The principal regulation in Cuba of the framework related to employment is based on the Constitution of the Republic, whose article 45 stipulates that “Work is a right, a duty and an honour for each citizen.”
The Constitution is followed, according to legal hierarchy, by the Labour Code and its complementary legislation contained in the laws, decree-laws, decrees and resolutions, regulating the ruling principal in labour affairs and establishing the functions of execution, control and organisation of this sphere; as well as the government agencies in charge of these responsibilities, among which the Labour and Social Security Ministry plays a leading role.
This Code was modified recently, after a process of popular debates in more than 69,000 grass-root assemblies with the participation of close to three million persons. During this procedure 101 articles of the draft project were modified, 28 new regulations were included and Chapter II, referring to union organisations, was completely drawn up again. The new code, approved by the National Assembly in December 2013 and put into force six months later, was modified or substituted in seven of the 14 chapters with respect to the one that preceded it (Law 49/84). The proposal is more coherent with the current employment panorama in Cuba, in the state as well as the non-state sector.
According to Article 4 of this document, it “regulates the labour relations established between employers living in national territory and national or foreign persons with permanent residence in the country, for the compliance of the parties’ reciprocal rights and duties.”
Thus it is of interest to study that text in depth, given the labour relations it establishes in a group of 15 self-employed remunerated domestic workers who work in the Miramar People’s Council in Playa municipality, with the rest of the actors that make up the system of domestic-labour relations in which they are inserted.
The legal framework as governing space of the changes that have taken place
Article 20 of the Labour Code specifies the importance of establishing a work contract as “the means through which labour relations are formalised between the involved parties (worker and employer), being null any contractual clause that violates the law established in it.”
Further on, in Article 23, it is specified that the contract “is agreed upon by writing with copies for the employer and the worker…” but a margin of vulnerability is left when it is authorised that “in the entities, exceptionally, for emerging and eventual activities, of harvests or services to the population and in things that the legislation authorises, the work contract can be verbal for a period not exceeding 90 days.”
It is considered that the latter section of the clause disrupts one of the principal strategies to offer a minimum of guarantees to the personnel that provides their services, since though that law subscribes that “when the work contract is not formalised by writing, the labour relations are presumed by the fact that the worker is executing a task, with knowledge and without the opposition of the employer,” the truth is that the written contract offers a higher level of guarantees in the face of any violation of what is stipulated between the parties.
The formalisation of the written contract leads to establishing and expressing in a document a series of substantial aspects related to labour relations which, on occasions, are obviated when carried our verbally (regimen of days off, amount of remuneration and periodicity of payments, safety and health conditions on the job, just to give some examples; see Articles 24 and 73 of the Labour Code).
The mentioned study with the remunerated domestic workers was able to confirm that the majority of the self-employed domestics do not have formalised written work contracts and usually have few possibilities of negotiating the characteristics of their work faced by the need for employment, which guides the inequality in this type of labour relations from the start.
When remembering the initial interview or preliminary conversations with their employers, in which they are informed of the working conditions, the schedule and the wage, they say they had very few opportunities to mention those aspects that were of interest to them. This would be one of the elements to prioritise if the aim is to have dignified and safe labour relations, not just for the case of the employees but also for those employing them.
The reality confirmed is the result of the little legal culture both parties have of labour relations, especially in a socio-economic space like this one, which generates a legal link between intellectuals. Out of the 15 domestic workers interviewed, only one said she knew aspects related to this law, which demonstrates that the majority is indifferent in the face of a legal framework that is a bit far from them.
Some of the interviewees reacted to this showing the card that accredits them as tax contributors and the book for these activities, which are only identification documents or for speeding up procedures for the payment of taxes; meanwhile, others said they had only registered to avoid fines, but that they did not dominate what the contract stipulated.
This situation is surprising because of the lack of knowledge or little dominion they have about this governing document, and also because of the lack of interest in finding out about it, which generated a state of permanent lack of protection in relation to the possibilities of defending their rights.
