Informe definitivo - Informe núm. 116, 1970

1. 74. The complaint is contained in a communication dated 15 April 1968, sent from Washington by the Confederation of Cuban Workers in Exile. In another communication dated 16 May 1968, the complainant organisation submitted further information in support of its allegations. The texts of both these communications were passed on to the Government, which furnished its observations in a letter dated 30 May 1969, from the Permanent Delegation of Cuba in Geneva.
2. 75. Cuba has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

• Allegations relating to Infringement of International Labour Conventions on Freedom of Association
  76. 76 The complainants refer to the fact that the Confederation of Cuban Workers (CTC) existed before 1959 and state that of the 64 members of the Executive Board elected in 1957, at the last CTC congress before the change of political régime, 3 died in Cuba, 28 are still living in the country and 33 are in exile, 30 of whom are members of the complainant organisation. They state that the latter comprises " 90 per cent of the principal leaders who are outside Cuba " and that 29 national industrial federations form part of the CTC in exile. The complainant organisation supplies the names of several people who, it states, were leaders of the CTC and of the said federations in Cuba and who today hold the same offices in the exiled organisations. It also states that in 1958 the CTC had 2,100 trade unions, 33 national industrial federations and 1,220,000 dues-paying members in Cuba.
  77. 77 According to the allegations, the Government is infringing the provisions of Conventions Nos. 87 and 98. More specifically the complainants allege that the Act dealing with the organisation of the Ministry of Labour (paragraph (j) of section 7) authorises the Minister of Labour to " control workers' organisations " and that Act No. 962 of 1961 stipulates " that the structure of the trade union movement shall be based on one trade union branch in each undertaking ". Consequently the workers cannot establish organisations of their own choosing and the unions are part of the state organisation. Act No. 1166 of 1964, in Division 5, sections 54 and 55, enables the Ministry of Labour to dissolve and suspend workers' and employers' organisations by administrative measures " without appeal to the administrative or judicial authorities ". Lastly, the complainants state that since existing trade union bodies are confined " within the framework of state administration ", and although they have no difficulty in acquiring legal status, the present situation is not in harmony with the principle embodied in Convention No. 87 according to which the acquisition of legal status by organisations, federations and Confederations may not be subject to conditions of such a nature as to restrict application of the provisions of Articles 2, 3 and 4 of the Convention.
  78. 78 Furthermore the complainants state that resolution No. 5619 of 1962 requires all persons wishing to work and participate in any workers' or employers' activities, including those of forming trade unions and negotiating conditions of employment, to be in possession of a work book. " Any worker not having a work book is automatically blacklisted. A work book may be withdrawn or withheld on the grounds of a worker's non-socialist attitude or failure to subscribe to the system of Communist emulation. ". They add that " he may also be refused a work book or have it withdrawn if he is branded as a counter-revolutionary or fails to submit to the régime ". As regards collective bargaining the complainants, referring to the Act dealing with the organisation of the Ministry of Labour and to " the three Acts on the Procedure to be followed in Labour Disputes ", maintain that the State, far from promoting the use of machinery for voluntary negotiation, takes upon itself the regulation of working conditions, which is the very essence of collective bargaining. According to these allegations, the State dictates wage standards and everything else normally covered by collective bargaining.
  79. 79 Lastly the complainants state that some of the workers' victories, such as overtime pay, have been abolished or weakened and they estimate that such measures and certain other deductions have resulted in a general " wage reduction " of 63 per cent, and of 69 per cent in the case of sugar workers. According to the complainants the CTC had succeeded, before the present régime came to power, in obtaining the highest wage levels and best conditions of work in Latin America.
  80. 80 In its observations, the Government first of all raises the question whether the complaint is receivable. It refers to its own observations in connection with " complaints previously made against the Cuban Government by other so-called trade union organisations in exile ", in cases Nos. 329 and 469. The Government states that under the pretext of Concern for the observance in Cuba of Conventions Nos. 87 and 98 and other matters relating to Cuban workers, this type of complaint constitutes " one more episode at the international level in the long series of attacks of ail kinds against Cuba and its Revolution ", designed to discredit the present social and economic system of the country. According to the Government such attacks are carried out " by persons and groups affected in some way by the revolutionary laws and measures enacted in exercise of national sovereignty for the undeniable social benefit of our workers and in legitimate defence of their interests ".
