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

The Committee notes the Government’s report, the comments made by the International Confederation of Free Trade Unions (ICFTU) and the World Confederation of Labour (WCL) and the discussion in the Conference Committee on the Application of Standards. The Committee of Experts also notes the report of the Committee on Freedom of Association on Case No. 2258, adopted at its session in November 2003.

I. Trade union monopoly

Articles 2, 5 and 6 of the Convention. With regard to the need to delete from the Labour Code of 1985 (sections 15 and 16) the reference to the Confederation of Workers, the Committee once again emphasizes that trade union pluralism must remain possible in all cases and that the law must not institutionalize a de facto monopoly. Even where at some point all workers have preferred to unify the trade union movement, they should still remain free to set up unions outside the established structure, should they so wish (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 96).

The Committee also notes the comments of the ICFTU concerning the compulsory membership of all workers of both the Confederation of Cuban Workers (CTC) and the Communist Party, as well as the Government’s categorical denial that there is an obligation in the legislation to be a member of the CTC, and its emphasis that workers do so on a voluntary basis. The Committee recalls that, in accordance with the resolution of 1952 concerning the independence of the trade union movement, the fundamental and permanent mission of the trade union movement is the economic and social advancement of workers and that to these ends it is essential for the trade union movement in each country to preserve its freedom and independence, and that for this reason governments should not attempt to transform the trade union movement into an instrument for the pursuance of political aims, nor should they attempt to interfere with the normal functions of a trade union movement because of its freely established relationship with a political party. The Committee requests the Government to guarantee the freedom of trade union membership of workers in accordance with the principles set forth above.

Article 3 of the Convention. With regard to the need to amend Legislative Decree No. 67 of 1983, which confers on the Confederation of Workers the monopoly to represent the country’s workers on government bodies, the Committee notes once again the Government’s statement that the above Decree was amended by the sixth provision of Legislative Decree No. 147 of 1994. In this connection, the Committee notes, as it did in a previous observation, that this Decree: (1) does not explicitly repeal or amend section 61 of Legislative Decree No. 67; and (2) establishes in its first provision that Legislative Decree No. 147 of 1994 "confirms the organizational and operational bases established in ... Legislative Decree No. 67 of 19 April 1983 ... shall remain in force in so far as they are not contrary to the provisions of this Legislative Decree". The Committee therefore once again strongly urges the Government to amend the above provision so as to guarantee the possibility of trade union pluralism, for example by replacing the reference to the Confederation of Workers by the words "the most representative organization".

The Committee also notes that, according to the information provided by the Government, these aspects are being examined within the context of the procedures for the revision of the Labour Code, which will be subject to a process of consultation beginning with workers’ assemblies; once the process of collecting and compiling the views of the workers has been completed, the draft text will be adjusted and then the ILO’s technical assistance will be requested, with a view to the subsequent submission of the draft text for approval by Parliament. The Committee notes that this process has been continuing for many years already and once again expresses the firm hope that it will be adopted in the very near future and will take into account the principle of trade union pluralism. The Committee requests the Government to send the Office a copy of the above draft revision.

Right to strike. The Committee notes the comments of the ICFTU, according to which the right to strike is not recognized in Cuban legislation and that its exercise in practice is prohibited. The Committee also notes the Government’s indication that the legislation does not regulate, restrict or prohibit strikes, but that the workers do not need to have recourse to them because the representative trade union organizations of the workers enjoy the necessary guarantees for their participation in the various bodies, both at the enterprise and government level, for the adoption of decisions affecting their interests. The Committee recalls that the right to strike is one of the essential means available to workers and their organizations to promote their economic and social interests. It requests the Government to take measures to ensure that no one is discriminated against or prejudiced in their employment for having exercised their right to engage in peaceful strike action and to keep it informed in this connection.

II. The Committee notes that both the ICFTU and the WCL in their comments, as well as the Conference Committee on the Application of Standards and the Committee on Freedom of Association (Case No. 2258), referred to the non-recognition of independent trade unions, and particularly the Single Council of Cuban Workers (CUTC), the threats, detention and sentencing of its trade union leaders to long prison terms (from ten to 26 years) for their lawful trade union activities, and the confiscation of trade union property. The Committee also notes the Government’s comments indicating that the CUTC is no more than a small group of persons who have never carried out trade union activities in any workplace, and which maintains relations with international trade union organizations to which it has supplied false information. According to the Government, the alleged trade union leaders were not convicted for their trade union activities, but by national courts in accordance with the legislation in force for offences set forth in the Cuban Penal Code prior to the facts and in accordance with the procedural guarantees set forth in the Constitution. The Committee of Experts nevertheless endorses the conclusions of the Committee on Freedom of Association in Case No. 2258 to the effect that some of the charges or acts indicated by the Government are too vague and are not necessarily criminal and can come under the definition of legitimate trade union activities and considers, also in the same way as the Committee on Freedom of Association, that the detention and sentencing of trade union officials or members for reasons relating to activities defending the interests of workers is a serious violation of public freedoms in general and of trade union freedoms in particular. The Committee of Experts also recalls that the 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 of man, all interdependent and complementary one to another, and that in a resolution of 1970 the Conference has explicitly listed the fundamental rights essential for the exercise of freedom of association, in particular: (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, receive and impart information and ideas through any media 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 (see General Survey, op cit., paragraph 25).

The Committee requests the Government to take the necessary measures to guarantee in law and practice the right of workers to establish the organizations that they consider appropriate, in accordance with the Convention, the recognition of such organizations and the right of their members not to be subject to persecution, threats or detention and to exercise their trade union activities without interference by the Government. The Committee strongly urges the Government to take the necessary measures to free the detained trade union leaders referred to in the comments of the ICFTU and the conclusions of the Committee on Freedom of Association.