Texts of pending comments

Impact of penal sanctions that involve compulsory labour on the application of Article 1(a) of the Convention. The Committee previously noted that work performed by prisoners is voluntary (section 30(21) of the Penal Code, as updated in 2020). It noted that sections 32 and 33 of the Penal Code establish the penalty of correctional labour as an alternative to imprisonment, and that these provisions do not set out the need to obtain the consent of the prisoner for the application of this penalty. The Committee also observed that the crimes of the dissemination of false news (sections 103(2) and 115), insulting authorities or officials (section 114(1)), defamation (sections 204 and 318), libel (section 319) and slander (section 320) give rise to penalties of short-term imprisonment which could be substituted by the courts with correctional labour sentences. In this regard, the Committee previously recalled that Article 1(a) of the Convention protects persons who express political views or opposition to the established political, social or economic system against the imposition of any form of compulsory labour, including compulsory prison or correctional labour, and it requested the Government to indicate how a person sentenced to correctional labour can express consent to that penalty and the consequences of a refusal by a convicted person to carry out correctional labour.

The Committee notes the Government’s reiterated indication in its report, in relation to the penalty of correctional labour, with or without detention, that if the prisoner wishes to work, it is necessary to inform the collective leader, who forwards the request. The Government specifies that, in accordance with the Penal Code, if the convicted person refuses to comply with the requirements of the penalty of correctional labour or, during its performance, fails to carry it out or hinders its performance, or if the person is sentenced to imprisonment for another offence, the court will order the completion of the original sentence of imprisonment, which does not involve compulsory labour.

Article 2 of the Convention. Scope of application. The Committee notes the Government’s indication in its report that Article 66 of the Constitution of the Republic, adopted in 2019, prohibits work by children and young persons, and that the State provides special protection for young persons engaged in technical and vocational or other types of training who, in exceptional circumstances set out in the law, are authorized to undertake work with a view to ensuring their overall training and development. It takes due note of the adoption of Legislative Decree No. 44/2021 on the exercise of own-account work, section 3(2) of which permits the engagement on an exceptional basis of young persons of 15 and 16 years of age in own-account work in accordance with the provisions of Act No. 116 issuing the Labour Code, including the prohibition for persons under 18 years of age to perform work in which they are exposed to physical and psychological hazards (section 68 of the Labour Code).

Article 9(1). Sufficiently effective and dissuasive penalties. The Committee notes the adoption of Legislative Decree No. 45/2021 on personal penalties in the exercise of own-account work. Sections 11(1) and 13 of the Decree provide for a financial penalty and the definitive annulation of the project to the exercise of own-account work for any person who employs persons under 15 years of age or young persons of 15 or 16 years of age without the exceptional authorization required by the Labour Code. The Committee requests the Government to indicate whether sections 11(1) and 13 of Legislative Decree No. 45/2021 have been applied in cases of own-account workers who have employed persons under 15 years of age, with an indication of the number of offences detected and the penalties imposed.

Articles 3(a) and 7(1) of the Convention. Worst forms of child labour. Penalties. 1. Sale and trafficking of children. The Committee previously noted that section 316 of the Penal Code establishes penalties of imprisonment for the sale and transfer of persons under 16 years of age, including under any of the forms of international trafficking related to acts of corruption, pornography, prostitution and forced labour. In this regard, the Committee recalled that the Convention protects all persons under 18 years of age from the sale and trafficking of persons for sexual or labour exploitation and requested the Government to adopt the necessary measures to ensure that children between the ages of 16 and 18 years also benefit from this protection.

The Committee takes due note of the full information provided by the Government in its report on the prevention of the trafficking of children and young persons, and particularly that: (i) the Ministry of Education has taken action to increase knowledge by managers and teachers of the crime of trafficking in persons, with a view to achieving greater precision in the identification and care provided to children and young persons; (ii) the Office of the Public Prosecutor has issued internal rules and procedures to improve the action taken to address the crime of trafficking in persons and protect victims under 18 years of age; and (iii) the Ministry of Public Health has undertaken information campaigns on indicators of possible victims of trafficking in persons. The Committee also notes the Government’s indication that 25 victims of trafficking in persons for sexual and labour exploitation were identified in 2019, of whom nine were children.

