to secure 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 CTC 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 possible only with the agreement of all the parties to the negotiations;
• – section 11 of Legislative Decree No. 229, which provides that “discussion of the draft collective labour 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 its previous observation, the Committee noted in this connection the Government’s statement that, in accordance with the principle of the independence and autonomy of trade union organizations, the Government may not prevent trade union organizations from adopting such decisions as they deem fit. The Government referred the Committee to comments sent by the CTC to the effect that the workers, far from considering the participation of the CTC and its methodology in bargaining and dispute settlement processes as undesirable interference, perceive it as a benefit. The CTC further stated 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 the first-level unions in negotiations. As to the methodology itself, the CTC stated that it consists of the application of the law which assists the national trade union organization to guide and instruct its affiliates, who account for 95 per cent of the workers in the country. Furthermore, the methodology and the other instruments guiding such 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 nonetheless considered that, in the context of the monopoly trade union system of the CTC as set out in the legislation (see the observation on Convention No. 87), section 11 imposes on all trade union organizations a methodology for the discussion of draft collective agreements established by the CTC 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 negotiations within the meaning of Article 4 of the Convention. Consequently, the Committee again asks the Government to take the necessary steps to amend section 11 of Legislative Decree No. 229 by deleting the express reference to the Central Organization of Workers and ensuring the autonomy of the parties to collective bargaining;
• – section 5 of Legislative Decree No. 229, which provides 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 or activities that share the same characteristics, when so agreed and requested by the head of the body and the general secretary of the corresponding federation.

The Committee recalled that in an earlier report, the Government had indicated that the provision applied to units in the budget with similar characteristics, such as bakeries, schools, hairdressers, service centres and polyclinics. The Committee pointed out 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 likeness or similarity 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 considered that such a situation is contrary to the principle of free and voluntary negotiation and once again requested the Government to take the necessary steps to repeal section 5 of Legislative Decree No. 229 so as to ensure that full effect is given to the principle of free and voluntary negotiation.

The Committee notes that, in reply to all its comments, the Government states that a new Labour Code is being prepared and that it is to include the substantive and procedural provisions of Legislative Decree No. 229, this process affording an opportunity for a tripartite evaluation of the questions raised.

The Committee further notes the Government’s response to the effect that: (1) the voluntary nature of, and the total autonomy of the parties to, the process of consultation, amendment or revision of collective labour agreements in the search for solutions to any disagreement that arises, clearly require that a mechanism be adopted by agreement between the parties and not by a decision of only one party; it also points out that the new wording “the parties may ...” eliminates the possibility of interpreting the provision as binding, as was the case with the wording of Resolution 27 of 2002, now repealed; (2) the provision does not have the general scope that the Committee attributes to it but, as stated in section 5, it is exceptional in nature and applies only when the head of the body and the corresponding trade union so agree; it does not apply to all sectors or to all the entities in a single sector, but to small local service units with the same or similar characteristics in relation to working conditions; the procedure is not legally binding, but it is a possibility that is allowed when it is assessed by common agreement, and in exceptional cases requested by the parties; (3) the procedure respects the independence and autonomy of trade union organizations that adopt such decisions as they see fit to organize trade union activities in accordance with their objectives; and (4) the collective bargaining process is driven, guided and controlled by the trade unions and the CTC, which propose relevant legal amendments to the Government.

The Committee hopes that the process to draft the new Labour Code and assess these provisions of Legislative Decree No. 229 in a tripartite framework will be concluded in the near future, and will take account of the observations the Committee has made on several occasions. It requests the Government to provide information on any amendments and hopes that it will be able to note progress in the near future. It requests the Government to provide copies of the legislative texts once they have been adopted.