  81. 81 The Government maintains that the complainant organisation has no right to present the complaint. It denies that there exists or can exist outside the national territory and outside the Constitution or laws, especially Act No. 962 respecting industrial associations, any occupational organisation representing Cuban workers, " for the purposes established in Conventions Nos. 87 and 98 ". Cuban workers can only be represented abroad by legally constituted organisations and trade unions. The Confederation of Cuban Workers, founded in 1939, has not been dissolved but has continued to develop freely, now being known as the Central Organisation of Cuban Workers. Its delegates have attended meetings of the International Labour Conference, ILO working parties and other meetings of the Organisation. Altogether, for these and other reasons, the Government considers that the complaint has a purely political purpose and that the complainant organisation is made up of " a group of persons who stopped being Cuban workers or trade union leaders ten years ago ", and who have no links with groups of workers in Cuba in any sector.
  82. 82 Furthermore the Government " refutes and categorically denies " the allegations presented. As concerns the application of the aforementioned Conventions, ratified by Cuba, the Government refers to the information it has supplied to the ILO in its annual reports. In order to give the Committee an accurate picture, and without implying any intention of thus debating the substance of the allegations, the Government makes the observations summarised hereafter.
  83. 83 The Government states that during the ten years of its existence it has never intervened in the affairs of a workers' organisation. The provision of paragraph (j) of section 7 of the Act respecting the organisation of the Ministry of Labour does not interfere with the workers' right to organise or that of workers' organisations to carry out activities in accordance with their regulations and with the law, since this paragraph " refers only to the need to maintain production and to guarantee the exercise of trade union and social rights ". Contrary to what is stated in the complaint, neither Act No. 1166 of 1964 nor sections 54 and 55 thereof refer to the dissolution of workers' organisations. The powers granted to the Ministry under these sections refer solely-as is stated in section 1-to disputes that may arise between workers, and between workers and management, over the rights and obligations resulting from labour and social security laws or over breaches of labour discipline.
  84. 84 The Government states that Cuban legislation recognises and guarantees the workers' right to organise and to bargain collectively. It adds that it is untrue and absurd to allege that the requirement of the first paragraph of resolution No. 5619 of 1962, that all workers should be in possession of a work book, is contrary to these rights. This requirement which is no longer applied-for entering any form of employment " was designed only to enable the authorities to keep a record of the labour force available for employment in undertakings and ... for employment in new production centres and services ". The black list referred to has never existed and work books were issued to anyone who applied to the competent bodies. Furthermore the law empowers the Ministry of Labour to regulate wages, hours of work, leave and conditions of work for the protection of the workers, and collective agreements must reflect these regulations, which are always issued in consultation with the workers themselves, through their trade union organisations.
  85. 85 The Government also rejects the allegation according to which the incomes of Cuban workers in general have dropped by 63 per cent and, in the case of sugar workers, by 69 per cent. On the contrary, the Revolution has brought about a considerable increase in workers' incomes. Unemployment (which formerly affected half a million workers) has been abolished together with the underemployment of those who used to work only four or six months a year. Another reason is that the average wage has increased: in 1958 the average wage did not exceed 1,000 pesos per year; in 1968 the average wage in the state sector (industry, agriculture and services) was 1,560 pesos. The Government also refers to the fact that education and other services are now free. The Government insists on the fact that the total wages fund, as well as individual wages (including those in the sugar industry), have risen. It also states that the Social Security Act has increased certain benefits which the complainants maintain have been abolished. As regards overtime wages, the Government states that it is the workers themselves who have individually renounced them. Overtime has become voluntary in order to speed up economic development and lead to a working day of seven hours or less for all workers without exception. Each worker decides personally whether he wishes to give up overtime wages. " Some have not yet done so but the fact that the great majority have is an indication of the people's great conscientiousness."
