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

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Cuba (Ratification: 1952)

The Committee notes the comments of 31 July 2012 by the International Trade Union Confederation (ITUC) and the comments of 30 August 2012 by the Independent Trade Union Coalition of Cuba (CSIC) – which the Government does not recognize as a union – referring to matters already raised by the Committee, and in particular pointing out that no legislative changes requested by the ILO supervisory bodies have been introduced. The Committee also notes the Government’s reply to these comments dated 1 November 2012.

The Committee notes the comments made by the International Organisation of Employers (IOE) on the right to strike, in a communication dated of 29 August 2012, which are dealt with in the General Report of the Committee.

Trade union rights and civil liberties

The Committee recalls that in its previous comments it had asked the Government to send copies of the court rulings connected with specific cases of convictions of workers belonging to the Independent National Confederation of Workers of Cuba (CONIC), persecution and threats of imprisonment against delegates of the Light Industry Workers’ Union (SITIL), and the confiscation of equipment and humanitarian aid sent from abroad to the Single Council of Cuban Workers (CUTC). The Committee notes that the Government reiterates that none of the alleged trade unionists referred to in the Committee’s observations were tried or convicted for the exercise or defence of trade union rights. They were all tried by courts in accordance with due process and sentenced for committing crimes to undermine the sovereignty of the State and other crimes clearly established under the law, and none of the penalized actions had anything to do with trade union activity whatsoever. The Committee once again requests the Government to transmit a copy of the court rulings in question. The Committee recalls that these actions had been examined by the Committee on Freedom of Association (Case No. 2258) and it refers to the conclusions reached in this context.

Legislative issues

The Committee recalls that the Government has been stating for many years that it is in the process of revising the Labour Code. The Committee notes that the Government’s report does not provide any information whatsoever on the state of progress of this revision. The Committee requests the Government to indicate in its next report whether the revision of the Labour Code is still ongoing or if it has been set aside.

Articles 2, 5 and 6 of the Convention. Trade union monopoly. For many years, the Committee has been referring to the reference to the Confederation of Workers of Cuba (CTC) in sections 15 and 16 of the Labour Code of 1985. The Committee notes that in its report the Government states that: (1) workers may join trade union organizations, as laid down in Article 2 of the Convention, without previous authorization of any kind, either State or enterprise; (2) there are more than 110,000 grass roots with levels of structure decided upon by the workers themselves, ranging from enterprise, sector or branch level to national bodies; (3) in the Cuban trade union movement, freedom is expressed in terms of unity, decided upon by the workers themselves, which is reaffirmed at the level of workers’ congresses held regularly; the statutes and resolutions of the Cuban trade union organizations are adopted at these congresses with absolute freedom of expression and opinion; (4) Cuban workers pay trade union dues directly and voluntarily as there is no payroll check-off in Cuba; (5) the Labour Code contains the necessary guarantees for the full exercise of trade union activity in all workplaces throughout the country and for the full participation of workers and their representatives in the entire decision-making process concerning their varying interests; (6) there are no restrictions or bans whatsoever on workers exercising their trade union rights in any workplace, either in law or in the practice of labour relations in the country; (7) neither the Labour Code in force, nor the supplementary legislation, provide for restrictions on the establishment of trade unions, and all Cuban workers have the right to establish trade union organizations and are free to join them without prior authorization; and (8) there is no violation of the Convention in Cuba.

While noting this information, the Committee again stresses that trade union pluralism must remain possible in all cases and that the law must not institutionalize a national monopoly by referring to a specific trade union confederation; even in this situation where at some point all workers have preferred to unify the trade union movement, they should still remain free to choose to set up unions outside the established structures should they so wish and join the organization of their own choosing. In these circumstances, the Committee requests the Government once again to take measures to amend the above sections of the Labour Code and to provide information in its next report on any measures adopted in this respect.

Article 3. In its previous comments, the Committee referred to the need to amend section 61 of Legislative Decree No. 67 of 1983 which confers on the CTC the monopoly to represent the workers on government bodies. The Committee notes that according to the Government: (1) this legislative decree was repealed by Legislative Decree No. 272 of 16 July 2010; (2) the only provisions of the legislative decree of 1983 that remain in force, until the corresponding legal standard has been adopted, are those referring to the establishment and organization of bodies of the State central administration and to technical advisory councils and other provisions that in no way affect compliance with the Convention; and (3) the new legislative decree makes no reference whatsoever to matters relating to freedom of association. The Committee requests the Government to send a copy of Legislative Decree No. 272 of 16 July 2010.

For years the Committee has referred to the absence of recognition of the right to strike in the legislation and the prohibition of its exercise in practice. The Committee notes the Government’s statement that: (1) the legislation in force contains no prohibition whatsoever on the right to strike, nor does the criminal law establish any penalties for the exercise of such rights; (2) any decisions on this matter are the prerogative of the trade union organizations; should Cuban workers at some time decide to resort to a strike, there is nothing preventing them from doing so; (3) Cuban workers are the beneficiaries of participatory and democratic social dialogue at all decision-making levels, from enterprise-level up to the higher echelons of government; and (4) trade union representatives participate in all the processes of drafting labour and social security legislation and workers’ assemblies in work units are frequently consulted on these drafts. The Committee notes the information provided by the Government and recalls that in order to safeguard the legal certainty of workers who decide to have recourse to strike action, future legislative reform should contain provisions explicitly recognizing the right to strike.