Observation (CEACR) - adoptée 2019, publiée 109ème session CIT (2021)

Convention (n° 111) concernant la discrimination (emploi et profession), 1958 - Cuba (Ratification: 1965)

The Committee notes the observations of the Independent Trade Union Association of Cuba (ASIC), received on 19 September 2018, and the Government’s reply.

Article 1 of the Convention. Grounds of discrimination. Legislation. In its previous comments, the Committee noted that the Labour Code of 2013 (Act No. 116 of 20 December 2013), unlike the previous Labour Code (of 1984), does not include the prohibition of discrimination on the basis of race, political opinion, national extraction or social origin. It asked the Government to take the necessary steps to amend the Labour Code of 2013 to explicitly prohibit discrimination on those grounds, and to provide information on any developments in this respect. The Committee notes that a new Constitution was adopted in February 2019. It welcomes the incorporation into Article 42 of elements that expand the legal formulation of the principle of equality, prohibiting discrimination on the basis of sex, sexual orientation, gender identity, age, ethnic origin, skin colour, religious belief, disability, national or regional origin, or any other personal condition or circumstance implying a distinction injurious to human dignity. In this regard, the Committee notes in particular that the new Constitution expressly prohibits discrimination on the basis of ethnic, national or regional origin. However, the Committee observes that, unlike in the previous Constitution (of 1976), discrimination on the basis of race, political opinion or social origin is not explicitly prohibited in the new Constitution or in the Labour Code of 2013. However the Committee observes that section 295(1) of the Penal Code makes discrimination on grounds of sex, race, colour or national origin an offence against the right to equality. The Committee wishes to underline the fact that, where legal provisions are adopted to give effect to the principle of the Convention, they should include at least all the grounds of discrimination specified in Article 1(1)(a) of the Convention (see the 2012 General Survey on the fundamental Conventions, paragraph 853).The Committee recalls the Government’s previous indication that political opinion is used only for the purpose of registration and consultation for employment, promotion and training and performance evaluation. The Committee requests the Government to take the necessary steps to ensure that the legislation expressly prohibits discrimination on the grounds of political opinion or social origin in employment and occupation, and to report the measures taken to guarantee that, in practice, no information is sought on the political opinion of the workers or students. The Committee also requests the Government to confirm that the grounds of ethnic, national and regional origin cover the ground of national extraction expressly referred to in the Convention

Article 1(1)(a). Discrimination based on sex. Sexual harassment. In its previous comments, the Committee requested the Government to take the necessary steps to ensure that the legislation (the Labour Code and its regulations) includes a provision clearly defining and prohibiting all forms of sexual harassment in employment and occupation, both quid pro quo and hostile work environment harassment, and to provide information on the progress made in this regard. The Committee also requested that the Government provide information on any other measures taken for the purpose of preventing sexual harassment in the workplace. In addition the Committee requested the Government to continue to provide information on the number of complaints of sexual harassment in employment and occupation filed with the Office of the Prosecutor-General and the labour inspectorate, and on the number of cases examined by the judiciary, the action taken on the complaints, any penalties imposed and compensation awarded. The Committee notes the Government’s statement that the prevention of sexual harassment is guaranteed under the Labour Code, which provides that the employer shall be responsible for the direction and organization of the work process and its supervision. The employer is therefore required to ensure that workers are aware of their functions and duties, guarantee adequate working conditions and the enjoyment of rights, and establish appropriate industrial relations by taking into account the views of workers and their complaints, the protection of their physical and psychological well-being, and respect for their dignity. The Committee also notes that the Government reports that: (i) the National Labour Inspection Office did not receive any complaints of sexual harassment in 2017 and nor did the Office of the Prosecutor-General in that regard in 2018; and (ii) on July 1 2017, the National Assembly of the People’s Power approved the concept documents of the Cuban economic and social model of socialist development (Economic and Social Policy Guidelines for the Party and the Revolution), and the Outline of the National Plan for Economic and Social Development until 2030. The concept document states that the “Socialist State is the guarantor of equality and is founded on the following principles: moral and legal recognition of the equality of citizens’ rights and duties, and the guarantees that they are given effect to with equity, inclusion, social justice, political participation, the narrowing of social gaps, respect for diversity and the fight against all forms of discrimination based on skin colour, gender, gender identity, sexual orientation, disability, territorial and national origin, religious belief, age and any other distinction detrimental to human dignity”. Noting that the Government’s report does not provide information on the exact use of a legislative definition of sexual harassment, the Committee recalls that without a clear definition and prohibition of both quid pro quo and hostile work environment sexual harassment, it remains doubtful whether the legislation effectively addresses all forms of sexual harassment (see 2012 General Survey, paragraph 791). In addition, the Committee considers that, while the legal prohibition of sexual harassment is an essential step to eliminate such behaviour, it is important to adopt practical and effective measures for its prevention, detection and punishment. The Committee once again requests the Government to: (i) take the necessary steps to ensure that the legislation includes a provision clearly defining and prohibiting all forms of sexual harassment in employment and occupation, both quid pro quo and hostile work environment sexual harassment; (ii) provide information on progress made in this regard; (iii) report the manner in which employers are encouraged to adopt the preventive measures established in the Labour Code and any other measures taken for the purpose of preventing sexual harassment in the workplace (such as awareness-raising campaigns for employers and workers, and training to inform them of the legislative provisions relating to sexual harassment and identification of this behaviour); and (iv) continue to provide information on the number of complaints of sexual harassment in employment and occupation made to the Office of the Prosecutor-General and the labour inspectorate, as well as on the number of cases examined by the courts, the penalties imposed and compensation awarded.

