Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Cuba (Ratification: 1952)

Direct Request (CEACR) - adopted 2023, published 112nd ILC session (2024)

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The Committee notes the observations of the Independent Trade Union Association of Cuba (ASIC) received on 4 March 2021, the Government’s reply received on 7 May 2021, as well as the observations of ASIC received on 22 September 2023 and the Government’s reply received on 29 November 2023. The Committee notes that, in its latest observations, ASIC alleges that: (i) there are obstacles to the recognition of collective bargaining agents, insofar as the approval of the National Labour Inspection Office is legally required for the registration of collective agreements; (ii) in the event of a disagreement between the parties involved in collective bargaining, the legal framework imposes compulsory arbitration and provides for the intervention of the authorities and the Workers’ Central Union of Cuba (CTC); and (iii) collective bargaining is not promoted as a result of the trade union monopoly of the CTC, overly detailed legal provisions on the process of concluding agreements and other limitations in practice. Noting that the Government’s latest communication does not provide answers to these questions, the Committee requests the Government to provide its comments in this respect.

Article 4 of the Convention. Collective bargaining in practice. In its previous comment, the Committee requested the Government to continue providing statistical information on the number of collective agreements concluded in the country, indicating the sectors of activity and the number of workers covered. The Committee notes the information provided by the Government, according to which 244 collective agreements have been concluded in the country in the following sectors of activity: public administration (12); agriculture, forestry and tobacco (25); sugar (14); food and fisheries (19); civilian defence (16); commerce, gastronomy and services (3); communications, IT and electronics (9); construction (17); culture (8); energy and mining (20); industry (43); health (4); transport and ports (39) and hotels and tourism (15). The Committee notes that the Government has not provided the number of workers covered by the above-mentioned agreements. Taking due note of the information provided, the Committee requests the Government to provide the requested information on the number of workers covered by such agreements and to continue providing statistical information on the number of collective agreements concluded in the country, indicating the sectors of activity and the number of workers covered.

Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

Application of the Convention in practice. In its previous comment, the Committee requested the Government to provide examples of collective agreements concluded in the Mariel Special Development Zone (ZEDEM), as well as statistical information on the number of collective agreements signed in the country. The Committee notes the Government’s indication that: (i) in the ZEDEM, there are 13 collective agreements in force, covering 5,544 workers, including an agreement concluded by the National Union of Construction Workers with a Mariel architecture and engineering company and another agreement signed by the Provincial Union of Transport Workers with a freight transport company; and (ii) in 2018, the national unions updated 231 national agreements and 7,492 establishment labour agreements, covering more than 2.8 million workers in all economic sectors. The Committee requests the Government to continue providing statistical information on the number of collective agreements concluded in the country, indicating the activity sectors and the number of workers covered.

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

The Committee notes the observations of the Independent Trade Union Coalition of Cuba (CSIC), received on 1 September 2016, which refer to the impossibility of individual or collective bargaining in the Mariel Special Development Zone (ZEDM) as set out in Act No. 118 on foreign investment of 29 March 2014 and the decrees establishing and regulating that ZEDM. The Committee notes that, in reply to these observations, the Government indicates that ZEDM workers have the right, in the same way as other Cuban workers in other areas, to join a trade union and to collective bargaining, and that they exercise those rights fully. The Government adds that trade union organizations have existed since the creation of the Zone, at all levels grouped into chapters, intermediate level organizations and a general organization in the various economic branches, which address the workers’ claims and actively participate in collective bargaining. There are also collective labour agreements and disciplinary rules, which are reviewed and approved in workers’ meetings. In addition, the labour justice bodies are established. The Government adds that these entities are not excluded from the scope of labour inspection. The Committee requests the Government to provide examples of collective agreements concluded in the ZEDM.

The Committee welcomes the adoption of Act No. 116 of 2013, containing the new Labour Code, and Decree No. 236, containing the regulations of the Labour Code.

Article 4 of the Convention. Promotion of collective bargaining. The Committee recalls that for several years it has been referring to the need either to repeal or to amend various provisions of Legislative Decree No. 229 of 1 April 2009 on collective labour agreements to bring them into line with the Convention. The Committee notes with satisfaction that, according to the Government, with the entry into force of the new Labour Code, Legislative Decree No. 229 and its regulations, and Resolution No. 78 of 25 November 2008 of the Ministry of Labour were repealed. The Committee notes that chapter XIV of the new Labour Code contains provisions on collective labour agreements and notes that, with respect to the comments it has been making for some years:

• -section 187 of the new Labour Code provides that in the case of disputes which arise during the process of the formulation, amendment or revision of a collective labour agreement, or concerning the interpretation of its provisions or failure to comply with its clauses, the parties may agree, after the conciliation procedure has been exhausted, to submit the case for arbitration. The Government indicates that, therefore, arbitration is not binding but is instead an agreement between the parties;
• -the new Labour Code does not contain references to specific trade unions;
• -the new Labour Code does not contain any reference to the National Labour Inspection Office as responsible for approving the conclusion of collective labour agreements.

