Observación (CEACR) - Adopción: 2008, Publicación: 98ª reunión CIT (2009)

Article 4 of the Convention. Prohibition of any agreement to relinquish the right to an annual holiday with pay. The Committee recalls that for over 20 years it has been drawing the Government’s attention to section 98 of the Labour Code, which is not in conformity with Article 4 of the Convention, under which any agreement to relinquish the right to an annual holiday with pay shall be void. As the Committee emphasized in paragraph 193 of its General Survey of 1964 on annual holidays with pay, for social and health reasons it should not be open to the worker to abandon any part of his holiday in return for cash compensation. However, under section 98 of the Labour Code, the State Labour and Social Security Committee may authorize the administration, on an exceptional basis and in certain sectors or activities, to grant one or more workers, with their consent, cash remuneration in lieu of their holiday leave and without any other period of rest. The Committee notes the Government’s indication that the Ministry of Labour has not recorded any authorization granted in this respect and that, although section 98 of the Labour Code is not applied in practice, it will remain formally in force until the adoption of the new Labour Code. The Committee hopes that the Government will take into account the comments that it has been making for many years on this matter in order to bring its legislation into full conformity with the Convention. It once again requests the Government to keep the Office informed of any development in the situation and to provide a copy of relevant texts once they have been adopted.

The Committee also takes this opportunity to recall that, at the proposal of the Working Party on Policy regarding the Revision of Standards, the ILO Governing Body considered that Conventions Nos 52 and 101 were outdated and invited the States parties to these Conventions to contemplate ratifying the Holidays with Pay Convention (Revised), 1970 (No. 132), which is not considered to be fully up to date but remains relevant in certain respects (see document GB.283/LILS/WP/PRS/1/2, paragraph 12). The acceptance of the obligations of Convention No. 132 in respect of persons employed in all economic sectors, including agriculture by a State party to Conventions Nos 52 and 101 involves ipso jure the immediate denunciation of the latter Conventions. This approach would appear particularly appropriate as the legislation in Cuba, which provides for annual holiday with pay of at least one month for each period of 11 months of effective service, is clearly more favourable than the requirements of Convention No.52 and seems to be in substantial conformity with most of the provisions of Convention No. 132. The Committee requests the Government to keep the Office informed of any decision that it may take in relation to the ratification of Convention No. 132.