Medical Examination of Young Persons (Industry) Convention, 1946 (No. 77) - Cuba (Ratification: 1954)

Direct Request (CEACR) - adopted 2016, published 106th ILC session (2017)

In order to provide a comprehensive view of the issues relating to the application of the Conventions on medical examination of young persons ratified, the Committee considers it appropriate to examine Conventions Nos 77 and 78 in a single comment.

Article 3(2) of the Convention. Annual repetition of the medical examination. In its previous comments, the Committee noted that section 29(2) of Legislative Decree No. 246 of 29 May 2007 concerning infringements of labour, occupational safety and health and social security legislation, imposes penalties for allowing employees to perform work requiring a prior or periodic medical examination if no such examination has been conducted. The Committee nevertheless noted that the legislation does not appear to provide explicitly that the continued employment of a child or young person shall be subject to the repetition of the medical examination at intervals of not more than one year.

The Committee notes the Government’s indication in its report that Act No. 116 of 20 December 2013 issuing the Labour Code has been adopted. The Government indicates that, in accordance with implementing Regulations No. 284 of 17 June 2014, certain activities involving risk require an annual medical examination, and that young persons between the ages of 15 and 18 years are also protected by these Regulations. However, the Committee notes that these implementing Regulations only concern activities involving risk. It recalls that the repetition of the medical examination at intervals of not more than one year, as required by Article 3(2) of the Convention, applies to all types of work performed by young persons under 18 years of age, and not only to work involving risk. The Committee therefore once again requests the Government to provide information on the measures adopted or envisaged to require the repetition of the medical examination for children or young persons at intervals of not more than one year.

Application of the Convention in practice. The Committee notes the annual report for 2014 of the labour inspection services, provided by the Government in its report on the application of the Labour Inspection Convention, 1947 (No. 81). It also notes the Government’s indication that in March 2016 authorizations for work were granted to 50 young persons aged between 15 and 17 years and that they were all subject to prior and periodic medical examinations.

Direct Request (CEACR) - adopted 2011, published 101st ILC session (2012)

Article 2(4) of the Convention. Competent authority for issuing health certificates and conditions of issue. Further to its previous comments, the Committee notes that section 157 of Decree No. 139 of 4 February 1988 implementing Public Health Act No. 41–83 of 1983 states that the Ministry of Public Health is responsible for adopting arrangements, schedules and specific procedures for medical examinations. The Committee also notes the Government’s indication that Decision No. 39 of 29 June 2007 on occupational safety and health provides that the labour administration shall require every worker to be examined by a doctor registered in the national health system before starting work (preventive medical examination), according to the procedure laid down by law, which certifies in writing, in accordance with the procedure established by the Ministry of Public Health, whether the worker is physically and mentally fit for work.

Article 3(2). Annual repetition of medical examination. Further to its previous comments, the Committee notes the Government’s indication that section 29(2) of Legislative Decree No. 246 of 29 May 2007 concerning infringements of labour legislation, occupational safety and health and social security, imposes penalties for allowing employees to perform work requiring a prior or periodic medical examination when no such examination has been conducted. However, the Committee notes that the legislation does not appear to state explicitly that the continued employment of a child or young person shall be subject to the repetition of medical examinations at intervals of not more than one year, in accordance with Article 3(2) of the Convention. The Committee therefore once again requests the Government to supply information on the steps taken or envisaged to require the repetition of medical examinations at intervals of not more than one year.

Part V of the report form. Application of the Convention in practice. Further to its previous comments, the Committee notes the Government’s indication that the annual report of the labour inspectorate does not refer to any infringements of the application of the Convention. However, the Committee observes that the Government’s report does not contain any information on the number of children and young persons who have undergone medical examinations. The Committee therefore once again requests the Government to supply statistics on the number of working young persons who have undergone the medical examinations provided for in the Convention. It also requests the Government to provide a copy of the annual report of the labour inspectorate.

