Individual Case (CAS) - Discussion: 2003, Publication: 91st ILC session (2003)

A Government representative referred to the observation by the Committee of Experts which considered that the explicit reference in the legislation to the Confederation of Cuban Workers constituted a restriction of freedom of association. She indicated that the rights of assembly, demonstration and association enjoyed by workers, as well as the recognition of the independence of trade union organizations, were set out in the Constitution. The fact that in Cuba there was a single trade union confederation to which the 19 national branch unions were affiliated was not a result of government imposition or legislative enactment, but of the tradition of unity in the workers' movement in Cuba which went back to the end of the nineteenth century and had been strengthened by the workers' struggles and claims for over a century, leading to the establishment of the Confederation of Cuban Workers in 1939 by the will of the workers. The desire for unity in the workers' movement had been reiterated and strengthened in all the congresses held by trade union organizations. The legislation had merely confined itself to recognizing the existing de facto situation.

Legislative Decree No. 67 of 1983 respecting the organization and operation of central state administrative bodies had been repealed in so far as it referred to the Ministry of Labour and Social Security by provision 6 of Legislative Decree No. 147 of 21 April 1994, which had been sent to the Office with the report for that year. What the Committee of Experts described as trade union monopoly was a distortion of the real situation of trade unionism in the country. Although there was a single trade union confederation by the will of the workers, this was not the only body for the participation of the trade union movement in decisions on matters affecting workers. The 19 occupational trade unions constantly participated at the various levels of the structure, from the national level down to the first level, without any interference or prohibition, throughout the process of taking decisions which affected workers, right from the central state administrative bodies to the enterprise level.

Legislative Decree No. 229 of 1 April 2002 had repealed the provisions of Legislative Decree No. 74 of 1983 respecting collective labour agreements and it contained provisions conferring upon enterprise administrations and trade union organizations the right of participation in the determination of fundamental aspects such as employment conditions and other conditions of work through collective labour agreements which were adopted at all workplaces, including mixed enterprises and enterprises with foreign capital, following their discussion and approval by workers' assemblies in which their content and the obligations and duties of the parties were discussed.

Neither the Labour Code nor its supplementing legislation set out requirements or conditions for the establishment of trade unions. These existed and achieved recognition by workers and enterprise management through the activities that they carried out on a daily basis at the workplace. There was no body or department in the state administration which registered or approved the establishment of trade unions. The Labour Code provided that all workers without prior authorization enjoyed the right to organize freely and to establish trade union organizations, which was in conformity with the Convention. The structure, principles, statutes and by-laws governing trade union activities were discussed and approved by the trade unions themselves in the assemblies that they held regularly in accordance with their own interests and without any interference. The workers proposed and elected their respective leaders in assemblies held at the workplace. Trade unionism in Cuba was organized as a reflection of the unity of the workers themselves and was not imposed or modified by the legislation.

The Labour Code was undergoing a process of revision due to the need to adapt it to the changing socio-economic conditions of production and the current situation of the country. The XVIIIth Congress of the Confederation of Cuban Workers had adopted a resolution in which it agreed to hold a discussion in the workplaces of the country through the holding of workers' assemblies to consult on the content and proposed changes to the Labour Code. The Government was respecting the right of the workers to be consulted on the new Labour Code, which would govern their rights and duties, as well as those of enterprises, and would establish the principles on which industrial relations in the country would be based.

The case of the Committee on Freedom of Association to which the Committee of Experts referred had been examined by the Governing Body in March 2003 and the reply had been adequately reflected. The persons referred to in the case were not undertaking trade union activities in any workplace in the country, were not workers as for some years and through their own will they had not been in an employment relationship with any entity in the country, had not been put forward or elected in any workplace, did not lead or represent any group of workers and were not therefore trade unionists.

The Worker members recalled that the Cuban trade union movement had a long and rich experience and had played a fundamental role in the emergence of social rights in Cuba. However, for many years the Committee of Experts had consistently denounced the failure to comply with the principles of freedom of association and had emphasized in particular the existence of a trade union monopoly in Cuba. The adoption of legislative Decree No. 67 of 1983 and the Labour Code of 1985 had only made things worse. On several occasions, the Committee on Freedom of Association had also found that the existence of a trade union monopoly in law as well as in fact was contrary to the principles of freedom of association, especially when trade union pluralism was not allowed. A few years ago, the Conference Committee had examined the facts which were being reiterated before it today, that is the refusal to grant recognition and accreditation to an independent trade union, searches carried out in trade unionists' houses, harassment, detention, etc. In fact, since last March three trade union leaders of the Single Council of Cuban Workers (CUTC) had been detained and one of them was in a serious state of health. Trade union training materials, as well as certain assets had been seized. These leaders had been imprisoned because they had expressed their belief that a more just society which respected the rights of workers would allow the establishment of trade unions which could express themselves freely. On this subject, the Committee on Freedom of Association had noted that the CUTC had made an application for accreditation to the Cuban authorities.

The principles guaranteed relating to freedom of association were universal. For many years, both the Committee of Experts and the Committee on Freedom of Association had requested the Government to amend the legislation to bring it into conformity with the spirit of Convention No. 87. If the principles of freedom of association were not protected, it would also be difficult to give effect to the other fundamental rights guaranteed by ILO Conventions. The discussion in the Governing Body last March had reaffirmed that the Government of Cuba did not respect these principles. The Worker members requested the Government to amend its legislation so as to guarantee the existence of trade union pluralism in Cuba. They also called for an end to threats and harassment against Cuban trade union officers, for the respect of the principles of freedom of association, including the recognition of all trade union organizations, and for the immediate release of the detained trade union officials. Recalling that the Committee of Experts had been making comments for many years on the failure of Cuba to apply Convention No. 87, they emphasized that a direct contacts mission should visit Cuba.

The Employer members recalled that the Committee had discussed this case on many occasions over the years. They observed that the issue of trade union monopoly had been a common problem in many States when the world had been divided into two blocs. Nevertheless, there were still some pockets of resistance. Trade union monopoly enshrined in law had always been considered as a violation of freedom of association by the ILO supervisory bodies. Reference made to a particular trade union by name prevented the establishment of new trade unions in law and in practice. The statement of the Government representative that the law reflected the will of the workers was an old excuse and did not justify the reference made by the law to a single trade union confederation by name. The Convention required that workers should have the opportunity to establish other organizations if they so wished, so that trade union pluralism would be possible in all cases. Trade union monopoly had existed in Cuba in law and in practice for many decades and Legislative Decree No. 67 of 1983 conferred on the Confederation of Cuban Workers the right to represent the country's workers in Government bodies. This was a clear case of violation of freedom of association and, as the problem had persisted for many years, it would be appropriate to have a direct contacts mission in order to examine ways of resolving the matter.

The Employer member of Cuba, referring to his experience in his shipowners' group Antares, indicated that he would describe in all honesty how things worked in his country. His group consisted of six enterprises and five shipping companies, employing 5,900 seafarers and 7,000 workers on shore, all freely affiliated to the Merchant Marine, Ports and Fishing Union. He said that one of the fundamental rights in his country was that employment was guaranteed. In all cases, access to a job was carried out on the basis of the formulation and signature of an employment contract regulated by the Labour Code, and he added that in his group all the workers enjoyed contracts of employment without limit of time in accordance with their skills. In each enterprise, the trade union leaders and the director had signed and approved a collective agreement establishing, in accordance with the characteristics of each establishment, the rights and duties of the employers and the workers. This not only formally complied with national law, but the analysis and discussion of the relevant provisions with the workers meant that they were well informed and discharged their work with greater efficiency so that, in the end, everyone came out a winner.

He had decided to take the floor in view of the allegations made that his country was violating freedom of association. In this respect, he indicated that when a seafarer or his family required assistance, or on the occasion of one of the cyclones which had swept over his country in recent years, the only support was the Merchant Marine, Ports and Fishing Union, which was the only organization to which the workers in his group were affiliated. No other trade union had ever been presented.

He added that many anti-Cuban groups established and financed supposed associations with a view to disseminating false and distorted information on violations of every nature in his country, thereby endeavouring to justify the continuation of the blockade which had lasted for over 40 years. Shipping enterprises had experienced many economic difficulties as a result of the blockade. He hoped that the members of the Committee would come to know the truth.

The Worker member of Cuba indicated that the Labour Code in his country referred to the Confederation of Cuban Workers as the only central trade union organization existing when it had been adopted, a situation which remained unchanged. The Confederation had been established in 1939, namely 20 years before the triumph of the Revolution, and was not therefore a creation of Cuban socialism. The Government had proposed to revise the current Labour Code to adapt it to the economic and social changes which had occurred and to the recommendations of the Committee of Experts on various Conventions. He recalled in this respect that it was usual practice for the workers to approve the principal laws and legislation which concerned them. Although the workers had accepted the proposed revision of the Labour Code, it should be recalled that this was a long and complex process. He added that in his country trade unions were in operation in all workplaces and that workers enjoyed the right to establish trade unions without the authorization of the Government or the requirement to register them with any Ministry. Moreover, no organization intervened in their elections or inspected them. The recognition of trade union organizations formed part of the right to be represented through elections held by the workers in first-level assemblies and then by secret ballot. All workers could have their names put forward, but those who had not been put forward or elected could not act as workers' representatives. The persons to whom reference had been made as trade union leaders during the discussion had not been elected by any worker in his country. As a result, they were not imprisoned because they were trade union leaders, but because they had violated laws adopted by the people of Cuba in defence of their sovereignty and self-determination.

The Government member of Zimbabwe fully associated himself with the statement made by the Government representative of Cuba and noted that there was good progress on the issues raised by the Committee of Experts. For instance, Cuba was reviewing its legislation to address the concerns raised with respect to trade union monopoly. With regard to the CUTC, he fully supported the Government's view that this group did not represent any workers in Cuba and its activities concerned non-labour issues. A direct contacts mission would be inappropriate in light of the information provided according to which Cuba was preparing legislation to address any shortcomings.

The Worker member of Colombia recalled that freedom of association was intimately linked to full observance of human rights and called upon the Government of Cuba to respect those who had decided to establish new workers' organizations outside the existing confederation. Indeed, a significant number of workers had established their own organization and claimed the right to be recognized, to represent their members and to enjoy within the country a space for political organization without the fear of being labelled counter-revolutionaries. Over and above the support that his organization had always demonstrated for social progress in Cuba, it was absurd to deny the right of a group of workers to democratic organization, and it was even more serious that their leaders had been condemned to prison for 25, 20 and 15 years respectively, as had occurred to Mr. Pedro Pablo Álvarez Ramos, Mr. Oscar Espinosa Chepe and Mr. Carmelo Díaz Fernández, the leaders of the CUTC. He called upon the Government to recognize the CUTC, release the detained trade unionists and other political prisoners and reform its anti-democratic policies which, through acts such as the recent executions, were giving rise to a climate of deep-rooted divergence with those who, like himself, refuted the application of the death penalty under any pretext.

The Worker member of Uruguay, referring to the comments of the Committee of Experts concerning the alleged situation of trade union monopoly in Cuba, said that in practice this was the result of a free decision by Cuban workers who considered the Confederation of Cuban Workers as their legitimate representative. He said that in his country, where freedom of association did not exist, it was believed that trade unionists were created from the bottom up, namely starting with the workers. The main challenge faced by new supposed trade union organizations in Cuba was not related to the law, but to achieve support from Cuban workers, which was far from becoming a reality. This issue went beyond the revision of the Labour Code, which was being discussed by the workers. Emphasis should be placed on the broad participation of the workers in the assemblies, an aspect which the world trade union movement should follow: the real participation of the workers in decision-making processes.

The Worker member of Brazil said that in her view there was freedom of association in Cuba. Workers in Cuba could choose their trade union organizations, disseminate information, elect their representatives, undertake consultations on economic plans and put forward their claims. Trade union organizations were an effective force with their own political space and economic influence, and enjoyed freedom of expression. The fact that they constituted a single system did not run counter to democracy or freedom of association. In her view, there was no freedom of association if there was no unity among workers. Freedom existed when there were different opinions and the majority view was selected by voting. This happened in all democracies. A multiplicity of representation was equivalent to the non-existence of democracy, which was the same as having no representation. In such cases, workers would be divided in relation to their employers and the Government. The CGT in Brazil defended unity of representation of workers as it considered it to be the best form of democracy.

The Worker member of France said that the application of Convention No. 87 in Cuba was an issue that reappeared periodically before the Committee and that, in general, dialogue on this issue fell on deaf ears. The Government had repeated its usual arguments before the Committee, with few variations. The supervision of the application of Convention No. 87 was not only normal, but necessary. The Government nevertheless turned a deaf ear to the clear and precise requests made both by the Committee of Experts and the Committee on Freedom of Association. Trade union pluralism should be possible in practice as well as in law. The current situation was contrary to the spirit of Convention No. 87 and in practice made it impossible to accredit trade unions outside the rules established by the Government, especially in the Labour Code. Freedom of association could be exercised only in the presence of other civil rights and liberties. Governments and employers did not have the right to exercise pressure on trade unionists, who should be able to organize their activities independently and democratically. He condemned the detention and sentencing of trade union officials to heavy penalties under false pretexts.

The General Confederation of Workers (CGT) of France had already indicated its concern to the CTC over the increasingly heavy climate of repression and the detention since March of three trade union leaders. On this subject, he called for the release of those detained. Since its establishment, the CTC had defended many principles, including the abolition of capital punishment on political or penal grounds and the abolition of custodial sentences for the exercise of trade union or political activities. The calls for clemency and reasonableness made by the CGT had remained unheard. He stated that he hoped that freedom of association, of expression and of trade union and civic freedoms would be exercised without restriction very soon in practice as well as in law. The CGT of France stood behind the Cuban peoples and opposed the blockade, yet, nothing could justify the denial of the right to freedom of association in the country and he hoped that the Government would accept a direct contacts mission and the cooperation of the Office in the context of the reform of the Labour Code. He also hoped that this reform would take into account the principles set out in Convention No. 87.

