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

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Cuba (Ratification: 1952)

The Committee takes note of the Government’s report.

1. Article 4 of the Convention. In its previous comments, the Committee referred to the need to amend section 14 of Legislative Decree No. 229 on collective agreements and section 8 of the implementing regulations, which require any disputes about content that arise in the drafting phase of a collective labour agreement between the administration or its representative and the trade union or its representative to be referred to the highest levels of the parties, with the participation of those affected; and section 17 of Legislative Decree No. 229 and sections 9 and 10 of the implementing regulations, which require any disputes that arise once the agreement has been concluded to be referred, upon exhaustion of the conciliation procedure, for arbitration by the National Labour Inspection Office, with the participation of the Confederation of Workers of Cuba and the interested parties, the Office’s decision being binding.

The Committee notes that, according to the Government, this system ensures complete autonomy and independence for trade union representatives, workers and administrations with regard to the submission, discussion and approval of draft collective agreements. Amendments and inconsistencies are examined by the assembly of workers with no interference from higher bodies. Only once this stage is complete will the draft agreement be referred to higher levels, with the participation of those concerned, the aim being to raise the level of participation, with the consent of the parties to the bargaining. Once the agreement has been concluded any disagreement is referred at the express request of one or both of the parties to the Labour Inspection Office, which acts with participation by the Confederation of Workers of Cuba (which is responsible for supervising compliance with labour and social security legislation) and the parties concerned, any intervention by the authorities on their own motion being out of the question. There is broad participation by those concerned at all stages of the negotiations, which means that arbitration by the Labour Inspection Office is not deemed to be interference in matters which are the domain of the negotiating parties.

The Committee notes that the National Labour Inspection Office may be called upon to arbitrate at the request of only one of the parties and that the Confederation of Workers of Cuba participates in negotiations in first-level unions in the event of any disagreement during the negotiating process or after the first phase of the negotiations. The Committee reminds the Government that arbitration imposed at the request of only one of the parties is contrary to the principle of voluntary negotiation of collective agreements laid down in Convention No. 98 and, hence, the autonomy of the parties to the bargaining. In the Committee’s view, problems of incompatibility with the Convention arise when the law requires collective bargaining to be referred to a higher level (in this case participation by the Confederation of Workers of Cuba). The Committee requests the Government to take the necessary steps to amend the legislation to allow the parties to negotiations to settle their disputes in collective bargaining without outside interference (authorities or Confederation of Workers of Cuba) and to ensure that referral to binding arbitration is possible only with the agreement of all the negotiating parties.

2. The Committee previously requested the Government to send detailed information on the collective agreements concluded in recent years, the parties thereto, and the subject matter and number of workers covered. The Committee notes that, according to the Government, there is no official register or official body that records collective agreements. The Government also reports that, according to the Confederation of the Workers of Cuba and the national unions, the framing and adoption of agreements is the domain of the 117,047 trade union sections and offices in the country.

The Committee is addressing a request on certain other points directly to the Government.