The lack of knowledge of the law leads to the establishment of contracts and work dynamics in which the minimum of rights that must be guaranteed are obviated, principally when the contracts are established between individuals. These rights are the following, according to Article 74 of the cited Code:
a) the daily work day is of eight hours and can reach an additional hour in certain days of the week, as long as it does not exceed the limit of 48 hours a week;
b) The remuneration cannot be inferior to the minimum wage, according to the real time of work;
c) one day off a week and a minimum of seven calendar days of paid annual vacations (this functions for the case of the contracts between individuals, because in those involving state entities the remunerated vacation is one month per 11 months of effective work; Art. 101); and
d) safety and health conditions on the job.
The research confirmed that, independently of what is determined in the law, the realisation of the rights of self-employed domestic workers depends on the characteristics and demands of the persons who employ them, as well as the conditions that they are able to defend, not just at the start of the contract but also in carrying out their task. None of the interviewees currently has a written contract and, as was previously said, are very vulnerable because they lack knowledge about their rights and duties.
Notwithstanding that difficulty, the interviewees generally did not declare any difficulties with respect to the stipulated working hours or days off, nor with respect to their remuneration. However, it was confirmed that in terms of paid annual vacations and the safety and health conditions on the job, the circumstances are different.
The data show that none of them has annual paid vacations. Moreover, they say they have difficulties to enjoy this period of rest since they depend on the house where they work giving them permission and of creating themselves strategies for the work to come out as stipulated. On occasions, they are the ones who find the persons who will be their substitutes during that period, for fear that when returning they will have lost their job. It’s alarming that some of them say that their vacations consist of the days they have to be absent to resolve personal or health problems. For example, one of the self-employed domestics who participated in the study said the following: “In the nine years I have been working in that house, I have only taken two weeks of vacations: one when my mother died and another when my brother died.”
Regarding the safety and health conditions on the job, only two of the 15 interviewees said that their employers guaranteed them, while the remaining 12 said that these conditions are very deficient and they have to create strategies to protect themselves. The protection mechanisms created by them include with greater frequency: the purchase of gloves with their own resources (3 cases), getting the mask to protect the respiratory tract (1) or not remaining in the place where they clean with toxic products (1). The reality previously described shows the existing critical situation, which intensifies with the lack of work inspections capable of detecting these violations and taking measures that guarantee the safety and health of these women.
The situation found in relation to the enjoyment of the minimum rights established confirms the existence of serious difficulties in this sense, especially in terms of guarantees for safety and protection on the job. In the case of wanting to strengthen strategies to concretise what is established by the law and to protect them in that sense through the presence of inspectors, there appeared difficulties like: limitations to violate the principle of home privacy and make an evaluation of the working conditions they have; the invisibility of these workers and the facility provided by their work space and the dynamics generated in it to hide the labour relation or to present it as a link of friendship or camaraderie; as well as the lack of control of the address where they provide their services and of their working hours, especially for the case of the informal domestics or those that have a license to work as self-employed; of the latter, in the Municipal Labour Offices only the data of their home address is collected.
On the other hand, there is inconsistency between what is stipulated in Articles 191 and 135/137 for the case of the employer (individual), since that person must not be the judge and part of the mentioned inspection, as guarantors of this right.
The presented situation has a direct repercussion on the wellbeing and health of these workers, a fact that frequently is minimised or underestimated, even by the affected parties, who do not distinguish the difference that exists between carrying out these activities in their homes (more sporadically and without having a labour demand, which supposes work pressure) and carrying them out as part of their job (systematically and under the supervision of those who hire their services).
During the investigation, the application of the interview and the observation of these women, it was confirmed that, out of the total of interviewees, six had health problems related to the work they carry out and the lack of protection they suffer. The recurrent health problems in the study especially include: epichondilitis, osteochondritis, bursitis, tendinitis, sacrolumbago, fibrosis, neuritis, respiratory diseases, fingernail fungus, allergies; as well as other diseases related to the neck, backbone and ligaments.