The Worker member of Italy stated that Convention No. 87 was being violated in Cuba in law and in practice. The Committee of Experts' report had cited the recognition in law of a single trade union confederation as a violation of Convention No. 87. The ICFTU had presented a complaint concerning the heavy prison sentences imposed upon trade unionists and the fact that two security agents had infiltrated an independent trade union and had testified against the unionists in the trial. Among the 78 persons arrested and sentenced to long jail terms, there were several independent labour activists: Pedro Pablo Álvarez Ramos (CUTC), Iván Hernández Carrillo (CONIC), Carmelo Díaz Fernández (CUTC), Héctor Raúl Valle Hernández (CTDC), Oscar Espinosa Cheper (CUTC) and Nelson Molinet Espino (CTDC).

Another form of violation of freedom of association was reflected in the job practices in multinational enterprises in Cuba. There were currently some 400 economic associations involving foreign investors with nearly $1.8 billion in promised and delivered investment. Workers who wanted to work in these enterprises had to pass an ideological test foreseen in the law. The fact that workers had to be politically acceptable to be allowed to work was a clear violation of freedom of association. The ICFTU was deeply concerned over developments in Cuba and requested the immediate release of the jailed independent activists.

An observer representing the Latin American Central of Workers (CLAT), speaking with the permission of the Officers of the Committee, indicated that the report of the Committee of Experts should incorporate the recent events, including the detention of various "dissidents", including four leaders of an organization of workers affiliated to the CLAT and to the WCL, and their subsequent conviction to 26, 25, 20 and 16 years of imprisonment, respectively. The accusations had been based on three allegations: (1) relations with organizations opposing the Cuban Revolution, such as the CLAT and the WCL; (2) maintaining links with officials of the United States; and (3) receiving financial aid from organizations in the above country. The second and third allegations were false and coincided with those generally used against those who opposed the Cuban Government. The leaders had received financial aid, but it had come from the CLAT and the CNV from the Netherlands. He asked whether freedom of association, of expression and pluralism were rights that could be violated by certain governments and which had to be rebuffed in view of the threat of being considered counter-revolutionary; whether justice could exist without freedom and whether, in order to function, a workers' organization had to obey the Government. He demanded that the leaders be released and allowed to express freely their disagreements in a context of civilized cohabitation.

The Government member of the Syrian Arab Republic fully supported the statement made by the Government representative of Cuba and emphasized that the fact that a worker was in prison did not mean that he was detained because of trade union activities and special care should be taken to verify that this was the case. He suggested that the dialogue with Cuba should continue, but without interference in the country's domestic affairs.

Another Government representative of Cuba, (the Minister of Labour and Social Security of Cuba) supported the truth and emphasized in the first place that there was no violation of the Convention in Cuba. To understand what was being termed a trade union monopoly it was necessary to go back to the years 1938 and 1939, when the workers chose the Confederation of Cuban Workers as their representative. Nevertheless, he indicated that a process of reform of the Labour Code was currently being carried out. He emphasized the valuable cooperation of the ILO, which was participating in this process, and indicated that the Labour Code would be brought into conformity with Convention No. 87 and other Conventions. He considered that the discussion had been politicized by certain Worker and Employer members who had confused the situation with other issues that were currently being used to demean the Cuban Revolution and undermine its resistance. There was a clear intention to destroy the Revolution. He said that the Government was obliged to apply corrective measures to traitors who served foreign interests. Nevertheless, he believed that this was not a matter to be examined by the present Committee. The persons who were being referred to had been judged and sentenced for endeavouring to destabilize the country with the assistance of a foreign power in violation of the laws of Cuba.

The history of Cuba was clear and unequivocal with regard to the participation of workers. There was no violation of Convention No. 87. The process of reforming the Labour Code would be carried out with the support of workers convened in assemblies and would be examined in Parliament, in which the various positions to strengthen the sovereign State, which was a socialist State, would be democratically discussed. He called upon the Committee to have faith and considered that it was not necessary to adopt measures of any other nature. Freedom of association and trade union democracy existed in Cuba because the Cuban Revolution safeguarded the human rights of the people of Cuba and all Cuban trade union leaders were the legitimate representatives of the workers. The Committee should not allow itself to be manipulated.

The Government member of the United States responded to some of the comments made by the representative of the Cuban Government and several other speakers concerning the nature of the CUTC and its alleged funding by the United States. She said that the allegations were not true. The CUTC was an independent organization affiliated with the WCL and the CLAT with close to 4,000 registered members in 14 provinces. Its leaders had been harassed, threatened and arrested because they had the courage to challenge the trade union monopoly enshrined in Cuban law. Both the Committee of Experts and the Committee on Freedom of Association had been clear and consistent in calling on the Government to repeal the provisions of its law that established this monopoly and to guarantee freedom of association in practice. The Cuban Government had consistently ignored these requests and she urged the Committee to remain strictly focused on the facts of the case.

The Worker Member of France, referring to the intervention by the Minister of Labour and Social Security of Cuba, said that it was totally unacceptable to insult Worker members or any other members of the Committee.

The Employer members noted with great surprise the position adopted by the Employer member of Cuba praising the freedom of Cuban workers and added that this Committee was not the appropriate forum to discuss the value of a revolution. With regard to the statement made by the Government representative, they noted that he had complained about politicizing the discussion and then had gone on to deliver a demagogic political speech. With reference to the statement made by the Government representative about the ongoing reform of the Labour Code, they noted that no copies of the draft law had been submitted to this Committee or the Committee of Experts. This would have been a minimum condition for a constructive dialogue and cooperation. The Government representative had also affirmed that new trade unions were being established. In such a case, a direct contacts mission would be useful and helpful to clarify the situation and promote progress in the right direction. They requested the Government to consider accepting such a direct contacts mission.

The Worker members indicated that information brought to the attention of the Committee, especially the detentions since last March of three trade unionists for their trade union activities, showed the relevance of the matters raised by the Committee of Experts for many years, namely the existence of a trade union monopoly in practice as well as in law and the failure to respect the principles of freedom of association. They called for the legislation to be amended, for workers to be able to choose freely their trade union organization and for the detained trade unionists to be released immediately. In view of the fact that this was a situation of constant violations of freedom of association, they also requested that a direct contacts mission visit the country in order to find solutions to the problem of the application of Convention No. 87, especially with respect to the reform of the Labour Code. They called upon the Government to consider this proposal.

The Government representative of Cuba, referring to the call by the Worker and Employer members for a direct contacts mission, recalled that her country had received ILO technical assistance on many occasions. Cooperation was currently being provided with regard to the amendment of the Labour Code. The Multidisciplinary Advisory Team in Costa Rica had visited the country on various occasions. This year it was planned to hold a seminar on the reform of the Labour Code with the participation of many jurists, trade union representatives and interest groups created in the country. The Labour Code was currently undergoing a process of consultation with workers. The collaboration of the ILO was appreciated, but a direct contacts mission to verify compliance with the Convention would not be accepted. Her country was complying with its reporting obligations and had always provided information to the Office. Her country accepted collaboration with the ILO, just as it had been doing up to now.

The Worker members stated that they fully agreed with the conclusions. In the light of the Government's attitude, they indicated that they would normally have asked for a special paragraph to be included in the report on this case. However, as it was not the Committee's practice to include such a paragraph during a first discussion, they requested that the case be included in the next report of the Committee of Experts so that it could be examined by the Conference Committee once again next year.

The Worker member of Uruguay expressed disagreement with the Committee's conclusions on the grounds that they were more severe than those adopted on the case of Myanmar.

The Government representative of Cuba expressed his disagreement with the conclusions, as they did not reflect the real situation. He therefore rejected them.

In a subsequent sitting of the Committee, another Government representative of Cuba stated that her Government could not accept document PV.4 for the same reason that it could not accept the conclusions, which did not take account of the proceedings and were largely not objective. The Committee's conclusions on the application by Cuba of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), in her opinion, were unbalanced, included issues which went beyond the Committee's mandate, and did not reflect the diversity of the opinions expressed by the members of the Committee and by her Government. Her Government did not accept the practice followed in this Committee in this and other cases resulting in the adoption of the conclusions which only took into account the opinions of the spokespersons who, in turn, disregarded the criteria advanced by various members of their groups. It is unacceptable that the conclusions in the case of Cuba have not been subjected to any modification or adjustment in view of the diversity of opinions expressed by the members of the Committee and by the representative of the Government. She insisted on the need to revise the methods of work of this Committee in order to make the results more constructive, objective and impartial.

The Government representatives of Venezuela, Belarus, India and Ethiopia supported the declaration made by the Government representative of Cuba.

The Committee noted the oral statement by the Government representative and the discussion that followed. The Committee noted with concern that the comments of the Committee of Experts referred to the impossibility of trade union pluralism as a result of the imposition in the Labour Code of the trade union monopoly of the Confederation of Workers, which was entrusted with the representation of workers in the country. The Committee noted that the Committee on Freedom of Association had examined cases related to the non-recognition of independent trade union organizations, as well as to threats, detentions and pressure against trade unionists. The Committee emphasized that this situation was incompatible with the provisions of Convention No. 87. The Committee emphasized the importance of the full respect of civil liberties for the exercise of trade union rights.

The Committee urged the Government to modify national law and practice in the near future in order to recognize the right of workers to establish organizations of their own choosing in conditions of full security, including organizations independent of the established structure, if they so wished. The Committee urged the Government to take immediate measures for the release of the detained trade unionists and the recognition of trade union organizations. The Committee also requested the Government to accept a direct contacts mission with a view to verifying the situation "in situ" and cooperating with the Government and all the organizations of employers and workers concerned in order to ensure the application of the Convention in both law and in practice. The Committee also requested the Government to send a detailed report for the next session of the Committee of Experts. The Committee expressed the firm hope that it would be able to note tangible progress in the near future.

The Worker members stated that they fully agreed with the conclusions. In the light of the Government's attitude, they indicated that they would normally have asked for a special paragraph to be included in the report on this case. However, as it was not the Committee's practice to include such a paragraph during a first discussion, they requested that the case be included in the next report of the Committee of Experts so that it could be examined by the Conference Committee once again next year.

The Worker member of Uruguay expressed disagreement with the Committee's conclusions on the grounds that they were more severe than those adopted on the case of Myanmar.

The Government representative of Cuba expressed his disagreement with the conclusions, as they did not reflect the real situation. He therefore rejected them.

In a subsequent sitting of the Committee, another Government representative of Cuba stated that her Government could not accept document PV.4 for the same reason that it could not accept the conclusions, which did not take account of the proceedings and were largely not objective. The Committee's conclusions on the application by Cuba of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), in her opinion, were unbalanced, included issues which went beyond the Committee's mandate, and did not reflect the diversity of the opinions expressed by the members of the Committee and by her Government. Her Government did not accept the practice followed in this Committee in this and other cases resulting in the adoption of the conclusions which only took into account the opinions of the spokespersons who, in turn, disregarded the criteria advanced by various members of their groups. It is unacceptable that the conclusions in the case of Cuba have not been subjected to any modification or adjustment in view of the diversity of opinions expressed by the members of the Committee and by the representative of the Government. She insisted on the need to revise the methods of work of this Committee in order to make the results more constructive, objective and impartial.

The Government representatives of Venezuela, Belarus, India and Ethiopia supported the declaration made by the Government representative of Cuba.

Individual Case (CAS) - Discussion: 1993, Publication: 80th ILC session (1993)

The Government supplied the following information:

1. With regard to the comments of the Committee which appeared in this section of the observation, it was reiterated that the right of workers to form trade union organizations that they considered appropriate was governed by the provisions of section 13 of the Labour Code.

Concerning the comments made by the Committee of Experts on the interim conclusions of the Committee on Freedom of Association, approved at the 254th Session of the Governing Body in November 1992, it was explained that the Government had sent the corresponding reply to these interim conclusions, and that they had been amended in accordance with the report of the Committee on Freedom of Association, presented to the 256th Session of the Governing Body held in May 1993. In its reply, the Government included the letter dated 1 April 1992, sent by a citizen to the Ministry of Justice which was referred to by the Committee on Freedom of Association in the above-mentioned report, in which the said citizen decided to not pursue what he considered was an application to register an apparent trade union organization. In order to provide better details, it was stressed that no application to register and recognize any trade union organization had been made to the Ministry of Justice, and that the application referred to by the Committee on Freedom of Association was no more than a request for information concerning the Associations Act.

When the workers had considered it appropriate for the defence of their interests to form trade union organizations that were different from those already existing, they had met no opposition in the legislation or in practice, nor had they been required to wait for the authorization of any state organization, as provided for under section 13 of the Labour Code. As an example of this, already provided previously, recently the National Union of Science Workers was formed, joining together a total of 44,130 members, having 46 trade union offices, 592 trade union sections and 3,139 first-level leaders elected by direct and secret vote by those workers who carry out scientific activity. At the initiative of workers of this sector, its assembly was held and they adopted their regulations without the necessity of authorization by any State organization. This trade union and its leaders acted in accordance with their interests, without hindrance and with full authority and consideration before the workers that had elected them.

With regard to the reference to the Cuba Central Organization of Workers, when the Labour Code referred in general terms to the Central Organization of Workers, and not in specific terms, as would be the case if the Cuba Central Workers' Organization (CTC) was referred to, it was not done to institute a single trade union system. In Cuba there existed 18 National Trade Union Branches. The Cuba Central Organization of Workers was not established by the law; it was created voluntarily by workers in 1939 and responded to a tradition of unity of the Cuban labour movement which had its origin in the last century. Some of the amendments to the National Constitution already made known to the Committee of Experts were representative of the will of the Government to recognize the autonomy and independence of trade union organizations.

