Observation (CEACR) - adoptée 2012, publiée 102ème session CIT (2013)

Convention (n° 81) sur l'inspection du travail, 1947 - Cuba (Ratification: 1954)

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Observation

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The Committee notes the Government’s report and the observations on the application of the Convention made by the Coalition of Independent Trade Unions of Cuba (CSIC) in a communication dated 30 August 2012. It also notes the Governments reply of 1 November 2012 to these observations.

The CSIC alleges that the labour inspectorate is more a mechanism of social control, intimidation and pressure than a mechanism for the protection of workers, and describes the lack of independence of the labour inspectorate vis-à-vis political pressure from the Communist Party, the Government and the Workers’ Union of Cuba (CTC). The CSIC considers that where the State is the sole employer it becomes impossible to apply the principle of independence laid down in Article 15(a) of the Convention and that, further to the recent possibility of working on a self-employed basis, labour inspectors have become the enemies of self-employed workers with a system of disproportionate fines which frequently gives rise to abuses that threaten the existence and further development of self-employment. The Government disputes the allegations made by the CSIC. The Government states that the CSIC is not a trade union organization and is not made up of Cuban workers. The Government also states that it fulfils its obligations strictly and that tripartite consultations are held before it sends its information. The Government declares that the labour inspectorate is not a mechanism for pressurizing or intimidating workers but, in accordance with section 296 of the Labour Code, it enforces the applicable legislation relating to labour, social security and occupational safety and health. The Government adds that self employed workers are not liable to inspection by this mechanism; it is a responsibility discharged by local government structures so that the provisions relating to aspects such as health, working conditions and transport in the branch of work concerned are observed. It points out that following long discussions involving the participation of Cuban citizens with diverse ideologies and religious beliefs from various sectors, a comprehensive process for the updating of the economic model of the country has been approved and this process recognizes and promotes, in addition to socialist state enterprises, other non-state modes of operation. The Government considers that it would therefore be contradictory, to say the least, to claim that the existence and development of the latter are under threat.

Articles 12 and 15(c). Restriction of the principle of inspectors’ freedom of access to workplaces liable to inspection and the principle of confidentiality. For a number of years the Committee has noted that sections 11 and 12 of the Regulations of 2007 on the national labour inspection system establish the requirement for inspectors, at the beginning of each inspection visit, to present to the employer a copy of a written inspection order indicating, among other things, the purpose of the inspection, and has asked the Government to adopt measures to ensure that the national legislation is brought into conformity with Article 12(1), in conjunction with Article 15(c) of the Convention. The Government reiterates that confidentiality with regard to complaints and their sources is maintained in practice and that no prior notification or order is presented to the employer in the case of surprise inspections resulting from a complaint or any other cause. However, the Committee points out that sections 12 and 13 of the abovementioned Regulations, which require inspectors, at the beginning of each inspection visit, to present the employer with a copy of a written inspection order indicating the purpose of the inspection (section 11), are contrary to the provisions of the Convention in this regard, namely Article 12(1)(a), which stipulates that labour inspectors must be empowered to enter freely any workplace liable to inspection, and Article 15(c), which establishes the principle of confidentiality with regard to complaints and their sources. The Committee further recalls that, according to Article 12(2), labour inspectors should be authorized to refrain from notifying the employer of their presence during an inspection visit if they consider that such notification may be prejudicial to the performance of their duties. The Committee therefore again requests the Government to ensure that measures are taken without delay to amend the legislation in such a way that it gives full effect to the Convention in this regard, and to send a copy of any legislative text adopted towards this end.

The Committee is raising other points in a request addressed directly to the Government.