Demande directe (CEACR) - adoptée 1989, publiée 76ème session CIT (1989)

Further to its earlier comments, the Committee asks the Government to refer to its comments on the application of other Conventions:

Part IV of the Convention. See the direct request of 1987 concerning Convention No. 95, as follows:

The Committee notes the enactment of Act No. 49 of 28 December 1984, establishing a new Labour Code. The Committee also notes the Government's last report in which it states that legal provisions giving effect to this Convention are to be added to the above Act. The Committee notes that Chapter IV of the Labour Code contains a series of provisions respecting wages and in particular the conditions for payment of wages (section 6). It also notes that the transitional provisions provide for the abolition of a series of legal texts, together with any legal provisions or clauses conflicting with the application of the provisions of the Code. The Committee would therefore be grateful if the Government would confirm that the provisions of Decree No. 789 of 1938 continue to be in force and supplement the provisions of Chapter IV of the Labour Code to give effect to this Convention.

Part V. See the observation of 1987 concerning Convention No. 52, as follows:

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 the 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 under 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.

Part VI. See the observation concerning Convention No. 103, as follows:

1. The Committee takes note of the Government's reply to its previous comments and of the other information contained in the report. In particular, the Committee notes with interest that under act No. 61 of 29 September 1987, the minimum maternity cash benefit has been increased.

2. With regard to Article 5 of the Convention, concerning the entitlement to interrupt work for the purpose of nursing, the Committee takes note of the Government's statement to the effect that the possibility of giving effect to this provision of the Convention in still under study.

The Committee hopes that the Government will be able to take the necessary steps, either through legislative or administrative measures or through collective agreements, to enable women wishing to do so to nurse their children without any reduction of remuneration, in accordance with Article 5 of the Convention. The Committee request the Government to indicate in its next report any progress made in this respect.

Part X. See the observation concerning Convention No. 87, as follows:

In its previous observation, the Committee pointed out that the Labour Code, which came into force in 1985, continued to refer expressly to the Central Organisation of Workers of Cuba (particularly in section 15) and that Legislative Decree No. 67 of 19 April 1983 conferred on this organisation the monopoly of representing the workers of the country before the State Committee on Labour and Social Security of the Ministry of Labour (section 61).

In its report, the Government states that section 15 of the Labour Code does not mention by name the Central Organisation of Workers of Cuba (CTC), as it is named in section 1 of the by-laws of that organisation. The above section 15 cannot be interpreted out of the general context expressed in that legal provision, since the reference to the Central Organisation of Workers in that section does not imply the institutionalisation of the Central Organisation of Workers of Cuba (CTC), or the creation or maintenance of a single trade union system.The Government states in its report that the reference to the Central Organisation of Workers in section 15 of the Labour Code reaffirms and gives effect, within the Cuban legal system, to a principle set out in Article 3 of the Convention and does not institutionalise or maintain a "trade union monopoly" as it is termed by the Committee of Experts. The Government reiterates that the wish for unity in the trade union movement does not stem from the law but is a historical fact, strengthened and consolidated by the workers themselves in their revolutionary and trade union struggles which commenced in the first workers' congresses at the end of the last century, prior to any law or to Convention No. 87.

In its report, the Government states that section 61 of Legislative Decree No 67 of 1983, when considered in isolation, does not convey the scope of the forms of workers' participation in the decision-making process at all levels, which stimulates protects labour legislation as a whole. As a practice that is protected and encouraged by many provisions in the Labour Code and its supplementary legislation, the various directorates and departments that carry out the functions of the State Committee on Labour and Social Security consult the national trade unions when taking decisions that affect the interests of the workers. The Central Organisation of Workers of Cuba (CTC) is not an exclusive and restricted association, as it is wished to be implied by describing it as a "trade union monopoly", since it is composed of 17 national trade unions. In turn, the CTC and the 17 national branch trade unions are composed of provincial and municipal committees with a total of 58,569 trade union sections and 2,576 trade union offices, in which 98 per cent of the workers throughout the country are gathered together.

The Committee once again takes note of these statements, particularly as regards the development and practices of the trade union movement in Cuba, but must point out that the national legislation, in sections 15, 16 and 18 of the Labour Code, refers by name to the "Central Organisation of Workers", in the singular form, which in itself constitutes recognition in the legislation of the single trade union system.

The Committee recalls that in its 1983 General Survey on Freedom of Association and Collective Bargaining it indicated in paragraph 137 that, even in a case where a de facto monopoly exists as a consequence of all the workers having grouped together, legislation should not institutionalise this factual situation. Even in a situation where, at some point in the history of a nation, all workers have preferred to unify the trade union movement, they should, however, be able to safeguard their freedom to set up, should they so wish in the future, union outside the established trade union structure.

The Committee therefore once again request the Government to indicate the measures that are under consideration in order to eliminate from the legislation the numerous references to a single trade union central organisation, called the "Central Organisation of Workers" in the Act, and to enable the workers to create unions of their own choosing, distinct from the existing union structure, if the so wish.