      • (a) Preliminary Question of the Receivability of the Complaint
  86. 86 In view of the statements made by the Government regarding the right of the complainant organisation to present a complaint under the existing procedure, the Committee considers that it should begin by examining this question.
  87. 87 It should be recalled that in a previous case concerning Cuba (Case No. 329), the Government put forward certain similar arguments when it opposed the receivability of a complaint presented by the Economic Corporations of Cuba in Exile. On that occasion the Government pointed out, among other reasons, that the persons who had presented the complaint had uprooted themselves from the country; that they were no longer employers in Cuba but were living abroad and that the only organisations of producers and employers which were genuinely Cuban in character were those operating in the country within the general framework of the planned Socialist economy. In that case the Committee had concluded that the complaint had been presented by an industrial association that had gone into exile as a consequence of the measures taken by the Government, and considered that the complaint was receivable under the existing procedure.
  88. 88 As the Committee reiterated in another case concerning Cuba, when in the past the Committee had considered complaints emanating from trade union organisations in exile to be receivable, it was because these organisations had existed in the country in question before considering that they had to go into exile or being forced to do so.
  89. 89 The Committee must point out, as it also did in Case No. 329, that under the procedure governing the submission of complaints relating to violations of freedom of association, such complaints must come either from organisations of workers or employers or from governments. In its First Report, the Committee had noted that it was sometimes suggested that persons purporting to act on behalf of such an organisation were not entitled to do so because the organisation had been dissolved or because the individuals lodging the complaint had ceased to be resident in the country concerned. The Committee considered that it would be altogether inconsistent with the purpose for which the procedure for the examination of allegations concerning the infringement of trade union rights had been established for it to admit that the dissolution or purported dissolution of an organisation by governmental action extinguished the right of the organisation to invoke the procedure. In such cases there might be difficult questions concerning the exact authority and knowledge of the facts of the persons claiming to act on behalf of the organisation concerned and the reliability of the testimony of persons no longer resident in the country concerned. The Committee stated that it would be prepared to consider such questions on their merits, as necessary, but that it would not regard any complaint as being irreceivable simply because the government in question had, or claimed to have, dissolved the organisations on behalf of which the complaint was made, or because the person or persons making the complaint had taken refuge outside the country concerned. In taking this view it had been influenced by the conclusions unanimously approved by the Governing Body in 1937, in the Labour Party of the Island of Mauritius Case, when considering a representation under article 24 of the Constitution of the Organisation (then article 23). In the case referred to, the Governing Body laid down the principle that it would exercise its discretion in deciding whether or not a body was to be regarded as an industrial association for the purposes of the Constitution of the Organisation and would not consider itself bound by any national definition of the term " industrial association ". The Committee has followed the same principles when deciding on the receivability of complaints which have come before it. For this reason it has never considered that a complaint was irreceivable simply because the Government against which it was lodged had dissolved, or not recognised, the organisation lodging it.
  90. 90 In the present case the organisation lodging the complaint is made up of Cuban trade unionists who, having been leaders in Cuba of the Confederation of Workers and of numerous federations forming part of the latter, found themselves obliged to leave the country.
  91. 91 On the basis of these precedents, and taking up once more the position it adopted in previous cases, the Committee considers that the arguments put forward by the Government do not constitute grounds for declaring the complaint irreceivable. The Committee consequently considers that it should examine the substance of the allegations lodged in this case by the Confederation of Cuban Workers in Exile in so far as they relate to the exercise of trade union rights.
      • (b) The Right of Workers to Establish Organisations of Their Own Choosing
  92. 92 The complainants allege that the structure of the Cuban trade union movement is based on a trade union branch in each undertaking and that " the trade unions are part of the state organisation ".
  93. 93 Stating that it has no intention of entering into a dispute with the complainants, the Government nevertheless refers in general to the information it has supplied to the ILO in accordance with article 22 of the Constitution of the Organisation, regarding the application in Cuba of the Conventions concerning freedom of association mentioned by the complainants.
