Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

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

The Committee notes the Government’s report and its reply to the comments of the International Trade Union Confederation (ITUC) referring to issues which were already addressed, as well as the state control of the employment market, by fixing wages and conditions of work in the state sector.

The Committee notes the Government’s statement that section 9 of Legislative Decree No. 229/2002 establishes the content of collective labour agreements, including specifications with regard to income, promotion, permanent employment in the entity, hours of work and rest periods.

Article 4 of the Convention. The Committee recalls that in its previous comments, it 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 the content that arise in the drafting phase of a collective labour agreement (including when first-level unions are concerned) to be referred to the highest levels of the parties concerned (Confederation of Workers of Cuba), with the participation of those affected; and section 17 of Legislative Decree No. 229 and sections 9, 10 and 11 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 information reiterated by 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; that the Decree provides for a conciliation procedure between the administration and the trade union with participation of the highest levels for examining and solving disputes that arise to which the parties may, by agreement, have recourse at any stage of the negotiations; that no request for arbitration has been submitted to the National Labour Inspection Office in the five years that the Legislative Decree has been in force. According to the Government, the possibility of arbitration by the National Labour Inspection Office laid down in section 17 of the Decree can only be taken up once the conciliation procedure has been exhausted and with the consent of both parties concerned, in accordance with section 4(a) of resolution No. 20/2007 establishing the national labour inspection system and specifying arbitration with the participation of the Confederation of Workers of Cuba and the parties concerned for the settlement of disputes which arise with regard to collective agreements. As regards the participation of the Confederation of Workers of Cuba in the negotiation and arbitration process, the Government indicates that this is not external interference since the Confederation is not outside the negotiating process, being the trade union organization that, by the wish of its own workers, represents workers and retirees in the various decision-making bodies of the country.

The Committee observes, however, that section 17 of the Legislative Decree and section 11 of the implementing regulations show that the possibility exists in law for just one of the parties to request disputes to be submitted for arbitration to the National Labour Inspection Office, as was also indicated by the Government in a previous report. In this respect, the Committee repeats 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, contrary to the autonomy of the parties to 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 measures to amend the legislation so that in case of disagreement between the parties to the collective bargaining process, the intervention by the authorities or the Confederation of Workers of Cuba is not compulsory and that referral to binding arbitration is possible only with the agreement of all the negotiating parties.

The Committee also referred to the need to amend section 11 of Legislative Decree No. 229 – which states that “discussion of the draft labour collective agreement at a general assembly of workers shall proceed in accordance with the methodology determined for that purpose by the Confederation of Workers of Cuba” – by deleting the express reference to the Confederation of Workers of Cuba and ensuring the autonomy of the parties to collective negotiations. In this respect, the Committee notes the Government’s indication that the methodology for discussion of the draft collective labour agreement is established by the Confederation of Workers of Cuba with the aims and objectives which it is obliged to fulfil in relation to the trade union movement and in conformity with its interests and that it is not for the Government to take measures in this respect. With regard to section 11, the Government points out that this is an affirmation of the fact that it is the trade union which has to prescribe the way in which workers’ assemblies are organized and the way in which collective agreements are drawn up and discussed. The Committee considers, however, that section 11 imposes a methodology established by the Confederation of Workers of Cuba on all trade unions under a system of trade union monopoly established by law (see observation on the application of Convention No. 87), and this, together with the existence of provisions that are too detailed as to how collective agreements are to be concluded, do not afford sufficient encouragement to free and voluntary collective bargaining in accordance with Article 4 of the Convention. Consequently, the Committee asks the Government once again to take the necessary measures to amend section 11 of Legislative Decree No. 229 by deleting the express reference to the Confederation of Workers of Cuba and ensuring the autonomy of the parties to collective bargaining.

The Committee also requested the Government to take measures to repeal section 5 of Legislative Decree No. 229 and section 3 of the implementing regulations under which the National Labour Inspection Office approves the conclusion of collective labour agreements in the units provided for in the budget and in the production and services activities of bodies, sectors, branches and activities that share the same characteristics, when so agreed by the head of the body and the general secretary of the corresponding federation, so as to ensure that full effect is given to the principle of free and voluntary collective bargaining. The Committee notes that the Government reiterates that these sections apply only to exceptional cases involving units in the budget which, with the consent of the head of the entity and of the corresponding federation, decide to request the approval of the National Labour Inspection Office, the aim being to avoid duplicating or copying agreements of centres with similar characteristics so that agreements are adopted to the specific characteristics of each entity. The Committee recalls that the Government indicated, in a previous report, that the provision applied to units in the budget with similar characteristics, such as bakeries, schools, hairdressers, service centres and polyclinics. The Committee considers that the law subjects a wide range of collective agreements to approval by the National Labour Inspection Office and finds this to be contrary to the principle of free and voluntary collective bargaining. The Committee asks the Government once again to take the necessary measures to repeal section 5 of Legislative Decree No. 229 and section 3 of the implementing regulations to ensure that full effect is given to the principle of free and voluntary collective bargaining.