In addition, the Committee notes that the regulations of the Labour Code provide that disputes between parties may be referred to the National Labour Inspection Office for arbitration. In this respect, the Government indicates that the Office has not settled any disputes of this kind.

The Committee also notes that, according to the Government, prior to the entry into force of the new Labour Code, a number of training sessions were conducted on collective bargaining and that, as a result of those, some 7,000 collective labour agreements were adopted. The Committee notes that collective labour agreements in the country cover around 3 million public employees. The Committee requests the Government to provide information on the number of collective agreements signed in the country, indicating the sectors and the number of workers covered.

Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

Comments from workers’ organizations. The Committee notes the comments of the International Trade Union Confederation (ITUC), as well as the Government’s observations thereon.

Article 4 of the Convention. Promotion of collective bargaining. The Committee recalls that for several years it has been referring to the need to amend or repeal the following provisions of Legislative Decree No. 229 to bring them into conformity with the Convention:

• -section 14, which should be harmonized with section 8 of the new implementing regulations of the Legislative Decree, so as to avoid any confusion and to ensure that any disagreements during the process of drafting a collective agreement can be settled with the intervention of the authorities and the Central Organization of Workers of Cuba (CTC), only if both parties to the dispute so request. The Committee notes the Government’s indication in its report that, when seeking solutions to disagreements arising during the process of drafting collective agreements, the voluntary nature and total autonomy of the parties always prevails, for which reason no confusion has arisen in national practice, and that it is guaranteed that such disputes are settled through the intervention of the abovementioned bodies only if both parties to the dispute so request;
• -section 17 concerning the settlement of any disagreements which may arise during the process of drafting a collective agreement or, while it is in force, concerning the interpretation of or failure to comply with its clauses. The Committee recalls that it requested the Government to take the necessary measures to amend this section in order to ensure that where disputes arise between the parties in the process of collective bargaining, the interference or intervention of the authorities and the CTC is not imposed as an obligation and that, except in the public service and in essential services in the strict sense of the term, recourse to binding arbitration is possible only with the agreement of all the parties to the negotiations. The Committee notes that the Government indicates that since 2002 the National Labour Inspection Office has never discharged the function of arbitration;
• -section 11, which imposes a methodology on all trade unions for the discussion of draft collective agreements determined for that purpose by the CTC, which supplements the very detailed provisions on the manner in which agreements are to be concluded. The Committee recalls that it requested the Government to take the necessary measures to amend this section by deleting the explicit reference to the CTC and guaranteeing the autonomy of the bargaining parties; and
• -section 5, which provides that the National Labour Inspection Office shall approve the conclusion of collective labour agreements in the units provided for in the budget and in the production and service activities of bodies, sectors, branches or activities that share the same characteristics, when so agreed and requested by the head of the body and the secretary-general of the corresponding national federation. The Committee recalls its view that this situation is contrary to the principle of free and voluntary negotiation and that it requested the Government to take the necessary measures to repeal this section with a view to ensuring that full effect is given to the principle of free and voluntary negotiation. The Committee notes the Government’s indication that this provision is not general in scope, and that it only applies to small units of services that are in close proximity and with the same or similar characteristics in terms of conditions of work. The Government adds that this procedure is not compulsory, but that this possibility is allowed when it is analysed in common agreement and the parties so request on an exceptional basis.

The Committee finally notes that the Government provides information on the process of the formulation of a new Labour Code indicating that the issues raised by the Committee are under examination. The Committee hopes that the Labour Code will be adopted in the near future with a view to bringing the legislation into full conformity with the Convention.

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

The Committee notes the comments of 4 August 2011 by the International Trade Union Confederation (ITUC), referring to matters already under examination. It also notes the Government’s reply.

The Committee further notes the comments of the Central Organization of Workers of Cuba (CTC), forwarded with the Government’s report, and the comments of 13 August 2011 by the Independent Trade Union Coalition of Cuba (whose trade union status is contested by the Government) referring to matters that pertain to application of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).