With reference to the establishment of criminal penalties, the Committee notes that, although section 302(3) of the Penal Code provides for sentences of imprisonment for the crime of organizing or inciting the entry or exit from the country of persons (of any age) for the purpose of them engaging in prostitution, the Government has not provided information on the legislative provisions which penalize trafficking in persons between the ages of 16 and 18 years for labour exploitation or the internal trafficking of such persons for sexual exploitation. In this regard, the Committee notes that the United Nations Special Rapporteur on trafficking in persons, especially women and children, in her 2018 report on her mission to Cuba, indicated that children are subject to internal trafficking for sexual exploitation, including children as young as 10 who are forced by family members or close relatives to have sexual relations with Cuban and foreign nationals in exchange for money to maintain the family. She added that young victims are taken out of Cuba for labour exploitation through false offers of employment as waiters, dancers or manicurists and expressed concern at the fact that the trafficking of children is not comprehensively addressed in the legal framework (A/HRC/38/45/Add.1, paragraphs 12, 15 and 32). The Committee therefore once again requests the Government to take all the necessary measures to bring the legislation into conformity with Article 3(a) of the Convention so as to protect all children under 18 years of age from the sale and trafficking of persons (both internal and international) for sexual or labour exploitation. While awaiting the adoption of such measures, the Committee requests the Government to provide updated statistical data on the number of investigations, prosecutions and penalties imposed for the crime of the trafficking of children and young persons under sections 302(3) and 316 of the Penal Code.

2. Forced labour. In its previous comments, the Committee requested the Government to indicate whether there are legal provisions specifically prohibiting the forced or compulsory labour of children under 18 years of age. In this regard, the Government indicates that the 2019 Constitution prohibits work by children and young persons (article 66), but does not refer to legislative provisions that establish criminal penalties for the exaction of forced labour from persons under 18 years of age.

Clause (b).Use, procuring or offering of children for prostitution or for pornography. In its previous comments, the Committee noted that section 310 of the Penal Code establishes prison sentences for the use of persons under 16 years of age for prostitution or pornography, and requested the Government to take the necessary measures to extend this protection to all young persons under 18 years of age, in accordance with the Convention. The Committee notes the absence of information on this subject and recalls that, under the terms of Article 3(b) of the Convention, the use, procuring or offering of a child for prostitution is one of the worst forms of child labour and that, under Article 1, this worst form of child labour shall be prohibited as a matter of urgency. The Committee once again requests the Government to take the necessary measures to prohibit and punish the use, procuring or offering of children under 18 years of age for prostitution, the production of pornography or pornographic performances.

Clause (c). Use, procuring or offering of a child for illicit activities, in particular for the production and trafficking of drugs. In its previous comments, the Committee requested the Government to indicate whether legislative provisions existed which prohibit the use, procuring or offering of children under 18 years of age for illicit activities, in particular for the production and trafficking of drugs. In this regard, the Committee notes the Government’s indication that section 190(3) of the Penal Code establishes penalties of imprisonment of from 15 to 30 years for any person who uses children under 16 years of age for the trafficking of drugs, narcotics, psychotropic substances or other similar purposes. The Committee requests the Government to take all the necessary measures to also prohibit the use of persons between 16 and 18 years of age for illicit activities, in particular the production and trafficking of drugs.

Article 5. Monitoring mechanisms. In response to the request for information on the activities of the labour inspection services for the detection of situations involving the worst forms of child labour, the Committee notes the Government’s indication that labour inspectors have received training for the detection of potential cases and the prevention of the worst forms of child labour. It notes that, during the period between June 2018 and June 2021, some 69 establishments were inspected in which 147 young persons who work and are between the ages of 15 and 18 years, and young persons under 18 years of age performing hazardous types of work were detected in ten cases. In each case, measures were ordered for the elimination of the violations identified and the imposition of penalties on the offenders was sought. The Committee requests the Government to continue providing information on the results of labour inspections in relation to the worst forms of child labour, including extracts from reports indicating the nature and extent of the violations detected.

