Introduction
The labor justice system is applied to the solution of disputes that, due to the imposition of disciplinary measures or the recognition, granting and claim of the obligations and rights emanating from the legislation, arise between the workers or between them and the administrations of labor entities.
Due to its own characteristics, our labor justice system can be considered an example of simplicity and democracy as it allows workers to claim their rights when they consider that they have been violated.
The subject of this work is: the review procedure within the Cuban labor justice system, which we will develop based on the following problem: is the promotion by the worker himself of a review procedure really effective without having technical-legal knowledge?
The possible result is manifested in the hypothesis of this work that states that the processing by the worker himself of a review procedure is not effective since only a legal professional can know if the requirements required by labor legislation for the processing have been met. of this procedure.
The object of the investigation is: the review procedure within the Cuban labor justice system.
For the solution of the work we have set ourselves the general objective: to assess the characteristics of the review procedure and the effectiveness or not of its processing by the worker himself.
Development
The labor process is the instrument with which the holders of the jurisdictional power fulfill the function that is constitutionally attributed to them and it is only a means with which the exercise of effective judicial protection is developed.
The procedural principles that govern the Cuban labor justice system are the following:
a- Immediacy: it consists in the fact that the primary body to which the solution of the conflict corresponds is close to the place where it originates.
b- Appearance of the parties: it is proposed that those who resolve the conflict directly obtain better clarity of the facts through knowledge in the same act of the facts and reports of the parties.
c- Speed: it means that disputes must be resolved as quickly as possible without this implying undermining the procedural guarantees due to the parties.
d- Simplicity: by this principle the labor process is stripped of formalities and solemnities, without obstacles that impede the action of the workers.
e- Impulse ex officio: allows the conduction of the process until its termination to be carried out without the need for a request from the parties.
f- Orality: this principle guarantees the predominance of the oral form in the process, which makes it easier and faster, which does not eliminate the possibility of writing.
g- Advertising. It allows appearances and other procedural acts to be witnessed by workers and, where appropriate, by other people who are not parties to the conflict.
h- Respect for legality: this principle has not been considered by the doctrine, it is a principle of our labor system, recognized by our Decree - Law 176, which establishes that it is the one by virtue of which the members of the bodies that They resolve conflicts must obedience to the law, as well as compliance with the final decisions by them.
Our Civil, Administrative, Labor and Economic Procedure Law in its article 696 also refers to the principles of speed, simplicity, orality and ex officio impulse.
Heading 1: the parts of the labor process.
Those persons (natural or legal) who file a claim before a jurisdictional body and those against whom they file are considered parties.
In our labor justice system, the workers and their administrations and the workers among themselves are parties to the process.
To be part of the labor process, it is necessary to have the capacity to be a part, which means aptitude to be the owner of the rights, possibilities and burdens derived from the process.
Our labor justice system recognizes the ability to be a party to any worker who has a labor relationship with the entity whose administration he claims, without it being necessary for him to be affiliated with a union, they can even hear claims about the labor rights of workers who are disconnected from the entity in question, when it occurs within a period of 180 calendar days after the one in which the alleged violation of their rights occurred.
Workers as parties to a conflict act on their own before the basic labor justice body, but for different reasons they may appoint a representative verbally or in writing before the secretary of the base labor justice body, who can carry out all procedural acts, Except for those prohibited by the worker.
The following people can be representatives of the worker:
a-A union leader from the same workplace or labor entity.
b-A co-worker.
c-A relative within the fourth degree of consanguinity and second degree of affinity.
In the case of the administrations of labor entities, the following are recognized as parties to labor disputes:
- Bodies of the Central State Administration and state bodies and both their administrative dependencies as well as the other budgeted units Companies and business unions Companies and units dependent on political, social and mass organizations Cuban mercantile companies Employing entities of foreign investments and those that directly hire the workforce, as well as international economic association contracts. Other entities with legal capacity to establish relationships that are determined by the Ministry of Labor and Social Security.
Another requirement that is essential to have is procedural capacity that consists of the ability to validly carry out procedural acts, this is the ability to appear in trials.
A third element to consider in order to be part of the process is legitimation, which determines who has to be part of a given process.
Section 2: labor processes.
Although the process is exclusive to the jurisdictional bodies, the procedure is not, but is applicable to all the functions of the State. In the process, it is necessary to take into consideration the structure and the links that mediate between the acts, the subjects who perform them, the purpose they serve, the principles to which they respond, the conditions of those who produce them, the burdens they impose and the rights they grant; On the other hand, when speaking of, reference is made to the extreme appearance of the jurisdictional activity, that is, to the form.
In the Cuban labor justice system, the labor process is made up of several procedures, in correspondence with the reason, the object and the parties. Hence, so far the labor procedures provided by current legislation are:
- The procedure before the Basic Labor Justice Bodies The procedure before the People's Municipal Court The review procedure The special procedures.
