Protection of Wages Convention, 1949 (No. 95) - Cuba (RATIFICATION: 1952)

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The Committee notes the information provided by the Government, which answers the points raised in its previous direct request and has no further matters to raise in this regard.

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In order to provide a comprehensive view of the issues relating to the application of the ratified Conventions on wages, the Committee considers it appropriate to examine Conventions Nos 131 (minimum wage) and 95 (protection of wages) together.

The Committee notes the Labour Code, issued by Act No. 116 of 20 December 2013, and the Regulations of the Labour Code, issued by Decree No. 326 of 12 June 2014.

Minimum wage

Article 4(1) of Convention No. 131. Adjustment of minimum wages. In its previous comment, the Committee noted the adoption of Resolution No. 11 of 23 April 2005 of the Ministry of Labour and Social Security determining the level of the minimum wage. The Committee notes the Government’s indication in its report that this Resolution is still in force. Recalling that the Convention requires that the minimum wage system allow the adjustment from time to time of minimum wages, the Committee requests the Government to provide information on the most recent studies conducted to assess the need to adjust the minimum wage with a view to maintaining its level in accordance with the socio-economic situation of the country.

Article 4(2) and (3). Consultations with organizations of employers or representatives of employers. The Committee notes that section 113 of the Labour Code provides for consultation of the relevant trade union organizations for the fixing of minimum wages. The Committee recalls that the Convention provides for the consultation, in connection with the operation of the minimum wage-fixing machinery, of both the representative organizations of workers concerned and of employers or, where no such organizations exist, representatives of workers and employers concerned. The Committee requests the Government to provide information on the measures adopted or envisaged to give full effect to these provisions of the Convention.

Protection of wages

Article 3(1) of Convention No. 95. The Committee notes that neither the Labour Code nor its Regulations contain provisions prohibiting the payment of wages in the form of promissory notes, vouchers, coupons or in any other form alleged to represent legal tender. Recalling that the Convention requires this prohibition, the Committee requests the Government to provide information on the measures adopted or envisaged to give full effect to this provision of the Convention.

Conditions respecting the payment of wages agreed in the employment contract or collective agreement. The Committee notes that section 114 of the Labour Code provides that wages shall be paid in Cuban pesos at least once a month, at specified periods, with the exception of those components of remuneration conditional on increased efficiency, which shall be paid under the terms and conditions agreed by the parties in the employment contract or collective labour agreement. The Committee requests the Government to provide detailed information on the terms and conditions that may be agreed by the parties in accordance with section 114 of the Labour Code.

Article 6. Freedom of workers to dispose of their wages. The Committee notes that neither the Labour Code nor its Regulations prohibit employers from limiting in any manner the freedom of workers to dispose of their wages. Recalling that the Convention requires this prohibition, the Committee requests the Government to provide information on the measures adopted or envisaged to give full effect to this Article of the Convention.

Article 8. Deductions from wages. The Committee notes that section 85 of Ministerial Resolution No. 27/06, to which it referred in its previous comments, was repealed by Decree No. 326 of 2014 (the Regulations of the Labour Code).

Article 9. Prohibition of any deduction from wages with a view to obtaining or retaining employment. The Committee notes that neither the Labour Code nor its Regulations prohibit deductions from wages with a view to ensuring a direct or indirect payment made by a worker to the employer for the purpose of obtaining or retaining employment. Recalling that the Convention requires this prohibition, the Committee requests the Government to provide information on the measures adopted or envisaged to give full effect to this Article of the Convention.

Article 11. Protection of workers’ claims in the event of bankruptcy or judicial liquidation. The Committee notes that neither the Labour Code nor its Regulations contain provisions covering this matter. The Committee requests the Government to provide information on the measures adopted or envisaged to give effect to this Article of the Convention.

Article 13. Place where wages shall be paid. The Committee notes that neither the Labour Code nor its Regulations specify the place where wages shall be paid. The Committee requests the Government to provide information on the measures adopted or envisaged to give full effect to the provisions of Article 13 in this regard.

Article 15(d). Records of wages. The Committee notes that neither the Labour Code nor its Regulations establish the requirement to keep a record of wages. The Committee requests the Government to provide information on the measures adopted or envisaged to give effect to this provision of the Convention.

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Article 8(1) of the Convention. Deductions from wages. The Committee recalls its previous comment in which it drew attention to section 85(c) of Ministerial Decision No. 27/06 of 12 January 2006, which appears to authorize deductions from wages, practically without limits, based on the workers’ consent for the repayment of loans, or for making a bank deposit or for other similar purposes, whereas the Convention calls for limits to be placed on the aggregate of authorized deductions to the extent necessary for the maintenance of workers and their families. The Committee notes that Ministerial Decision No. 27/06 was modified by Ministerial Decision No. 9/2008 but section 85(c) is still in effect. The Committee also notes that section 125 of the Labour Code sets at one third of the worker’s wages the maximum percentage of wages which may be deducted. The Committee therefore requests the Government to clarify whether the limit provided for in section 125 of the Labour Code also applies to the deductions authorized under section 85(c) of Ministerial Decision No. 27/06.

