The Labor Code is the law ruling labor relations between employers and employees. The one, to date, that is in force in Cuba dates back to 1985 and, of course, is no longer in tune with current times, as it does not include, among other things, the modality of self-employment.
However, during the last two decades the legislation has changed or substituted 14 chapters currently in force. For this reason it was necessary to develop a new law that would protect workers. That’s when, in December 2012, the Cuban Council of Ministers presented to the National Assembly of People’s Power the Labor Code Preliminary Draft Law.
There it was approved subsection (b) of Article 75 of Cuban Constitution and it was also advised that Article 72 of its Regulations to be in consultation by workers in all workplaces of the country in a participatory way.
This proposal already included non-state workers organized in trade union, a fact that adds and joins them as protagonists in the updating of the economic model, which is intended to organize and perfect in all its structures.
This new document, essentially normative, which keeps the rank of Law and its regulations as Decree, contains 12 policies of general application, 13 for state sector and 4 for non-state area. Additionally, it repeals 3 laws, 8 legislative-decrees, 4 decrees and 77 resolutions.
For its preparation it was taken into account the approved policy, based on the fundamental principles of working of Cuban Constitution, the Guidelines of the Economic and Social Policy; legal provisions enacted after the effective date of the Code; Agreements of the International Labour Organization, in particular the 76 ratified by Cuba, as well as a study in 16 countries with similar legal characteristics.
And for the first time the private sector is fully contemplated, in a chapter entirely devoted to it. The main change in this regard is that “It will be regulated in labor relations between workers and natural persons authorized to act as employers, and the parties agree the conditions under which the work is developed and provides minimum conditions regarding formalization, contract terms, remuneration, rest, vacation and protection, safety and hygiene to be guaranteed by the employer and the reasons for termination .”
The Law Degree Orelys Suárez Febles considers that something new is the specification of working relationship between individuals in the private sector. “This project addresses all matters concerning this individual labor law relationship and stipulates or regulates the most important clauses this individual contract of employment should have ,” he says.
Paths of non-state sector
In this preliminary draft, from the First Section on Principles and fundamentals of labor law, in subsection (a) of Section 2, self-employed is already taken into account, stating that “any woman or man in working condition, regardless of race, skin color, sex, religion, political opinion, national or social origin, and any other offense against human dignity, is entitled to get a job with which he can contribute to the goals of society and the satisfaction of his needs and those of his family, attending to the demands of the economy and his election, both in state and non-state sector. ”
Self-employed are allowed to benefit from social security rules and the admission of hiring employees, more commonly known as contract workers. “The later require legal clarification regarding some of their rights such as salary and paid annual leave and they are given the status of self-employed, but by their dependent nature, they require legal intervention to assert them before the interest of the particular business owner , “Suarez stated in his essay entitled ¨Considerations on the legal status of Cuban self-employed.¨
In the Third Section about the Subjects of the Employment Relationship, in Article 9, paragraph (b), the employer is defined as a legal or natural person endowed with legal capacity to agree working relationships, employing one or more workers; carries out his powers and fulfill his duties and obligations under the law.
The employer hires workers directly, who will always be over 17, in line with the needs of production and services. In Cuba the law condemns the recruitment of minors. One of the principles of the Labor Code is the prohibition of child labor.
“Child labor is banned in the country, children under 15 or 16 years can only be used in state entities if authorized by the Ministry of Labour and with the permission of their parents, but in the private sector it is not allowed. For example, students who reach only ninth grade and do not continue their studies may proceed to work this way in state institutions, “BA . Suarez noted.
For the non-state sector of the economy, Chapter VII is extremely important, as the working relationship between self-employed is addressed in its four articles, from 64 to 67 .
Article 64 reflects the working relationships between individuals in the non-state sector and states that “workers and natural persons authorized to act as employers will preferably get formalized through a contract of employment or similar writing, where clauses and conditions that the parties have agreed are specified. The provisions established for the employment contract for a fixed period or for the execution of any work or labor rule these relationships “.
Employer and employee should consensually agree the terms and conditions “Currently nobody makes an individual employment contract because the law does not require it, in this draft it is an option for the employer and is done by both parties to defend labor rights the worker has, who in this case is the employee, ” Orelys, also Main Professor of Labour Law at “Camilo Cienfuegos” Matanzas University, said.
Moreover, the private worker is entitled to minimum conditions that must be guaranteed. For example, daily working time may not exceed nine hours, or 44 hours weekly, remuneration should not be lower than the approved minimum wage in the country for state working and should be in proportion to the actual working time; he will have a weekly rest day and a minimum of seven natural days of paid annual leave and will enjoy protection, safety and hygiene at work .
It is pertinent to emphasize that workers hired by cooperatives and other forms of legal associations will have the same rights and duties established by general law. In Article 72 it is reported that foreign people and temporary residents without citizenship in Cuba are required to obtain a work permit issued by the Ministry of Labour, in compliance with the provisions of the Regulations of this Code, if they want to work.
Article 172 was designed for the complaints to the Judicial System in Non State Sector, and states that “workers hired by individuals authorized to do so for and associative forms will present their claims directly in the popular municipal courts, meeting with the procedure established by law. In cooperatives, the claims will be settled by the specific procedure and, once this exhausted, they can go to the courts. ”
Not many self-employed workers have discussed the Labour Code Preliminary Draft Law, only some of those who are unionized have analyzed it. Although the document includes working relationships between individuals, apparently they have insufficient knowledge about it.
At their selling clothing and footwear establishment, Mildrey Gil Lima and Juana Milagros Sacos approve the fact that self-employment to be included in this Preliminary Draft Law, because it implies support.
While Ada Diaz Fernandez, a hired worker, says it’s important the document to contemplate self-employment as a new workforce in the country. “It missed a bit of organization, because it must be created a public space for self-employed who are not unionized to say,” she noted.
Héctor Agüero, household appliances repairman, is unhappy; he ignores what the Draft sets and thinks self-employed should have a prioritized attention.
This reveals that it lacks connection between self-employed and legal practitioners. According to Orelys Sanchez, the current legislation has legal deficiencies that are detected on labor rights such as wages, the right to rest and the ways of conflict resolution, both for the worker owning a business, and his hired.
“Hence the enactment of a uniform and comprehensive statute of self-employed worker is necessary,” the specialist stated in his essay.
This Preliminary Draft Law Labor Code seeks to consolidate and regulate labor relations according to the present conditions, guaranteeing protection of the rights and duties agreed by the parties .
As the specialist in labor law concluded: “Regulating by the Labour Code of that concerning individual hiring between self-employed provides stability in this sector, regulating the rights and duties of both parties and ensuring protection to this form of employment.”