Self-employment: A Look from a Legal Approach

With sustained increase in recent years, the non-state sector in the economy (self-employment) is here to stay as an efficient form of management. Therefore, this sector is essential for several fields of our economy and society.

However, from the legal perspective several questions may raise: Are all self-employed workers protected? Do they know the regulations adopted to protect their work? How would they be in a better position to demand their rights?

On these and other issues, CubaSi talked to three jurists who deemed appropriate —from their responsibilities and work— to take actions in the interest of improving the protection of workers.

Workplace Inspection: Knocking the doors of self-employment

According to Iskra Rivera González, head of a collective law office in Matanzas, “there are rights that have not been properly respected; namely, schedule, health and safety conditions at work, job changes that take place without prior notification depending on the employer’s need.”

About salary, the lawyer stated that workers are not always paid as stipulated by law.

“Hired self-employed workers find solutions because their employers give them a steady payday. Hence, they do not have such monthly wage commonly set in a contract.”

She also explained that this issue is paramount as there are several young people working under these conditions of self-employment. “We owe them. We must teach them what it is happening in the Labor Law, at the risk of repeating myself, is a fundamental right in our country.”

She urged “the workplace inspection knocks the door of non-state sector of the economy,” and confirmed such actions —stated in the Labor Code— can comprehend non-state management.

“Self-employed workers, before going in depth into the business, should be well-aware of what is set and demand a written contract, as well as fully understanding his rights, which are written in a Law.”

Elaborating on what is legislated

Meanwhile Carlos Manuel Alfonso Alvarez, lawyer in a collective law office in Cienfuegos, said that everything happening in the work-law relation between a hired worker and the employer is set in one article of the Labor Code.

In line with it, I support the existence of a straight, specific and profound series of articles that can be efficient in some conflicts between the employers and hired workers.

“I believe the law should be extended. As a lawyer, I defend the uniqueness of the legislation, the Labor Code —even though all lawyers do not agree with it— I think the Act. No. 116 must be improved with other details and situations.”

In this document, only article No. 72 addresses the subject. It refers you to the Regulation that is based on the socialist state-owned enterprise, which is counter-productive as the principles and basis governing them do not match with the self-employed workers’ interests.

We cannot ignore we are in the middle of a Constitutional review. I do believe this is the perfect time to fix the things we have been referring to here, taking into account Army General Raul Castro’s words in 2010 when he highlighted the self-employment will not regress.

Consequently, everything we can add now from the substantial and legal approach will be a must so that self-employed workers feel protected. That is a win-win situation!

Employment contract as essential document

On the other hand, Francisco Masot Diaz who works at the Havana’s enterprise of Legal Consulting Service deals with article no.73 of the Labor Code, which establishes clauses and terms in the work relations among legal entities in the non-state sector of the economy.

In practice, employers do not sign employment contracts with their subordinate workers and if they do, they do not take into account the minimal clauses in the articles. The parties only sign general clauses.

“There are times they do not record the salary as it is against their interest from a tax perspective and other reasons.”

In the case of a chef working for a private restaurant, there are times when the specifics of his/her work are not determined, nor his/her behavior in the job, organization and technological rules.

“There are hard private jobs in the private sector; i.e. the construction business, the restoration and maintenance of buildings, which need dozens of workers who are required to comply with work safety and protection standards that must be guaranteed by the employer.

“In practice, it happens that most of the time tools and machinery are brought by workers. Nonetheless, no safety measures are guaranteed, nor the equipment is properly certified by competent authorities so that goals can be met.

“For instance, I can have a scaffolding but, how do I know it has the minimum conditions to bear weight and height?”

Masot explained that workers know beforehand the job they are going to do. However, it does not happen with the law and technological order of private business; and thus, when the worker breaks them —to the criteria of the employer— he /she does not know how to defend him/herself. Those rules have been only said verbally, but not in a written contract. Afterwards, it is difficult to prove from an evidential viewpoint.

Translated by Sergio A. Paneque Díaz/CubaSi Translation Staff