Observación (CEACR) - Adopción: 2011, Publicación: 101ª reunión CIT (2012)

Convenio sobre la libertad sindical y la protección del derecho de sindicación, 1948 (núm. 87) - Cuba (Ratificación : 1952)

The Committee notes the comments of 4 August 2011 by the International Trade Union Confederation (ITUC) and the comments of 13 August 2011 by the Independent Trade Union Coalition of Cuba (CSIC) – which the Government does not recognize as a union – referring to acts of repression against trade unionists. The Committee also notes the Government’s reply to these comments.

Trade union rights and civil liberties

In its previous comments the Committee urged the Government to take the necessary steps for the immediate release of trade union members and leaders sentenced to harsh terms of imprisonment, to investigate the allegations made by the Independent National Confederation of Workers of Cuba (CONIC) in 2009 and, if they were found to be true, to punish those who committed such acts. The Committee notes that the Government reiterates its assertion that the individuals mentioned in CONIC’s communication were not punished unfairly. The charges against them were duly proved in full observance of due process. The persons concerned committed offences defined in the law and were accordingly tried and convicted by the courts of justice. No one was tried or convicted for the exercise or defence of trade union rights. The persons concerned were not sentenced by the Government but tried and convicted by competent and independent courts in full observance of due process. The Committee notes that the Government regrets that account was not taken of the replies it submitted, and repeats its assertions made in earlier reports. It emphasizes that in Cuba no trade unionists have been imprisoned, persecuted or threatened because of trade union membership, nor have any premises or assets belonging to trade union organizations been confiscated.

The Committee notes with concern that the CSIC – which was constituted on 30 March 2011 and whose status as a trade union confederation is denied by the Government – refers in its comments to the application of the Convention and to allegations of arrests and threats against leaders and members of CONIC, the Independent Confederation of Cuban Workers (CTIC) and the Single Council of Cuban Workers (CUTC), as well as harassment by the State Security. The Committee also notes that, according to the ITUC, up to November 2010 there had been 1,224 arrests on political grounds, which is a disincentive to the establishment of independent trade unions. The Committee notes that in response to these comments, the Government states that: (1) the ITUC’s allegations are not new but a repetition of unfounded arguments put forward in the past, and they raise other issues which only go to show that the ITUC is either unacquainted with the real situation in Cuba or is seeking to distort it; (2) the allegations are unsubstantiated and stem from fabricated information; and (3) no reference is made to the source of the information on the alleged 1,224 arrests, but it can be assumed that the figure was obtained from information already published in the press and produced on the basis of false reports. The list of alleged arrests include persons who are deceased or who have emigrated or who have simply not been arrested on any grounds.

In response to the comments of the CSIC, the Government indicates that: (1) it rejects the allegations of the so-called CSIC and rebuts its arguments; (2) the CSIC is not a trade union organization nor does it consist of Cuban workers. Its so-called membership amounts to no more than 25 members and only three of these have a labour relationship; (3) the persons concerned, now grouped together in what they allege to be a new coalition, have devoted themselves in the past to fabricating and submitting to international bodies false allegations on violations of the rights laid down in ILO Conventions with the intent of misinforming trade unionists the world over about an alleged division among Cuban workers; (4) they falsify membership figures and have no credibility whatsoever in Cuba; (5) it is untrue that in Cuba there is a climate of violence: no one is under duress or threat, and assertions of acts of violence or repression, such as those made by the CSIC, are likewise unfounded; (6) in Cuba there are no arrests of trade unionists or trade union leaders, several of the persons alleged by the CSIC to be trade unionists are common criminals (according to the Government some were not in the country at the time when the alleged acts of violence have been committed); and (7) the Government has time and again submitted replies on these cases and will pursue its work to strengthen international cooperation in defence of labour and trade union rights as well as international cooperation in the framework of the ILO which is necessary to universal attainment of the goals of decent work.

The Committee reminds the Government that freedom of industrial association is but one aspect of freedom of association in general, which must itself form part of the whole range of fundamental liberties, which are all independent and complementary to one another and which the Conference explicitly listed in its resolution of 1970 and which consist in particular of: (a) the right to freedom and security of person and freedom from arbitrary arrest and detention; (b) freedom of opinion and expression and in particular freedom to hold opinions without interference and to seek and impart information and ideas through any media and regardless of frontiers; (c) freedom of assembly; (d) the right to a fair trial by an independent and impartial tribunal; and (e) the right to protection of the property of trade union organizations. In these circumstances, the Committee recalls that trade union rights are an important aspect of human rights and points out that the rights of workers’ organizations can be exercised only in a climate of respect for all human rights and one which is free of violence, pressure, fear and threats of any kind against the leaders and members of such organizations, and reminds the Government that it has a duty to ensure observance of this principle.