  94. 94 The Committee of Experts on the Application of Conventions and Recommendations has pointed out that Act No. 962 of 1 August 1961 respecting industrial association provides, in section 11, that only one trade union branch may lawfully exist in each workplace and, in section 18, that the trade union branch shall be composed of all the workers, both manual and white-collar, irrespective of their job, occupation or special skill, in the same workplace. The Committee of Experts has stated that these provisions do not appear to be compatible with Article 2 of Convention No. 87, which provides that workers shall have the right " to establish ... organisations of their own choosing without previous authorisation ". The Committee of Experts has also stated that this right of the founders and members of the said organisations is also restricted by the first of the final provisions of Act No. 962, whereby all trade union organisations existing at the date of promulgation of the Act are required to comply with its provisions. The Committee of Experts later expressed the hope that the Government would take all appropriate measures to bring its legislation (including the provisions of sections 11 and 18 of Act No. 962) into line with the provisions of Convention No. 87.
  95. 95 The Committee considers that in these circumstances it should recommend the Governing Body:
      • (a) to draw the attention of the Government to the importance it has always attached to the principle contained in Article 2 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), ratified by Cuba, whereby workers have the right " to establish ... organisations of their own choosing without previous authorisation ";
      • (b) to reaffirm the conclusions of the Committee of Experts, mentioned in paragraph 94 above, and to request the Government to keep it informed of any measures it may adopt or consider adopting in order to eliminate the discrepancy between its legislation and the principle mentioned in the preceding subparagraph.
      • (c) Provisions concerning Government Interference in the Activities of Workers' Organisations.
  96. 96 The Committee notes that both the complainants and the Government refer to section 7 (j) of the Act respecting the organisation of the Ministry of Labour, which, according to the former, authorises the Minister to interfere in the activities of workers' organisations and, according to the Government, does not undermine freedom of association since its purpose is to maintain production and to guarantee the exercise of trade union and social rights. According to information previously received by the ILO, the Act to which the complainants apparently refer (Act No. 696) has been repealed, although a subsequent Act (Act No. 907 of 31 December 1960) in section 5 (h) has empowered the Minister of Labour to control privately owned undertakings and employers' or occupational associations, when circumstances make it necessary, in order to maintain production or to guarantee the exercise of trade union and social rights, provided that valid reasons exist for such measures and that they are carried out in accordance with the law by government-appointed controllers. The Committee of Experts on the Application of Conventions and Recommendations, in an observation made in 1962 considered that this provision appeared difficult to reconcile with Article 3 of Convention No. 87, according to which " workers' and employers' organisations shall have the right ... to organise their administration and activities ", the public authorities being required to " refrain from any interference that would restrict this right or impede the lawful exercise thereof ". Subsequently, the Committee of Experts took note of a statement made by a Government representative to the Committee on the Application of Conventions and Recommendations of the International Labour Conference according to which section 5 (h) of Act No. 907 had been repealed.
  97. 97 At its May 1965 meeting, the Committee, when considering certain allegations concerning the dissolution of employers' associations, lodged in a previous case concerning Cuba, referred to the application to privately owned undertakings and employers' associations of provisions including section 5 (h) of Act No. 907. On this occasion, making a reservation to the effect that it did not intend to discuss nationalisation and expropriation measures, the Committee nevertheless concluded that the Acts in question permitted the taking of administrative measures for the control of employers' organisations which led finally to their dissolution. °
  98. 98 In the present case it appears from the observations made by the Government that the provisions concerning control of occupational associations have not been applied to workers' organisations. Furthermore, the provision specifically quoted by the complainants was contained in an Act which has been repealed.
  99. 99 In these circumstances the Committee recommends the Governing Body, to reaffirm the importance which it has always attached to the principle contained in Article 3 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), ratified by Cuba, that workers' organisations have the right to organise their administration and activities without interference from the public authorities which might restrict this right or impede the lawful exercise thereof, to take note of the Government's statement that the provisions concerning the power of the Minister of Labour to control occupational associations have not been applied to workers' organisations, and to note moreover that the provisions specifically mentioned by the complainants in this respect have been repealed.
      • (d) The Right to Bargain Collectively
  100. 100 The complainants maintain that the State, instead of promoting the voluntary negotiation of working conditions, dictates wage standards and " everything else covered by collective bargaining between workers and employers ".
