Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes the comments of the International Trade Union Confederation (ITUC) of 26 August 2009 and those of the Independent National Confederation of Cuba (CONIC) (of which the Government contests the trade union status) of 10 August 2009. The Committee also notes the Government’s reply to these comments.

Trade union rights and civil liberties

The Committee recalls that in its previous comments it requested the Government to take the necessary measures for the immediate release of trade union members and leaders sentenced to terms of imprisonment of between 12 and 26 years for treason and conspiracy. The Committee notes the regret expressed by the Government that account has not been taken of the replies that it has provided and reiterates the comments made on previous occasions. The Government emphasizes that there are no trade unionists who are imprisoned, persecuted or under threat in Cuba for the fact of being trade union members, and denies that property belonging to trade union organizations has been confiscated. The Committee recalls that in its previous comments it noted that, according to the Government: (1) none of those convicted were trade union leaders as, by their own decision, they had had no employment relationship for several years; (2) those sentenced were engaged in activities to overthrow the political, economic and social system decided upon by the Cuban people and enshrined in the Constitution; (3) the responsibility of all of them was proven for actions that amounted to crimes intended to undermine the sovereignty of the nation and they were penalized under section 91 of the Penal Code and Act No. 88 of 1999 to protect the national independence and economy of Cuba; (4) none of them were convicted or sentenced for exercising or defending freedom of opinion or expression; (5) all of them had taken action prejudicial to the human rights of the Cuban people, and particularly against the exercise of their rights to free determination, development and peace; (6) at the present time, most of those convicted remain in prison serving the corresponding sentences, although some of them have benefited from extra-penal leave for humanitarian reasons; and (7) the human dignity and physical and psychological integrity of those convicted have been rigorously respected, and the detainees have received in prison the full benefits available to the entire prison population in Cuba.

In this respect, the Committee notes with concern that in its 2009 comments CONIC refers to the deplorable conditions of detention suffered by trade unionists who are still detained (including physical punishment, ill treatment and threats). While emphasizing that the Committee on Freedom of Association also examined these convictions and called for the release of the convicted leaders, the Committee reiterates its previous observations and recalls that freedom of industrial association is only one aspect of freedom of association in general, which must itself form part of the whole range of basic civil liberties, all interdependent and mutually complementary, which were enumerated by the Conference in the resolution of 1970 and consist in particular of: (a) the right to freedom and security of person and freedom from arbitrary arrest and detention; (b) freedom of opinion and expression and in particular freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media irregardless; (c) freedom of assembly; (d) the right to a fair trial by an independent and impartial tribunal; and (e) the right to protection of the property of trade union organizations. In these conditions, the Committee urges the Government to take the necessary measures without delay to release the trade union members and leaders sentenced to severe penalties of imprisonment, investigate the allegations of the CONIC and, if they are found to be true, punish those who committed such acts.

The Committee also requested the Government to provide its observations on the comments made by the ITUC, of 28 August 2007, which referred to other specific cases of the detention of workers who are members of the CONIC, persecution and threats of imprisonment against delegates of the Light Industry Workers’ Union (SITIL), the confiscation of materials and humanitarian aid sent from abroad to the Single Council of Cuban Workers (CUTC, the trade union status of which is contested by the Government). The Committee notes that the ITUC adds in its latest comments, of 26 August 2009, that four leaders of the CUTC who had been convicted have been released and expelled from the country, but that five others remain in prison. The Committee further notes that the CONIC refers (in its comments of 10 August 2009) to: (1) the arrest between 18 and 24 February 2009 of 14 members of the CONIC; (2) the disappearance on 24 February 2009 of a leader of the CONIC; and (3) the intimidation by the public authorities of trade union leaders of the CONIC, of the Independent Union “William Le Santé” and of the Independent Union of Light Industries so that they refrain from participating in trade union activities.