Article 4 of the Convention. In its previous comments, the Committee referred to the need either to repeal or to amend the following provisions to bring them into line with the Convention:

• – section 14 of Legislative Decree No. 229 should be amended along the lines of the amendment made to section 8 of the new implementing regulations of the abovementioned Legislative Decree, so as to avoid any confusion and to ensure that the text of the Decree itself likewise establishes that any disputes arising in the process of drafting a collective agreement may be settled with intervention by the authorities and the CTC, only if both parties to the dispute so request;
• – section 17 of Legislative Decree No. 229 has not been amended. This provision establishes the following: “Any disputes that arise during the process of formulating, amending or revising the collective labour agreement and while it is in force, about the interpretation of its provisions or failure to comply with its clauses, shall be referred, once the conciliation procedure described above has been exhausted, to the National Labour Inspection Office for arbitration, with the participation of the Confederation of Workers of Cuba and the parties concerned. The final decision shall be binding” (the Government notified the repeal of sections 9, 10 and 11 of the implementing regulations to Legislative Decree No. 229, but not of section 17). The Committee again reminded the Government that, except in the public service and in essential services in the strict sense of the term, compulsory arbitration by the authorities is contrary to the principle of the voluntary negotiation of collective agreements laid down in Convention No. 98 and, hence, contrary to the autonomy of the parties to the bargaining. The Committee also expressed the view that legislation which sets a requirement of referral to the administrative authority of disputes relating to collective bargaining, and which moreover provides for the participation of the Confederation of Workers of Cuba, also raises problems of incompatibility with the Convention. The Committee asked the Government to take measures to secure the amendment of section 17 of Legislative Decree No. 229 in order to ensure that, where disputes arise between the parties in the process of collective bargaining, the interference or intervention of the authorities and the CTC is not imposed as an obligation and that, except in the public service and in essential services in the strict sense of the term, recourse to binding arbitration is possible only with the agreement of all the parties to the negotiations;
• – section 11 of Legislative Decree No. 229, which provides that “discussion of the draft collective labour agreement at a general assembly of workers shall proceed in accordance with the methodology determined for that purpose by the Confederation of Workers of Cuba”. In its previous observation, the Committee noted in this connection the Government’s statement that, in accordance with the principle of the independence and autonomy of trade union organizations, the Government may not prevent trade union organizations from adopting such decisions as they deem fit. The Government referred the Committee to comments sent by the CTC to the effect that the workers, far from considering the participation of the CTC and its methodology in bargaining and dispute settlement processes as undesirable interference, perceive it as a benefit. The CTC further stated that it is the workers who immediately refer matters to the CTC through its various bodies to obtain the necessary support and guidance for their claims and interests, which does not prejudice the will of the parties, but ensures the necessary guidance without undermining the principal role played by the first-level unions in negotiations. As to the methodology itself, the CTC stated that it consists of the application of the law which assists the national trade union organization to guide and instruct its affiliates, who account for 95 per cent of the workers in the country. Furthermore, the methodology and the other instruments guiding such action are not imposed, but are analysed and discussed in the various bodies of the trade union movement at both the central and sectoral levels, and in many cases by the workers themselves. The Committee nonetheless considered that, in the context of the monopoly trade union system of the CTC as set out in the legislation (see the observation on Convention No. 87), section 11 imposes on all trade union organizations a methodology for the discussion of draft collective agreements established by the CTC which, when combined with the existence of overly detailed provisions on the manner in which negotiations are to be held, does not adequately promote free and voluntary negotiations within the meaning of Article 4 of the Convention. Consequently, the Committee again asks the Government to take the necessary steps to amend section 11 of Legislative Decree No. 229 by deleting the express reference to the Central Organization of Workers and ensuring the autonomy of the parties to collective bargaining;
• – section 5 of Legislative Decree No. 229, which provides that the National Labour Inspection Office shall approve the conclusion of collective labour agreements in the units provided for in the budget and in the production and service activities of bodies, sectors, branches or activities that share the same characteristics, when so agreed and requested by the head of the body and the general secretary of the corresponding federation.

The Committee recalled that in an earlier report, the Government had indicated that the provision applied to units in the budget with similar characteristics, such as bakeries, schools, hairdressers, service centres and polyclinics. The Committee pointed out that the law subjects the conclusion of collective agreements in a broad sector of activities to approval by the National Labour Inspection Office. More specifically, the text of section 5 provides that “the units provided for in the budget and the production and service activities of bodies, sectors, branches and activities that share the same characteristics may, on an exceptional basis, conclude collective labour agreements when this is advisable in view of the likeness or similarity of the working conditions, where so agreed by the head of the body and the corresponding national union, with the prior approval of the Ministry of Labour and Social Security”. The Committee considered that such a situation is contrary to the principle of free and voluntary negotiation and once again requested the Government to take the necessary steps to repeal section 5 of Legislative Decree No. 229 so as to ensure that full effect is given to the principle of free and voluntary negotiation.

The Committee notes that, in reply to all its comments, the Government states that a new Labour Code is being prepared and that it is to include the substantive and procedural provisions of Legislative Decree No. 229, this process affording an opportunity for a tripartite evaluation of the questions raised.

