Migration for Employment Convention (Revised), 1949 (No. 97) - Cuba (Ratification: 1952)

Direct Request (CEACR) - adopted 2017, published 107th ILC session (2018)

Article 1 of the Convention. Information on national policies, laws and regulations. The Committee notes the Government’s indication that there are no flows of immigrants in Cuba. It also notes that, according to a National Office of Statistics and Information (ONEI) publication entitled “The Demographic Yearbook of Cuba, 2016”, 24,684 persons emigrated in 2015 (12,113 men and 12,571 women) and 17,251 persons emigrated in 2016 (8,793 men and 8,458 women). The Government indicates that in 2016, within the framework of following up migration agreements, talks on migration were held with Antigua and Barbuda, Bahamas, Canada, Colombia, Ecuador, Guyana, Honduras, Panama, Switzerland and Bolivarian Republic of Venezuela. It adds that, in January 2017, Cuba and the United States concluded a migration agreement. The Committee requests the Government to continue providing information on the application in practice of the provisions concerning migration, and particularly the impact on workers who have chosen to work abroad. The Committee also requests the Government to provide statistical information disaggregated by the destination, activity and gender of workers located abroad and temporary or permanent foreign workers in the country, including those who provide services in accordance with the arrangements set out in Act No. 118 of 29 March 2014, the Foreign Investment Act. The Committee also requests the Government to provide copies of agreements concluded with other States relating to national workers who work abroad and foreign workers who reside and work in the country.

Article 2. Adequate and free service. The Committee notes the information provided by the Government regarding consular offices abroad. The Committee recalls that, under Article 2 of the Convention, member States are under the obligation either to provide or fund the provision of free information or other assistance to migrant workers or to ensure the existence of such services, and to monitor them and, where necessary, intervene to supplement them (see Promoting a fair migration, General Survey, 2016, paragraph 228). The Committee requests the Government to indicate whether there is a free service to assist and provide accurate information to workers who decide to migrate for employment. If such a service exists, the Committee requests the Government to specify the types of service and information that it provides, including services specifically for women migrant workers.

Article 6. Equal treatment. The Committee notes the information provided by the Government in reply to its request for information on the implementation of the legal provisions to which it referred in its previous report, such as the repeal of Resolution No. 8 of 1 March 2005 of the Ministry of Labour and Social Security, containing the General Regulations on Labour Relations, and the adoption of Act No. 116 of 20 December 2013 issuing the Labour Code and Decree No. 326 of 12 June 2014 issuing regulations under the Labour Code. The Committee notes that section 4 of the Labour Code “regulates the labour relations established between employers based in the national territory and nationals or foreign nationals with permanent residency in the country, giving effect to the rights and mutual responsibilities of the parties”. Section 8 of the Labour Code provides that “in relation to foreign investment arrangements, subsidiaries and agents of foreign commercial enterprises located in Cuba shall comply in labour matters with the provisions of this Code and its supplementary legislation, with the specific adaptations set out in the Foreign Investment Act and the legal provisions for such purposes”. Under section 28(1) of the Foreign Investment Act, “workers who provide services in activities corresponding to foreign investment shall in general be Cuban or foreign nationals permanently resident in the Republic of Cuba”. The Committee notes that section 28(2) of the Foreign Investment Act provides that “nevertheless, the management and administration bodies of joint ventures or enterprises funded fully by foreign capital or parties to international economic association agreements may decide that certain senior executive positions or technical posts shall be performed by persons who are not permanent residents in the country and in these cases shall determine the labour rules to be applied and the rights and obligations of these workers”. The Committee requests the Government to report on the manner in which the application of Article 6(1)(a)–(d) of the Convention is ensured in relation to temporarily resident foreign workers. It also requests the Government to provide information on the measures adopted by the labour inspectorate and the judicial authorities in the case of non-compliance with the national legislation which gives effect to Article 6.