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The Committee notes the information provided in the Government’s report, in particular the adoption of Ministerial Decision 27/06 of 12 January 2006 issuing general regulations concerning the organization of wages.

The Committee notes that most of the new regulations reiterate the principles laid down in the 1984 Labour Code, such as the principle of payment in legal tender and at regular intervals (section 81) and the principle of payment at the workplace and on working days (sections 83 and 84). Other provisions introduce new principles that are consistent with the Convention, such as the possibility of paying wages by bank transfer (section 82) or the possibility for a third party to receive the wages in lieu of and on behalf of the worker, on the basis of written authorization (section 84). The Committee also notes that, contrary to section 125 of the Labour Code which refers to wage deductions solely by attachment, section 85 of the new regulations also provides for deductions by voluntary assignment, practically without limits since, according to the regulations, the amount of the deduction is set by the interested party. In this regard, the Committee is obliged once again to remind the Government that the Convention requires measures aimed at protecting wages against assignment to the extent deemed necessary for the maintenance of the worker and his/her family. The Committee therefore hopes that the Government will not fail to adopt appropriate provisions so as to ensure full compliance with the Committee’s requirements in this regard.

The Committee would also be grateful if the Government would continue providing general information on how the Convention is applied, in particular, extracts of official reports, details of the number and nature of infringements reported and any other information concerning the application of the Convention in practice.

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As regards the comments dated 31 January 1991 by the International Confederation of Free Trade Unions (ICFTU) concerning the application of this Convention and the practice of the state enterprise CUBATECNICA, the Government's report includes the following information as well as a copy of the contract between CUBATECNICA and the young workers: the Government states that young workers were sent to the German Democratic Republic to work there with a view to improving their qualifications on the basis of a bilateral agreement between the governments. The contract prescribes that the young worker should remit to Cuba 60 per cent of the difference between the monthly income and the amount deemed necessary for the maintenance of the worker in the country. The latter amount in the German Democratic Republic was 350 marks, which was equal to the amount Cuban students in the same country were granted, according to the Government. The young worker, in pursuance of the contract, authorises CUBATECNICA to draw money from his or her bank account to compensate the cost it assumed for the worker, and can control the account only after having paid the debt to CUBATECNICA. The Government also states that the exchange rate applied in this connection was that fixed by the National Bank of Cuba corresponding to the rate in force in the transactions between the two countries.

The Committee notes this information. It would point out that, although Article 6 of the Convention does not apply to this case since CUBATECNICA is not the employer of the young worker, provisions such as Article 3 (payment in legal tender) and Article 12(1) (regular payment) are intended to ensure that the worker receives the wages as a whole in a manner in which they are immediately disposable to the worker. The Committee requests the Government to indicate whether young workers are at present sent abroad under the contract with CUBATECNICA and, if so, to provide detailed information on the practice.

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The Committee notes that, according to the Government's explanations in reply to its previous comments, Legislative Decree No. 798 of 1938 is part of the supplementary legislation to the above Code, in accordance with section 2 of the Labour Code, which determines the texts that shall constitute Cuban labour law, and therefore provides for the application of this Convention.

The Committee also takes note of the comments, dated 31 January 1991, submitted by the International Confederation of Free Trade Unions (ICFTU), concerning, inter alia, the application of this Convention. The ICFTU indicates that the state enterprise CUBATECNICA which recruits young workers for employment abroad for a period of four years, imposes labour contracts under which 60 per cent of the workers' wages is retained for use by the State which returns the above amount to the workers concerned upon their return to Cuba. The Committee hopes that the Government will communicate its observations shortly so that the comments of the above trade union organisation can be dealt with.

[The Government is asked to report in detail for the period ending 30 June 1991.]

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The Committee notes the enactment of Act No. 49 of 28 December 1984, establishing a new Labour Code. The Committee also notes the Government's last report in which it states that legal provisions giving effect to this Convention are to be added to the above Act. The Committee notes that Chapter IV of the Labour Code contains a series of provisions respecting wages and in particular the conditions for payment of wages (section 6). It also notes that the transitional provisions provide for the abolition of a series of legal texts, together with any legal provisions or clauses conflicting with the application of the provisions of the Code. The Committee would therefore be grateful if the Government would confirm that the provisions of Decree No. 789 of 1938 continue to be in force and supplement the provisions of Chapter IV of the Labour Code to give effect to this Convention.