Discrimination on the ground of political opinion. The Committee notes that ASIC alleges discrimination on political grounds through the practice of declaring citizens “unreliable” or “unsuitable” on the basis of their refusal to belong to any government-backed organization, resulting in them being considered a “pre-criminal social risk”, which can lead to being liable to imprisonment, and also alleges that a certain physical appearance is needed to gain access to employment. In this regard, the Committee notes that the denial by the Government that discriminatory measures are added for political reasons and states that no persons have been detained for exercising freedom of expression and opinion within the limits set out by the national legislation. The Government affirms that employment relationships are governed by the principle of the suitability for entering and remaining in employment, for promotion and training, as well as the efficiency, quality and productivity of the worker, and it adds that the qualifications and diplomas required for workers are determined by mutual consent between the employer and the trade union in the collective labour agreement. It reports that self-styled “independent journalists” have been an instrument used by foreign campaigns of subversion and aggression against the country and that these individuals do not have an employment relationship with the press sector in the country and do not have the professional training for that occupation. The Government indicates that the Ministry of Labour and Social Security (Ministry of Labour) consulted the Department of Identification, Immigration and Foreign Nationals of the Ministry of the Interior, and established that one of the above-mentioned persons does not appear in its database and another was authorized to work on their own account from 14 March 2011 until 22 May 2013, but that this authorization was withdrawn for failure to fulfil tax obligations. The person in question continued to work without authorization and therefore incurred a fine. Because of repeated refusal to pay the fines, this person was imprisoned for ten months by the competent court, the legal guarantees having been duly observed. The Government concludes that in Cuba nobody can be penalized for exercising the right to freedom of opinion or expression, and journalism is not defined as a crime. The Committee also notes that the Government states that all citizens have the right to bring actions before the competent authorities for recognition and observance of their labour and social security rights, and that the Public Prosecutor’s Office examines citizens’ complaints regarding violations of their rights (Act No. 83 of 11 July 1997). The Government adds that access to the People’s Courts is free of charge (Act No. 82 of 11 July 1997), and that the Ministry of Labour handles complaints of this type through the Public Welfare Office. The Committee requests the Government to provide information on any decisions issued by the courts, the Public Welfare Office at the Ministry of Labour and Social Security any other competent body, and also on any offence reported by or to labour inspectors, and to indicate what follow-up action has been taken in cases of discrimination involving political opinion.

Definition and prohibition of direct and indirect discrimination. The Committee notes the Government’s indication in its report, in reply to the Committee’s request to amend the Labour Code to define and explicitly prohibit direct and indirect discrimination on at least all the grounds specified in Article 1(1)(a) of the Convention, that the Labour Code of 2013 is the result of an broad consultation process in which workers’ and employers’ organizations participated and hence the interpretation of the concept of discrimination should occur in the widest sense, and that the reference in the Labour Code to any type of discrimination covers direct and indirect discrimination. The Committee recalls that this concept is essential to identify and address situations in which certain treatment is extended equally to everybody, but leads to discriminatory results for one particular group, such as women, ethnic and religious groups, or persons of a certain social origin. The Committee further indicates that, with respect to specific groups, such discrimination is subtle and less visible, making it even more important to ensure that there is a clear framework for addressing it, and proactive measures are required to eliminate it (see 2012 General Survey, paragraph 746). The Committee once again requests the Government to take the necessary steps to amend the relevant legislation to define and explicitly prohibit direct and indirect discrimination on at least all the grounds specified in Article 1(1)(a) of the Convention and to provide information on any developments in this respect.

The Committee is raising other matters in a request addressed directly to the Government.