The Committee further notes the Government’s response to the effect that: (1) the voluntary nature of, and the total autonomy of the parties to, the process of consultation, amendment or revision of collective labour agreements in the search for solutions to any disagreement that arises, clearly require that a mechanism be adopted by agreement between the parties and not by a decision of only one party; it also points out that the new wording “the parties may ...” eliminates the possibility of interpreting the provision as binding, as was the case with the wording of Resolution 27 of 2002, now repealed; (2) the provision does not have the general scope that the Committee attributes to it but, as stated in section 5, it is exceptional in nature and applies only when the head of the body and the corresponding trade union so agree; it does not apply to all sectors or to all the entities in a single sector, but to small local service units with the same or similar characteristics in relation to working conditions; the procedure is not legally binding, but it is a possibility that is allowed when it is assessed by common agreement, and in exceptional cases requested by the parties; (3) the procedure respects the independence and autonomy of trade union organizations that adopt such decisions as they see fit to organize trade union activities in accordance with their objectives; and (4) the collective bargaining process is driven, guided and controlled by the trade unions and the CTC, which propose relevant legal amendments to the Government.

The Committee hopes that the process to draft the new Labour Code and assess these provisions of Legislative Decree No. 229 in a tripartite framework will be concluded in the near future, and will take account of the observations the Committee has made on several occasions. It requests the Government to provide information on any amendments and hopes that it will be able to note progress in the near future. It requests the Government to provide copies of the legislative texts once they have been adopted.

Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes the comments of the Independent National Confederation of Cuba (CONIC) (the trade union status of which is contested by the Government), dated 10 August 2009, and the comments of the International Trade Union Confederation (ITUC), of 26 August 2009, referring to matters that are already under examination. The Committee also notes the Government’s reply to these comments.

The Committee further notes the comments of the Workers’ Central Union of Cuba (CTC), which were forwarded with the Government’s report.

Article 4 of the Convention. The Committee recalls that in its previous comments it referred to the need to amend or repeal the following provisions to bring them into conformity with the Convention:

–           Section 14 of Legislative Decree No. 229 on collective agreements and section 8 of its implementing regulations, which require any disputes that arise in the drafting phase of a collective labour agreement (including when first-level unions are concerned) to be referred to the highest levels of the parties concerned (Confederation of Workers of Cuba), with the participation of those affected.

The Committee notes the Government’s indication that the implementing regulations of Legislative Decree No. 229/2002 (Resolution No. 27 of 2 July 2002) have been repealed by Resolution No. 78/2008, issuing new implementing regulations. In this respect, the Committee notes that section 8 of the new Regulations, which amends section 8 of the previous Regulations, provides that where any disputes occur in the process of drafting, amending or revising the agreement, the parties may refer them to the respective higher levels or, where appropriate, to arbitration, during or after the negotiation phase, as applicable. The Committee notes the Government’s indication that this wording confirms the voluntary nature and the total autonomy of the parties in the process of negotiating, amending or revising collective labour agreements in seeking solutions to disputes which may arise, as the procedure to be adopted has to be by common agreement between the parties, and that furthermore such a procedure is voluntary and not compulsory.

In this respect, the Committee expresses appreciation for this development; nevertheless, with a view to achieving greater legislative coherence and avoiding confusion, the Committee also requests the Government to amend section 14 of Legislative Decree No. 229 in the same manner as section 8 of the new implementing regulations, that is to ensure that any dispute during the process of the formulation of a collective labour agreement can be resolved with the intervention of the authorities and the Confederation of Workers of Cuba only where both parties to the dispute so request.

–           Section 17 of Legislative Decree No. 229 and sections 9, 10 and 11 of its implementing regulations, which require any disputes that arise once the agreement has been concluded to be referred, when the conciliation procedure has been exhausted, for arbitration by the National Labour Inspection Office with the participation of the Confederation of Workers of Cuba and the parties concerned, with the decision that is adopted being binding.

The Committee takes due note of the Government’s indication that sections 9, 10 and 11 of the implementing regulations are null and void as they are totally repealed by the second final provision of the new implementing regulations of 2008.

The Committee nevertheless observes that section 17 of the Legislative Decree has not been amended. This provision establishes that “disputes which arise during the process of the formulation, amendment or revision of the collective labour agreement or while it is in force, concerning the interpretation of its provisions or failure to comply with its clauses, after the conciliation procedure described above has been exhausted, shall be submitted for arbitration to the National Labour Inspection Office with the participation of the Confederation of Workers of Cuba and the parties concerned. The final decision adopted shall be binding”. In this respect, the Committee recalls once again that, except in the public service and in essential services in the strict sense of the term, compulsory arbitration by the authorities is contrary to the principle of the voluntary negotiation of collective agreements laid down in Convention No. 98 and, hence, contrary to the autonomy of the parties to bargaining. The Committee also considers that legislation which requires the referral of disputes relating to collective bargaining to the administrative authority, and which also provides for the participation of the Confederation of Workers of Cuba, also raises problems of incompatibility with the Convention. The Committee requests the Government to take measures with a view to the amendment of section 17 of Legislative Decree No. 229 in order to ensure that where disputes arise between the parties in the process of collective bargaining, the interference or intervention of the authorities and the Confederation of Workers of Cuba is not imposed as an obligation and that, except in the public service and in essential services in the strict sense of the term, recourse to binding arbitration is only possible with the agreement of all the parties to the negotiations.