Article 7(2). Effective and time-bound measures. Clause (b). Providing the necessary and appropriate direct assistance for the removal of children from the worst forms of child labour and for their rehabilitation and social integration. The Committee notes the Government’s indication that the Department for the Protection of the Family and Jurisdictional Matters of the Office of the Public Prosecutor provides assistance to children and young persons who are victims of any type of crime, in coordination with their families. It notes the existence of Child and Young Person Protection Centres (CPNNA) in La Habana, Santa Clara and Santiago de Cuba for the provision of therapeutic care for such victims, and in places where such Centres do not exist, alternatives are adopted to undertake monitoring with Child Assessment, Analysis and Guidance Centres. During the period 2018–19, the CPNNA and alternative centres in the other provinces provided protection to 2,350 child victims of acts of sexual abuse. The Committee observes that, in her 2018 report, the United Nations Special Rapporteur on trafficking in persons, especially women and children, reported that children between the ages of 16 and 18 years who engage in prostitution are detained in “rehabilitation centres”, where they are subject to restriction of movement and can be sentenced by the courts (A/HRC/38/45/Add.1, paragraph 51). The Committee requests the Government to continue providing information on the measures adopted to ensure that victims of the worst forms of child labour receive direct and appropriate assistance and are removed, rehabilitated and reintegrated, and the results achieved. In this regard, it once again requests the Government to provide information on the measures adopted to ensure that all children under 18 years of age who are victims of commercial sexual exploitation are provided with such assistance and are not treated as offenders.

Article 8. International cooperation. The Committee notes the Government’s indication that the Ministry of the Interior has concluded agreements to promote cooperation with its foreign counterparts for the protection of children and young persons against sale, prostitution, use in pornography and trafficking in persons. The Committee requests the Government to provide information on the measures implemented under the terms of these agreements and their results.

The Committee takes note of the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th Session (June 2020). The Committee proceeded with the examination of the application of the Convention on the basis of the supplementary information received from the Government this year, as well as on the basis of the information at its disposal in 2019.

The Committee notes the observations formulated by the Independent Trade Union Association of Cuba (ASIC) of 28 August 2018. It also notes the Government’s response to those, received on 22 November 2018, and reproduced in the supplementary report received this year.

Part IV. Wages. Articles 24 to 35. In its previous comments, the Committee requested the Government to indicate the manner in which effect is given to these provisions of the Convention, which contemplate the establishment of procedures and mechanisms to fix and ensure minimum wages for plantation workers. The Committee notes the Government’s indication that in Cuba the minimum wage is fixed by legal provision, and is established in line with the level of economic and social development, further to the opinion of the corresponding organizations. The Government refers, inter alia, to section 109 of the Labour Code, promulgated through Act No. 116 of 20 December 2013, which establishes the elements constituting the wage. In addition, the Government refers to section 126 of the Labour Code Regulations, promulgated through Decree No. 326 of 12 June 2014, which, when read together with section 113 of the Labour Code, establishes the wage system and provides that the minimum wage must correspond with the wage of the first degree of labour complexity on the wage scale. The Government also refers to various payment methods available, such as pay for performance, which aims to increase labour productivity, and pay for time, where the wage is paid in accordance with the time worked. The Government adds that, according to the National Statistics and Information Office, in 2017 the average monthly wage in State bodies in agricultural, farming and forestry activities was 834 pesos. The Committee recalls its previous comments on the Minimum Wage Fixing Convention, 1970 (No. 131), in which it noted that that Article 4(2) of that Convention provides for the consultation, in connection with the operation of the minimum wage-fixing machinery, of both the representative organizations of workers concerned and of employers or, where no such organizations exist, representatives of the workers and employers concerned. Likewise, Article 24 of Convention No. 110 provides specifically for consultation with the social partners in fixing the minimum wage in the plantations sector. The Committee requests the Government to provide detailed and updated information on the manner in which the representatives of the relevant workers’ and employers’ organizations were consulted in the context of the determination of the minimum wage, as required under Article 24 of the Convention. The Committee also requests the Government to provide information on the manner in which it is ensured that workers in the plantations sector receive at least the established minimum wage, including information on the number and outcomes of the inspections conducted relating to payment of the minimum wage in plantations.