Section 3: the review procedure within the Cuban labor justice system.
This procedure constitutes a means of challenging a sentence that has reached the condition of firm and that is covered with material res judicata. The body before which it is promoted is not an instance, therefore it is a procedure and not an appeal since it does not continue with the claim that was the subject of the previous process, but instead exercises a new claim by which the final judgment is rescinded, alleging the causes not examined in the previous process. It is of an exceptional nature to make justice prevail over legal security that leads to the judicial decision of a process becoming irrevocable.
The review procedure is a concession of the legal system to justice to the detriment of security. In our labor system this concession is temporarily limited as we will see later. The exceptional nature of this procedure is also evidenced in its own case, which in turn constitutes the requirement to proceed against the final judgments issued in labor or social security proceedings when, after its firmness, facts are known of which no had news before, new evidence appears or the inadmissibility, illegality, arbitrariness or notorious injustice of it is irrefutably demonstrated.
The peculiarities of the procedure are:
- The prosecutor is a party. It is promoted in grounded writing before the Labor Chamber of the Supreme People's Court within a period of 180 calendar days after the date of notification of the ruling of the Municipal People's Court in cases where the initial disciplinary measure is the of definitive separation from the entity and in cases of labor rights after the expiration of the aforementioned terms, facts are known that were not known before or new evidence appears that affect the process. The review procedure may be promoted at any time. The aforementioned written evidence will be proposed to promote you.
As evidenced by the characteristics mentioned above in this procedure, legal representation is not required.Is it not a necessary guarantee for a lay worker in law to be able to be represented by a lawyer, when it is his will, before a process disciplinary or labor law, no matter the instance in question, especially when its result can lead to damage?
It is very positive that our labor justice system governs the principles of simplicity and speed, among others, but this can never represent a detriment to the aforementioned workers' guarantees, and in this sense, the principle of legality is of vital importance.. It is necessary that the worker who wishes to promote a review procedure is assisted by a lawyer so that the writing is admitted by the Labor Chamber of the Supreme People's Court, since only a legal professional can know if the requirements that have been met have been met. Labor legislation requires that such a procedure can be processed.
After submitting the request for review, the Court will immediately claim the original file in which the judgment whose review is requested was issued, upon receipt of the file, it will evaluate the reasons invoked to justify the circumstances required by article 734 of the LPALE, it will pronounce on the admission of the request and the proposed evidence and, if applicable, will be transferred to the prosecutor, from now on the support will be governed by articles 724 and following of said legal body, regulating the appeal, which although it was excluded of the Cuban labor process can serve as a guide as to how the Supreme People's Court should act.
If the review is declared valid, the Labor Chamber of the Supreme People's Court will annul the sentence that was the subject of the same and will dictate in its place the one that in law proceeds to resolve the merits of the matter, against which there is no recourse.
Conclusions
In our opinion, the conception of the current labor justice system is positive and advanced, we do not doubt the importance of the role of the labor collective, of the educational value that the workers themselves have to judge the indiscipline of their colleagues. But practice has shown that these concepts and ideas have not matured enough, that they do not work properly, there is not yet the level of awareness, understanding and consequent action in all of our administrative leaders, which guarantees in the first order a correct use of the disciplinary and second-order policy that guarantees a real independence from its subordinate members of the OJLB, devoid of pressures and future repressions.
In this research, the fundamental characteristics of the review procedure and its particularities have been pointed out and we can conclude that it requires certain formal requirements for its processing, but that they become procedural requirements for the court that has to admit the review.
Only a legal professional can clearly determine if the requirements required by labor legislation for the processing of this procedure have been met, therefore in our view the processing by the worker himself of a review procedure without having technical knowledge- legal is not effective.
So far, the aspects of the current labor dispute resolution procedure that we consider appropriate to address within this framework, not with the intention of assuming a hypercritical position, but with the sole intention of transmitting some assessments.
Bibliography
Viamonte Guilbeaux, Eulalia: Cuban Labor Law: Theory and Legislation Editorial Félix Varela. Havana 2007.
Internet
www.Trabajadres.cu/materiales_espéciales/suplementos/mundo_laboral/derechos_laborales_1.
Legislation
- Law No 7/77 Civil, Administrative, Labor and Economic Procedure Law 49/84. Labor Code Decree-law 176/97 of the Cuban labor justice system.
Footnotes
- Article 2 Decree-Law 176/97 On the Cuban labor justice system Article 1 Decree-Law 176/97 On the Cuban labor justice system. Article 734 of Law 7 of Civil, Administrative, Labor and Economic Procedure Article 735 (second paragraph) of Law 7 of Civil, Administrative, Labor and Economic Procedure Article 25 Decree-law 176/97 of the Cuban labor justice system.