  101. 101 The Government states that national legislation recognises and guarantees the workers' right to bargain collectively. The Ministry of Labour is vested with the legal authority to regulate wages, hours of work, leave and conditions of work with a view to protecting the workers, and collective agreements must embody these regulations which, furthermore, " are always issued in consultation with the workers themselves through their trade union organisations ".
  102. 102 The Committee recalls that at its November 1967 Session, when examining a previous case concerning Cuba, it had before it allegations relating to the restriction of the right to bargain collectively. On this occasion, the Committee referred to what had been stated by the Committee of Experts on the Application of Conventions and Recommendations when, in its 1967 report to the International Labour Conference it had questioned the compatibility of section 36 of Act No. 1022 of 1962, which provides that final approval of collective labour agreements shall be given by the Minister of Labour, with Article 4 of Convention No. 98 which stipulates that measures should be taken to promote " the full development and utilisation of machinery for voluntary negotiation ". In these circumstances the Committee recommended the Governing Body to draw the Government's attention to the importance it had always attached to Article 4 of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), ratified by Cuba. This recommendation was approved by the Governing Body at its 170th Session (November 1967).
  103. 103 In 1969 the Committee of Experts on the Application of Conventions and Recommendations took note of certain information provided by the Government, according to which the above-mentioned section 36 (of Act No. 1022) refers to the settlement by the Ministry of Labour of disputes arising in the course of the voluntary negotiation of collective agreements. The Committee thus understood that the section in question compulsorily subjects collective labour disputes not settled by the parties to a final award by the labour authorities.
  104. 104 The Committee notes that section 31 of Act No. 1022 provides that: " Workers and undertakings shall be entitled to bring about the conclusion, amendment, resiliation or annulment of collective agreements respecting conditions of employment which are not expressly provided for by law." Act No. 1022 also contains certain regulations on the conclusion of collective agreements. Workers may be represented by their trade union organisation or, if they are not organised, by two workers from their workplace, elected by the workers' general assembly. In accordance with sections 32 and 33, if full agreement is reached between representatives of the undertaking and of the workers, the draft agreement is submitted to a " production council " or to a general assembly of the workers concerned. If it is approved, the agreement or agreed amendment is held to be final, binding and executory (without prejudice to the provision of section 39, referred to below). If neither full nor partial agreement is reached between the parties, the points in dispute and the proposals and counter-proposals are established in writing and communicated to the " production council " or to the general assembly of the workers concerned, which shall state its decision to ratify or reject the provisions on which agreement had been reached and its decision on the matters in dispute (section 35). Under section 36, whenever the " production council " or workers' general assembly rejects or modifies an agreement made by the parties, " the file of the case shall be transmitted to the Ministry of Labour for final decision ". Section 39 provides that the Ministry of Labour may at any time, if it finds that a collective labour agreement or agreement for the amendment of an existing collective agreement is contrary to economic and social law, suspend its execution wholly or partly and call upon the parties to reconsider the point in conflict with the law.
  105. 105 In accordance with Act No. 1021 of 27 April 1962 (Act respecting the organisation of the Ministry of Labour), the Minister of Labour is empowered to regulate, in accordance with national economic plans, the organisation of labour and wages (section 5(d)). The same Act provides that the Wage Directorate is entitled to suggest to the various ministries and public bodies, as well as to the trade union organisations, appropriate solutions for the readjustment of salaries and wages in those sectors where there is the greatest disparity and to draw up wage and other remuneration systems adapted to national economic conditions (section 14(c) and (d)); and the Directorate for Labour Protection is empowered to draw up provisions on general and specific measures for the protection of labour... regulating conditions of work for the various sectors and activities (section 17(b)).