2. With regard to the comments in these paragraphs of the observation, the Government recalled that the independence and autonomy of trade union organizations was also recognized in section 15 of the Labour Code which provided that "Trade unions and the Central Workers' Organization which are joined voluntarily, are governed and function pursuant to the principles, rules and regulations which their members discuss and approve democratically". A worker representative of Cuba described in this Committee at a previous session the form in which workers elected their members, by secret and direct vote, and pursuant to the regulations and rules which had been adopted in the trade union assemblies. The Committee of Experts should not make observations to the Government concerning the content of the trade union rules and regulations, because these documents were the expression of the will of the workers made known and agreed upon democratically at trade union assemblies. The Committee of Experts should respect this will that formed part of the freedom enjoyed by workers and their trade unions, that adopted their own regulations without the interference of the Government.

In addition, a Government representative reiterated the written information presented by her Government with respect to the right of workers to establish trade union organizations as they wished in conformity with section 13 of the Labour Code. As for the conclusions formulated by the Committee on Freedom of Association mentioned by the Experts, she stated that they had been changed at the 286th Session of the Governing Body and that independently of any interpretation the real and objective fact was that the person who had made the propaganda of the ICFTU was not a trade unionist and, in addition, he had not followed up, in writing, the letter containing the request for information which had served as the basis for the ICFTU's complaint.

The Workers' members noted that, in this case, the problem was not that information was not being provided by the Government, but rather that too much information was provided on detailed points and of a very similar nature to that which had been provided for many years now. They queried whether any real change was actually taking place in the country. They recalled that the Committee of Experts had noted with interest the amendments made to articles 7 and 99 of the Cuban Constitution, but noted that more needed to be done. The constitutional amendments had significant implications for the rest of the labour legislation, including the Labour Code, which needed to be reviewed and amended, after consultation with the trade unions, so as to bring it into line with the changes in the Constitution and to omit any reference to the single central workers' organization. They emphasized that no one questioned whether the trade union movement in the country could form a single confederation if it desired, but the Government had to take the necessary measures to ensure that alternative trade unions could be formed. While the Government had provided information on the creation of the National Union of Science Workers, this information was insufficient to judge whether this was an independent trade union. They requested the Government to provide further information in this regard. Despite the assurances given by the Government that workers did have the right to establish organizations of their own choosing, they noted that, when such efforts were made by, for example, the Confederation of Democratic Workers of Cuba, the people concerned were harassed and arrested. It appeared, therefore, that it was not so easy to set up an independent trade union. The amendments made to the Constitution were not sufficient to ensure the right to establish freely independent trade union organizations. Measures had to be taken to guarantee this right by adapting all the legislation appropriately and by taking steps to ensure its application in practice. They noted that discussions on Cuba had often been too aggressive from all sides. The reports supplied by the Government to the Committee of Experts carried both an aggressive and a defensive tone. The Workers' members indicated, however, their desire to help the Government to move towards change. They encouraged it to take further steps to ensure the freedom of the trade union movement. They expressed the hope that they would see further developments in this direction next year and indicated that such changes would be welcomed with satisfaction. They cautioned, however, that sterile repetition of the arguments put forward over the decades would result in a regression to the aggressive debates of the past.

The Employers' members stated that they were a bit doubtful about the progress made in this case. The written information provided by the Government was substantively the same as that indicated last year. While the constitutional amendments were a step in the right direction, it still appeared that very little had changed. The reference to the Central Organization of Workers (CTC) in the Labour Code still remained. They recalled that this case had been discussed in this Committee for many years and the small changes made were still very far from ensuring the right to establish, in practice, the trade union organization of one's choosing. They queried whether another union would ever be able to be registered in Cuba with ease and without the bureaucratic red tape designed to impede its establishment. They expressed the hope that the Government would take the necessary steps to ensure that State mandated trade union monopoly no longer existed.

The Workers' member of Paraguay recalled that this case had been discussed for many years and that, each year, this Committee formulated conclusions requesting the Government to provide further explanation. The declarations subsequently made by the Government were never satisfactory and did not guarantee the principles of freedom of association and human rights. He stated that the trade union rights and the conscience of Cuban trade unionists had been violated for 34 years because they did not have the right to establish or join any trade union organization other than the Central Organization of Workers. He indicated that the time had come for the ILO to move on to a second stage: to stop discussions without substance and to undertake concrete action to ensure respect for freedom of association. Cuban workers should have the right to live in freedom as well as to choose freely the trade union organization to which they wished to belong. The ILO should take measures other than those adopted up till now in order to try to obtain the guarantee for trade union rights in Cuba and to ensure that Conventions Nos. 87 and 98 were no longer violated.

The Workers' member of the United States pointed out that there were three kinds of countries which violated the principle of freedom of association. Some countries allowed unions to operate freely but restricted their free activity in certain sectors such as the public service or essential industries. In this case while the violation was substantial it was only an aberration. In other countries, unions were allowed to exist, but everything was done to impede their activities. These cases required constant vigilance in order to ensure the survival of the unions and the extension of the full meaning of freedom of association to them. The case being discussed here fell in the third category, namely independent unions were not allowed to be freely established and all means were used to suppress anyone who tried to do so. The Government did not even acknowledge the petitions lodged by the General Union of Cuban Workers (UGTC) or by CONCI to be registered. The only organization permitted in Cuba was the CTC because its leaders were chosen by the Communist Party, which the CTC recognized as the vanguard and the highest organ of the working class. He stated that the State's position of imposing a union monopoly manifested itself in the arrest and physical assault of UGTC leaders on various occasions, such as a protest against the failure of the CTC to represent the interests of workers and a May Day demonstration. He requested this Committee to urge the Government to provide additional information in the near future on the concrete steps taken to permit the free establishment of free trade unions as this was only the first step in ensuring that they might be full and effective participants in society.

The Workers' member of Cuba pointed out that, with respect to the independence of the trade union movement and to the comments made in this regard in the Committee of Experts' report, the relations between the Cuban Communist Party and the Central Organization of Workers did not in any way compromise the continuity of the trade union movement and that these relations were in conformity with the resolution on the independence of the trade union movement adopted by the ILO in 1952. He pointed out that, as indicated in the statutes of the Central Organization of Workers, the CTC was not an organization of the Communist Party nor of the State, and did not receive any financing from them. He indicated that the members of the CTC approved the statutes, rules and guidelines of work and elected its leaders in an open and democratic manner. No candidates had been proposed by the Communist Party. The fact of recognizing the Communist Party as the vanguard of the working class in the preamble of the CTC statutes did not at all mean that the Party interfered in its internal affairs. The relationship between the CTC and the Communist Party is approved by the workers democratically and it was only they who could change it. Trade union and social freedom had existed in Cuba for 34 years and the CTC based all its action on permanent consultation with the workers. The CTC developed its trade union action freely in the more than 70,000 workplaces in the country and had no indication or information about workers setting up another union, apart from the distorted and ill-intentioned information financed by international organizations which, for political reasons, entered the country.

The Government member of the United States, noting the importance placed on technical assistance from the ILO and the fact that, last year, this Committee had urged the Government to consult with the ILO on this matter, suggested that it might be appropriate that the Government discuss the possible ways of resolving this situation with the ILO.

The Government representative stated, in reply to the questions asked by the Workers' members, that a change in the Constitution had occurred and that this change had been noted by the Committee of Experts in its comments, a change which expressed the Government's will to respect the independence and autonomy of trade union organisations. She stated that, in Cuba, the workers exercising freedom of association had adopted the trade union structure which they had considered most appropriate. The changes to the Constitution were representative of the Government's will. The Labour Code only reflected a tradition of unity in the workers' movements. In Cuba there were 18 national branch unions which had, of their own will, formed one central union organization since 1939. This showed that the Government would not impose by legislative means trade union pluralism, since if it did so this would be an imposition contrary to the Convention in the same way as if legislative means were used to impose a system of trade union unity. The adoption of one or the other form of trade union organization was a matter to be left solely to the workers. The Committee of Experts was in a position to analyse, in the light of the new Constitution, what was the Government's position in this regard. The obstacle to the creation of what was here described as independent organization was not in the law. The CTC was not a party or state body, as was clear from its statutes. The difficulty in question was a consequence of the lack of credibility and from the fact that the workers did not trust certain individuals who were not trade unionists and who were ready to be manipulated from overseas for political and propaganda ends. In no workplace did workers want to follow persons they did not know or elect and who did not act in the name of any union, and whose concerns were not of a union nature. As for the ILO technical assistance mentioned, she stated that her Government nad requested such assistance on many occasions when it felt that it was necessary and desirable and it had always received a favourable reply from the Office. The Government would request such assistance when it considered it necessary, but would do so based on its own decision and after having first sought its own solutions to its problems.

The Committee took note of the written and oral information provided by the Government. Like this Committee of Experts, this Committee noted with interest the amendments made to the national Constitution. On the other hand, it could only be regretted that the Government once again felt that it was not in contradiction with the Convention with respect to the independence and autonomy of trade union organizations. The Committee urged the Government to review its position in order to guarantee all workers and employers the right to establish occupational organizations outside of the existing structure if they so desired. The Committee trusted that the Government would submit detailed information in the near future on the issues raised by the Committee of Experts. The Committee recalled that the International Labour Office could provide technical assistance to governments upon their request.

Individual Case (CAS) - Discussion: 1992, Publication: 79th ILC session (1992)

The Government communicated the following information:

The Committee of Experts bases its observation on criteria it established itself on trade union unity and not on the text of Convention No. 87 which recognises the right of workers to establish trade union organisations of their own choosing without specifying any criterion on trade union plurality or unity. In this connection, the Government draws the Conference Committee's attention to section 13 of the Labour Code, which states that "all workers, manual and non-manual, shall be entitied without previous authorisation to voluntarily associate and to form trade union organisations". The wording of this important provision corresponds to Article 2 of Convention No. 87.

Furthermore, according to the Digest of decisions and principles of the Committee on Freedom of Association, at paragraph 223: "The Committee has pointed out that the International Labour Conference, by including the words 'organisations of their own choosing' in Convention No. 87, made allowance for the fact that, in certain countries, there are a number of different employers' and workers' organisations which an individual may choose ... it did not pronounce, however, as to whether, in the interests of workers and employers, a unified trade union movement is preferable to trade union pluralism."

If the way workers exercise freedom of association finds expression in a unitary or pluralist trade union movement, this is not a question to be reflected in legislation. It would, in fact, be a violation of Convention No. 87 to establish by legislation one or another type of trade union structure, since this Convention bases freedom of association on the choice by the workers themselves of the way in which they wish to organise their activities, their structure and programmes of action, how they wish to draw up their own constitutions and rules and elect their leaders in the manner which they consider to be most appropriate. This is what is contained in section 15 of the Labour Code.

The Committee of Experts states in paragraph 4 of its observation that the Labour Code explicity refers to the Central Organisation of Workers of Cuba. It seems that the Committee of Experts has still not had a detailed reading of section 15 of the Code. The central trade union organisation which groups together 18 national branch level unions in Cuba, according to its own rules, is named the "Central Organisation of Workers of Cuba" and is identified by the acronym CTC. Section 15 of the Labour Code, which is the text on which the Committee of Experts relies, states word for word the following: "The trade unions and the Central Organisation of Workers of which the said unions are voluntary members shall govern themselves by and act in accordance with the principles, statutes and standing orders democratically discussed and approved by their members."

As is clear from a simple reading, the reference to the Central Organisation of Workers does not identify the one called the "Central Organisation of Workers of Cuba (CTC)" according to its own statutes. In addition, the reference in section 15 to the workers' central organisation is not aimed at the setting up or maintenance of a system of trade union unity, but as an expression of full application of Article 3 of Convention No. 87.

The historical character of the trade union unity system of the workers' movement in Cuba is referred to once again.

Cuba's labour legislation does not make any reference to the structure to be adopted by trade unions, nor does it set out requirements for the exercise of trade union activity. This is a matter which is up to the workers themselves. Section 13 of the Labour Code is clear on this point. Workers have the right to form organisations of their own choosing, without previous authorisation. The second paragraph of this section stipulates what is the framework of trade union activity, recognising that "the trade unions shall defend the interests and rights of the workers and seek to improve their living and working conditions". This responds in part to the ICFTU's comments which refer to the impossibility of creating trade union organisations. The legislation contains no such impossibility. The ICFTU promotes and defends a supposed trade union organisation called "independent". Huge resources are given for propaganda in the international press in support of a so-called trade union organisation which is known neither by the workers nor by the population and which is not at all representative of the workers. In Cuba there is not one central labour organisation which has organised a union belonging to the supposed trade union organisation fostered by the ICFTU. The impossibility to which the ICFTU refers is not in the legislation, but in the very fact that the workers themselves have not responded to nor supported the call of the ICFTU, which has tried to impose its criteria on how trade unionism should be carried out in the country. In these circumstances, the ICFTU's actions constitute trade union interference which aims at dividing the Cuban workers' movement.

The Committee of Experts also refers to and takes note of the ICFTU's comments on the appointment of trade union leaders and the functions assigned to trade unions as expressed in the statutes of the Central Organisation of Workers of Cuba or in the resolutions it adopts at its congresses. In this respect, the Government recalls that the Labour Code states that trade union organisations and the Central Organisation to which they affiliate voluntarily are governed by and act in accordance with the principles, statutes and standing orders democratically discussed and approved by their members, always in the framework recognised for trade union activity in the Code itself, which is the defence of workers' interests and rights and the improvement of their living and working conditions.

This means that the Government creates the appropriate legal framework for the exercise of trade union activities, but that the contents of trade union constitutions and rules, the way they elect their leaders and the functions attributed to them in the framework of the resolutions adopted by workers' congresses remains a question exclusively within the jurisdiction of the organisations themselves.

In addition, the Government points out that the observation's comments on the contents of trade union statutes go beyond the framework of Convention No. 87 on freedom of association, since this Convention is limited to recognising the right of employers' and workers' organisations to draw up their own constitutions and rules, to elect their representatives in full freedom, to organise their administration and activities; this right is recognised by the Labour Code and has been exercised in practice by the organisations existing in Cuba.