The Committee notes the Government’s indication in this respect that the persons mentioned are not trade union leaders and do not enjoy any representative status; the acts with which they were charged were duly proven with all the guarantees of due process set out in the Cuban legislation; they committed offences set out in Cuban legislation and were duly tried and sentenced by courts of law; none of them were tried or sentenced for exercising or defending trade union rights and the responsibility of all of them was proven in acts classified as crimes directly intended to undermine the sovereignty of the Nation. The Government adds that neither the CUTC nor the CONIC are trade unions and denies that the leaders released were expelled from the country, but indicates that they were freed for humanitarian reasons and travelled of their own free will to other countries. With regard to the communication of the CONIC in 2009, the Government indicates that it contains unfounded allegations which amount to a political manoeuvre intended to misinform the world’s trade unionists and project an image of division among Cuban workers, discrediting the Cuban trade union movement and its achievements. The above organization does not associate workers and its few members are not covered by any labour relationship, nor do they represent any sector of workers. It adds that in Cuba there are no restrictions or prohibitions on the exercise of trade union rights. Cuban workers enjoy one of the most complete and rigorous systems of the protection of labour and trade union rights. The Government indicates that it will provide the Committee with further information so that it can make a comprehensive and impartial assessment. The Committee notes the contradictory nature of the ITUC’s comments and the Government’s reply. Under these conditions, taking into account the very high number of allegations relating to human rights and civil liberties, the Committee requests the Government to provide copies of the court rulings to which it refers in its report.

Legislative matters

In its previous observations, the Committee noted the Government’s indication that the process of revising the Labour Code was continuing. The Committee expressed the hope that the revision of the Labour Code would be completed in the near future and would take into account its comments. The Committee notes the Government’s indication in its report that the legislation that is in force is being maintained and that a process has recently been commenced of changes in the structure and operation of the bodies of the Central State Administration, and that efforts are being made to further improve institutions and their effectiveness. On 2 March 2009 an important restructuring was carried out of various central bodies and the examination is continuing of the current structure and operation of the Government, which is inevitably having an impact on the country’s legislative programme. The Government adds that the process of consultation and the updating of the Labour Code is being continued in accordance with current programmes. In this respect, the Committee hopes that the revision of the Labour Code will be completed in the near future and that the comments that it has made on the application of the Convention, which are examined below, will be taken into account. The Committee reminds the Government that the technical assistance of the Office is at its disposal and requests it to provide a copy of the draft Labour Code to which it refers.

Trade union monopoly

Articles 2, 5 and 6 of the Convention. For many years, the Committee has been referring to the need to delete the reference to the Confederation of Cuban Workers from sections 15 and 16 of the Labour Code of 1985. The Committee notes the Government’s reiterated indication that the legislation in force and everyday practice in all work units guarantee the full exercise of trade union activities and the broadest application of the right to organize. According to the Government, the representation of workers is exercised at different levels and in different decision-making bodies by national sectoral unions and the Confederation which, by decision of the workers themselves, as adopted in their assemblies, constitutes the expression of the desire for the unity of the Cuban trade union movement. The existence of a single trade union confederation was not imposed by the Government, nor does it correspond to any provision that is not the expression of the sovereign will of Cuban workers. The application of the Convention in practice is guaranteed by legal provisions establishing that “all workers, both manual and intellectual, shall be entitled, without previous authorization, to organization voluntarily and to establish trade union organizations”, These rights are guaranteed in practice by the existence of 19 national sectoral unions with their municipal and provincial structures and in 169 municipal areas and 14 provinces, which gather together around 110,000 trade union chapters and first-level unions. In each labour unit, there are one or more trade union chapters. Their leaders are elected by the workers themselves. In each labour unit collective labour agreements are concluded between the administration and the trade union organization and are approved in workers’ assemblies, where the workers are able to make suggestions and express opinions on the matters contained in the agreements. The Government adds that neither the Labour Code that is in force, nor the supplementary legislation, provide for restrictions on the establishment of trade unions. All Cuban workers have the right to establish and freely join trade union organizations without previous authorization. The Government reiterates that section 15 of the Labour Code reaffirms the essential provisions of Article 3 of the Convention. The statutes, rules and principles governing the activity of the 19 national sectoral unions and the Confederation of Cuban Workers, in which they are federated of their own will, are discussed and approved in their own congresses, and there is no provision in law setting standards relating to trade union structure. The Committee is nevertheless bound to emphasize once again that trade union pluralism must remain possible in all cases and that the law must not institutionalize a factual monopoly by referring to a specific trade union confederation; even in a situation where at some point all workers have preferred to unify the trade union movement, they should still remain free to choose to set up unions outside the established structures should they so wish and to join the organization of their own choosing (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 96). Under these conditions, the Committee requests the Government to take the necessary measures to ensure that all workers, without distinction whatsoever, are able to establish and join organizations of their own choosing. The Committee further requests the Government to take measures to amend the above sections of the Labour Code and to provide information in its next report on any measure adopted in this respect.