Article 9. Remittances. The Committee notes that section 9(2) of the Foreign Investment Act provides that “Foreign persons who provide services to a joint venture, to parties in any other form of international economic association or to an enterprise funded totally by foreign capital, provided that they are not permanent residents in the Republic of Cuba, have the right to transfer their earnings abroad, within the amount decided by the Central Bank of Cuba and in conformity with the Bank’s other regulations”. Paragraph 1 of Resolution No. 47/2014 of 18 April 2014, of the Minister President of the Central Bank of Cuba, provides that these persons “may at their convenience, remit abroad up to 66 per cent of the earnings they receive in the national territory”. The Committee recalls that Article 9 applies to all migrant workers, irrespective of the period of time they remain in the host country. The Committee requests the Government to indicate the reasons why Resolution No. 47/2014 only covers temporary residents and limits the percentage of their earnings which may be sent as remittances.

Annexes I and II. Private employment agencies. The Committee notes the Government’s reiteration that there are no private employment agencies in reply to its previous request regarding the possible emergence of such agencies in the country and any plans to regulate their activities.

Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

Article 1 of the Convention. Information on national policies, laws and regulations. The Committee notes the Government’s indication that temporary foreign residents who work in the supervisory and administrative bodies of joint companies or companies established wholly with foreign capital or under international economic association agreements are recruited from their countries of origin or residence, in accordance with the national law and conditions. The Government adds that Cubans who work abroad do so by virtue of bilateral agreements concluded with 101 different nations with a view to providing services in health, education and sport. The Committee also notes the adoption on 11 October 2012 of Legislative Decree No. 302 amending Act No. 1312 (Migration Act), Decree No. 305 amending Decree No. 26 establishing the implementing regulations for the Migration Act, Decree No. 306 concerning the treatment of professional managers and athletes who require authorization to travel abroad, and the decisions concerning the elimination of taxation and notarial requirements relating to documentation needed for entering and leaving the country and the updating of passports. The Committee requests the Government to provide information on the application in practice of the new provisions concerning migration, particularly the impact on the movements of workers who have chosen to work abroad. The Committee also requests the Government to send statistical information disaggregated by country of destination, activity and sex of workers located abroad. Furthermore, taking account of the fact that the legislation enables foreigners to reside either temporarily or permanently for the purpose of work, the Committee requests the Government to supply statistical information disaggregated by sex, country of origin and of sector of activity, on the number of temporary and permanent foreign workers in Cuba. The Government is also requested to provide information on agreements concluded with other States relating to national workers who work abroad and foreign workers who reside and work in the country.

Article 2. The Committee requests the Government to indicate whether, in the context of the new legislation on migration, a free service has been established or is due to be established to assist and provide accurate information for nationals who wish to migrate for employment.

Article 6. Equal treatment. The Committee notes the Government’s statement that permanent foreign residents are on an equal footing to Cuban nationals in terms of the rights they enjoy and the obligations they must fulfil, including labour and social security rights. The National Labour Inspection Office is responsible for enforcing the legislation and it has not detected any violations relating to compliance with the Convention. Furthermore, permanent foreign residents have access to the labour justice system and to the people’s tribunals. The Government indicates that none of the representations examined between 2007 and 2011 resulted from discrimination on the basis of national origin. While noting this information, the Committee requests the Government to supply further details on the implementation of the legal provisions referred to in its previous report (articles 34 and 42 of the Constitution of the Republic, sections 3 and 6 of the Labour Code and sections 1 and 2 of Decision No. 8 of 1 March 2005 establishing general regulations on labour relations), particularly with regard to the matters listed in Article 6(1)(a)–(d) of the Convention. The Government is also requested to continue to send information on the measures taken by the labour inspectorate and the judicial authorities in the event of non-compliance with the provisions of national law that give effect to Article 6. The Committee also requests the Government to state the manner in which the application of Article 6 to temporarily resident foreign workers is ensured.

