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Holidays with Pay (Agriculture) Convention, 1952 (No. 101) - Cuba (RATIFICATION: 1954)

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C.30, C.52 and C.101

In order to provide a comprehensive view of the issues relating to the application of ratified Conventions on working time, the Committee considers it appropriate to examine Conventions Nos 1 (hours of work in industry), 14 (weekly rest in industry), 30 (hours of work in commerce and offices), 52 (holidays with pay), 101 (holidays with pay in agriculture) and 106 (weekly rest in commerce and offices) in the same comment.

Legislative developments. The Committee notes the information provided by the Government in its reports on the adoption of: (i) the National Constitution proclaimed on 10 April 2019; and (ii) the Labour Code, promulgated by Act No. 116 of 20 December 2013, and its Regulations, promulgated by Decree No. 326 of 12 June 2014.

Hours of work

Article 2 of Convention No. 1 and Articles 3 and 4 of Convention No. 30. Daily and weekly limits on hours of work. Variable distribution within weekly limits. The Committee notes the Government’s indication that under section 87 of the Labour Code: (i) daily working time is a minimum of eight hours on five days per week; (ii) taking account of existing technical and organizational conditions and the needs of production or services, working time on specific days of the week can include one additional hour, provided that the limit on weekly hours of work is not exceeded; and (iii) weekly working time can be set at between 40 and 44 working hours, depending on the tasks to be performed and the need to reduce costs. The Committee notes this information.

Article 7(1)(c) of Convention No. 1. List of exceptions to daily and weekly limits on hours of work. Further to its previous comments, the Committee notes the Government’s indication that: (i) Decision No. 187 of 2006, establishing exceptions to normal hours of work, was repealed following the entry into force of the Labour Code and its regulations in 2014; and (ii) section 86 of the Labour Code establishes permanent exceptions to normal hours of work for specific jobs or activities because of the type of work, control complexities, or its location in inhospitable or inaccessible places or those far from the worker’s area of residence.

Article 6(2) of Convention No. 1 and Article 7(3) of Convention No. 30. Limit on additional hours in respect of permanent exceptions. The Committee notes that section 86 of the Labour Code provides that heads of organizations, national entities and higher management organizations, with regard to specific jobs or activities, can approve exceptional working arrangements where required, because of the type of work, control complexities, or its location in inhospitable or inaccessible places or those far from the worker’s area of residence, with a due correspondence between hours of work and rest during the periods concerned. In this regard, the Committee notes that section 86 does not establish the maximum number of overtime hours that can be authorized. The Committee requests the Government to provide information on the measures taken or envisaged to ensure that, should permanent exceptions to normal working hours be authorized, the relevant regulations establish the maximum number of additional hours authorized, in accordance with Article 6(2) of Convention No. 1 and Article 7(3) of Convention No. 30.

Article 6(2) of Convention No. 1 and Article 7(4) of Convention No. 30. Remuneration of overtime. Further to its previous comments, the Committee notes the Government’s indication that, under section 122 of the Labour Code, overtime is paid at the rate of 25 per cent more than the normal wage. The Committee notes that section 122 of the Labour Code also provides that, exceptionally, collective labour agreements can include compensation in the form of rest periods in proportion to the wage paid. The Committee also notes that, under section 147(a) of the Regulations, the cases in which workers receive a wage that includes payment for a number of hours of work in excess of normal hours are not classified as overtime for the purposes of remuneration. The Committee requests the Government to indicate the measures taken or envisaged to ensure that overtime is paid at the rate of 25 per cent more than the normal wage in all cases, including when compensatory rest is granted and when the wage includes payment for a number of hours of work in excess of normal hours, in accordance with these Articles of the Conventions.

