* By Jesús R. Mercader Uguina
All Member States of the International Labor Organization (ILO), including Cuba, are committed to the respect of the principles and fundamental rights established by international labor law, and in particular to those included in the Declaration of the ILO with regards to labor principles and basic rights. The Declaration establishes the commitment of governments, businesses and labor organizations to respect and defend basic human values, and it has four main areas: freedom of association and trade unions and the effective recognition of the right to collective bargaining; the elimination of all forms of forced or mandatory labor; the abolition of child labor; and the elimination of discrimination at the workplace. These are not only moral or social obligations, but also legal obligations that also represent the basis for the principles that frame social corporate responsibility as incorporated into most current business’ Codes of Conduct.
After analyzing the Cuban legislation, it is clear that it strays from the aforementioned basic principles of the international minimum standards for social and labor matters.
1. Labor Unions
First, it is evident the infringement of ILO Conventions No. 87 and 98 regarding the freedom to form labor unions. The Committee on Freedom of Association of the ILO has called the Cuban government to attention on several opportunities in connection with this issue. The government is urged to adopt “without delays” new regulations and measures to fully recognize, in the legislation and in reality, the workers’ right to form the type of labor organization that they consider convenient at all levels (in particular organizations independent from the current labor union structure), as well as the right of these organizations to organize their activities freely.
Additionally, the Committee “strongly urges the government to respect in the future the principles of non-intervention and non-interference by the authorities in labor union activities as established in Art. 3 of Convention No. 87.” Such statements evidence the frailty of the right to form labor unions in Cuba, which cannot be excused, as confirmed by the ILO, by the existence of external acts destined to direct and support the activities of independent labor unions, since government actions like the enforcement of measures destined to deprive labor leaders of freedom and the raids of meeting locations, among others, represent flagrant attacks to the dignity of the human spirit.
Collective Bargaining
In addition, the right to collective bargaining, a fundamental right recognized by the members of the ILO at the time of their incorporation to the Organization, is openly questioned in the Cuban legislation, which establishes a labor negotiation system clearly diminished when compared to the paradigm of the collective negotiation model on which it is based, as provided in Convention No. 98 and Recommendation No. 91 of the ILO with regards to the principles of free and voluntary labor negotiations and the radical ban of any interference from the government in these proceedings. The alienation from such principles results from the fact that collective agreements in Cuba must be based on guidelines provided by the government and the applicable ministries, and in case of foreign capital companies, the collective agreement is formalized by the employment agency and the representatives of the company, in the presence of the state-run labor union.
This conclusion is supported by the Committee on Freedom of Association of the ILO, who has urged the Cuban government to take the necessary measures to modify the legislation applicable to collective bargaining, in order to allow it to take place at the work centers without the mandatory arbitration imposed by law, and without interference by the authorities, other organizations of a higher level, or the Central de Trabajadores de Cuba.
2. Discrimination in the Workplace
Likewise, the Committee of Experts on the Application of Conventions and Recommendations of the ILO has been studying the infringement by the Cuban government of the provisions of Convention No. 111 regarding discrimination at the workplace and occupation, and No. 122 about Employment Policies. Such breach may be observed in a number of legal and regulatory texts connected to access to training and to employment, as well as the assessment of workers for the selection and job placement, or to determine their merits and demerits at work.
Other aspects, such as the selection of candidates for administrative positions in the educational system, have prompted the Commission to express its desire that the Cuban government take the necessary measures to eliminate discrimination regarding access to training, as well as to employment.
Political and Ideological Demands
Both, the aforementioned Commission of Experts, as well as the Commission for the Application of Conventions and Recommendations, have studied certain issues such as the demand by inspectors of the Education Ministry requiring a political and moral conduct by employees adjusted to the principles and objectives of a socialist State; the dismissal based on behavior contrary to the socialist morals; the assessment process which must include the ideology of the worker; the criteria to assess the performance of journalists; and finally, the scope of the personnel file in certain companies which includes references to the moral aptitude and social conduct of the workers. It is evident that the accumulation of these events offers a strong suspicion of the existence of discrimination in the hiring process based on ideologies or related reasons.
3. State Control of Labor
Full labor freedom is also under the scope of the Foreign Investment Law, which leaves the control of hiring and dismissal of workers in the hands of entities controlled by the State. The government reserves the responsibilities of selection and control of human resources, which in other countries are handled by the management of the respective companies, such as the hiring of future employees, decisions regarding employment, application of disciplinary measures, dismissal and compensation.
The government entity is responsible for the dismissal and replacement of the workers whose performance is considered deficient. It is important to keep in mind that there is no proper labor relationship between the workers and foreign capital companies. Therefore, the government operates as a “Temporary Work Agency” who assigns its workers to the foreign company. The mandatory requirement to use the employment agencies controlled by the government takes away from the workers the capacity to directly negotiate their salaries, benefits, reasons for promotions and duration of the trial period. The official employment agencies assume each of these responsibilities and the employers are not allowed to negotiate the conditions of their own employment with the foreign investors.
Several reports from international organizations clearly suggest that the fact that the state agency may select workers for the foreign capital companies means that through these agencies a certain ideological selection of the candidates is made. In this context, it is convenient to remember Convention No 111, which in article 1 provides that the term discrimination includes: “any difference, exclusion or preference based on race, color, sex, religion, political opinion, national or social origin directed to eliminate or alter the equality of opportunities or treatment in the employment and hiring processes.”
Workers’ Salaries
The Foreign Investments Law provides that: “Payments made to Cuban personnel and foreign employees residing permanently in Cuba shall be made in local currency, and shall be previously obtained from convertible currency.” This provision openly contradicts Convention No. 95, which in Art. 6 reinforces the concept by stating: “employers shall not be allowed to limit in any form the freedom of the employee to dispose of his salary.” Any interference by the government in such cases implies a significant reduction of the compensation of the workers which fundamentally alters the correspondence principle that is the basis for the salary compensation.
As a result for the control by the Cuban government over the tourist sector, the workers in this area face more testing periods, enjoy less safety at work, work longer hours, and are forced to work more irregular work hours. Additionally, the disciplinary system is more severe than the system provided in the Labor Code, since it regulates a large number of failures, shortens the period for the application of sanctions and eliminates the possible defense mechanisms for the defense of the workers.
Also, the labor regime applicable to this sector places special emphasis in the adaptation of the employee to the position, with special emphasis in the personal qualities and the general behavior of the individual, both at the workplace, and after work hours. Again, this system is in direct contradiction with the provisions of Convention No. 111 of the ILO.
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* Jesús R. Mercader Uguina is Professor of Labor Law and Social Security, Universidad Carlos III of Madrid.
** This is an abridge version of a larger study, «Reality of Labor in Cuba and the Social Responsibility of Foreign Investors,” published by Editorial Tirant lo Blanch.