  106. 106 The Committee considers it necessary to recall once again that, under Article 4 of Convention No. 98, ratified by Cuba, "measures appropriate to national conditions shall be taken, when necessary, to encourage and promote the full development and utilisation of machinery for voluntary negotiation between employers or employers' organisations and workers' organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements ". In various previous cases the Committee has emphasised that the right of workers' organisations to bargain freely with employers with respect to conditions of work constitutes an essential element in freedom of association, and that the public authorities should refrain from any interference which might restrict the trade unions' right to seek, through collective bargaining or other lawful means, to improve the living and working conditions of those whom the trade unions represent, or impede the lawful exercise of this right.
  107. 107 The Committee has allowed certain exceptions to the general rule on government intervention in collective bargaining. It has considered that in certain circumstances governments might feel that the situation in their country called at certain times for stabilisation measures to be taken, and consequently accepted that in accordance with such measures the free fixing of wages through collective bargaining might be temporarily restricted.
  108. 108 The present case, however, relates to legislative provisions of a general and permanent nature whereby the authorities may regulate not only wages but also other important aspects of employment conditions, such regulations having to be observed in the collective agreements, as is stated by the Government. The Committee takes note of the Government's statement, according to which such decisions are taken in consultation with the workers' organisations, but notes that the final decision is taken by the authorities, who, so far as collective bargaining is concerned, are also empowered to settle differences which may arise between the parties and to suspend the execution of agreements or of clauses thereof if these are not in line with " economic and social law ".
  109. 109 In these circumstances the Committee recommends the Governing Body:
       • (a) to take note of the Government's statement that the Ministry of Labour has powers to regulate wages, working hours, leave and conditions of work, that these regulations must be observed in collective agreements and that they are always issued in consultation with the workers' organisations;
       • (b) however, in view of the fact that such important aspects of conditions of work are thus virtually excluded from the field of collective bargaining-the authorities moreover having the power to intervene in certain cases by means of decisions that may determine the content or suspend the execution of collective agreements-to draw the Government's attention to the importance which it has always attached to the principle that the right of workers' organisations to bargain freely with employers in respect of conditions of work constitutes an essential element in freedom of association, and that the authorities should refrain from any interference that would restrict this right or impede the lawful exercise thereof;
       • (c) to reiterate to the Government the importance of the principle of voluntary negotiation contained in Article 4 of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), ratified by Cuba, with which the legislation of the country is not in harmony.
       • (e) Requirement of a Work Book
  110. 110 The complainants state that any person wishing to work and exercise his trade union rights must be in possession of a work book issued by the authorities and that this document may be refused or withdrawn arbitrarily for political reasons.
  111. 111 From the information supplied by the Government in its communication of 30 May 1969, it appears that the purpose of this requirement, established under a resolution issued in 1962, was merely to regulate employment and that, furthermore, this requirement is no longer enforced. The Government also states that the authorities issued a work book to any person applying for one.
  112. 112 In view of the discrepancy between the statements made by the complainants and by the Government and considering, firstly, that the complaint does not contain sufficient evidence in support of the allegation, in which it is implied that the legislative provision was applied to certain persons in order to prevent them from exercising their trade union rights, and, secondly, that in any case the Government states that possession of a work book is no longer required, the Committee recommends the Governing Body to decide that there would be no point in pursuing further its examination of this aspect of the allegations.
       • (f) Provisions on the Dissolution or Suspension of Trade Union Organisations
  113. 113 The complainants state that Act No. 1166 of 1964 (sections 54 and 55) enables the Ministry of Labour to dissolve or suspend workers' and employers' organisations by administrative measures.
  114. 114 The Government states that the Act referred to by the complainants contains no provisions concerning the dissolution of trade union organisations.
  115. 115 A study of sections 54 and 55 of Act No. 1166 of 23 September 1964 (respecting the dispensation of justice in labour matters) reveals that these sections relate to certain powers of the Minister of Labour to take or repeal decisions on specific labour matters falling normally within the competence of other bodies. There is no specific indication in these provisions that the power to suspend or dissolve trade union organisations is included in such questions.
  116. 116 In these circumstances, in view of the discrepancy between the statements made by the Government and by the complainants respectively, concerning the scope of the provisions mentioned by the latter, and considering that the complainants have not furnished more specific details in support of these allegations, the Committee recommends the Governing Body to decide that this aspect of the case calls for no further examination.