–           Section 11 of Legislative Decree No. 229, which provides that “discussion of the draft labour collective agreement at a general assembly of workers shall proceed in accordance with the methodology determined for that purpose by the Confederation of Workers of Cuba”.

In this respect, the Committee notes the Government’s indication that, in accordance with the principle of the independence and autonomy of trade unions, the Government cannot prevent trade unions from adopting the decisions that they consider appropriate. The Government refers to the comments sent by the Confederation of Workers of Cuba, according to which the workers, far from considering the participation of the CTC and its methodology in bargaining processes and the resolution of disputes as an undesired interference, perceives it as a benefit. The CTC adds that it is the workers who immediately refer matters to the CTC through its various bodies to obtain the necessary support and guidance for their claims and interests, which does not prejudice the will of the parties, but ensures the necessary guidance, without undermining the principal role played by first-level unions in negotiation. With regard to the methodology itself, the CTC indicates that it consists of the application of the law which assists the national trade union organization to guide and instruct its affiliates, which represent 95 per cent of the workers in the country. Furthermore, the methodology and the other instruments guiding this action are not imposed, but are analysed and discussed in the various bodies of the trade union movement at both the central and sectoral levels, and in many cases by the workers themselves.

The Committee nevertheless considers that, in the context of the monopoly trade union system of the Confederation of Workers of Cuba as set out by the legislation (see the observation on the application of Convention No. 87), section 11 imposes upon all trade union organizations a methodology for the discussion of draft collective agreements established by the Confederation which, when combined with the existence of overly detailed provisions on the manner in which negotiations are to be held, does not adequately promote free and voluntary collective negotiations within the meaning of Article 4 of the Convention. The Committee therefore once again requests the Government to take the necessary measures to amend section 11 of Legislative Decree No. 229 by deleting the explicit reference to the Confederation of Workers of Cuba and ensuring the autonomy of the parties to collective bargaining.

–           Section 5 of Legislative Decree No. 229 and section 3 of the implementing regulations, which provide that the National Labour Inspection Office shall approve the conclusion of collective labour agreements in the units provided for in the budget and in the production and service activities of bodies, sectors, branches and activities that share the same characteristics, when so agreed and requested by the head of the body and the Secretary-General of the corresponding federation.

The Committee observes that the former section 3 of the implementing regulations has been amended by the new regulations and that it no longer refers to this matter. With regard to section 5 of Legislative Decree No. 229, the Committee notes the Government’s reiteration that: (1) the provision is of an exceptional nature and is only applied when so requested by common agreement between the head of the body and the corresponding trade union; (2) it does not apply to all sectors, nor to all the entities belonging to the same sector, but to small local service units with the same or similar characteristics in relation to working conditions; (3) the objective of the provision is to ensure that the collective agreements that are adopted in these units are specifically adapted to these specific characteristics; and (4) this procedure is not made compulsory in the legislation, but it is a possibility that is allowed when it is assessed by common agreement, and in exceptional cases requested by the parties.

The Committee recalls that in a previous report the Government indicated that the provision applied to units in the budget with similar characteristics, such as bakeries, schools, hairdressers, service centres and polyclinics. The Committee emphasizes that the law subjects the conclusion of collective agreements in a broad sector of activities to approval by the National Labour Inspection Office. More specifically, the text of section 5 provides that: “the units provided for in the budget and the production and service activities of bodies, sectors, branches and activities that share the same characteristics may, on an exceptional basis, conclude collective labour agreements, when this is advisable in view of the similarity or analogue nature of the working conditions, where so agreed by the head of the body and the corresponding national union with the prior approval of the Ministry of Labour and Social Security.” The Committee considers that this situation is contrary to the principle of free and voluntary negotiation and once again requests the Government to take the necessary measures to repeal section 5 of Legislative Decree No. 229 with a view to ensuring that full effect is given to the principle of free and voluntary negotiation.

Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee notes the Government’s report and its reply to the comments of the International Trade Union Confederation (ITUC) referring to issues which were already addressed, as well as the state control of the employment market, by fixing wages and conditions of work in the state sector.

The Committee notes the Government’s statement that section 9 of Legislative Decree No. 229/2002 establishes the content of collective labour agreements, including specifications with regard to income, promotion, permanent employment in the entity, hours of work and rest periods.