The Government does not know which provisions of Convention No. 87 on freedom of association allow the ICFTU or the Committee of Experts to set out the criteria for statutes of central trade union organisation when the laws of the country lay down the right of organisation to draw up their own statutes and to function in accordance with trade union principles and with the standing orders democratically discussed and approved by their members, for the defence of workers' rights, in the manner recognised by sections 13 and 15 of the Labour Code.

If the Committee of Experts wishes to have an explanation of these statutes, which do not go beyond the limits of freedom of association, it is not really the Government which should be asked to supply information, and even less in the form of an observation, since this question is outside Convention No. 87 and since these statutes have been drawn up, discussed and approved by the trade union organisations at their workers' congresses.

In addition, a Government representative, referring to the complete written reply of her Government, highlighted that article 13 of the Labour Code recognises the right of all workers, manual and intellectual, to associate themselves voluntarily and to organise unions without any authorisation. The rest of the Labour Code must be viewed in the light of this premise dedicated to trade union action. Also, the mention made in article 15 of the Code about the Central Organisation of Workers is not meant to institutionalise a single union system. This provision is merely aimed to fulfil the requirements of Article 3 of the Convention, and it reaffirms that the union organisations act in pursuance of the principles, by-laws and regulations which are discussed and approved democratically by their members. Even if the regulations and by-laws of the Central Organisation of Workers (CTC) give rise to some misgivings in the view of the Committee of Experts, the Government cannot adopt any measures to change these by-laws because they were adopted freely by the congresses of the workers without any state intervention.

The Workers' members expressed their gratitude to the Government for providing complete written and verbal information to the Conference. Over the years, the Workers have attempted within this Committee to have this Convention applied to the circumstances which existed in those States that had a single party system and a single trade union movement. In many of the countries which have pursued this dialogue, this problem is becoming less and less frequent. To dissipate any misunderstanding, the Workers' members underlined that they were not suggesting that the legislation has to prescribe any one form of trade unionism, be it single or pluralistic. What they were suggesting was that the legislation should make it clear, both in law and subsequently in practice, that workers can establish trade unions of their own choosing. As to the wording of the law which clearly created a misundertanding of what the situation is by referring to the Central Organisation of Workers in Cuba by name, the Workers believed that it would be useful to change the law so that there is no further confusion either in the minds of the Committee of Experts and indeed in the minds of the general population in Cuba. The Workers' members had great difficulty in dealing with a situation in which the party runs the trade unions as well as the Government. Concerning the observation of the Government representative that it would be either for the Government itself or for the Committee of Experts to examine the by-laws of trade unions, this argument did not help to advance the discussion because the party is, in fact, both the Government and the trade union movement. The Workers' members therefore wanted a situation in which it would be possible for any trade union to be set up in Cuba without any intervention from the Government, or the party or anybody else. This was a legitimate argument in their opinion because under Cuban law at the present moment it is not possible for independent trade unions to operate freely. They want to suggest to the Government that it might seek advice from the ILO to reconsider the situation through further consultations inside the country.

The Employers' members stressed that the application of the Convention in Cuba is a well-known case that has been already discussed in the Committee as well as commented upon by the Committee of Experts on five occasions in the past ten years. The question is whether a unified trade union movement laid down by law is in conformity with the Convention. Obviously, if it is imposed by the State, this is incompatible with the Convention. In the past, some governments argued that there is no violation of the Convention if the workers themselves at one particular stage in history have demanded this unity; in such case the unity would result from the wish of these workers, which the State confirmed in one or another form. The Employers' members could never accept this view and the Committee has never accepted it either. Now the Government puts forward new arguments, of a linguistic nature, stating that the Convention simply says that there must be the freedom of choice of trade unions, and once a trade union has been chosen, the Convention has been complied with. This is obviously out of line with the word and spirit of the Convention. The freedom to establish a trade union and the freedom to join it should not just have existed at one point in time, this freedom must be exercisable at any time. In a country where there is trade union unity, a more pluralistic system may arise at any time; this freedom must therefore be upheld. Another linguistic argument used by the Government consists in suggesting that in Cuba a central trade union organisation is not like a central trade union organisation in other countries where there are competing organisations. Nevertheless, one cannot but note that, as in the past, there is still a system of trade union unity in Cuba which is laid down in law, which is in clear contradiction to the Convention. The Employers' members expressed the hope that the Government will perhaps come up with some new ideas and will actually guarantee this freedom in legislative form so that workers will be able to chose freely the trade union they want to join. At the moment, however, this is not the case and the Employers' members have to note this with regret.

A Workers' member of the United States stated that over all those years the majority of the membership of the Conference Committee has agreed that there is no prohibition in the Convention of trade union unity, but there is a violation of the Convention when that is established by inserting in legislation the name of a single trade union, together with the appointment of the trade union leaders by the Communist Party. That is the core of the problem. This Committee has always viewed that kind of legislation as institutionalising a single trade union which is not derived from the will of workers.

The Workers' member of Cuba indicated that the Central Organisation of Workers of Cuba was created even before the revolution and before the adoption of the present Constitution of the Republic. It is completely wrong to claim that trade union leaders in Cuba are appointed by the Communist Party; there are more than 300,000 of them in the country, which is about 10 per cent of the labour force, and they were elected as leaders by secret ballot. There is not just one single union organisation in Cuba but one central organisation which brings together 18 national unions: there are more than 70,000 union bodies throughout the country and all working establishments without exception have elected their own leaders. The workers choose their trade union organisation, approve their by-laws and freely make their own decisions.

The Government representative recalled that workers have the right to establish the organisations of their choice in conformity with article 13 of the Labour Code, this provision being the starting point of any analysis of other articles in this section of the Code. The labour legislation does not contain any reference to the structure of the unions, nor does it contain any requirements as to their activities: this is a question which is decided by the workers themselves. The structure, functions and by-laws of the unions are adopted by them and by the Central Organisation of Workers at their congresses without any intervention of the State. This is why the Government cannot put forward any suggestions on the contents of these by-laws.

A Workers' member of the Netherlands asked what the Government and workers would lose if mention of the CTC would be deleted from the law as, according to the declarations of the Government representatives, 98 per cent of workers or even more wished to have a central trade union organisation, and the Government declares not to intervene in the internal affairs of trade unions. It is therefore legitimate to ask why the Government insists so stubbornly on keeping the reference to the CTC in the law if there would not be any change in practice if it were deleted.

The Workers' members reiterated their invitation to the Government to reconsider the situation with the help of the ILO in order that any misunderstanding would be dissipated and progress would be achieved soon in this respect.

The Government representative, the Minister of Labour and Social Security, replied that the Cuban Government has requested and received on numerous occasions the assistance of the ILO. When the Government deems it necessary it calls for help taking account of the needs and the realities of the country and not on criteria imposed by others. It is incorrect to say that the Communist Party appoints trade union spokespersons; they are nominated and freely elected by the workers. At its last congress a part of the leadership of the Central Organisation of Workers of Cuba was changed by the will of the workers themselves, as it is their right to do. The current leadership was elected from construction and tobacco workers. Cuba is currently engaged in the modification of certain texts, for example resolution No. 590 and a series of amendments to the Constitution. However, for any modification concerning mention in law of the CTC the decision should be taken by the workers; it cannot be taken by the Government because the initiative has to be taken by the workers. Replying to the Workers' members of the Netherlands, the speaker said that the Government and the workers of Cuba would lose nothing if mention of the CTC would be taken out of the law, but he once again underlined that any modification of the Labour Code in this sense should be discussed with the workers as all of them have participated in the discussions to elaborate the text of the Labour Code. A campaign external to the country seeks to divide the Cuban people, but the workers will not permit this no more than the external world can tell them what form of union organisation should be adopted.

The Workers' member of Cuba assured that in his country trade union organisations were independent and requested that his reservation on this conclusion be reflected.

The Committee noted the information given by the Government on points the Committee has been discussing for several years. It stressed the importance of the existence of independent trade unions which it regrettably felt bound to conclude do not seem to exist in the country. Therefore the Committee urged the Government to consult with the ILO on the situation under debate. It hoped that the Government will send a full report on these questions to the competent organs of the ILO and that the Committee will be able to conclude the situation being in full conformity with the Convention at one of its next sessions.

The Workers' member of Cuba assured that in his country trade union organisations were independent and requested that his reservation on this conclusion be reflected.

Individual Case (CAS) - Discussion: 1991, Publication: 78th ILC session (1991)

A Government representative esteemed that the Committee of Experts should take into account article 13 of the Labour Code which specified that all workers, whether blue or white-collar, had the right to associate freely and form trade unions without prior authorisation. The Committee of Experts did refer, however, to section 15 of the above-mentioned Code which specified that trade unions and the workers' organisation to which these freely belonged, acted in conformity with the principles, statutes and rules which were discussed and democratically approved by their members. As could be observed from the reference made in this article to the workers' organisation, the intention was not to institutionalise or maintain a single trade union system but to guarantee on the one hand, that trade union organisations be voluntarily created, be run and operate according to their statutes and on the other hand, to ensure democratic approval by the members. The principles embodied in the Convention were thus enshrined in the national legal order. The existence of the Central Organisation of Workers did not mean that it was imposed by law nor did the law contain any prohibition whatsoever on the creation of trade union organisations in number different than exist, if such was the wish of the workers. The Labour Code contained no reference to trade union structure; neither did it contain any disposition to obstruct or prohibit the formation of trade unions. The part of the Labour Code which dealt with trade union organisation was devoted to the necessary guarantees for the free exercise of trade union activities. The Cuban Central Organisation of Workers did not exercise a monopoly over trade union representation as stated by the Committee of Experts. The Organisation consisted of a body of national trade union branches operating within provincial and municipal structures. For the entire country, 98 per cent of the country's workers were affiliated to 17 national union branches in which 70,000 union sections could be counted. Each national union held its own congresses, adopted its own statutes and resolutions and freely elected its own leaders without state intervention of any form. The Cuban Central Organisation of Workers, which had existed since 1939 - well before the adoption of Convention No. 87 - had not been created by law. Since late last century, the worker movement had aimed to unite all workers and this had been maintained ever since.

Section 61 of Legislative Decree No. 67, relating to the organisation of State central administration, specified that in fulfilling its functions, the State Commission for Labour and Social Security must maintain close collaboration with the Cuban Central Organisation of Workers. This disposition " far from restricting trade union freedom - guaranteed that any decision relating to the rights of workers would not be adopted by the State without prior consultation of trade union organisations. In practice, it was the branch unions which developed the necessary criteria for decision-making. If specific reference was made to the Central Organisation of Workers this was because it encompassed 98 per cent of the country's workers. The workers themselves would decide, without recourse to a law, when this situation should change, for that would not be in keeping with the Convention. The Government representative recalled that the Convention stipulated neither trade union unity nor pluralism but was restricted to recognising and ensuring the will of workers, as did section 13 of the Labour Code.

It was significant that the Committee of Experts had chosen to refer to the comments made by the International Confederation of Free Trade Unions (ICFTU) before awaiting the Government's response and that the present Committee had decided to include this question on the list of cases for discussion. Her Government was a founding Member of the ILO and had always faithfully respected its obligations stemming from the Constitution and the Conventions it has ratified. Cuban trade unions performed the range of activities which preoccupied the ICFTU because they themselves had obtained this right. Trade union organisations in each of the different enterprises, organs, industrial or agricultural entities and other services participated at all levels in the decision-making process concerning social issues with the full support of their members. They were engaged in ensuring that production plans were fulfilled and that work was carried out efficiently for they knew that the fruit of their efforts would not be paid into an employer's bank account; the profits would be invested in social benefits for all workers and for economic development as a whole.

The Workers' member of the United States, on behalf of the majority of Workers' members, declared that the Government representative had tried, in her intervention, to convince the Committee that the workers in her country were completely free to establish their trade unions on a voluntary basis and without any constraint, in conformity with the Convention. Although the free and voluntary decision by workers to organise themselves into one single trade union was not in itself contrary to the Convention, the mandatory imposition by legislation of a single trade union, together with other restrictive measures, intimidation or other constraints upon the freedom to choose a trade union were prohibited by the Convention. However, as indicated by the Committee of Experts, the fact that sections 15, 16 and 18 of the Labour Code cited the Central Organisation of Workers (CTC) by name without mention of other trade unions, was tantamount to institutionalising a system of trade union unity. This was the core of the problem. In this regard, mention of a single trade union in national legislation had always been considered by this Committee as a violation of the workers' right to freely and spontaneously choose their trade unions, as guaranteed by the Convention. Lastly the speaker announced that he would not comment on the observations of the ICFTU in view of the fact that the Committee of Experts had deferred its examination.

The Employers' members conceded to the Government representative that the Convention did not deal with situations of trade union pluralism or monopoly. The Convention did however require that trade unions and employers' organisations be able to form freely. This possibility did not exist if only one trade union was mentioned by name in the national legislation. According to the Convention workers and employers must be able to make and revise their decisions freely. There was no objection to a monopoly existing in practice, but when imposed by law, workers would be deprived of their right of free choice. This was also the case where monopoly could be explained by historical circumstances. In such a case it was neither necessary nor acceptable that it be enshrined in the legislation. The state of monopoly was not altered by the fact that trade union sections existed at branch and regional levels. The issue concerned organisation at the top and it was clear that, at this level, a monopoly was held. If indeed, as indicated by the Government in its report and in the intervention of its representative, the Labour Code authorised the creation of new trade unions, the problem could easily be solved by deleting the specific reference to the Cuban Central Organisation of Workers, so as to iron out all uncertainties. Doubts none the less remained over whether the true intention of the Government was to guarantee such freedom, for otherwise there would be no reason to argue so strongly in justification of the need for a single trade union. This clearly showed a desire to maintain the status quo. While recognising that it was appropriate to await the government response before examining the observations made by the ICFTU, the Employers' members stated that Cuban legislation was clearly in violation of the Convention.