Direct Request (CEACR) - adopted 2006, published 96th ILC session (2007)

Article 2(1) of the Convention. Medical examination. Referring to its previous comments in which it noted that national legislation did not appear to make provision for compulsory medical examination of young persons up to the age of 18 years, the Committee notes with interest that, under section 15, paragraph 2, of resolution No. 8/2005 issuing General regulations on labour relations of 1 March 2005 (hereafter, General regulations on labour relations), the labour administration is required to subject to a medical examination and granting of a health certificate to a young person under the age of 18 years before admission to work.

Article 2(2). Medical certificate. In its previous comments, the Committee noted that national legislation seems to contain no provisions requiring the medical examination to be certified either by a medical certificate or by an endorsement on the work permit or in the workbook. The Committee therefore requested the Government to supply information on this matter. The Committee notes with interest that section 15, paragraph 2, of the General regulations on labour relations provides that the results of the medical examination shall be certified by a medical certificate.

Article 2(3). List of jobs involving health risks. The Committee noted that section 96 of the General Regulations of the Protection and Health at Work Act lays down that, for the purpose of medical examinations prior to admission to work, the Ministry of Public Health, after consultation with the State Committee for Labour and Social Security and the Cuban Workers’ Confederation, shall establish a list of occupations which, by their nature, require the workers who are to perform them to undergo such examinations. The Committee requested the Government to indicate whether, in conformity with this section of the Regulations, the list of occupations in question has been adopted. The Committee notes the Government’s indication to the effect that section 16, paragraph 1, of the General regulations on labour relations provides that administrations, taking into account the nature and conditions of performance, shall assess jobs to determine possible risks which could place in danger the safety, health and morality of young persons less than 18 years old. According to paragraph 2 of section 16, the list of occupations subject to risk is laid down as an annex to the Collective Labour Agreement. The Committee takes note of this information.

Article 2(4). Authority competent to draw up a health certificate and conditions of issue. In its previous comments, the Committee noted that there appeared to be no provision in national legislation indicating the authority competent to draw up the certificate for fitness for employment and specifying the conditions for drawing up and issuing the document. The Committee requested the Government to supply information on this matter. The Committee notes that, pursuant to section 15, paragraph 1, of the General regulations on labour relations, the labour administration is required, before allowing a young person under 18 years of age to begin work, to ensure that a medical examination has been conducted and a medical certificate obtained. The Committee also notes that section 48, paragraph 1, of Act No. 41-83 on public health, 1983, provides that the Ministry of Public Health shall lay down the conditions required and formalities for issuing documents of entitlement to the benefits provided by the social security system. The Committee notes that the information supplied by the Government does not make it possible to determine whether national legislation lays down the conditions for drawing up and issue of the document certifying fitness for employment. It therefore requests the Government to indicate whether the Ministry of Public Health has laid down the conditions required and formalities for issue of such documents.

Article 3(1). Annual medical examination during employment until the age of 18 years. The Committee noted that national legislation does not appear to contain any provisions indicating that the fitness of children and young persons for the employment they perform must be subject to medical supervision until they have attained the age of 18 years. The Committee requested the Government to indicate the national standard that applies this provision of the Convention. The Committee notes the Government’s indication that the Act on Protection and Health at Work and its implementing regulations include compulsory provisions concerning medical care of workers. Under section 95 of the General Regulation on the Act on Protection and Health at Work, pre-employment and periodical examinations are required for all workers. The Committee takes notes of this information.

Article 3(2). Annual repetition of medical examination. In its previous comments, the Committee noted that, although section 99 of the General Regulations of the Protection and Health at Work Act establishes that periodic examinations shall be carried out, it does not lay down that these examinations must be conducted at intervals of not more than one year. The Committee requested the Government to adopt the necessary measures to enforce the provisions of this Article of the Convention. The Committee notes the Government’s indication that the obligation to verify if the worker is fit for the job he occupies is provided by the Protection and Health at Work Act and its implementing regulations. The Committee also notes the Government’s indication that the legislation on safety and health at work pays particular attention to children under the age of 18 years. The Committee notes again that section 99 of the General Regulations of the Protection and Health at Work Act, although it specifies a periodic medical examination, does not lay down that the examination must be carried out at intervals of not more than one year, as provided by the Convention. The Committee once again requests the Government to supply information on the measures taken or envisaged to provide for the repetition of the medical examination at intervals of not more than one year.