Part V of the Convention (annual holidays with pay). Articles 36 to 42. In its previous comments, the Committee noted that section 107 of the Labour Code, allows for the employer to require the presence of the worker in exceptional circumstances, and allows for the employer to postpone or reduce the worker’s holidays and to pay him or her the reduced proportion of the accumulated holidays. In this respect, the Committee requested the Government to indicate the manner in which it is ensured that this section of the Labour Code gives full expression to Article 41 of the Convention, which provides that any agreement to relinquish the right to an annual paid holiday or to forgo such a holiday, shall be void. The Committee notes the Government’s indication that section 107 of the Labour Code sets forth that any postponement of holidays is exceptional as provided for in Article 41 and is not systematic. Referring to the emergence of “exceptional” circumstances, the Government indicates that this does not imply a regular occurrence, but only those circumstances that directly or decisively affect the performance of a task assigned to the worker that cannot be postponed. The Government adds that the law stipulates that upon expiry of the cumulated holiday period, enjoyment of the holiday can be postponed, which does not mean that the accumulated holidays will not be granted. The Government also indicates that, if it is agreed to simultaneously pay the accumulated holidays and the wages for the work performed, guaranteeing an effective period of leave of at least seven days in the year, this does not exclude longer periods being granted during the year. The Committee reiterates that Article 41 of the Convention provides that any agreement to relinquish the right to an annual paid holiday or to forgo such a holiday, shall be void. It therefore requests the Government to take the necessary measures to give full effect to Article 41 of the Convention.

Parts IX and X (right to organize and collective bargaining –freedom of association). Articles 54 to 70. In its previous comments, the Committee requested the Government to provide information on the measures adopted or envisaged to ensure that workers in plantations do not suffer discrimination or prejudice in their employment for having peacefully exercised the right to strike, as well as information on the exercise of this right in practice. It also requested the Government to provide statistical data on the number of collective agreements concluded in plantations, with an indication of the sectors of activity and the numbers of workers covered. In its reply, the Government indicates that the agricultural sector includes: (i) the National Association of Small Farmers (ANAP), which is the grass-roots association for members of cooperatives, farmers and their families; and (ii) the Cuban Association of Agricultural and Forestry Technicians (ACTAF), which comprises forestry and livestock technicians and professionals. The Government also indicates that there is no law or legal provision in the country prohibiting the right to strike. It adds that, while there is no legal text regulating the right to strike, provisions are in place protecting the right to equality at work without discrimination whatsoever. Lastly, the Committee notes the statistical data provided by the Government, which indicates that, in 2018, the number of state sector workers who were affiliated with the agricultural, forestry and tobacco workers’ trade union stood at 307,469 and the number of non-state workers affiliated was 17,122. The Committee also notes that a total of 273,867 workers are protected by collective work agreements and that 7,159 collective agreements are in force, covering more than 2,800,000 workers. The Committee requests the Government to provide information on the measures adopted or envisaged to ensure in practice that plantation workers enjoy adequate protection against acts of anti-union discrimination in respect of their employment. It also requests the Government to continue providing statistical information on the number of collective agreements concluded in the area of plantations, indicating the number of workers covered.