The Workers' member of Cuba declared his full support for the declarations made by the Government representative of his country. After stressing the contents of the aforementioned section 13 of the Labour Code, he recalled that according to section 14 of this Code, workers had the right to meet, to discuss and to freely express their opinion on any question which interested them. This was current practice in his country. The trade unions covered all branches of the economy and all collective groups of workers belonged to them. Trade union organisations were formed by the workers' free will and no prior authorisation was required from any other organ. The election of union leaders was always conducted by all members by means of secret ballot. Thus more than 70,000 union organisations had elected over 350,000 union leaders, which represented 10 per cent of all workers. These figures clearly demonstrated the participation of Cuban workers in the worker movement, at a time when many trade union organisations throughout the world had been weakened under government pressure. In Cuba no legislation nor agreement between union and employer required affiliation to a union. The progress achieved by the unions and the prestige they had accumulated throughout their struggle arose from a long tradition of union affiliation. Trade union fees are voluntary and not deducted from wages. Each worker gives to the trade union accountant of the centre trade union the fees fixed for the affiliates. Union organisations were self-financing organisations by means of the fees paid by their members. They were not subsidised either by the State, a party, an enterprise, or national or international organisations. Cuban trade unions were independent from the outset as they had their own resources. They were neither state organisations nor party organisations. They had their own congresses during which national leaders were elected. It was the members themselves and not any special category amongst them who proposed candidates for the posts of trade union leaders. Following proposals made in this manner by the workers themselves, a list of candidates was established in the order in which they were proposed, procedures of secret and direct voting were used in electing all trade union leaders in Cuba. In his knowledge, there was no other country where election was as democratic and where such wide participation of workers occurred. For this reason the comments made on this matter were quite unacceptable. It was equally false to suggest that the Cuban Central Organisation of Workers exerted pressure on unions to raise productivity and to impose discipline work. The only obligation existing within the trade union organisations was the respect of decisions taken by majority. Thousands of trade union leaders had participated in the elaboration of the statutes, of the Central Organisation of Workers and over 2,500 democratically elected had attended the 16th Congress of 1990.

The Workers' member of the United States indicated that the declaration made by the Workers' member of Cuba clearly reflected what happened in a country where, as the Committee of Experts had underlined, trade union unity had been institutionalised.

The Workers' member of Uruguay referred to his own country's experience of trade union unity. It was indeed important to find ways of perfecting legislation so as not to institutionalise the principle of trade union unity, for this must be freely achieved by the workers themselves. From the experience of his own country, however, it emerged that trade union unity was a virtue and a natural tendency deriving from the struggle against those who sought to"divide and rule". Trade union unity did not run counter to pluralism if, as in his country, it was created through the free will of the workers without any legislative obligation. The Cuban worker movement was sufficiently mature to accept this tendency towards unity. This was not merely a characteristic of Cuba or Uruguay. Other countries had also witnessed the same tendency. This did not mean that workers were wrong in preferring trade union pluralism, but the events dealt with in the case of Colombia showed that trade union unity could also become necessary.

The Workers' member of the USSR, drawing on the experience of his country, underlined that the fact that Cuban legislation mentioned only one central organisation of workers in no way prevented Cuban workers from forming other unions if they so wished. Moreover, he fully supported the declaration of the Employers' members that examination of the observations made by the ICFTU should be deferred, as the Committee of Experts had in fact done. This was all the more so, since much of these observations were not related to the Convention.

The Workers' member of Venezuela made a detailed declaration on the free and democratic development of the trade union movement in his country where a state of trade union pluralism existed. He stressed that workers could not be prevented from freely creating unions of their own choice and trade union leaders could not be prevented from running them; nor should they be threatened, imprisoned or made redundant as a result of their union activities. Cuban workers were responsible for their own acts and the Cuban Central Organisation of Workers was free to act as it thought best. Following the principle of trade union freedom it was unacceptable that the legislation of any country prevent workers from freely organising, from electing their leaders or from participating in international meetings. Lastly, he declared his concern at the dismissal without explanation of two Cuban trade union leaders.

The Workers' member of the United Kingdom declared that it was only normal that all trade unionists believed in the principle of trade union unity and free elections. All trade unions sought to enlarge their membership. These were objectives for which trade unionists throughout the world fought. On the other hand, it was unacceptable that in achieving these objectives trade unions should seek the help of their government, for this might set a precedent for governments to interfere in trade union matters, which would be fatal for the trade union movement. Unity was a good thing in itself but should not drive governments to enshrine it in the legislation of their country. Pluralism, futhermore, was not an end in itself. This did not mean that in every country there had to be a dozen confederations, nor even that pluralism must be exercised in practice. It was, however, essential that pluralism be authorised by the law if the workers requested it. He asked the Government representative to indicate whether it was true that trade unionists had been imprisoned in Cuba because they had tried to set up independent trade unions; if this were indeed the case, the situation was much more serious than previously thought.

The Workers' member of Cuba declared his infinite respect for the international trade union movement. The solidarity of Cuban trade unions with the various central organisations throughout the world was manifested by the relations which Cuban unions maintained with them. The Cuban Central Organisation of Workers would always respond to the questions and requests for information of any other central trade union organisation. Speaking of the two Cuban trade union representatives whose dismissal had been brought up, he alleged that one now held an eminent post in one of the most important enterprises in Cuba, while the other held a position of responsibility in a health institution which had contacts throughout the world. By means of conclusion, he confirmed that Cuban workers were free to form the unions of their choice, and up until now this had been the Central Organisation of Workers.

The Government member of Argentina declared that a distinction must be made between the rights of workers and those of trade union organisations. The right of workers was essentially to choose freely their organisations. Trade unions needed the right to form federations and confederations. There seemed to be a certain amount of confusion because Cuban legislation reflected reality by mentioning only the Central Organisation of Workers, but it did not prohibit the creation of other central organisations. A violation of the Convention would only occur if a government decision prevented trade unions from creating another central trade union organisation of their choice. Cuban legislation, however, did not contain any such prohibition and merely described a situation; the mention made of the Cuban Central Organisation of Workers was not restrictive. It was, however, naturally important to improve the legislation so as to avoid further confusion on this point.

The Employers' member of Cuba referred to the various interventions concerning the single central trade union organisation of Cuban workers and indicated that this central was created for historic reasons. Given the origin of the Cuban trade union movement one could see clearly that there were never two organisations in the country. He gave as an example the fact that, during the fight against the Batista tyranny, the trade union that participated in the opposition invoked the possibility of creating a parallel central trade union and this question was raised by the Federation of Students at the Havana University (FEU) who were at the centre of this fight. However, it was preferable to preserve the unity of the trade union movement and for historical reasons there was no objection to the trade union leaders who were a part of the tyrannical regime or revolutionaries according and having prestige.

The Workers' member of Colombia stated that he could not associate himself with the group of persons who intended to create an atmosphere in Latin America against Cuba and expressed his concern that certain international forums were letting this happen. The world was tired of invasions and now other countries in Latin America were being confronted with the possibility of suffering the same destiny. There were examples which were known to everyone. It was necessary to avoid Cuba following the same road as Panama and Grenada. He referred to the intervention of the Workers' members the previous day who referred to the possibility that, because of the difficulties faced by Colombia, an invasion could be foreseen. Difficult situations had been continuing for years, but this should not be the cause, for any reason, of the intervention of a power, which had played the role of international policeman in order to impose its own conditions and ideologies. The speaker called upon the Cuban delegates to open its doors to the ILO in order to be a deeply democratic body and to facilitate all the activities of the Committee of Experts or any commission of inquiry and, in this way, block the possibility for excuses to be found to threaten Latin American countries with an intervention. The rights of workers were revindicated by the workers themselves and not imposed by outside powers.

The Workers' member of Venezuela stated that, independently of the juridical and doctrinaire conception that oriented labour legislation in Cuba, there were two issues at hand: (i) the Cuban Labour Code, and (ii) the application of international labour standards. He expressed his deep concern as regards the following questions: (1) How could one explain the detention of trade union leaders for the mere fact of being in disagreement with the Cuban trade union practices? (2) Why had Cuban workers in exile constituted trade union organisations outside Cuba because all initiative of this nature was condemned by the repression of the State? (3) Why did Cuban trade union leaders look for several Cuban workers' delegations in order to find exile? All these facts proved the lack of freedom of association in Cuba.

The Workers' member of Ecuador stated that it was necessary to hope that the Cuban Government would send its reports on the allegations. Furthermore, he pointed out that the workers of Latin America and the Third World endeavoured to create central workers' units. This theme, in the next years, would be of capital importance for the ILO, even though it would be produced by a motive of subsistence against the continuing aggression faced by the workers. The speaker expressed that any study to take place in respect of Cuba should be done impartially and thus would obtain the results that would reflect the free decision of the workers. He stated that the CTC was made up of 98 per cent of Cuban workers. These workers were able to freely express their opinions, claims and demands despite the obstacles facing their country. If there was an intervention by the Government in trade union life it was only through the direct dialogue with the Cuban leader of the revolution. Cuban workers had been given the organisation which corresponded to their interests and this was going to be the road that all workers would follow.

The Workers' member of Colombia stated that the dialogue in the present Committee should not create a hostile atmosphere for Cuba. He pointed out that it would be best if the ILO noted the truth about Cuban workers, who, from a legal standpoint, did not have any obstacles to their right to freely associate. He congratulated the Cuban workers for having created a single confederation, independent of political and ideological convictions. He stated that the Workers' Confederation Unit of Colombia was made up of 80 per cent of trade union workers in a country where only 7 per cent of all workers were unionised and where trade unionists were assassinated daily. Over 480 trade union leaders had been assassinated. The ILO should not raise legal problems of this nature against Cuba when more serious situations existed in other countries. The speaker completely supported the declarations made by the Workers' member of Cuba.

The Government representative of Cuba reiterated that, with respect to the opinions expressed on the right of workers to create organisations, the first section of the Labour Code guaranteed the right of all workers to freely associate and to establish trade union organisations, without prior authorisation. This should be the basis of any legal analysis concerning the right to establish trade union organisations in her country. She stressed that this right was not regulated by legislation as it was the workers themselves who determined the form, structure and function of these organisations. Furthermore, she pointed out that various interventions referred to rumours of imprisoned trade unionists. It is possible that some could be taken to be trade unionists. She stated that in Cuba there was no imprisonment for trade union activities. She stated that if any member would cite the name or details of any imprisoned trade unionist, the Government would make the necessary investigation and submit the relevant information.

The speaker pointed out that Cuba had participated in the Committee for several years and had proved its desire to fulfil its constitutional obligations. Her country has been open to constructive dialogue and cooperation with the ILO in conditions of mutual respect.

The Committee took due note of the information provided by the Government representative and of the extensive debate which had taken place. It recalled that, for several years now, the Committee of Experts had commented on certain discrepancies between the national legislation and the Convention, in particular with regard to the need to delete references in the national legislation to the trade union referred to as the "Central Organisation of Workers". This Committee, like the Committee of Experts, noted the comments made by the International Confederation of Free Trade Unions (ICFTU) alleging serious violations of the application of the Convention in law and in practice which were recently presented to the Office. It expressed the firm hope that the Government would rapidly take the necessary measures to delete the reference in the legislation to the Central Organisation and that it would reply in a detailed manner to the comments made by the ICFTU in its next report so that it would be in a position to pursue the dialogue with the Government next year.

Observation (CEACR) - adopted 2023, published 112nd ILC session (2024)

Replies received to the issues raised in a direct request which do not give rise to further comments (CEACR) - adopted 2019, published 109th ILC session (2021)

Observation (CEACR) - adopted 2019, published 109th ILC session (2021)

Observation (CEACR) - adopted 2016, published 106th ILC session (2017)

Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

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).

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

The Committee notes the Government’s report and its reply to the observations made by the International Confederation of Free Trade Unions (ICFTU, now ITUC – the International Trade Union Confederation) on 10 August 2006, which related to pending issues of law and practice, as well as the detention and imprisonment of trade union leaders.

The Committee notes that the Government once again reiterates that the process of revising the Labour Code is continuing and that, for this purpose a broad consultation procedure is being carried out, including with the 19 national branch unions and the Confederation of Cuban Workers. In this respect, the Committee observes that this process has been going on for many years without tangible results as yet being achieved. The Committee hopes that the revision of the Labour Code will be completed in the near future and that the comments 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 text to which it refers.

I.         Trade union monopoly

Articles 2, 5 and 6 of the Convention. The Committee observes that it has been referring for many years 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 statement that the legislation in force and every day practice in all work units guarantees the full exercise of trade union activities and the broadest application of the right to organize. According to the Government, there is no prohibition in the Labour Code on workers being able to opt for the form and structure of trade union of their own choosing and that section 15 of the Labour Code essentially reaffirms the provisions of Article 3 of the Convention. The statutes, rules and principles governing the activity of the 19 national branch unions and the Confederation of Cuban Workers in which they are federated of their own will are discussed and approved by their own congresses, and there is no provision in law setting standards relating to trade union structure. The Government also emphasizes that the Cuban tradition of unity in the trade union movement culminated in the establishment of the Confederation of Cuban Workers in 1939, not under the terms of any legislative provision, but by the free will of the workers. According to the Government, neither the 19 branch unions, nor the Confederation of Cuban Workers nor the trade union chapters numbering over 70,000 have had to seek authorization to exercise their activities freely in work units. 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). In these circumstances, 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 that the Government reiterates that this provision was amended by Legislative Decree No. 147 of 1994 and that Agreement No. 4085 of 2 July 2001 is currently in force. In this respect, the Committee observes that Legislative Decree No. 147 of 1994 does not explicitly repeal the above section and that a copy of Agreement No. 4085 has not been provided by the Government and is not available to the Committee. In these circumstances, the Committee firmly urges the Government to amend 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 “most representative organization”. The Committee also requests the Government to provide a copy of Agreement No. 4085 of 2 July 2001.