Article 4 of the Convention. The Committee recalls that in its previous comments, it referred to the need to amend section 14 of Legislative Decree No. 229 on collective agreements and section 8 of the implementing regulations, which require any disputes about the content that arise in the drafting phase of a collective labour agreement (including when first-level unions are concerned) to be referred to the highest levels of the parties concerned (Confederation of Workers of Cuba), with the participation of those affected; and section 17 of Legislative Decree No. 229 and sections 9, 10 and 11 of the implementing regulations, which require any disputes that arise once the agreement has been concluded to be referred, upon exhaustion of the conciliation procedure, for arbitration by the National Labour Inspection Office, with the participation of the Confederation of Workers of Cuba and the interested parties, the office’s decision being binding. The Committee notes that, according to information reiterated by the Government, this system ensures complete autonomy and independence for trade union representatives, workers and administrations with regard to the submission, discussion and approval of draft collective agreements; that the Decree provides for a conciliation procedure between the administration and the trade union with participation of the highest levels for examining and solving disputes that arise to which the parties may, by agreement, have recourse at any stage of the negotiations; that no request for arbitration has been submitted to the National Labour Inspection Office in the five years that the Legislative Decree has been in force. According to the Government, the possibility of arbitration by the National Labour Inspection Office laid down in section 17 of the Decree can only be taken up once the conciliation procedure has been exhausted and with the consent of both parties concerned, in accordance with section 4(a) of resolution No. 20/2007 establishing the national labour inspection system and specifying arbitration with the participation of the Confederation of Workers of Cuba and the parties concerned for the settlement of disputes which arise with regard to collective agreements. As regards the participation of the Confederation of Workers of Cuba in the negotiation and arbitration process, the Government indicates that this is not external interference since the Confederation is not outside the negotiating process, being the trade union organization that, by the wish of its own workers, represents workers and retirees in the various decision-making bodies of the country.

The Committee observes, however, that section 17 of the Legislative Decree and section 11 of the implementing regulations show that the possibility exists in law for just one of the parties to request disputes to be submitted for arbitration to the National Labour Inspection Office, as was also indicated by the Government in a previous report. In this respect, the Committee repeats that arbitration imposed at the request of only one of the parties is contrary to the principle of voluntary negotiation of collective agreements laid down in Convention No. 98 and, hence, contrary to the autonomy of the parties to bargaining. In the Committee’s view, problems of incompatibility with the Convention arise when the law requires collective bargaining to be referred to a higher level (in this case, participation by the Confederation of Workers of Cuba). The Committee requests the Government to take measures to amend the legislation so that in case of disagreement between the parties to the collective bargaining process, the intervention by the authorities or the Confederation of Workers of Cuba is not compulsory and that referral to binding arbitration is possible only with the agreement of all the negotiating parties.

The Committee also referred to the need to amend section 11 of Legislative Decree No. 229 – which states that “discussion of the draft labour collective agreement at a general assembly of workers shall proceed in accordance with the methodology determined for that purpose by the Confederation of Workers of Cuba” – by deleting the express reference to the Confederation of Workers of Cuba and ensuring the autonomy of the parties to collective negotiations. In this respect, the Committee notes the Government’s indication that the methodology for discussion of the draft collective labour agreement is established by the Confederation of Workers of Cuba with the aims and objectives which it is obliged to fulfil in relation to the trade union movement and in conformity with its interests and that it is not for the Government to take measures in this respect. With regard to section 11, the Government points out that this is an affirmation of the fact that it is the trade union which has to prescribe the way in which workers’ assemblies are organized and the way in which collective agreements are drawn up and discussed. The Committee considers, however, that section 11 imposes a methodology established by the Confederation of Workers of Cuba on all trade unions under a system of trade union monopoly established by law (see observation on the application of Convention No. 87), and this, together with the existence of provisions that are too detailed as to how collective agreements are to be concluded, do not afford sufficient encouragement to free and voluntary collective bargaining in accordance with Article 4 of the Convention. Consequently, the Committee asks the Government once again to take the necessary measures to amend section 11 of Legislative Decree No. 229 by deleting the express reference to the Confederation of Workers of Cuba and ensuring the autonomy of the parties to collective bargaining.

The Committee also requested the Government to take measures to repeal section 5 of Legislative Decree No. 229 and section 3 of the implementing regulations under which the National Labour Inspection Office approves the conclusion of collective labour agreements in the units provided for in the budget and in the production and services activities of bodies, sectors, branches and activities that share the same characteristics, when so agreed by the head of the body and the general secretary of the corresponding federation, so as to ensure that full effect is given to the principle of free and voluntary collective bargaining. The Committee notes that the Government reiterates that these sections apply only to exceptional cases involving units in the budget which, with the consent of the head of the entity and of the corresponding federation, decide to request the approval of the National Labour Inspection Office, the aim being to avoid duplicating or copying agreements of centres with similar characteristics so that agreements are adopted to the specific characteristics of each entity. The Committee recalls that the Government indicated, in a previous report, that the provision applied to units in the budget with similar characteristics, such as bakeries, schools, hairdressers, service centres and polyclinics. The Committee considers that the law subjects a wide range of collective agreements to approval by the National Labour Inspection Office and finds this to be contrary to the principle of free and voluntary collective bargaining. The Committee asks the Government once again to take the necessary measures to repeal section 5 of Legislative Decree No. 229 and section 3 of the implementing regulations to ensure that full effect is given to the principle of free and voluntary collective bargaining.

