Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee takes note of the Government’s report and of the comments made by the International Confederation of Free Trade Unions (ICFTU). The Committee also notes the Committee on Freedom of Association’s report on Case No. 2258, adopted at its March 2005 meeting.

The Committee observes that the Government reiterates that the Labour Code is currently being revised and that: (1) the comments made by the Committee are not the only comments which are being studied within the framework of the Labour Code; (2) almost all of the chapters of the Code have been revised and adjusted to the social and economic conditions of the country; (3) the workers, the employers, bodies, institutions and all the sectors involved participate in the consultations carried out within the framework of the aforementioned process and efforts are being made to arrive at a consensus with regard to all of the elements to be amended. In this regard, the Committee observes that this process has been ongoing for several years without any concrete results having been obtained to date. The Committee expresses the firm hope that the revision of the Labour Code will be completed in the near future and that the comments made regarding the application of the Convention will be taken into account. The Committee reminds the Government that it may avail itself of ILO technical assistance and requests it to send a copy of the above draft revision.

I.  Trade union monopoly

Articles 2, 5 and 6 of the Convention. The Committee notes that for several years now it has referred to the need to delete from the Labour Code of 1985 (sections 15 and 16) the reference to the Confederation of Workers. The Committee also notes the comments of the ICFTU concerning the Government’s recognition of a sole trade union confederation, strictly monitored by the State and the Communist Party which appoints its leaders, as well as the obstacles to setting up independent trade unions in the form of the restrictions contained in the Law on Associations. The Committee notes that the Government states that: (1) the Government did not impose the single trade union confederation, to which the 19 national branch trade unions are affiliated, upon the people, neither is this confederation the result of any provision which goes against the will of the workers of Cuba; (2) the decision of the workers to maintain the singular nature of their trade union movement should be respected as a prerequisite to the independence of the nation and the continued enjoyment of the right to self-determination; (3) existing legislation (section 54 of the Constitution of the Republic and sections 13 and 14 of the Labour Code) and practice guarantee the full exercise of trade union freedom and the widest possible enjoyment of the right to organize; (4) claims that the Law on Associations is being used to block the creation of trade unions are inappropriate, in as much as section 2, chapter I of the aforementioned law explicitly establishes that the law is not applicable to grass roots and social organizations as referred to in section 7 of the Constitution, neither does the existing Constitution establish any restrictions whatsoever with regard to freedom of association of the workers or workers’ activities.

The Committee once again emphasises that trade union pluralism must remain possible in all cases and that the law must not institutionalize a de facto monopoly by referring to a specific trade union confederation. Even where at some point the 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 and to join the organization of their choice (see General Survey on freedom of association and collective bargaining, 1994, paragraph 96). This being the case, the Committee requests the Government to take measures to amend the aforementioned sections of the Labour Code and to provide information in its next report regarding any measures adopted in this respect.

Article 3. The Committee recalls that in its previous observations it referred 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 that the Government reiterates the position it adopted in its previous report and insists that this provision has already been amended. In this connection, the Committee notes that the sixth provision of Legislative Decree No. 147 of 1994, which the Government has referred to on various occasions as having amended Legislative Decree No. 67 of 1983: (1) does not make reference to section 61 of Legislative Decree No. 67 so as to repeal or amend it; and (2) establishes in its first provision that Legislative Decree No. 147 of 1994 "confirms the organizational and operational basis 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". Consequently, the Committee requests the Government to provide information it in its next report on the legal provision through which Legislative Decree No. 67 of 1983 was amended with regard to the monopoly of the Confederation of Workers concerning the representation of the workers of the country on Government bodies.

Right to strike. In its previous observation, the Committee referred to the fact that the right to strike is not recognized in Cuban legislation and that its exercise and practice is prohibited and recalled 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 requested the Government to take measures to ensure that no one is discriminated against or prejudiced in their employment for having peacefully exercised this right, and to keep it informed in this connection. The Committee notes that in its latest report, the Government states that: (1) although the right to strike is implicit, it is not explicitly established in the Convention; (2) the existing legislation does not include any prohibition whatsoever of the right to strike, neither does Cuban legislation establish any penalty for the exercise of such rights; (3) trade union organizations are free to decide on their actions in this respect; and (4) the fact that Cuba is a state of workers, peasants and other workers, whether manual or intellectual, guarantees effective participation and the exercise of real decision-making power, which renders strike action unnecessary given that several labour dispute resolution mechanisms have been set up and are operationally effective and within which trade union representatives participate fully. The Committee once again requests the Government to ensure that no one is discriminated against or prejudiced in their employment for having exercised their right to engage in peaceful strike action.

II.  Trade union rights and civil liberties. The sentencing of trade unionists to imprisonment. 

The Committee recalls that in its previous comments it referred to trade union leaders being sentenced to between 12 and 26 years in prison for treason and conspiracy. The Committee notes the comments of the ICFTU, regarding these sentences and adds information concerning the degrading conditions of imprisonment suffered by the aforementioned trade union leaders. The Committee notes that the Committee on Freedom of Association referred to this issue when it last examined Case No. 2258 and that on that occasion it recommended that the Government should take steps to release immediately the imprisoned trade unionists and that the necessary measures should be adopted to ensure that no person is intimidated or harassed merely for being a union member, even if the union in question is not recognized by the State. The Committee notes that the Government, for its part, refuses to recognize both the imprisoned trade union leaders as workers and the trade union organizations under their leadership. It also denies that the sentences are linked to their trade union activities. As to conditions of imprisonment, the Government states that the prison system is constantly monitored by both the State and the judiciary, with the aim of protecting the rights of the inmates and their families and ensuring that no laws are violated.

The Committee recalls once again that the right to organize 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 adopted in 1970, the Conference 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 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 (see General Survey on Freedom of Association and Collective Bargaining, 1994, paragraph 25). Consequently, in line with the recommendation made by the Committee on Freedom of Association, the Committee requests the Government to take the necessary steps to release without delay the trade union leaders sentenced to heavy prison sentences.