II.        Right to strike

In its previous observation, the Committee referred to the fact that the right to strike is not recognized in the legislation and that its exercise in practice is prohibited and it requested the Government to take measures to ensure that no one is discriminated against or prejudiced in their employment for having peacefully exercised this right, and to keep it informed in this connection. The Committee notes the Government’s repeated statement 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. Cuban workers benefit from participatory and democratic social dialogue at all levels of decision-making, and an approach based on collaboration rather than conflict has been strengthened, leading to the improvement of wage levels, social security benefits and safety and health measures, among others, as well as the continued development of their capacities. Trade union representatives participate in all processes of the formulation of labour and social security legislation and on many occasions draft texts are sent for consultation to workers’ assemblies in work units. According to the Government, if Cuban workers ever decided to have recourse to strike action, nothing could prevent them from exercising it. The Committee recalls that the right to strike is one of the essential means through which workers and their organizations may defend their economic and social interests and requests the Government once again to guarantee explicitly in law that no one is discriminated against or prejudiced in their employment for the peaceful exercise of this right.

III.       Trade union rights and civil liberties. The conviction of trade unionists

The Committee recalls that in its previous comments it referred to trade union leaders being sentenced to between 12 and 26 years in prison for treason and conspiracy and it requested the Government to take the necessary measures for the immediate release of the trade union leaders sentenced to severe penalties of imprisonment. The Committee notes that in its comments of 2006 the ICFTU referred to: (1) the detention of Juan Antonio Salazar of the Free Cuban Workers Union on 10 January 2006 under the accusation of alleged threats of which he had no knowledge; and (2) six of the seven independent trade union leaders convicted to sentences of between 12 and 26 years of imprisonment remained in prison and that the seventh had to serve his sentence at home or in hospital for health reasons. In this respect, the Committee notes the Government’s indication that Mr Salazar was not detained, because he was not representing any group of Cuban workers, but that he had been without work since 1995 with a long criminal record for common offences, and had been prosecuted on several occasions. The Government adds that Mr Salazar left the country on 29 November 2005. With regard to the convictions of the trade union leaders, the Committee notes the Government’s indication that: (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 expressions; (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.

The Committee nevertheless observes that the Government refers to generic charges, without indicating the tangible acts which gave rise to the conviction of these persons, whose release has furthermore in many cases been requested by the Committee on Freedom of Association. The Committee recalls once again that the freedom of industrial association is but one aspect of freedom of association in general, which must in itself form part of the whole range of fundamental human liberties, all interdependent and complementarity one to another 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 and regardless of frontiers; (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 circumstances, the Committee once again requests the Government to take the necessary measures to secure the immediate release of the trade union leaders sentenced to severe penalties of imprisonment.

Finally, the Committee notes the observations of the International Trade Union Confederation (ITUC) of 28 August 2007, which refer to the issues of law and practice that are already examined and to specific cases of the detention of workers who are members of the Independent National Workers’ Confederation of Cuba (CONIC), persecution and threats of imprisonment against delegates of the Light Industry Workers’ Union (SITIL) and the confiscation of materials and humanitarian aid sent from abroad to the Single Council of Cuban Workers (CUTC). The Committee requests the Government to provide its observations on these specific cases, in view of the fact that its reply does not specifically address them.

Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes the comments of 10 August 2006 by the International Confederation of Free Trade Unions (ICFTU) on the application of the Convention. The Committee requests the Government to send its observations on these matters.

The Committee requests the Government, in the context of the regular reporting cycle, to send for examination at the Committee’s next meeting, to be held in November-December 2007, its comments on all the issues of law and practice raised in the previous observation (see observation 2005, 76th Session).

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

The Committee takes note of the Government’s report and of the comments made by the International Confederation of Free Trade Unions (ICFTU). The Committee also notes the Committee on Freedom of Association’s report on Case No. 2258, adopted at its March 2005 meeting.

The Committee observes that the Government reiterates that the Labour Code is currently being revised and that: (1) the comments made by the Committee are not the only comments which are being studied within the framework of the Labour Code; (2) almost all of the chapters of the Code have been revised and adjusted to the social and economic conditions of the country; (3) the workers, the employers, bodies, institutions and all the sectors involved participate in the consultations carried out within the framework of the aforementioned process and efforts are being made to arrive at a consensus with regard to all of the elements to be amended. In this regard, the Committee observes that this process has been ongoing for several years without any concrete results having been obtained to date. The Committee expresses the firm hope that the revision of the Labour Code will be completed in the near future and that the comments made regarding the application of the Convention will be taken into account. The Committee reminds the Government that it may avail itself of ILO technical assistance and requests it to send a copy of the above draft revision.

I.  Trade union monopoly

Articles 2, 5 and 6 of the Convention. The Committee notes that for several years now it has referred to the need to delete from the Labour Code of 1985 (sections 15 and 16) the reference to the Confederation of Workers. The Committee also notes the comments of the ICFTU concerning the Government’s recognition of a sole trade union confederation, strictly monitored by the State and the Communist Party which appoints its leaders, as well as the obstacles to setting up independent trade unions in the form of the restrictions contained in the Law on Associations. The Committee notes that the Government states that: (1) the Government did not impose the single trade union confederation, to which the 19 national branch trade unions are affiliated, upon the people, neither is this confederation the result of any provision which goes against the will of the workers of Cuba; (2) the decision of the workers to maintain the singular nature of their trade union movement should be respected as a prerequisite to the independence of the nation and the continued enjoyment of the right to self-determination; (3) existing legislation (section 54 of the Constitution of the Republic and sections 13 and 14 of the Labour Code) and practice guarantee the full exercise of trade union freedom and the widest possible enjoyment of the right to organize; (4) claims that the Law on Associations is being used to block the creation of trade unions are inappropriate, in as much as section 2, chapter I of the aforementioned law explicitly establishes that the law is not applicable to grass roots and social organizations as referred to in section 7 of the Constitution, neither does the existing Constitution establish any restrictions whatsoever with regard to freedom of association of the workers or workers’ activities.

The Committee once again emphasises that trade union pluralism must remain possible in all cases and that the law must not institutionalize a de facto monopoly by referring to a specific trade union confederation. Even where at some point the workers have preferred to unify the trade union movement, they should still remain free to set up unions outside the established structure, should they so wish and to join the organization of their choice (see General Survey on freedom of association and collective bargaining, 1994, paragraph 96). This being the case, the Committee requests the Government to take measures to amend the aforementioned sections of the Labour Code and to provide information in its next report regarding any measures adopted in this respect.

Article 3. The Committee recalls that in its previous observations it referred to the need to amend Legislative Decree No. 67 of 1983, which confers on the Confederation of Workers the monopoly to represent the country’s workers on Government bodies. The Committee notes that the Government reiterates the position it adopted in its previous report and insists that this provision has already been amended. In this connection, the Committee notes that the sixth provision of Legislative Decree No. 147 of 1994, which the Government has referred to on various occasions as having amended Legislative Decree No. 67 of 1983: (1) does not make reference to section 61 of Legislative Decree No. 67 so as to repeal or amend it; and (2) establishes in its first provision that Legislative Decree No. 147 of 1994 "confirms the organizational and operational basis established in … legislative Decree No. 67 of 19 April 1983 … shall remain in force in so far as they are not contrary to the provisions of this Legislative Decree". Consequently, the Committee requests the Government to provide information it in its next report on the legal provision through which Legislative Decree No. 67 of 1983 was amended with regard to the monopoly of the Confederation of Workers concerning the representation of the workers of the country on Government bodies.

Right to strike. In its previous observation, the Committee referred to the fact that the right to strike is not recognized in Cuban legislation and that its exercise and practice is prohibited and recalled that the right to strike is one of the essential means available to workers and their organizations to promote their economic and social interests. It requested the Government to take measures to ensure that no one is discriminated against or prejudiced in their employment for having peacefully exercised this right, and to keep it informed in this connection. The Committee notes that in its latest report, the Government states that: (1) although the right to strike is implicit, it is not explicitly established in the Convention; (2) the existing legislation does not include any prohibition whatsoever of the right to strike, neither does Cuban legislation establish any penalty for the exercise of such rights; (3) trade union organizations are free to decide on their actions in this respect; and (4) the fact that Cuba is a state of workers, peasants and other workers, whether manual or intellectual, guarantees effective participation and the exercise of real decision-making power, which renders strike action unnecessary given that several labour dispute resolution mechanisms have been set up and are operationally effective and within which trade union representatives participate fully. The Committee once again requests the Government to ensure that no one is discriminated against or prejudiced in their employment for having exercised their right to engage in peaceful strike action.

II.  Trade union rights and civil liberties. The sentencing of trade unionists to imprisonment. 

The Committee recalls that in its previous comments it referred to trade union leaders being sentenced to between 12 and 26 years in prison for treason and conspiracy. The Committee notes the comments of the ICFTU, regarding these sentences and adds information concerning the degrading conditions of imprisonment suffered by the aforementioned trade union leaders. The Committee notes that the Committee on Freedom of Association referred to this issue when it last examined Case No. 2258 and that on that occasion it recommended that the Government should take steps to release immediately the imprisoned trade unionists and that the necessary measures should be adopted to ensure that no person is intimidated or harassed merely for being a union member, even if the union in question is not recognized by the State. The Committee notes that the Government, for its part, refuses to recognize both the imprisoned trade union leaders as workers and the trade union organizations under their leadership. It also denies that the sentences are linked to their trade union activities. As to conditions of imprisonment, the Government states that the prison system is constantly monitored by both the State and the judiciary, with the aim of protecting the rights of the inmates and their families and ensuring that no laws are violated.

The Committee recalls once again that the right to organize is but one aspect of freedom of association in general, which must itself form part of the whole range of fundamental liberties of man, all interdependent and complementary one to another and that, in a resolution adopted in 1970, the Conference explicitly listed the fundamental rights essential for the exercise of freedom of association, in particular: (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 and regardless of frontiers; (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 (see General Survey on Freedom of Association and Collective Bargaining, 1994, paragraph 25). Consequently, in line with the recommendation made by the Committee on Freedom of Association, the Committee requests the Government to take the necessary steps to release without delay the trade union leaders sentenced to heavy prison sentences.

Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee notes the comments presented by the International Confederation of Free Trade Unions (ICFTU) concerning issues raised in the Committee’s previous comments and the Government’s reply thereto.

The Committee will examine these matters, as well as all other outstanding issues raised in respect of the application of the Convention (see 2003 observation, 74th Session) during the regular reporting cycle in 2005.

Observation (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee notes the Government’s report, the comments made by the International Confederation of Free Trade Unions (ICFTU) and the World Confederation of Labour (WCL) and the discussion in the Conference Committee on the Application of Standards. The Committee of Experts also notes the report of the Committee on Freedom of Association on Case No. 2258, adopted at its session in November 2003.

I. Trade union monopoly

Articles 2, 5 and 6 of the Convention. With regard to the need to delete from the Labour Code of 1985 (sections 15 and 16) the reference to the Confederation of Workers, the Committee once again emphasizes that trade union pluralism must remain possible in all cases and that the law must not institutionalize a de facto monopoly. Even where at some point all workers have preferred to unify the trade union movement, they should still remain free to set up unions outside the established structure, should they so wish (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 96).

The Committee also notes the comments of the ICFTU concerning the compulsory membership of all workers of both the Confederation of Cuban Workers (CTC) and the Communist Party, as well as the Government’s categorical denial that there is an obligation in the legislation to be a member of the CTC, and its emphasis that workers do so on a voluntary basis. The Committee recalls that, in accordance with the resolution of 1952 concerning the independence of the trade union movement, the fundamental and permanent mission of the trade union movement is the economic and social advancement of workers and that to these ends it is essential for the trade union movement in each country to preserve its freedom and independence, and that for this reason governments should not attempt to transform the trade union movement into an instrument for the pursuance of political aims, nor should they attempt to interfere with the normal functions of a trade union movement because of its freely established relationship with a political party. The Committee requests the Government to guarantee the freedom of trade union membership of workers in accordance with the principles set forth above.

Article 3 of the Convention. With regard to the need to amend Legislative Decree No. 67 of 1983, which confers on the Confederation of Workers the monopoly to represent the country’s workers on government bodies, the Committee notes once again the Government’s statement that the above Decree was amended by the sixth provision of Legislative Decree No. 147 of 1994. In this connection, the Committee notes, as it did in a previous observation, that this Decree: (1) does not explicitly repeal or amend section 61 of Legislative Decree No. 67; and (2) establishes in its first provision that Legislative Decree No. 147 of 1994 "confirms the organizational and operational bases established in ... Legislative Decree No. 67 of 19 April 1983 ... shall remain in force in so far as they are not contrary to the provisions of this Legislative Decree". The Committee therefore once again strongly urges the Government to amend the above provision so as to guarantee the possibility of trade union pluralism, for example by replacing the reference to the Confederation of Workers by the words "the most representative organization".

The Committee also notes that, according to the information provided by the Government, these aspects are being examined within the context of the procedures for the revision of the Labour Code, which will be subject to a process of consultation beginning with workers’ assemblies; once the process of collecting and compiling the views of the workers has been completed, the draft text will be adjusted and then the ILO’s technical assistance will be requested, with a view to the subsequent submission of the draft text for approval by Parliament. The Committee notes that this process has been continuing for many years already and once again expresses the firm hope that it will be adopted in the very near future and will take into account the principle of trade union pluralism. The Committee requests the Government to send the Office a copy of the above draft revision.

Right to strike. The Committee notes the comments of the ICFTU, according to which the right to strike is not recognized in Cuban legislation and that its exercise in practice is prohibited. The Committee also notes the Government’s indication that the legislation does not regulate, restrict or prohibit strikes, but that the workers do not need to have recourse to them because the representative trade union organizations of the workers enjoy the necessary guarantees for their participation in the various bodies, both at the enterprise and government level, for the adoption of decisions affecting their interests. The Committee recalls that the right to strike is one of the essential means available to workers and their organizations to promote their economic and social interests. It requests the Government to take measures to ensure that no one is discriminated against or prejudiced in their employment for having exercised their right to engage in peaceful strike action and to keep it informed in this connection.