The labour practices that condition these ailments are: contact with toxic products or others that have strong smells (detergents, chlorine, descalers), making a stronger physical effort than they should (some activities require that they move furniture, carry heavy ornaments, use ladders or scaffolding, carrying buckets or tanks of water to those places in the home not reached by this resource, among others), standing up for a long time or in an uncomfortable position (when they carry out tasks like ironing, cooking, cleaning bathrooms, bathing animals), among others.
A strategy to improve that situation would be the creation of training programmes specialising in safety and protection on the job, for them as well as for their employers; that is to say, making of the latter a figure that not only has “the obligation to organise the training of the workers according to the needs of production, services, the results of the work evaluation” or the needs for the required safety and protection on the job, but rather subject to that training (Article 39 of the Labour Code).
The training of these workers (and of everyone in general) must be noted as an aspect of special interest and relevant due to the impact it has on the quality of the service they provide, the guarantee of performing in a safe working climate and the assessments on themselves built based on the results of the training, this fact having an influence on their self-esteem and in the possibilities of satisfying their interests and meeting their professional and personal goals.
While what is stipulated in this article is advantageous for the process being analysed, since it strengthens the training and deposits the responsibility for it on the employer (who is the one who has the greatest possibilities of organising the resources for this), what appears later in Article 40 is contrary to this principle. In the latter it is said that “the workers have the right to study under the principle of using their free time and based on their personal effort, except for the cases of special state interest,” a conception through which the responsibility for this process falls on the strategies the workers can create, at the expense of not having the real possibilities to do it.
Regarding this and despite what is established in the Code with respect to the obligation of the employer to organise that training, the results show irregularities in this sense. The specialised knowledge these women have are frequently acquired in the exercise of their work or the demands of the persons they have had the opportunity to work with, especially when they are foreigners and the services they request require skills for which they have not been trained through specialised courses or in their homes, as part of a process of socialisation that has a close relationship with the culture of each nation.
Taking into account these results, it can be affirmed that this group of domestics does not have this type of opportunities. The time for training depends more on the planning they can carry out from personal agendas, commonly affected by insufficient mechanisms for conciliation, not being able to have periods during their workdays for this. It should be recalled that the women workers (who are the majority who dedicate themselves to this performance) have less opportunities to organise training activities during their “free time” since the domestic and caregiving responsibilities they must assume after the workday, or during the weekends, affect the real opportunities they have to dispose of that resource (“free time”) for their training. The previously stated confirms a gap with respect to gender equity, since training is a valuable mechanism for the ascending labour mobility, even the one given in the sphere of that sector.
In terms of gender inequalities, there is no doubt that one of the most significant advances of the Code compared to the other, and even in relation to the draft project, is the incorporation of the term “gender” instead of the restrictive word “sex.” However, there still remain many challenges and pending aspects for the transversalisation of the gender focus of this text. It is not enough to declare that one of the principles on which the proposal is based is equality in the face of work, without distinction of gender; it must be made tangible in dealing with all the aspects related to labour relations touched on, especially those having to do with the protection of women workers.
Apropos this analysis, a reading of Chapter IV of this law (which finds its antecedents in Chapter VIII, Women’s Work, of the 1984 Code) allows for seeing that the protection of women workers is fundamentally concentrated in the moment of gestation and maternity, highlighting their social function as mothers (Article 59 of the Labour Code). “In this sense, the focus that predominates is considered biased since it reinforces the social construction of maternity seen as a social order and not biological; and it leaves out the immense majority of the women workers not immersed in these processes and the men who wish or have recourse to the paternity leave.”
Since the maternity leave is one of the principal guarantees this Code offers to women workers, it should be noted that, in practice, the possibilities of enjoying it are very limited, since resorting to it would mean losing their job post. This is a worrisome fact since it shows that the law becomes dead letter when the contracts are drawn out between individuals and the rights of the employed personnel become so vulnerable, which happens especially in the major part of the cases that concern us, when the contracts are orally established.