Lastly, the Committee again asks the Government to send copies of the court rulings referred to in its last report in connection with the comments made on 28 August 2007 by the ITUC, which referred to other specific cases of arrests of workers belonging to 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 CUTC.

Legislative issues

In previous observations the Committee noted information from the Government to the effect that the process of revising the Labour Code was ongoing. The Committee notes that, in its report, the Government again states that a new Labour Code is in preparation and that it has not been sent to the Office because the requisite consultations have not been completed. The Committee expresses the hope that the revision of the Labour Code will be completed in the near future and that account will be taken of the comments the Committee has been making for many years on the application of the Convention and which are addressed below. The Committee reminds the Government that it may avail itself of technical assistance from the Office and asks it to send a copy of the draft Labour Code.

Articles 2, 5 and 6 of the Convention. Trade union monopoly. For many years the Committee has been referring to the need to delete the reference to the Confederation of Workers of Cuba (CTC) from sections 15 and 16 of the Labour Code of 1985. The Committee notes that in its report the Government states that: (1) the legislation in force and everyday practice in all work units guarantee the full exercise of trade union activities and the broadest application of the right to organize; (2) the representation of workers is exercised at different levels and in different decision making bodies by national sectoral unions and the Confederation which, by decision of the workers themselves, as adopted in their assemblies, constitutes the expression of the desire for unity of the Cuban trade union movement; (3) the existence of a single trade union confederation was not imposed by the Government, nor does it correspond to any provision that is not the expression of the sovereign will of Cuban workers; (4) the struggle for unity of the trade union movement has a long and deep-seated tradition; in 1939 the Confederation of Cuban Workers was constituted by a decision taken freely by the workers themselves and one year later became the CTC as it now is; the unity of the workers’ movement has been decisive in the success of their struggle and their claims and in defending their power as now exercised; and (5) the application in practice of the Convention is guaranteed by legal provisions establishing that “all workers, both manual and intellectual, shall be entitled, without previous authorization, to organize voluntarily and to establish trade unions”; these rights are guaranteed in practice by the existence of 18 national sectoral unions with their municipal and provincial structures which bring together some 110,000 trade union chapters and first-level unions. In each labour unit there are one or more trade union chapters. Their leaders are elected by the workers themselves. The Committee notes that the Government adds that neither the Labour Code in force nor the supplementary legislation provides for restrictions on the establishment of trade unions and that all Cuban workers have the right to establish trade union organizations and are free to join them without prior authorization. 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 factual monopoly by referring to a specific trade union confederation; even in a 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 to join the organization of their own choosing (see General Survey of 1994 on Freedom of Association and Collective Bargaining, paragraph 96). In these circumstances, the Committee requests the Government to take the necessary measures to ensure that all workers, without distinction whatsoever, are able to establish and join organizations of their own choosing. The Committee also requests the Government 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. For several years the Committee has been referring 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 the Government’s statement that it is examining the legal provisions that organize the functions of the highest government bodies. The Committee expresses the firm hope that in the process of examining those provisions, the Committee will in the near future amend section 61 of Legislative Decree No. 67 of 1983 so as to guarantee trade union pluralism, for example by replacing the reference to the CTC with the expression “by the most representative organization or organizations”.

Right to strike

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, and has requested the Government to take measures to ensure that no one suffers discrimination or prejudice in their employment for having peacefully exercised this right, and to keep it informed in this regard. The Committee notes the Government’s statement that: (1) Cuban legislation contains no prohibition whatever on the right to strike, nor does the criminal law establish any penalties for the exercise of such rights, and that any decisions on this matter are the prerogative of the trade union organizations; (2) should Cuban workers at some time decide to resort to a strike, there is nothing to prevent them from doing so; (3) in industrial relations as practised in the country, more effective mechanisms exist and are applied for the exercise of rights, and workers systematically use them through their multiple forms of effective participation and by exercising their real power to decide on matters that affect them, which cannot be considered a limitation or prohibition of the right to strike; and (4) in the various institutionalized forms of participation by workers and their representatives in the settlement of disputes and in decision making, trade union representatives enjoy broad capacities and mandates. The Committee notes the information provided by the Government and again invites it, in the interests of safeguarding legal certainty for workers who decide to resort to strike action, to consider, in the context of the current legislative reform (amendment of the Labour Code) to which the Government refers, adopting provisions that expressly recognize the right to strike and the fundamental principles indicated by the Committee.

[The Government is asked to reply in detail to the present comments in 2012.]