II. The Committee notes that both the ICFTU and the WCL in their comments, as well as the Conference Committee on the Application of Standards and the Committee on Freedom of Association (Case No. 2258), referred to the non-recognition of independent trade unions, and particularly the Single Council of Cuban Workers (CUTC), the threats, detention and sentencing of its trade union leaders to long prison terms (from ten to 26 years) for their lawful trade union activities, and the confiscation of trade union property. The Committee also notes the Government’s comments indicating that the CUTC is no more than a small group of persons who have never carried out trade union activities in any workplace, and which maintains relations with international trade union organizations to which it has supplied false information. According to the Government, the alleged trade union leaders were not convicted for their trade union activities, but by national courts in accordance with the legislation in force for offences set forth in the Cuban Penal Code prior to the facts and in accordance with the procedural guarantees set forth in the Constitution. The Committee of Experts nevertheless endorses the conclusions of the Committee on Freedom of Association in Case No. 2258 to the effect that some of the charges or acts indicated by the Government are too vague and are not necessarily criminal and can come under the definition of legitimate trade union activities and considers, also in the same way as the Committee on Freedom of Association, that the detention and sentencing of trade union officials or members for reasons relating to activities defending the interests of workers is a serious violation of public freedoms in general and of trade union freedoms in particular. The Committee of Experts also recalls that the freedom of industrial association is but one aspect of freedom of association in general, which must itself form part of the whole range of fundamental liberties of man, all interdependent and complementary one to another, and that in a resolution of 1970 the Conference has explicitly listed the fundamental rights essential for the exercise of freedom of association, in particular: (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 regardless of frontiers; (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 (see General Survey, op cit., paragraph 25).

The Committee requests the Government to take the necessary measures to guarantee in law and practice the right of workers to establish the organizations that they consider appropriate, in accordance with the Convention, the recognition of such organizations and the right of their members not to be subject to persecution, threats or detention and to exercise their trade union activities without interference by the Government. The Committee strongly urges the Government to take the necessary measures to free the detained trade union leaders referred to in the comments of the ICFTU and the conclusions of the Committee on Freedom of Association.

Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee notes the Government’s report and the comments made by the International Confederation of Free Trade Unions (ICFTU). The Committee requests the Government to send its observations on the ICFTU’s comments in its next report.

The Committee recalls that, in its previous comments, it referred to: (1) the need to delete from the Labour Code of 1985 the reference to the "Confederation of Workers" (sections 15 and 16); (2) the need to amend Legislative Decree No. 67 of 1983 (section 61), which confers on the Confederation of Workers the monopoly of representing the country’s workers on government bodies; and (3) recommendations by the Committee on Freedom of Association requesting the Government to ensure the recognition of certain trade unions.

1. With regard to trade union monopoly, the Committee notes that, according to the Government, these issues are being examined as part of the Labour Code revision process.

Articles 2, 5 and 6 of the Convention. Regarding the need to delete from the Labour Code of 1985 the reference to the Confederation of Workers, the Committee again emphasizes that trade union pluralism must remain possible in all cases. Accordingly, the law must not institutionalize a de facto monopoly. Even where at some point all workers have preferred to unify the trade union movement, they should still remain free to set up unions outside the established structure, should they so wish (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 96).

Article 3 of the Convention. With regard to the need to amend Legislative Decree No. 67 of 2983, which confers on the Confederation of Workers the monopoly to represent the country’s workers on government bodies, the Committee urges the Government to amend this provision in order to ensure trade union pluralism, for instance by replacing the reference to the "Confederation of Workers" by the term "most representative organization".

The Committee again expresses the firm hope that the draft revision of the Labour Code will be adopted in the very near future and will take account of the provisions of the Convention. The Committee requests the Government to send the Office a copy of the draft revision.

2. Regarding the recommendations of the Committee on Freedom of Association in Case 1961 (see 328th Report, June 2002), in which the Government was asked to ensure the recognition of the Single Council of Cuban Workers (CUTC) and to allow the latter full freedom to carry out its legitimate trade union activities without any threats, intimidation or pressure, the Committee notes that the Government reiterates its observations submitted in the framework of Case No. 1961 to the effect that the above organization has not been shown to carry on any union activities and that, consequently, the persons concerned cannot be assigned any union representational duties being neither leaders nor representatives of any group of workers in any entity in the country. The Committee reiterates that the freedom, de facto and de jure, to establish organizations is the foremost among trade union rights and is the essential prerequisite without which the other guarantees enunciated in Conventions Nos. 87 and 98 would remain a dead letter (see General Survey, op. cit., paragraph 44). The Committee hopes that the necessary measures will be taken to ensure that all workers enjoy this right both in law and in practice.

Observation (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee notes the Government’s report and recalls that its previous comments referred to: (1) the need to delete from the Labour Code of 1985 the reference to the "Confederation of Workers" (sections 15 and 16); (2) the need to amend Legislative Decree No. 67 of 1983 (section 61), which confers on the above Confederation of Workers the monopoly of representing the country’s workers on government bodies; and (3) various recommendations by the Committee on Freedom of Association requesting the Government to ensure that recognition of certain trade unions was allowed by law.

1.  Articles 2, 5 and 6 of the Convention.  Regarding the need to delete from the Labour Code of 1985 the reference to the Confederation of Workers, the Committee notes that the Government reports once again that the matter is being studied in the context of the draft revision of the Labour Code which involves broad consultations with the social partners. The Committee regrets, however, that the above draft has still not been adopted despite the Committee’s numerous requests to delete these references. The Committee emphasizes yet again that trade union pluralism must remain possible in all cases. Therefore, the law should not institutionalize a de facto monopoly; 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 (see General Survey on Freedom of Association and Collective Bargaining, 1994, paragraph 96). The Committee therefore expresses the firm hope that the draft revision of the Labour Code will be adopted in the very near future and that account will be taken of this principle.

2.  Article 3.  With regard to the need to amend Legislative Decree No. 67 of 1983, which confers on the Confederation of Workers the monopoly of representing the country’s workers on government bodies, the Committee notes the Government’s observation to the effect that the abovementioned legislation has been amended by the sixth provision of Legislative Decree No. 147 of 1994. The Committee points out that the latter: (1) does not expressly repeal or amend section 61 of Legislative Decree No. 147; and (2) confirms, in its first provision, that "the organizational and operational bases established in ... Legislative Decree[s] No. 67 of 19 April 1983 ... shall remain in force in so far as they are not contrary to the provisions of this legislative Decree". The Committee also notes the Government’s statement that Agreement No. 2820 of 1995 is now in force and approves the functions of the Ministry of Labour and Social Security (formerly the State Committee for Labour and Social Security). The Committee observes, however, that the Confederation of Workers of Cuba is again referred to in the final provision of the abovementioned Agreement. The Committee urges the Government to amend the provision in question in order to guarantee the possibility of trade union pluralism, for instance by replacing the reference to the Confederation of Workers with the "most representative organization".

3.  With regard to the recommendations of the Committee on Freedom of Association in Case No. 1961 (see 320th Report, March 2000), in which the Government was asked to ensure that the law allow recognition of the Single Council of Cuban Workers (CUTC), the Committee notes the Government’s statement that in fact no such trade union organization exists and that the trade union officers referred to have not been elected. The Committee reiterates that the freedom, de facto and de jure, to establish organizations is the foremost among trade union rights and is the essential prerequisite without which the other guarantees enunciated in Conventions Nos. 87 and 98 would remain a dead letter (see General Survey, op. cit., paragraph 44). The Committee hopes that the necessary measures will be taken to ensure that all workers enjoy this right, both in law and in practice.

Observation (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee notes the Government’s report. It also notes the conclusions and recommendations of the Committee on Freedom of Association in Cases Nos. 1628, 1805 and 1961 (see the 305th, 308th and 320th Reports, November 1996, November 1997 and March 2000, respectively).

The Committee recalls that its previous comments referred to: (1) the need to remove from the Labour Code of 1985 the reference to "Confederation of Workers" (sections 15 and 16); and (2) the need to amend Legislative Decree No. 67 of 1983 (section 61), which confers on the above Confederation of Workers the monopoly of representing the country’s workers on government bodies.

With regard to the need to delete the reference in the Labour Code to the Confederation of Workers, the Committee notes the Government’s indications that this is one of the aspects that is being examined in the framework of the revision of the Labour Code, for which working groups have been established with the participation of representatives of organizations, enterprises and trade unions and the Confederation of Workers of Cuba, which are currently preparing a first draft. In this regard, the Committee regrets that the revision of the Labour Code, which has been announced for several years, has not yet borne fruit. The Committee emphasizes that, in accordance with Articles 2, 5 and 6 of the Convention, which establish the right of workers and their organizations to establish organizations of their own choosing, it should be possible to establish federations and confederations and to establish several trade union confederations. In these conditions, the Committee hopes that the necessary amendments will be made to the Labour Code in the near future and requests the Government to provide information in its next report on any measure taken in this respect.

With regard to the need to amend Legislative Decree No. 67 of 1983 (section 61), which confers upon the Confederation of workers of Cuba the monopoly of representing the country’s workers on government bodies, the Committee recalls that, by virtue of Article 3 of the Convention, workers’ organizations shall have the right to organize their activities and formulate their programmes freely. The most representative organizations, whether or not they are trade union confederations, should therefore be in a position to represent their members on government bodies in defence of their occupational interests. The Committee urges the Government to take measures to amend the Legislative Decree in question and to provide information in its next report on any developments in this respect.

Finally, the Committee notes that: (1) in Case No. 1628, the Committee on Freedom of Association deplored the fact that the Union of Cuban Workers (USTC) had not been legally recognized by the authorities and insisted that this organization be registered and allowed to function fully without discrimination; (2) in Case No. 1805, the Committee on Freedom of Association requested the Government to guarantee the freedom of the Confederation of Democratic Workers of Cuba (CTDC) to operate and to ensure that the authorities refrained from any interference aimed at restricting the exercise by that organization of the fundamental rights recognized in Convention No. 87; and (3) in Case No. 1961, the Committee on Freedom of Association noted that the Single Council of Cuban Workers (CUTC), defined as an independent trade union organization, was established more than four-and-a-half years ago, but the Government still refuses to recognize it, and the Committee on Freedom of Association requested the Government to ensure that the law, effectively applied, allows recognition of organizations of workers such as the CUTC. In this respect, the Committee endorses the recommendations made by the Committee on Freedom of Association in the above cases.

[The Government is asked to report in detail in 2001.]

Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

The Committee notes the information provided by the Government in its report and the conclusions and recommendations of the Committee on Freedom of Association of the Governing Body in Case No. 1805 (see the 308th Report, November 1997, paragraphs 225 to 240). The Committee recalls its previous comments which referred to the need to remove the reference to the "Central Organization of Workers" from the Labour Code of 1985 (sections 15 and 16) and Legislative Decree No. 67 of 1983 (section 61), which confer on the above Central Organization of Workers the monopoly of representing the country's workers on government bodies.

The Committee notes the Government's comments and, in particular, its policy of recognizing the autonomy of trade union organizations, which has meant that they have been able to submit draft texts to Parliament and which have been subsequently approved. The Government also states that the groups established for the thematic revision of the Labour Code are continuing their work of consulting the various economic sectors, employers' organizations and trade unions.

The Committee is bound to note that the Committee on Freedom of Association has examined the complaints with regard to the refusal to recognize other trade union organizations and the temporary detention of their leaders (Case No. 1628 of November 1992 and Case No. 1805 of November 1997, respectively). The Committee emphasizes that the explicit reference to the "Central Organization of Workers" in the labour legislation should be removed to enable all workers in law and in practice to establish and join organizations of their own choosing outside the established trade union structure, in accordance with Article 2 of the Convention.

The Committee once again requests the Government to keep it informed of any progress achieved in this respect.

Observation (CEACR) - adopted 1996, published 85th ILC session (1997)

The Committee notes the Government's report and recalls that its previous comments referred to:

- the need to remove the reference to the "Central Organization of Workers" from the Labour Code and other legal texts; and

- interference by the Communist Party of Cuba in the election of trade union leaders.

With reference to the matters that have been raised, the Committee takes due note of the Government's comments, and in particular its interest in the daily recognition of the autonomy and independence of trade union organizations in their everyday activities, as demonstrated by the amendments made in 1992 to the Constitution (article 7) and the number of laws that have been adopted or amended at the initiative of the workers and their trade unions as a result of independent discussions in their congresses.

The Government adds that there is no provision in the current legislation that specifies the content of trade union rules and by-laws, or the manner in which leaders shall be elected, since these matters are the exclusive responsibility of their own trade union organizations, as set out in section 15 of the Labour Code. The by-laws, rules and resolutions that they adopt, as well as their content, and the structure, principles and relations of trade unions, are discussed and adopted with absolute independence by the congresses of the respective trade union organizations.

The Committee also duly notes that, according to the Government's statement, the Labour Code will have to be submitted to a process of revision and updating in order to adapt it to the new socio-economic conditions. The revision of the labour legislation is one of a series of transformations affecting the country, which include its opening up to foreign investment, despite the obstacles to which this gives rise and their consequences on the system of labour relations. The matters raised by the Committee of Experts will be analysed during this process in consultation with the workers.

Taking into account the context of the single-party system and the single central trade union organization, the Committee emphasizes that the Government should guarantee in law and in practice the right of all workers to establish independent occupational organizations in full freedom, at both the first and central levels, including organizations that are outside any existing trade union structure, if they so wish.

So that the above can be reflected with full clarity in practice, the Committee requests the Government, on the occasion of the envisaged revision of the labour legislation, to remove from the Labour Code and other legal texts, the explicit reference to the "Central Organization of Workers". The Committee has already suggested that this term could be placed in the plural without initial capital letters.

The Committee once again requests the Government to keep it informed of any progress achieved in this respect.

Observation (CEACR) - adopted 1995, published 82nd ILC session (1995)

The Committee notes the Government's report, the discussions in the Conference Committee in 1993 and the decision of the Committee on Freedom of Association in Case No. 1628 (292nd Report, paragraph 21 (March 1994)).

The Committee recalls that its previous comments referred to:

-- the need to remove the reference to the Central Organization of Workers from the Labour Code and other legal texts; and

-- interference by the Cuban Communist Party in the election of trade union leaders.

