Interim Report - Report No 284, November 1992

Case No 1628 (Cuba) - Complaint date: 28-FEB-92 - Closed

1. 1011. The complaint is contained in a communication from the International Confederation of Free Trade Unions (ICFTU) dated 28 February 1992. The Government replied in a communication dated 23 April 1992.
2. 1012. Cuba has ratified both the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 1013. In its communication of 28 February 1992, the International Confederation of Free Trade Unions (ICFTU) alleges that the Committee of Experts and the Conference Committee on the Application of Standards have, on numerous occasions, strongly criticised the status of trade union monopoly conferred upon the Cuban Central Organisation of Workers (CTC) by the Cuban legislation.
2. 1014. The ICFTU adds that on 4 October 1991, a group of workers set up the General Union of Cuban Workers (UGTC); exercising the right to establish organisations of their own choosing, guaranteed under Article 2 of Convention No. 87, section 13 of the Cuban Labour Code and article 8 of the Constitution of the Republic of Cuba. The ICFTU encloses a copy of the statutes of the UGTC. It is expressly confirmed in these statutes that the UGTC is an independent trade union (paragraph 1), that it is open to all Cuban workers without distinction (paragraph 8), that its sole objectives are to defend the interests and rights of Cuban workers and that it strongly rejects any form of outside interference from any individual, authority or organisation (paragraph 5).
3. 1015. The ICFTU states that, when the UGTC was established, it decided to request registration from the Ministry of Justice and thus recognition of its legal personality - vital for it to be able to exercise its trade union activities lawfully. This request was submitted to the Department of Associations of the Ministry of Justice in accordance with the standards in force, requiring that all organisations submit the corresponding request, which must receive a reply within 60 days. However, in spite of the time which elapsed, it did not receive any reply from the authorities. This failure not only violates Cuban legislation, but also the right of workers to establish organisations of their own choosing, without previous authorisation.
4. 1016. The ICFTU is also concerned by the fact that the Cuban authorities have acted in such a way as to create a climate of intimidation to undermine and interfere with the setting up of the UGTC and its recruitment activities. More specifically, on 11 January 1992, the President of the UGTC, Rafael Gutiérrez, was violently attacked by a so-called "rapid intervention brigade" which was part of a "protest campaign" instigated by the Government. Mr. Gutiérrez was held and attacked by the crowd, who tried to make him swallow copies of UGTC documents. He was then taken away in a vehicle without number plates to the tenth police station in the 10 October District in La Havana, where he was held in solitary confinement. His relatives were not allowed to see him and were told that he would be detained for a long time. However, Mr. Gutiérrez was released 48 hours later without any charges being brought against him and any explanations being given as to the grounds for his arrest.
5. 1017. The ICFTU concludes by pointing out that the situation described above proves that Cuban workers are still denied the basic right of trade union organisation and that the practice of free trade unionism is still subject to widespread repression on the part of the Government.

B. The Government's reply

1. 1018. In its communication dated 23 April 1992, the Government states that as regards the ICFTU's allegations on the existence of the Cuban Central Organisation of Workers (CTC) and its position within the legislative framework, it has already supplied detailed replies in the Government's annual reports to the Committee of Experts on the application of Convention No. 87 and at the Conference Committee on the Application of Standards. The Government stresses that it adheres to the historical and judicial principles of the trade union movement and that national trade unions, grouping 96.7 per cent of the country's labour force, participate fully in this movement.
2. 1019. In connection with the so-called independent trade union organisation promoted by the ICFTU, the Government states that this organisation is not known either by the workers, the general public or the social partners representing the various decision-making bodies within the labour relations system. The Government particularly stresses the fact that it does not have any representativity among the workers which might justify the widespread international propaganda campaign being conducted by the Government of the United States as part of its anti-Cuban activities.
3. 1020. The Government indicates that it has information on funding by the Government of the United States which is designed to encourage the creation of parallel trade unions in Cuba through various channels, including the structures and procedures of the AFL-CIO and the ICFTU. Attempts by the AFL-CIO and the ICFTU to interfere in Cuban trade unionism include plans to set up satellite organisations representing United States' interests in Cuba, industrial sabotage and bribes for trade union officials. The Government encloses a photocopy of an article published in Nuevo Herald, dated 19 January 1991 (Miami), confirming the above-mentioned statement.
4. 1021. The Government states that if the present case submitted by the ICFTU were a legitimate act of trade union solidarity, it would have to be addressed and even supported in so far as the setting up of trade union organisations is the outcome and expression of the free will of workers; on the contrary, this case constitutes an act of trade union interference by the ICFTU and an international propaganda campaign. Far from being an act of solidarity, the steps taken by the ICFTU in this case constitute a violation of the trade union freedom enjoyed by Cuban workers, who have not encountered any difficulties or opposition whatsoever in setting up organisations of their own choosing, drafting their own statutes and resolutions and adopting the trade union structure they consider apt for the defence of their interests, as stipulated in section 13 of the Labour Code.
5. 1022. The Government stresses that in Cuba there are more than 3.5 million workers, of whom 96.7 per cent belong to trade union organisations of their own choosing. The so-called trade union organisation mentioned by the ICFTU does not exist in the country, neither does it have any representativity amongst Cuban workers. To impose such a so-called trade union organisation - as part of an anti-Cuban campaign instigated by the United States to cause political destabilisation, as openly stated and published by the international press - not only constitutes a violation of the standards and principles of international law but also a violation of freedom of association by the AFL-CIO, the ICFTU and their supporters, because it does not reflect the true will of the workers in Cuba.
6. 1023. As regards Rafael Gutiérrez, alleged official according only to the ICFTU, the Government states that he is not being held and that no criminal charges have been brought against him.

