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Holidays with Pay Convention, 1936 (No. 52) - Cuba (RATIFICATION: 1953)

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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the Government’s indication that: (i) Decision No. 187 of 2006, establishing exceptions to normal hours of work, was repealed following the entry into force of the Labour Code and its regulations in 2014; and (ii) section 86 of the Labour Code establishes permanent exceptions to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 4 of the Convention. Prohibition to relinquish the right to an annual holiday with pay. The Committee recalls its numerous comments over the past 30 years drawing the Government’s attention to section 98 of the Labour Code, which allows the State Labour and Social Security Committee, as an exceptional measure because of the requirements of production of goods or supply of services, to authorize the administration to agree with one or more workers to pay them cash in lieu of their holidays without taking any time off if they voluntarily accept this arrangement. The Committee has consistently taken the view that this provision is inconsistent with Article 4 of the Convention, which expressly prohibits any agreement to relinquish the right to an annual holiday with pay, or to forgo such a holiday – a principle that is also reflected in Article 12 of the Holidays with Pay Convention (Revised), 1970 (No. 132), that the Government is strongly encouraged to ratify. In its latest report, the Government reiterates that section 98 of the Labour Code is no longer applied in practice and that, in any event, under section 95 of the Labour Code, employers must ensure that workers take not less than seven days’ paid leave during the working year. While noting the Government’s explanations that the provision in question has fallen into desuetude and that no authorizations to replace holidays with monetary compensation have been granted in recent years, the Committee trusts that the Government will consider at the next suitable occasion the possibility to amend section 98 of the Labour Code or to specify that this section cannot be applied to the minimum holidays provided for in section 95 of the Labour Code.

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Article 4 of the Convention. Prohibition of any agreement to relinquish the right to an annual holiday with pay. The Committee recalls that for over 20 years it has been drawing the Government’s attention to section 98 of the Labour Code, which is not in conformity with Article 4 of the Convention, under which any agreement to relinquish the right to an annual holiday with pay shall be void. As the Committee emphasized in paragraph 193 of its General Survey of 1964 on annual holidays with pay, for social and health reasons it should not be open to the worker to abandon any part of his holiday in return for cash compensation. However, under section 98 of the Labour Code, the State Labour and Social Security Committee may authorize the administration, on an exceptional basis and in certain sectors or activities, to grant one or more workers, with their consent, cash remuneration in lieu of their holiday leave and without any other period of rest. The Committee notes the Government’s indication that the Ministry of Labour has not recorded any authorization granted in this respect and that, although section 98 of the Labour Code is not applied in practice, it will remain formally in force until the adoption of the new Labour Code. The Committee hopes that the Government will take into account the comments that it has been making for many years on this matter in order to bring its legislation into full conformity with the Convention. It once again requests the Government to keep the Office informed of any development in the situation and to provide a copy of relevant texts once they have been adopted.

The Committee also takes this opportunity to recall that, at the proposal of the Working Party on Policy regarding the Revision of Standards, the ILO Governing Body considered that Conventions Nos 52 and 101 were outdated and invited the States parties to these Conventions to contemplate ratifying the Holidays with Pay Convention (Revised), 1970 (No. 132), which is not considered to be fully up to date but remains relevant in certain respects (see document GB.283/LILS/WP/PRS/1/2, paragraph 12). The acceptance of the obligations of Convention No. 132 in respect of persons employed in all economic sectors, including agriculture by a State party to Conventions Nos 52 and 101 involves ipso jure the immediate denunciation of the latter Conventions. This approach would appear particularly appropriate as the legislation in Cuba, which provides for annual holiday with pay of at least one month for each period of 11 months of effective service, is clearly more favourable than the requirements of Convention No.52 and seems to be in substantial conformity with most of the provisions of Convention No. 132. The Committee requests the Government to keep the Office informed of any decision that it may take in relation to the ratification of Convention No. 132.

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The Committee notes the information provided by the Government in reply to its direct request.

Article 4 of the Convention. Nullity of agreements to relinquish the right to an annual holiday with pay. In its previous comments, the Committee concluded that section 98 of the Labour Code was not in conformity with Article 4 of the Convention, under which any agreement to relinquish the right to an annual holiday with pay shall be considered null and void. Under section 98 of the Labour Code, the State Labour and Social Security Committee may authorize the administration, on an exceptional basis and in certain sectors or activities, to grant one or more workers, with their consent, cash remuneration in lieu of their holiday leave and without any other period of rest. The Government indicates in its report that section 98 of the Labour Code remains formally in force pending the outcome of the procedure to amend the Code but that it is no longer applied in practice. The Committee hopes that the Government will include a provision, in the context of the reform of the Labour Code, for any agreement to relinquish an annual holiday with pay to be declared null and void. It requests the Government to provide information on any new developments in this regard.

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Part V of the report form. Referring to its previous observation of 1995, the Committee notes from the report of the National Labour Inspection of 1998, supplied with the Government’s report, that 8,966 inspections have been carried out concerning also paid holidays. Nevertheless, the report contained no particular information and statistics on the enforcement of holiday provisions. The Committee therefore wishes to repeat its previous comments on this point, which read as follows:

The Committee also observes that section 95 of the Labour Code provides that the administration of the employing body 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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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 the replacement of holidays by supplementary remuneration with the worker’s agreement for reasons of production of goods or supply of services in a number of branches, activities or workplaces. 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 from the Government’s reply that section 95 of the Labour Code, which provides that an employer shall ensure not less than seven days’ paid leave during the working year, if it postpones a worker’s holiday, is also applicable in case of exceptional measures in accordance with section 98. It further notes that for several years the authority vested in the State Labour and Social Security Committee under section 98 has not been exercised in practice. It notes that research is under way in order to amend the Labour Code of 1984 in the area of working time and rest, taking into account the observations of the Committee, to bring it into conformity with the real situation of the country. It hopes that the Government continues to undertake all efforts to amend the Labour Code in the near future and asks the Government to convey the new text to the Office when adopted.

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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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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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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.

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