With regard to the need to remove the reference to the Central Organization of Workers from the Labour Code and other legal texts, the Committee notes the Government's statement in its report that in view of the amendments to the Constitution, and by virtue of Legislative Decree No. 147 of 1994, it will be necessary to revise and adapt the labour legislation to the new social and economic conditions.

The Committee emphasizes that the Constitutional amendments have significant consequences for the rest of the labour legislation and it therefore hopes that in the near future the Labour Code and other legal texts will be brought into conformity with the Constitutional amendments and that the reference to the Central Organization of Workers will be removed.

With regard to the relations between the Central Organization of Workers of Cuba (CTC) and the Communist Party, and the alleged interference by the Cuban Communist Party in the election of trade union leaders, the Committee takes due note of the comments made by a Worker member of Cuba to the Conference Committee to the effect that the relations between the CTC and the Cuban Communist Party did not compromise the continuity of the trade union movement, since the members of the CTC approved its statutes, rules and guidelines and elected its leaders in an open and democratic manner, and no candidates had been proposed by the Communist Party. The Worker member also indicated that the relationship between the CTC and the Communist Party was approved by the workers democratically and that they were the only ones who were competent to decide whether or not to change it.

Nevertheless, the Committee emphasizes that a system in which there is a single party and a single central trade union organization is likely to lead in practice to external interference prejudicial to trade union independence.

The Committee requests the Government to guarantee in law and in practice the right of all workers and employers, without distinction whatsoever, to establish independent organizations of their own choosing, outside any existing trade union structure if they so desire (Article 2 of the Convention), and the right to elect their representatives in full freedom (Article 3 of the Convention).

The Committee once again requests the Government to keep it informed of any progress in these matters.

Observation (CEACR) - adopted 1993, published 80th ILC session (1993)

The Committee takes note of the Government's report, the discussions at the Conference Committee in 1992 and the provisional conclusions of the Committee on Freedom of Association concerning Case No. 1628 (284th Report, approved by the Governing Body at its 254th Session (November 1992)).

(a) For many years the Committee has stressed the need to remove the reference to the Central Organization of Workers (CTC) from the legislation, in order to guarantee fully the right of workers and their organizations to establish organizations of their own choosing (Articles 2 and 5 of the Convention), particularly central organizations.

The Committee notes the observations made by a Government representative at the Conference Committee, which were confirmed by the Government in its report, to the effect that the right to establish and join organizations is established by law (section 13 of the Labour Code) and recognized in practice by all productive sectors, and the National Constitution guarantees the rights of assembly, demonstration and association to all workers (Article 54). The Committee none the less points out that the Committee on Freedom of Association, at its meeting of November 1992, examined allegations by the International Confederation of Free Trade Unions concerning the failure of the Ministry of Justice to reply to the General Union of Cuban Workers' (UGTC) request for registration and recognition of its legal personality; the above Committee asked the Government to send its observations on this matter without delay, taking into account Article 2 of the Convention, and stressed that the right of workers to establish organizations of their own choosing implies, in particular, the effective possibility of forming, in a climate of full security, organizations independent both of those which exist already and of any particular party (see 284th Report, Case No. 1628 (Cuba), paras. 1011 and 1029).

The Committee notes with interest the amendments to the National Constitution: the reference to the Central Organization of Workers has been removed from Article 7 which now makes the general statement that the socialist State of Cuba recognizes and stimulates the social and mass organizations which have risen from the historic process of the struggles of the people; and Article 99 which entitled the general secretary of the Central Organization of Workers to participate in the sessions of the Council of Ministers has been repealed. The Committee also notes from the Government's report that the amendments to the National Constitution have significant implications for a whole set of existing laws - including the Labour Code - which are to be reviewed and amended to bring them into line with the Constitution once the appropriate consultations have been held with the trade unions.

The Committee therefore expresses the firm hope that all the trade union legislation will be harmonized with the amended National Constitution and, in particular, that the Labour Code and other legal texts will be amended in the near future so as to omit any reference to a single central workers' organization. It also hopes, in view of the conclusions of the Committee on Freedom of Association, that full effect will be given in practice to the right of workers, should they so wish, to establish freely, in a climate of full security, trade union organizations independent both of those which exist already and of any policitical party, in accordance with Article 2 of the Convention. The Committee asks the Government to keep it informed of any progress made in these matters.

(b) In its previous observations, the Committee also referred to comments made by the International Confederation of Free Trade Unions concerning the elections of trade union leaders by the Communist Party and not by the workers. In reference to this point, a Government representative informed the Conference Committee in 1992 that when part of the management of the Central Organization of Workers was replaced recently, members from the working class were elected. In addition, according to the Government's report, any worker may be nominated and elected as a trade union leader as soon as he enters into a labour relationship.

While taking due note of this information, the Committee reminds the Government that although the Preamble to the Statutes of the CTC states that the trade union movement is not part of the state apparatus and that the CTC and the unions are not organizations of the Party, at the same time, the CTC and the unions openly and consciously recognize the leadership of the Party as being the vanguard and highest organization of the working class, endorse and follow the policy of the Party and act in accordance with the principles of democratic centralism.

The Committee recalls paragraph 5 of the resolution concerning the independence of the trade union movement, adopted by the International Labour Conference in 1952, which stipulates that: "When trade unions, in accordance with national law and practice of their respective countries and at the decision of their members decide to establish relations with a political party or to undertake constitutional political action as a means towards the advancement of their economic and social objectives, such political relations or actions should not be of such a nature as to compromise the continuance of the trade union movement or its social and economic functions irrespective of political changes in the country."

The Committee considers that a system in which there is a single party and a single central trade union organization and where the statutes of such an organization establish the objective of following the policy of the Party is likely to lead to excessive interference in trade union independence and the election of trade union leaders, is inconsistent with Article 3 of the Convention. In these circumstances, the Committee asks the Government to keep it informed of any developments in the relations between the Cuban Communist Party and the Central Organization of Workers.

Observation (CEACR) - adopted 1992, published 79th ILC session (1992)

The Committee notes the Government's reports and the information supplied by a Government representative at the Conference Committee in 1991, as well as the comments of the International Confederation of Free Trade Unions (ICFTU) dated 31 January 1991. It also notes the comments submitted by the Central Organisation of Workers (CTC) on the Committee's previous observation and the comments of the ICFTU.

In its previous observations, the Committee pointed out that the explicit reference to the Cuban Central Organisation of Workers in the Labour Code (particularly in sections 15 and 16) was contrary to the Convention.

In its report, the Government once again repeats that section 13 of the Labour Code, which is still fully in force, establishes that "all workers, whether manual or intellectual, have the right to associate freely and to establish trade union organisations without prior authorisation". The Government points out that, pursuant to this text, 98 per cent of the workers decided, of their own will, to form the branch unions that are members of the CTC and that the legal texts referring to the CTC, far from restricting freedom of association, provide for and guarantee that no decisions are taken on the rights of workers by administrative bodies without consultation with the trade union organisations. According to the Government, these organisations are regulated and exercise their rights in accordance with principles, statutes and regulations that are democratically discussed and approved by the members.

While noting the Government's statements, the Committee once again points out that certain sections of the Labour Code by referring explicitly to the "Central Organisation of Workers" of Cuba enshrines the system of trade union unity at the top level in the legislation. Accordingly, the Committee again recalls that in its General Survey of 1983 on freedom of association and collective bargaining, it made it clear, 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, for example, by designating the single central organisation by name, even if the existing trade union so requests. 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 none the less be able to safeguard their freedom to set up, should they so wish in the future, unions outside the established trade union structure.

The Committee notes that the comments of the ICFTU refer to the following points:

- impossibility to create independent trade union organisations;

- appointment of trade union leaders by the Communist Party and not by the workers;

- amongst the functions assigned to trade unions, increase responsibility to the production and the productivity of workers, imposition of labour discipline, and putting pressure on workers to perform work "voluntarily".

The Committee regrets that the Government's report makes no specific reference to these comments. However, with regard to the selection of trade union leaders, the CTC states, in a document appended to the report, that the selection process for National Committee candidates is eminently democratic and involves no pressure or canvassing in favour of any candidate. During the organisation of the XVIth Workers' Congress, which was held in January 1990, candidates for this Committee, which has a total membership of 195, were selected from among 800 nominations from the intermediate organisations. The National Organising Committee, along with the general secretaries of the unions, then drew up a preliminary list of candidates which was submitted to the provincial delegations made up of all the delegates elected to attend the Congress. At these meetings, delegates were able to remove from the list anyone they considered to be unsuitable, explaining the reasons why, or to propose another person, on condition that there was no change in the total membership of 195. This does not imply that the result was pre-established, as the delegates had the opportunity to exercise their right to vote, both when the preliminary list was submitted to the provincial delegation and during the election held at the Congress.

With regard to union activities to increase production and productivity, the imposition of labour discipline and the pressure exerted on workers to perform work "voluntarily", the CTC states that it is necessary to take into account that in a State of workers and farmers, the principal aspiration is to serve the worker, and increased production and productivity mean greater well-being for the workers and the people, for the workers have freed themselves from exploitation and the fruits of their endeavours go to investment for national development.

The Committee also notes that although the Preamble to the Statutes of the CTC states that the trade union movement is not part of the State apparatus and that the CTC and the unions are not organisations of the Party, at the same time, the CTC and the unions recognise openly and consciously the leadership of the Party as being the vanguard and highest organisation of the working class, and they recognise, endorse and follow the policy of the Party and act in accordance with the principles of democratic centralism.

In addition, pursuant to the above Preamble, the tasks of the national union are to organise and develop voluntary work as the cornerstone of the communist education of the workers; to constantly heighten the workers' awareness of socialist labour by strengthening labour discipline, thereby promoting increased production and the steady increase of productivity; and to organise Socialist Emulation among the workers.

In this connection, the Committee considers that listing these tasks in the Statutes does not allow the organisation to carry out its activities without intervention from the public authorities. In addition, the designation of the CTC as the single organisation at central level in the legislation does not enable the workers to establish and join organisations of a different nature and independent of the public authorities, which is contrary to Article 2, 3, 5 and 6 of the Convention.

The Committee also wishes to recall paragraph 5 of the Resolution on the independence of the trade union movement, adopted by the International Labour Conference in 1952, which states that: "When trade unions in accordance with national law and practice of their respective countries and at the decision of their members decide to establish relations with a political party or to undertake constitutional political action as a means towards the advancement of their economic and social objectives, such political relations or actions should not be of such a nature as to compromise the continuance of the trade union movement or its social and economic functions irrespective of political changes in the country".

Accordingly, the Committee once again requests the Government to indicate the measures that it plans to take to delete from the legislation the numerous specific references to a single trade union organisation, designated in the legislation as the "Central Organisation of Workers" so that workers may effectively establish and join organisations of their own choosing fully independent of the public authorities, in accordance with Article 2 of the Convention. The Committee asks the Government to provide information on this matter.

[The Government is asked to provide full particulars at the 79th Session of the Conference.

Observation (CEACR) - adopted 1991, published 78th ILC session (1991)

The Committee takes note of the Government's report and of the opinions of the Cuban Central Organisation of Workers (CTC) concerning the Committee's previous comments. The Committee also notes the comments of the International Confederation of Free Trade Unions (ICFTU) concerning the application of the Convention.

In its previous observation, the Committee noted that the Labour Code which came into force in 1985 continues to refer expressly to the CTC (particularly in section 15) and that Legislative Decree No. 67 of 19 April 1983 confers 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 repeats its statement that unity in the Cuban trade union movement is voluntary and a historical fact, and commenced prior to any law, and that the principles laid down in the Convention are embodied in the Cuban legislation through recognition of the historic facts of trade unionism in Cuba, which is renewed and strengthened through the holding of workers' congresses every five years. The Government adds that, to enable workers who so wish to create unions of their own choosing outside the existing trade union structure, section 13 of the Labour Code provides that "all workers, whether manual or intellectual, have the right to associate freely and to establish trade union organisations without prior authorisation".

For its part, the CTC states that 98 per cent of all workers in the country are members of both the existing national unions and the CTC, and that these organisations are financed exclusively from voluntary trade union contributions paid directly and in person by the workers. The CTC adds that the workers are satisfied with the way the CTC and the trade unions are run and continue to support the trade union movement.

The CTC describes the massive worker participation both before and at the 16th Congress of the CTC (January 1990) at which amendments to the statutes were adopted. Lastly, the CTC points out that if, in the future, the workers feel that they are no longer protected and represented by the CTC and their trade unions, there is nothing to prevent them from establishing unions of their own choosing.

The Committee takes note of these statements, particularly as regards the development and practices of the trade union movement in Cuba, and of the Government's previous statements on the important role played by the workers in the decision-making process at all levels, but must once again 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 indicates 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, for example, by designating the single central organisation by name. Even in a situation where, at some point in this 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, unions outside the established trade union structure.

The Committee therefore once again requests the Government to indicate the measures that it envisages adopting to eliminate from the legislation the numerous references to a single trade union central organisation, called the Central Organisation of Cuban Workers, and to enable the workers, if they so wish, to create trade unions of their own choosing, outside the existing trade union structure.

In addition, the International Confederation of Free Trade Unions (ICFTU) submitted comments in a communication dated 31 January 1991, concerning the application of the Convention with regard to trade union unity, the impossibility of creating independent trade union organisations, the selection of trade union officers by the Communist Party rather than by the workers, and the functions assigned to trade unions which are required to increase the productivity of workers and impose labour discipline. The Committee asks the Government to send its observations on these comments.

In view of the fact that the Government has not had time to reply to the ICFTU's comments, the Committee will examine these specific questions at its next meeting, when it has had time to examine the Government's observations.

[The Government is asked to report in detail for the period ending 30 June 1991.]

Observation (CEACR) - adopted 1989, published 76th ILC session (1989)

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 (particulary 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 and 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, unions outside the established trade union structure.

The Committee therefore once again requests 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 they so wish.