C. The Committee's conclusions

1. 1024. The Committee notes that in the present case the complainant has raised the following issues: (1) the failure of the Ministry of Justice to reply to the General Union of Cuban Workers' (UGTC) request for recognition and acknowledgement of its legal personality, in spite of the legal time-lapse of 60 days; and (2) the violent attack against Rafael Gutiérrez, president of the UGTC, by a "rapid intervention brigade" which was part of a "protest campaign" instigated by the Government, and the detention of the above-mentioned official for 48 hours without any charges being brought against him and no explanation being given as to the grounds for his arrest.
2. 1025. The Committee notes the Government's observations to the effect that: (1) the UGTC is not known, either by the workers, the general public or the social partners representing the various decision-making bodies within the industrial relations system; (2) there are more than 3.5 million workers in Cuba, of whom 96.7 per cent belong to trade union organisations of their own choosing; the so-called trade union organisation mentioned by the ICFTU does not exist in the country, neither does it have any representativity whatsoever amongst Cuban workers; (3) Mr. Rafael Gutiérrez is not being held, neither are there any criminal charges against him; and (4) the AFL-CIO and the ICFTU have plans to interfere in Cuban trade unionism by promoting industrial sabotage and trying to bribe the trade union officials; these are anti-Cuban activities designed to bring about political destabilisation.
3. 1026. The Committee deplores the fact that the Government has not sent specific information on the failure of the Ministry of Justice to reply to the General Union of Cuban Workers' request for registration and recognition of its legal personality. Indeed, the Government merely stated that this organisation "does not exist", in spite of the fact that the statutes of this organisation were communicated by the complainant and that the names of six persons were mentioned in these statutes. The Committee also deplores the fact that the Government also failed to provide information on the allegations concerning the violent attack against Mr. Rafael Gutiérrez, founder and president of the UGTC. In these circumstances, the Committee must point out that the right of workers to establish organisations of their own choosing implies, in particular, the effective possibility of forming, in a climate of full security, organisations independent both of those which exist already and of any political party (see 197th Report, Case No. 905 (USSR), para. 635 and 270th Report, Case No. 1500 (China), para. 324). The Committee urges the Government to send precise observations on these allegations to which it did not reply in a specific way and to decide, without delay, on the request for registration submitted by the UGTC, taking full account of the fact that under Article 2 of Convention No. 87, workers and employers, without distinction whatsoever, have the right to establish and join organisations of their own choosing without previous authorisation.
4. 1027. As regards the detention of the president of the UGTC for 48 hours, the Committee deplores the fact that the Government did not send specific information on this detention and merely pointed out that Mr. Gutiérrez was not "being held" and that no criminal charges have been brought against him. The Committee therefore urges the Government to send without delay its observations on this matter. It draws to its attention the principle that when the authorities arrest trade unionists without a warrant or it is subsequently found that no grounds exist for conviction, this constitutes a clear violation of trade union rights. Governments should take steps to ensure that the authorities concerned have instructions appropriate to eliminate the danger which arrest for trade union activities implies" (see Digest of decisions and principles of the Committee on Freedom of Association, 3rd edition, 1985, para. 97).
5. 1028. Finally, as regards the Government's statements concerning the complainant organisation's plans to interfere in the Cuban trade union movement, the Committee points out that any assistance or support that an international trade union organisation might provide in setting up, defending or developing national trade union organisations is a legitimate trade union activity, even when the trade union tendency does not correspond to the tendency or tendencies within the country. The Committee also points out that the recriminations and value judgements which the Government makes in a general way against the complainant are not admissible, neither may they be taken into account as part of the procedure of the Committee, which is only authorised to examine complaints against governments and not against workers' or employers' organisations.

The Committee's recommendations

1. 1029. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to send it urgently specific observations on the allegation concerning the violent attack against Mr. Rafael Gutiérrez, founder and president of the UGTC. The Committee points out that the right of workers to establish organisations of their own choosing implies, in particular, the effective possibility of forming, in a climate of full security, organisations independent both of those which exist already and of any political party.
   • (b) The Committee urges the Government to send without delay its observations on the 48-hour detention of Mr. Rafael Gutiérrez (president of the UGTC) and reminds the Government that when the authorities arrest trade unionists without a warrant or it is subsequently found that no grounds for conviction exist, this constitutes a clear violation of trade union rights.
   • (c) The Committee requests the Government to send specific observations on the Ministry of Justice's failure to reply to the request for registration and recognition of legal personality submitted by the General Union of Cuban Workers (UGTC) and to make a ruling without delay on this matter, taking fully into account that under Article 2 of Convention No. 87, workers and employers, without distinction whatsoever, have the right to establish and join organisations of their own choosing without previous authorisation.
   • (d) The Committee draws the Government's attention to the principle that any assistance or support provided by an international trade union organisation to help establish, defend or develop national trade union organisations is a legitimate trade union activity.