Article 4(1) and (2). Medical examination of fitness for employment and repetition until at least the age of 21 years. The Committee requested the Government to supply information on the provisions in national legislation laying down that, for high-risk work, the medical examination for fitness for employment and its periodical repetitions must be required until the age of at least 21 years. The Committee notes the information supplied by the Government that legislation on safety and health at work applies to children under the age of 18 years. In addition, it notes the Government’s indication that, pursuant to legislation on safety and health at work, all workers, whatever their age, are required to pass a pre-employment medical examination and a periodical medical examination. The Committee therefore concludes that the provisions of the General Regulations of the Protection and Health at Work Act which provides for passing of a pre-employment examination and a periodical examination (sections 95 and 99) applies to all workers whatever their age.

Article 5. Medical examinations free of charge. Referring to its previous comments, the Committee notes with interest the Government’s indication to the effect that both the Constitution and Act No. 41-83 on public health provide that the health system is free of charge.

Article 6. Vocational guidance and physical and vocational rehabilitation of children and young persons found unsuited for work. In its previous comments, the Committee noted that national legislation contains no provisions giving effect to this Article of the Convention and requested the Government to take the necessary measures to this effect. The Committee notes the Government’s indication that sections 39 and 40 of Act No. 41-83 on public health provide certain formalities in the event of unfitness of a person requiring rehabilitation. It also notes resolution No. 22/2004 issuing regulations on labour relations of persons having physical or mental handicaps which contains rules governing the employment of persons suffering from handicaps.

Article 7(1) and (2). Availability to labour inspectors of the medical certificate. The Committee requested the Government to adopt the necessary measures to apply this Article of the Convention. The Committee notes the Government’s indication that all personal data of workers, including medical reports, are kept in the worker’s work file and made available to labour inspectors. These documents are kept and updated by the appropriate units in the human resources services of all work units in the country.

Part V of the report form. Practical application of the Convention. Noting that the Government has supplied no information, the Committee asks it once again to supply information on the number of young persons who work and have undergone the medical examinations provided in the Convention, together with information on the activities of the inspectorate, including the number and nature of any infringements reported and penalties imposed.

Direct Request (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee notes the information supplied in the Government’s report. It notes that, according to the Government, the provisions of the Convention are applied by the Labour Code and by the Protection and Health at Work Act and its General Regulations. The Committee asks the Government to provide the following information.

Article 2, paragraph 1, of the Convention. The Committee notes that section 41(b) of the Protection and Health at Work Act, No. 13, provides that "young people of less than 15 and 16 years of age may be employed in exceptional cases provided that the requirements established therefor are fulfilled". Section 220(2) of the Labour Code provides that, before admitting young persons to work, the employer must "arrange and carry out a medical examination and obtain health certification in order to determine whether they are physically and mentally fit for the work". However, there appears to be no provision requiring medical examinations for young persons up to the age of 18 years. The Committee asks the Government to indicate which provision lays down this obligation and, if there is no such provision, to adopt legislative or regulatory measures to apply this provision of the Convention.

Article 2, paragraph 2. The Committee notes that Regulation 102 of the General Regulations of the Protection and Health at Work Act states that "pre employment and periodical medical examinations shall be carried out by the Industry and Labour Medical Service or, failing that, by the work or community polyclinic corresponding to the enterprise". The Committee observes, however, that there is no provision requiring the medical examination to be certified either by a medical certificate or by an endorsement on the work permit or in the work book. The Committee therefore asks the Government to indicate the provision of the legislation which lays down this obligation and, if there is no such provision, to adopt the necessary measures to establish such an obligation in law.