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

The Committee notes the observations of 10 August 2006 of the International Confederation of Free Trade Unions (ICFTU) concerning the application of the Convention. The Committee requests the Government to send its comments on these matters.

The Committee requests the Government, as part of the regular reporting cycle, to send for examination at the Committee’s next session, to be held in November-December 2007, its comments on all the issues of law and practice concerning the Convention raised in its previous observation (see 2005 observation, 76th Session).

Direct Request (CEACR) - adopted 2005, published 95th ILC session (2006)

In its last observation the Committee referred to section 10 of Legislative Decree No. 229 of 1 April 2002 under which drafts of collective agreements must be brought to the attention of workers so that they can express their opinions at a general assembly of workers. It also noted that according to section 11, “discussion of the draft collective labour agreement at a general assembly of workers shall proceed in accordance with the methodology determined for that purpose by the Confederation of Workers of Cuba”, and requested the Government to provide a copy of the methodology.

The Committee notes that the Government has sent a copy of the methodology, prepared by the Confederation of Workers of Cuba, for discussion of draft collective labour agreements in the general assembly of workers, and the approval and signing of such agreements. The Committee observes that the methodology applies to the conclusion of collective agreements in general and that its provisions are extremely detailed. In the Committee’s view, a methodology by the Confederation of Workers of Cuba imposed by a legislative decree under a system of trade union monopoly established by law (see observation on the application of Convention No. 87), and provisions that are too detailed as to how collective agreements are to be concluded, do not afford sufficient encouragement to free and voluntary collective bargaining. The Committee requests the Government to take the necessary steps to amend section 11 of Legislative Decree No. 229 by deleting the express reference to the Confederation of Workers of Cuba and ensuring the autonomy of the parties to collective negotiations.

In its previous comments, the Committee requested information on the scope of section 5 of Legislative Decree No. 229 and section 3 of its implementing regulations, under which the National Labour Inspection Office approves the conclusion of collective labour agreements in the units provided for in the budget and in the production and services activities of bodies, sectors and branches that share the same characteristics, when so agreed by the head of the body and the general secretary of the corresponding federation. The Committee notes that in reply, the Government indicates that approval from the National Labour Inspection Office is not required systematically, being necessary only for units in the budget that share the same characteristics, such as bakeries, schools, hairdressers, service centres and polyclinics, the aim being to avoid duplicating or copying agreements of centres with similar characteristics so that agreements are adapted to the specific characteristics of each entity. The Committee observes that in this case, the law subjects a wide range of collective agreements to approval by the National Labour Inspection Office. In the Committee’s view this is contrary to the principle of free and voluntary collective bargaining. The Committee accordingly requests the Government to take the necessary steps to repeal section 5 of Legislative Decree No. 229 and section 3 of the implementing regulations to ensure that full effect is given to the principle of free and voluntary collective bargaining.

Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee takes note of the Government’s report.

1. Article 4 of the Convention. In its previous comments, the Committee referred to the need to amend section 14 of Legislative Decree No. 229 on collective agreements and section 8 of the implementing regulations, which require any disputes about content that arise in the drafting phase of a collective labour agreement between the administration or its representative and the trade union or its representative to be referred to the highest levels of the parties, with the participation of those affected; and section 17 of Legislative Decree No. 229 and sections 9 and 10 of the implementing regulations, which require any disputes that arise once the agreement has been concluded to be referred, upon exhaustion of the conciliation procedure, for arbitration by the National Labour Inspection Office, with the participation of the Confederation of Workers of Cuba and the interested parties, the Office’s decision being binding.

The Committee notes that, according to the Government, this system ensures complete autonomy and independence for trade union representatives, workers and administrations with regard to the submission, discussion and approval of draft collective agreements. Amendments and inconsistencies are examined by the assembly of workers with no interference from higher bodies. Only once this stage is complete will the draft agreement be referred to higher levels, with the participation of those concerned, the aim being to raise the level of participation, with the consent of the parties to the bargaining. Once the agreement has been concluded any disagreement is referred at the express request of one or both of the parties to the Labour Inspection Office, which acts with participation by the Confederation of Workers of Cuba (which is responsible for supervising compliance with labour and social security legislation) and the parties concerned, any intervention by the authorities on their own motion being out of the question. There is broad participation by those concerned at all stages of the negotiations, which means that arbitration by the Labour Inspection Office is not deemed to be interference in matters which are the domain of the negotiating parties.