Article 8(1)(c) of Convention No. 1 and Article 11(2)(c) of Convention No. 30. Record of additional hours. The Committee notes that section 33 of the Labour Code establishes the obligation to compile and update workers’ employment files, in which hours worked and wages paid are recorded. The Committee also notes that, under section 17 of the Regulations implementing the Labour Code, the obligation to compile and update employment files applies to workers who are hired for an employment relationship lasting more than six months. The Committee requests the Government to indicate the manner in which it ensures compliance with the obligation to keep a record of all overtime worked and the amount of remuneration in respect of workers who are hired for an employment relationship lasting less than six months.

Weekly rest

Article 5 of Convention No. 14 and Article 8(3) of Convention No. 106. Compensatory rest. The Committee notes that the labour legislation does not establish any provision which guarantees compensatory rest for workers covered by temporary exceptions to the principle of weekly rest. The Committee requests the Government to provide information on the manner in which it ensures that workers who go without their weekly rest under the terms of section 120 of the Labour Code are granted compensatory rest, in accordance with Article 5 of Convention No. 14 and Article 8(3) of Convention No. 106.

Annual holidays with pay

Article 4 of Convention No. 52 and Article 8 of Convention No. 101. Prohibition on relinquishing the right to an annual holiday with pay. Further to its previous comments, the Committee notes the information provided by the Government regarding section 107 of the Labour Code, which provides that, in exceptional circumstances requiring the worker to remain at work, the employer, after obtaining the views of the trade union, may postpone the annual holiday or agree with the worker on the simultaneous payment of accumulated holidays and wages for the work done, guaranteeing a minimum period of seven days off work per year. The Committee also notes that, under section 101 of the Labour Code, persons under 16 years of age, including apprentices, are entitled to one month of annual holidays with pay for every 11 months of work. The Committee notes that, under section 107 of the Labour Code, the annual holiday for this category of workers can be postponed or they can be paid cash in lieu in exceptional circumstances that require the worker to remain at work, guaranteeing a minimum period of seven days off work per year. The Committee recalls that Article 4 of Convention No. 52 and Article 8 of Convention No. 101 provide that any agreement to relinquish the right to an annual holiday with pay, or to forgo such a holiday, shall be void, on the understanding that this principle applies to the duration of the annual holiday with pay established in every Member State which has ratified the Conventions, whatever the duration. The Committee requests the Government to indicate the measures taken or envisaged to bring sections 101 and 107 of the Labour Code into conformity with these Articles of the Conventions.

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Article 8 of the Convention. Prohibition to relinquish the right to annual holidays with pay. The Committee requests the Government to refer to the comments made under Article 4 of the Holidays with Pay Convention, 1936 (No. 52).

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Article 8 of the Convention. Prohibition to relinquish the right to an annual holiday with pay. The Committee requests the Government to refer to the observation that it has made under Convention No. 52.

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Article 8 of the Convention. Nullity of agreements to relinquish the right to an annual holiday with pay. The Committee requests the Government to refer to its observation under the application of Convention No. 52.

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The Committee takes note of the reports on the application of this Convention and Convention No. 52, to which the Government also refers.

Article 4 of the Convention. The Government indicates that section 95 of the Labour Code of 1984 is also applicable in case of exceptional measures in accordance with section 98 of the Labour Code. This means that the worker is entitled to at least seven days of paid holiday in the course of one working year, whether the holiday is postponed or the State Labour and Social Security Committee, as an exception, authorizes the replacement of holidays by supplementary remuneration, with the worker’s consent and for reasons of production of goods or supply of services in specific branches, activities or workplaces. The Committee notes that for several years the State Labour and Social Security Committee has not exercised its function in accordance with section 98 of the Labour Code. It further notes that the envisaged amendment of the Labour Code of 1984 continues to be under discussion. The Committee again expresses the hope that progress is made in this respect in the near future, and that in particular the provisions on holidays are brought into full conformity with the requirements of the Convention. It asks the Government to supply copies of any relevant legislative texts as soon as they are adopted.