Another absence in the Code is harassment at work and other violent practices that, though based on discrimination for gender reasons, go beyond this. While in general violence is exercised against women workers of this sector it cannot be compared to the one existing in other parts of the world. It was confirmed that these workers have been the object of different manifestations of violence, which range from the psychological to the sexual, including harassment (4 of the interviewees said they had lived some of these episodes while carrying out their task).
In the face of these problems and violations of what appears legislated, in the Code as well as in the complementary regulations, it is stipulated in clause b of Article 166 that these workers can claim their work and social security rights directly from the legal system once the specific procedure has been exhausted, when thus established. However, in practice it is confirmed that there is a great ambiguity in their replies when asked what must be done in the face of these situations and what they have done.
In general the interviewees said they do not know what to do (14 cases), while one of them presented her strategy and said that, in the face of any situation, she would seek the intervention of her relatives, especially her husband. These results are a sample of their vulnerability and the lack of knowledge about the mechanisms established to claim their rights as workers.
The situation becomes disturbing in the cases studied, since if they had their condition legalised they could appeal more easily to the legal system for the resolution of their lawsuits. But none of them was affiliated, despite the fact that the Code ratifies the right to free association of workers in unions that defend and represent their interests, as long as these are established “according to the foundational union principles” (Article 13 of the Labour Code).
Encouraging the affiliation of self-employed workers to grass-root organisations where the working mass is grouped according to sectors and not according to the activity its members carry out is a limitation, since this can lead to counterproductive meetings in which they (as domestic women personnel) do not find a space to present the problems affecting them and the enjoyment of their rights is thus hindered. This is an element that also has a negative influence in the signing of Collective Work Agreements in the non-state sector, with a repercussion in the regulation of the commitments made by the employers and those who work, a right that assists them according to Article 14, clause d, of the cited Code.
This is one of the most serious problems this collective has and seriously affects the possibilities of achieving dignified working conditions for all the persons who devote themselves to this exercise. In fact, the union is one of the entities in charge of watching over and demanding the fulfilment of the established norms, referent to safety and health on the job, according to the law, and the employers are obligated to provide the union inspectors with the information and facilities they require for better carrying out their work (Article 19 of the Labour Code).
Referring to remunerated domestic work to domicile in the current Cuban context is a great challenge, especially because it is impossible to collect in a few pages the diversity of situations presented by those involved in this work.
Compared to what used to happen during previous times, in which a characterisation rather close to the reality of this socio occupational group could be established because of its homogeneity, at present there are marked differences among its members. This diversity is given not just because of the specificities of the economic status of those who give employment, but rather by the socio-economic space in which they are inserted, while “a sort of bad and apparently inevitable effect exists in the readjustment of the 1990s, based on which the physical, economic and social conditions of work are segmented asymmetrically,” depending on these spaces.
The diversity of employment today, and especially of the labour relations that have arisen in the non-state sector, require an urgent viewing. It should be based on a critical reflection that detects the voids in the legal framework for the protection and social security of workers, and which also offer alternatives that strengthen the equity and social justice through what this text contains as it is written, or of its transformation (partial or total).
This first approximation to the phenomenon corroborates the need to return to the Code. As could be seen, despite the transformations carried out, it does not constitute a framework adapted to and coherent with the specific needs of the new context, particularly of those who perform remunerated domestic work to domicile in the self-employed sector.
The new Code covers a group of aspects that are transcendental for the labour relations of those who devote themselves today to this type of job, but there are still voids to be resolved, even when this work supposes challenges because of its own characteristics, associated above all to the space where it is carried out and to the peculiarities of the relations established between employee and employer.
The aspects analysed and gaps detected are barely some elements to take into account to guarantee there are no backward steps or that these are a minimum in the complex scenario that is lived today, with the transformations in the employment policy on a national level, be it to think on the need for carrying out possible corrections in the strategies or strengthening the inclusion in the policies of those elements positively identified. (2016)
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