Part XI (labour inspection). Articles 71 to 84. In its previous comments, the Committee noted the observations of ASIC, in which it denounced alleged cases of prisoners subjected to forced labour in plantations, and cases of child labour during school holidays. ASIC also denounced the employment of secondary school students in state farms during the harvest period, who are not paid for their work, but receive academic credits and a favourable recommendation for entry into university. The Committee notes the Government’s reply to ASIC’s observations. The Government indicates that the National Inspection Office has not identified any cases of forced labour in agriculture and that the Public Welfare Office at the Ministry of Labour and Social Security has not received complaints or reports in this respect. With regard to work performed by prisoners, the Government indicates that such persons are not victims of forced labour, since their involvement in work is essentially voluntary and, in addition, they enjoy the labour and social security rights established in the legal framework. The Committee notes, however, that the Government has not provided specific information on the number, age, and type and conditions of work of the prisoners and of the secondary school students who work in the plantations during the harvest period. Furthermore, the Government indicates that section 2(d) of the Labour Code sets out the prohibition of child labour and the special protection of young people between the ages of 15 and 18 who enter the workforce, in order to ensure their full development. The Government adds that, within the framework of the basic secondary education system, there are plans to establish a foundation for the allocation of time for occupational training, aimed at developing values such as application, community and responsibility in students, and enabling the provision of activities of the vocational training and occupational guidance process. In this respect, the Committee requested the Government to provide detailed information on the number of prisoners and secondary school students who work in state farms, disaggregated by age and type of work. The Committee also requested the Government to indicate the manner in which they are compensated, as well as their conditions of work, and the manner in which it is ensured that the students have the freedom to choose whether or not to work. It also requested the Government to continue providing detailed information on the supervision and enforcement measures relating to the conditions of work of plantation workers. The Committee notes the statistical information provided by the Government on the number of labour inspections conducted in the agricultural sector and the violations identified during these inspections. In particular, the Government indicates that, in 2018, the National Labour Inspection Office conducted 141 inspections, in which it detected 898 violations, 347 of those relating to occupational safety and health. According to the Government, the principal violations detected consisted of the failure to guarantee safe and healthy conditions for workers and the violation of rules respecting the provision of personal protective equipment. The Committee therefore requests the Government to indicate the manner in which the Labour Inspectorate monitors and ensures that the activities of the vocational training and occupational guidance process in the plantations comply with Article 6 of the Minimum Age Convention, 1973 (No. 138). The Committee also once again requests the Government to provide detailed information on the number, age, type and conditions of work, compensation, and the manner in which it is ensured that the secondary school students and prisoners who work in the plantations have the freedom to choose whether or not to work. Lastly, the Committee requests the Government to continue providing detailed information on the supervision and enforcement measures relating to the conditions of work of plantation workers, particularly on the inspections conducted in the plantations, violations of the labour legislation identified and the penalties imposed.

Part IV of the report form. Application in practice. The Committee notes that the Government has not provided information concerning the application in practice of the Convention. The Committee therefore reiterates its request to the Government to provide detailed and up-to-date information on the application of the Convention in practice, including: (i) recent studies on the socio-economic conditions of workers in plantations; (ii) statistical data, disaggregated by sex and age, on the number of plantations and workers to whom the Convention applies; (iii) copies of the collective agreements applicable in the sector; and (iv) the number of workers’ and employers’ organizations established in the plantations sector, and any other information which enables the Committee to assess the situation of workers in plantations in relation to the provisions of the Convention.

[The Government is asked to reply in full to the present comments in 2021.]

The Committee notes the Government’s report and the additional information provided in light of the decision adopted by the Governing Body at its 338th Session (June 2020).

Application of the Convention in law and in practice. The Committee notes the Government’s indication that the legislation giving effect to the Convention remains unchanged. The Government reiterates that dockworkers are mostly recruited on the basis of permanent contracts. Where larger numbers of workers are required, fixed-term contracts for casual or urgent work are concluded in accordance with the requirements of the Labour Code. According to data from the National Statistics and Information Office, in 2019 there were 322,100 workers in the transport, warehousing and communications sectors, a figure which includes dockworkers. The Committee also notes that, according to information provided in 2018 by the Workers’ Central Union of Cuba, 145,351 workers are members of the National Transport and Dockworkers Union. Lastly, the Government indicates that, in 2018, the National Labour Inspection Office (ONIT) conducted 16 full inspections in establishments run by the Dock and Maritime Transport Business Group (GEMAR), recording 38 violations in areas such as recruitment, occupational safety and health, and regulations governing rest periods, the relevant penalties provided for by law having been applied. The Committee requests the Government to continue providing general information on the manner in which the Convention is applied in practice, including, if possible, up-to-date information on trends in the numbers of dockworkers, and relevant extracts from reports of the ONIT.