Article 2, paragraph 3. The Committee also notes that, according to Regulation 96 of the General Regulations of the Protection and Health at Work Act, "for the purpose of carrying out pre-employment medical examinations, the Ministry of Public Health, after consulting the State Committee for Labour and Social Security and the Cuban Workers’ Confederation, shall establish in order of importance a list of occupations involving tasks which require the workers who are to perform them to undergo such examinations". The Committee asks the Government to state whether such a list of occupations has been established in accordance with this Regulation and, if so, to provide a copy of it.

Article 2, paragraph 4. The Committee notes that there appears to be no provision in the legislation specifying the authority which is competent to issue the documents certifying fitness for employment and defining the conditions to be observed in drawing up and issuing the document. The Committee therefore asks the Government to indicate whether any provision applies this paragraph of Article 2 and, if not, to take the necessary steps to give effect to this provision of the Convention.

Article 3, paragraph 1. The Committee notes that there would appear to be no provision in the national legislation requiring the fitness of children or young persons for the employment in which they are engaged to be subject to medical supervision until they have attained the age of 18 years. The Committee requests the Government to indicate the national standard that applies this provision of the Convention or, if there is no such standard, to take the necessary steps to give effect to this provision.

Article 3, paragraph 2. The Committee notes that Regulation 99 of the General Regulations of the Protection and Health at Work Act establishes that "periodic examinations shall be carried out to ascertain whether workers are still fit to perform their job". The Committee observes that this is a general provision applying to all workers and that there is no specific provision for working minors. Furthermore, the provision does not specify that the medical examination should be carried out at intervals of not more than one year. The Committee asks the Government to take the necessary measures to enforce the provisions of this Article of the Convention or to indicate which, if any, provision of the legislation applies them.

Article 4, paragraph 1. The Committee notes that Regulation 96 of the General Regulations of the Protection and Health at Work Act, as noted above, contains a general provision which sets no limit as to the age until which the medical examination must be carried out (21 years). The Committee asks the Government to take the necessary steps to ensure that its legislation gives effect to this provision of the Convention if none of the provisions currently in force do so.

Article 4, paragraph 2. The Committee notes that Regulation 96 of the General Regulations of the Protection and Health at Work Act requires a list of occupations to be established involving tasks which require the workers who perform them to undergo prior medical examinations. It is clear, however, that this Regulation does not refer to the case provided for in the Convention. The Committee therefore asks the Government to take the necessary measures to give effect to this Article, if no other text in force applies it.

Article 5. The Committee notes that no provisions of the legislation referred to by the Government (Labour Code, Protection and Health at Work Act and its General Regulations) provides that the medical examinations referred to in this Convention shall be free of charge. The Committee therefore asks the Government to take the necessary measures to establish in the legislation that the medical examinations to which young persons must be submitted under this Convention are to be free of charge, if no other provision exists to apply this Article of the Convention.

Article 6. The Committee notes that there is no provision which can be deemed to apply this Article of the Convention. It therefore asks the Government to take steps to ensure that its legislation gives effect to this Article of the Convention.

Article 7, paragraphs 1 and 2. The Committee recalls that, according to this Article of the Convention, employers must be required to file and keep available to labour inspectors either the medical certificate for fitness for employment or the work permit or work book showing that there are no medical objections to the employment as may be prescribed by national laws or regulations. This Article also provides that the national laws or regulations shall determine the other methods of supervision to be adopted for ensuring strict enforcement of the Convention. The Committee asks the Government to take the necessary steps to ensure that its legislation gives effect to this Article of the Convention.

The Committee asks the Government to provide, in accordance with Part V of the report form, statistical information on the number of young persons who work and who have been subjected to the medical examinations required by the Convention, together with information on the activities of the inspectorate including the number and nature of any infringements reported and penalties imposed.