Article 3. The Committee recalls that for several years it has been referring to the need to amend section 61 of Legislative Decree No. 67 of 1983, which confers upon the Confederation of Cuban Workers the monopoly to represent the workers of the country on government bodies. The Committee notes the Government’s indication that the workers who are members of each union put forward and elect their leaders at the various levels, from first-level workers’ assemblies, up to the respective congresses which are held periodically, in complete compliance with the strictest trade union democracy. The trade union representatives democratically elected by the workers participate with broad powers in management boards, where the decisions are taken which affect them, both at the basic enterprise level, and in the bodies and institutions of the State administration. The Government adds that work is being carried out on the restructuring and operation of various bodies of the Central State Administration and the structure of the Government as a whole. The Committee firmly hopes that, in the context of the studies that are being conducted into the structure and functioning of the State administration, the Government will amend in the near future section 61 of Legislative Decree No. 67 of 1983 so as to guarantee trade union pluralism, for example by replacing the reference to the Confederation of Cuban Workers by the expression “the most representative organization”.

Right to strike

For many years, the Committee has been referring to the absence of recognition of the right to strike in the legislation and the prohibition of its exercise in practice and it requested the Government to take measures to ensure that no one suffers discrimination or prejudice in their employment for having peacefully exercised this right, and to keep it informed in this regard. The Committee notes the Government’s repeated indication that Cuban legislation does not establish any prohibition on the right to strike, nor does the legislation establish any penalty for the exercise of this right, and that it is the prerogative of trade union organizations to take the respective decisions. If, at some point, Cuban workers decided to have recourse to strike action, nothing could prevent them from doing so. The Government adds that the claim that certain rights of workers who advocate in many countries recourse to the circumstantial mechanism of strike action, has in practice been superseded in industrial relations in Cuba by the existence and use of other more effective mechanisms for the exercise of their rights, to which workers systematically have recourse through their multiple forms of effective participation and the exercise of real decision-making power in the matters that affect them, which cannot be considered a limitation or prohibition of the right to strike. In the various institutionalized forms of participation by workers and their representatives in the resolution of disputes and in decision-making procedures, trade union representatives enjoy broad capacities and mandates. Cuban workers are the beneficiaries of participatory and democratic social dialogue at all decision-making levels, and an approach of collaboration rather than conflict has been developed, which has lead to improvements in the level of wages, social security benefits and safety and health measures, among other matters, and in the continuous development of their capacities. Trade union representatives participate in all the processes for the preparation of labour and social security legislation and on many occasions draft texts are referred for consultation to workers’ assemblies in work units. The Committee recalls that the Convention does not require the adoption of legal provisions to regulate the right to strike provided that this right may be exercised in practice without organizations and participants being at risk of the imposition of penalties. The Committee further recalls that almost all States have opted for the explicit recognition and/or regulation of the right to strike. The Committee therefore invites the Government, with a view to safeguarding the legal security of workers who decide to have recourse to strike action, to consider, in the context of the current legislative reform to which the Government refers, the adoption of provisions explicitly recognizing the right to strike and the fundamental principles indicated by the Committee (see General Survey, op. cit., paragraphs 136–179).