The Committee takes note of the Government’s report and the supplementary information provided in light of the decision adopted by the Governing Body at its 338th Session (June 2020).

Article 32(3) of the Convention. Handling of dangerous substances. In its previous comment, the Committee requested the Government to indicate the paragraphs of the annex to Resolution No. 39 of the Ministry of Labour and Social Security, dated 29 June 2007, issuing the security measures to be taken in the event of an accident and the plans for emergencies, evacuation and the repair of breakdowns, to which reference is made in the report. The Committee notes the Government’s indication that the Labour Code (Act No. 116-2013) regulates the employer’s obligation to adopt measures to ensure safe and hygienic working conditions, as well as the prevention of occupational accidents, occupational diseases, fires, breakdowns or other damages that may affect the health of workers and the working environment. It also indicates that the Labour Code Regulations (Decree No. 326-2014) set out that the employer must instruct workers in handling emergencies and breakdowns. In addition, the Government indicates that Chapter V of Decree-Law No. 309-2013 on Chemical Safety regulates prevention and response to chemical emergencies. The Committee notes, however, that these regulations do not include explicit provisions ensuring that, if receptacles or containers of dangerous substances are broken or damaged to a dangerous extent, dock work shall be stopped and the workers removed to a safe place. The Committee notes however, that the national occupational safety and health standard, NC 229-2014 (Hazardous chemicals: risk reduction measures), was issued. The Committee once again requests the Government to indicate the specific provisions of the above texts, or the applicable legislation, regulating the stoppage of port work and the removal of the workers to a safe place in the event that receptacles or containers of dangerous substances are broken or damaged to a dangerous extent. The Committee also requests the Government to communicate a copy of standard NC 229-2014, as well as any relevant text in this respect.

Article 16. Transport of workers by water or on land to and from a ship or other place; Article 17. Access to a ship’s hold or cargo deck; Article 18(2) and (4). Hatch covers; Article 26. Mutual recognition; Article 28. Riggings plans; Article 31(1). Safe operation of freight terminals; and Article 32(1) and (2). Marking of dangerous cargo. In its previous comment, the Committee noted the Government’s indication that work was being carried out to update and improve the legal provisions in the port sector, and requested it to take the necessary measures to give expression in the legislation to these provisions of the Convention and provide information on this subject. Given the lack of information in this respect, the Committee hopes that the Government will adopt, as soon as possible, the updated legislation applicable to the port sector, in conformity with the Convention. It also requests it to continue providing information on any developments on this matter.

Part V of the report form. Application of the Convention in practice. The Committee notes the Government’s indication that in 2016 the National Labour Inspection Office carried out 23 full inspections in establishments run by the dock and maritime transport business group, detected 14 violations related to occupational safety and health and applied the measures established in the Labour Code and its Regulations. In addition, it indicates that there were no fatal accidents in the port sector. The Government adds that the Labour Code requires establishments to formulate regulations on practical procedures for the identification, evaluation and monitoring of occupational risks. The Committee requests the Government to continue providing updated information on the application of the Convention in practice, in particular information on the number of workers covered by the Convention, the number and nature of the violations identified, and the measures taken in this respect. Recalling the Government’s reference, in its previous reports, to Resolution No. 31 of 31 July 2002, the Committee requests the Government to provide, where relevant, information on the manner in which the general practical procedures for identifying, evaluating and monitoring occupational risk factors are applied to dock work.

Comments adopted by the CEACR: Cuba

Adopted by the CEACR in 2022

C105 - Direct Request (CEACR) - adopted 2022, published 111st ILC session (2023)

C138 - Direct Request (CEACR) - adopted 2022, published 111st ILC session (2023)

C182 - Direct Request (CEACR) - adopted 2022, published 111st ILC session (2023)

Adopted by the CEACR in 2020

C110 - Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

C137 - Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

C152 - Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)