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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that the implementing regulations of Legislative Decree No. 229/2002 (Resolution No. 27 of 2 July 2002) have been repealed by Resolution No. 78/2008, issuing new implementing regulations.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.

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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.

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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).

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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.

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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.

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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.

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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.

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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.