Annexes I and II. The Committee notes the Government’s indication that there are no private recruitment agencies which deal with the recruitment of foreigners. Taking account of the growing importance of such agencies, the Committee requests the Government to keep it informed of any developments regarding the emergence of such agencies in the country and of any plans to regulate their activities.

Parts III and IV of the report form. Practical information. The Committee notes the Government’s statement that there are no difficulties relating to the application of the Convention and that the courts have not rendered any decisions in this respect. The Committee requests the Government to continue to provide information on the practical effect given to the Convention and on any difficulties encountered in the application thereof. The Government is also requested to provide information on any changes in the legislation and to send a copy of any administrative or judicial decision on matters relating to the application of the Convention.

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

1. Article 1 of the Convention. Information on policies and national legislation. In its previous direct request, the Committee asked the Government to indicate how modern trends have affected the application of its migration policy. The Government states that for several years in Cuba there has been no statistically significant number of migrant workers, so its migration policy remains unchanged. The Government also indicates that the legislation in force has not been amended either, and that it is made up of the following instruments, which are still in force: Act No. 1312 (Migration Act 1976); Act No. 1313 (Act on Foreigners 1976); Foreign Investment Act; Act No. 49 (Labour Code 1985); and Chapter III of the Constitution of the Republic of Cuba 1976. According to the Government, these provisions set requirements for entry to the country, temporary or permanent stay in the country, the responsibilities of state bodies responsible for dealing with foreigners and the measures that ensure prevention of unlawful human trafficking for the purpose of employment. Noting that it is possible to reside both temporarily and permanently for the purpose of work, the Committee invites the Government to provide statistical information on the number of foreign workers in Cuba in each category, by country of origin, sector of activity and gender. The Committee would also appreciate receiving statistical information on Cubans abroad, by destination, activity and gender.

2. Article 5. Medical services. The Committee recalls that the Convention provides that each Member for which it is in force undertakes to maintain appropriate medical services to ensure that migrants and members of their family enjoy adequate medical attention and good hygienic conditions at the time of departure, during the journey and on arrival in the territory of destination. The Government states in its report that its health system is sufficiently developed to meet the needs of the entire population. The Committee requests the Government to provide further information on the hygiene and epidemiological arrangements that exist for conducting international health checks in the country together with statistical and other relevant information on the practical arrangements of such programmes.

3. Article 6. Equal treatment. The Committee notes that, according to the Government, there are a number of legal provisions that safeguard equality of conditions for workers, including: Chapters III and VI of the Constitution of the Republic of Cuba, article 34 of which lays down equal protection for foreigners; article 42 of the Constitution, which forbids and sanctions by law discrimination on grounds of race, skin colour, sex, national extraction and religious belief, and any other discrimination that is an affront to human dignity. The Government further states that equal treatment in employment is established in sections 3 and 6 of the Labour Code. The Committee also notes the content of sections 1 and 2 of resolution No. 8 of 1 March 2005 (General Regulations on Labour Relations), which incorporates non-discrimination as a principle governing employment policy. Section 24 of the resolution establishes that “for posts or occupations the duties of which require the incumbent to comply with general or specific standards of conduct or, where appropriate, to have certain personal traits, no requirements may be established that discriminate on grounds of sex, skin colour, religion, political opinion, national extraction or social origin, or any other ground that offends against human dignity”. The Committee would be grateful if the Government would provide information on the application in practice of the abovementioned legal provisions, and on the measures to ensure that they are applied in practice with regard to migrant workers in respect of the items listed at Article 6(a) and (d) of the Convention. Please also provide information on the available means of redress.

4. Article 8. Non-return in the event of sickness or accident. The Committee notes that the Government states that incapacity for work of a foreign worker resident in the country does not affect the worker’s right to residence. According to the Government, in Cuba’s legislation on social security and occupational safety and health, there is no provision that could be cited for such a purpose since all provisions apply equally to both nationals and foreigners. The Committee points out that the obligation to guarantee continuity of the residence permit of migrant workers admitted on a permanent basis and members of their family in the event of sickness or accident is one of the most important provisions of the Convention. The Committee requests the Government to confirm in its next report whether migrant workers maintain their right to reside in the country when the migrant worker or his or her family represent a burden on public funds.