Part V of the report form. The Committee notes from the Government’s report that the National Labour Inspection Board (Direccion Nacional de Inspeccion), besides the State Labour and Social Security Commission (sections 298 to 303 of the Labour Code) and the trade union labour inspection (sections 305 and 306 of the Labour Code), is authorized to take appropriate measures to ensure the application of the labour legislation, in accordance with Article 10 of the Convention and Part III of the report form. It requests the Government to provide a copy of Legislative Decree No. 147 of 2 April 1994 and any other legislation related to labour inspection, covering also holidays with pay.

The Committee takes note of the 1998 report of the National Labour Inspection Board, which has been provided with the report concerning Convention No. 81. The inspection report indicates, among others, 8,966 inspections, including the supervision of holidays, and 142,885 infringements of labour legislation. The Committee requests the Government to continue to supply copies of the labour inspection reports and to provide particulars, if any, on the application of holiday provisions.

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The Committee requests the Government to refer to the comments that it has made under Convention No. 52, as follows:

In earlier comments, the Committee noted that section 98 of the Labour Code of 1984 expressly permits the State Labour and Social Security Committee to authorize, for reasons of production of goods or supply of services, with the workers' agreement, in a number of branches, activities or workplaces, the replacement of holidays by supplementary remuneration. The Committee pointed out that such replacement of holiday leave by cash remuneration contravenes Article 4 of the Convention which prohibits any agreement to relinquish the right to an annual holiday. The Committee notes the Government's reply that regulations on working time and holidays continue to be drafted. It requests the Government to indicate, in its next report, any progress made in this respect and to supply copies of any relevant legislative texts if enacted.

The Committee also observes that section 95 of the Labour Code provides that an employer shall ensure, if it postpones a worker's holiday, that the worker takes not less than seven days' paid leave during the working year. It requests the Government to supply copies of state labour inspection reports containing information and statistics on the enforcement of holiday provisions.

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The Committee requests the Government to refer to the comments that it has made under Convention No. 52, as follows:

In previous observations, the Committee has commented that section 98 of the Labour Code of 1979 permits the State Labour and Social Security Committee to authorise, with the agreement of the workers, the replacement of holidays by cash in a number of branches or activities or for reasons of production or services. This is in conflict with Article 4 of the Convention, under which any agreement to relinquish the right to an annual holiday should be void.

The Committee notes from the Government's report that regulations on working time and holidays are being drafted, that they will take into account the Committee's comments, and that the Government will advise the Committee as soon as they have been approved.

The Committee hopes that the Government will soon take the measures necessary and that it will supply full particulars.

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The Committee requests the Government to refer to the comments that it has made under Convention No. 52, as follows:

In its previous observation, the Committee drew the Government's attention to the fact that section 98 of the Labour Code of 1979 under which the State Labour and Social Security Committee may authorise with the agreement of the workers, in a number of branches or activities or for reasons of production or services, the replacement of holidays by supplementary remuneration, is in conflict with Article 4 of the Convention under which any agreement to relinquish the right to an annual holiday shall be void.

In reply, the Government states that under section 52(n) of Legislative Decree No. 67 of 19 April 1983, the State Labour and Social Security Committee, when making the authorisations envisaged unde section 98 of the Labour Code, is obliged to ensure that effect is given to the obligations derived from Conventions and that - specifically to give effect to this Convention - a provision has been introduced in the Labour Code (section 95) to the effect that workers shall be entitled to at least seven days of holiday with pay during the working year.

The Committee takes due note of the explanations given by the Government. It notes, nevertheless, that section 98 of the Labour Code clearly establishes the possibility (in the exceptional cases laid down by the above section) of the replacement of the workers' holidays by cash remuneration "without taking time off" and that the worker will receive a corresponding supplementary remuneration for the days worked "during the period for which he should have been on leave". In order to clarify any ambiguity and eliminate the possibility that the law be applied contrary to the provisions of the Convention, the Committee expresses the hope that the Government will take the appropriate steps to specify that section 98 cannot be applied to the minimum holidays provided for in section 95 of the Labour Code.