Cubalex, 23 August 2018 — According to Pedro Edgar Rizo Pena, in an article entitled “Demythologising Decree 349,” what the “activists against 349″ have not troubled themselves to analyse (perhaps due to lack of legal understanding, or not co-operating in reading and interpreting it) is that the decree promulgates the basis for the legal provisions which regulate self employment in the country… that is to say, this fact destroys the argument that the decree acts against the interests of artists and their creative expression.”
I completely disagree with what the writer says. Decree 349, in its first “Insofar as,” indicates that it updates Decree No.226 (but in the Final Disposicion it revokes it) where this section expressly recognises its application to breaches of regulations and provisions currently in force relating to provision of artistic services in public spaces or premises, in labour matters and in regard to cultural, artistic and literary policy. It does not mention self-employment, and nor does Decree 349 expressly refer to it.
Nor does it refer to the Labour Code, as did its predecessor, by way of Law No. 49/83, which was repealed by Law No. 116/2014 (the current Labour Code), which authorises the Ministry of Culture (Article 76) to establish the procedure and the entities authorised to evaluate the eligibility and professionalism necessary to carry out artistic work, as well as the form of remuneration for artists.
It does act against the interests of artists and their artistic work
If Decree 349 does not act against the interests of the artist, what is the meaning of the offence mentioned in Section e) of Part 1 of Article 2. I quote: “In the offering of artistic services, there are contraventions … the person who performs artistic services in the absence of authorisation to carry out artistic work in an artistic position or occupation.”
Subsequent to the entering into force of the new Labour Code, the Ministry of Culture (MINCULT) promulgated Resolution No. 45, of 16th June, 2014, “Regulations for the evaluation system for workers in artistic fields.” This established an Artistic Technical Council or evaluation tribunal, whiich assesses the quality of work, qualitative development of the ability and skill of the individual or collective, and awards or withdraws the professional designation of artists (be they graduates of artistic teaching, general teaching, or amateurs) for artistic festivals, genres and specialities, and artistic responsibilities.
The Ministry of Culture and the Cuban Institute of Radio and Television authorise institutions to make and market artistic productions and services. Only these entities are authorised to establish employment regulations with artists and groups of artists, according to professional performance. They have to apply for permission when they wish to contract an artist who has no evaluation for a particular performance or piece of work. It is forbidden to enter into employment relations with artists lacking an evaluation, who are not graduates of the artistic teaching system (they can be reevaluated after a year). An artistic group which loses its evaluation is dissolved.
There is no legal relationship with the self-employment regulations
Finally, Decree 349 broadens its coverage from “public places or institutions” to “public places or institutions which are or are not state-controlled.” The unhindered discretion and legal uncertainty is increased when the government does not define what is meant by “public places or institutions which are or are not state-controlled.”
It also widens the range of those to whom it may be applied. Decree No. 226 was limited to those individuals performing on behalf of a state, private, or mixed entity. Self employed persons (in the non-state sector) were not included because they are not entrepreneurs and therefore there is no legal reason for the state to consider them as entities (see the constitutional project glossary of terms).
Those individuals are authorised to undertake an economic activity, which, in the majority of cases, they undertake in their own houses. Clearly they carry out alterations to these business properties (hairdresser, bakery, restaurant, etc.) but legally they remain private residences. The state does not classify them as businesses or see the value of the property in that way. There is no justification for considering the place where they work on a self-employed basis to be one of the “public places or institutions which are or are not state-controlled,” let alone as “businesses.”
First published in Cubalex
Translated by GH