5. Annexes I and II. With regard to its previous comments concerning the regulation of private employment agencies, the Committee notes that according to the Government’s report there are no private recruitment agencies in Cuba. The Committee points to the growing importance of such agencies in the context of international migration. It requests the Government to keep it informed of any developments regarding the emergence of private employment agencies, to indicate whether it plans to regulate their activities or, if appropriate, to inform it of measures taken to encourage self-regulation with a view to protecting migrant workers against any abuse.

6. Parts III–IV of the report form. Practical information. The Committee would be grateful if the Government would continue to provide information on the practical effect given to the Convention. It would also appreciate information in the next report on the practical difficulties encountered in applying the Convention. Please also keep the Committee informed of any changes in the legislation and indicate whether the ordinary courts or any other courts have handed down decisions on matters relating to the application of the Convention, providing the texts thereof if this is the case.

Direct Request (CEACR) - adopted 2000, published 89th ILC session (2001)

1.  The Committee notes that no report including up-to-date information on all fields covered by the Convention has been received for years. However, as it emphasized in its 1999 General Survey on migrant workers, international migration for employment has undergone significant changes in extent, direction and nature since the adoption of the Convention (see General Survey, paragraphs 5-7). The Committee therefore requests the Government to send copies of any new legislation or regulations adopted as well as current information in response to the matters contained in the report form for the Convention. The Committee would be grateful if the Government would indicate how current trends in migratory flows have had an impact on the content and application of its national policy and legislation on emigration and immigration.

2.  The Committee draws the Government’s attention to Article 6 of the Convention, in particular, and requests it to supply information on the practical application of its policy of equality of treatment between national workers and migrant workers in the matters enumerated in subparagraphs (a), (b), (c) and (d) of this Article. Recalling that under paragraph 1 of this Article any State which has ratified the Convention undertakes to apply, without discrimination in respect of nationality, race, religion or sex, treatment no less favourable than that which it applies to its own nationals in respect of the matters listed in subparagraphs (a)‑(d) of the Article, the Committee would be grateful if the Government would indicate the measures taken or envisaged to ensure that female migrant workers are treated on the same equal footing as their male counterparts, foreigner or other, in regard to their living conditions and conditions of employment, social security, employment-linked taxes and access to legal proceedings - in view of the increasing feminization of migrant workers (see the abovementioned General Survey, paragraphs 20-23 and 658).

3.  Article 8 of the Convention was one of those most often mentioned by Governments as raising difficulties of application when the General Survey was carried out (paragraphs 600-608 of the survey), and the Committee would be grateful if the Government would supply information on the practical application of maintenance of the right of residence in the event of disability of migrant workers who have been admitted on a permanent basis upon arrival or after a certain period.

4.  In view of the growing role played by private agencies in the international migration process, the Government is requested to indicate the impact of this evolution on the application of Annexes I and II of the Convention which deal, respectively, with recruitment, placing and conditions of labour of migrants for employment recruited otherwise than under government-sponsored arrangements for group transfer, on the one hand, and recruitment, placing and conditions of labour of migrants for employment recruited under government-sponsored arrangements for group transfer, on the other. As emphasized in the abovementioned General Survey, although the privatization of placement activities has proved its effectiveness, it also has negative aspects: false offers of employment, misleading publicity, exorbitant fees, untrue statements on the nature of the work and conditions of employment, etc. The Committee would therefore be grateful if the Government would indicate the measures taken or envisaged to regulate the activities of private agencies or to encourage self-regulation in order to protect migrant workers against possible abuses as well as the sanctions incurred for violations, particularly in the case of misleading propaganda.