The Committee notes that the National Labour Inspection Office may be called upon to arbitrate at the request of only one of the parties and that the Confederation of Workers of Cuba participates in negotiations in first-level unions in the event of any disagreement during the negotiating process or after the first phase of the negotiations. The Committee reminds the Government that arbitration imposed at the request of only one of the parties is contrary to the principle of voluntary negotiation of collective agreements laid down in Convention No. 98 and, hence, the autonomy of the parties to the bargaining. In the Committee’s view, problems of incompatibility with the Convention arise when the law requires collective bargaining to be referred to a higher level (in this case participation by the Confederation of Workers of Cuba). The Committee requests the Government to take the necessary steps to amend the legislation to allow the parties to negotiations to settle their disputes in collective bargaining without outside interference (authorities or Confederation of Workers of Cuba) and to ensure that referral to binding arbitration is possible only with the agreement of all the negotiating parties.

2. The Committee previously requested the Government to send detailed information on the collective agreements concluded in recent years, the parties thereto, and the subject matter and number of workers covered. The Committee notes that, according to the Government, there is no official register or official body that records collective agreements. The Government also reports that, according to the Confederation of the Workers of Cuba and the national unions, the framing and adoption of agreements is the domain of the 117,047 trade union sections and offices in the country.

The Committee is addressing a request on certain other points directly to the Government.

Direct Request (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee notes that, in accordance with section 10 of Legislative Decree No. 229, promulgated on 1 April 2002, a draft collective agreement has to be brought to the knowledge of the workers so that they can express their criticisms in a general assembly of workers and that, by virtue of section 11 of the above Decree, "discussion of the draft collective labour agreement in the general assembly of workers shall proceed in accordance with the methodology determined for that purpose by the Confederation of Workers of Cuba". The Committee requests the Government to provide a copy of the above methodology in its next report.

The Committee also notes that section 3 of the implementing regulations appears to impose the obligation upon the parties to seek the prior approval of the National Labour Inspection Office to be able to conclude collective labour agreements. The Committee requests the Government to indicate the scope of the above provision and, if in practice it implies the need to seek the approval of the National Labour Inspection Office on each occasion to be able to conclude a collective labour agreement, to take measures to repeal this provision.

Observation (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee notes the Government’s report and its reply in which it rejects the comments made by the International Confederation of Free Trade Unions (ICFTU) referring to the non-existence of collective bargaining in Cuba and the Government’s control over working conditions in the state sector.

The Committee also notes the Government’s information concerning the promulgation of Legislative Decree No. 229 respecting collective labour agreements, dated 1 April 2002, and its implementing regulations, by means of Resolution No. 27/2002.

1. Article 4 of the Convention. The Committee notes that section 14 of the Legislative Decree No. 229 provides that "discrepancies which arise in the process of formulating a draft collective labour agreement between the administration or its representative, on the one hand, and the trade union organization or its representative, on the other, shall be resolved by the respective superior levels as rapidly as possible, and with the participation of those affected". This section is supplemented by section 8 of the implementing regulations, which provides that "discrepancies which arise in the process of formulating, modifying (...) collective labour agreements, if the necessary measures are not adopted for their resolution, shall be submitted to the immediately superior level of the administration and the trade union organization determined by the corresponding national trade union, for such bodies to facilitate together the corresponding solution within a period of up to 30 working days". The Committee also notes that section 17 of the Legislative Decree provides that "discrepancies which arise in the process of formulating, modifying, revising or during the period in which the collective labour agreement is in force, after the exhaustion of the conciliation procedure (...) shall be submitted to arbitration by the National Labour Inspection Office with the participation of the Confederation of Workers of Cuba and the interested parties. The decision that is adopted is binding". Sections 9 and 10 of the implementing regulations further specify the provisions of section 17 of the Legislative Decree.

The Committee notes that these provisions constitute interference in the activities of the parties to the negotiations by the administrative authority or the higher level trade union organization in establishing the content of the collective agreement or resolving discrepancies which arise between the parties, in violation of the principles of the Convention. The Committee also emphasizes that, in general, the imposition of compulsory arbitration, whether at the request of only one of the parties or at the initiative of the authorities, is contrary to the principle of voluntary negotiation set forth in the Convention, and therefore to the principle of the autonomy of the parties to negotiations.

The Committee requests the Government to take measures with a view to amending the legislation so that the parties to the negotiations resolve their own differences during collective bargaining without external interference and so that recourse to arbitration with binding effect is only possible with the agreement of the parties to the negotiations.

2. The Committee requests the Government to provide detailed information in its next report on the collective agreements concluded in recent years, the parties signing the agreements, the subjects addressed and the number of workers covered.

The Committee is addressing a request directly to the Government on other matters.

Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee notes the information supplied by the International Confederation of Free Trade Unions (ICFTU) in a communication of 18 September 2002 raising questions about the application of the Convention. The Committee requests the Government to send its observations thereon in its next report so that the Committee may examine the questions at its next meeting.