Observation (CEACR) - adopted 1992, published 79th ILC session (1992)

The Committee has taken note of the information supplied by the Government in its report.

Article 2, paragraph 2(c), of the Convention. In the comments it has been making for several years, the Committee has noted that some of the work done by prisoners is done in workshops managed by private undertakings inside the prisons under arrangements made with the prison authorities, who place prison labour at the disposal of such undertakings and remain responsible for their supervision from the security standpoint, while the private employees of the undertakings concerned may direct the detainees' work with the approval of the prison authorities.

The Committee has pointed out that Article 2, paragraph 2(c), of the Convention not merely requires that prison work should be carried out under the supervision and control of a public authority but also makes it unlawful for a prisoner to be hired to or placed at the disposal of private companies, and that these provisions also apply to workshops managed by private undertakings inside the prisons.

In its latest report the Government, referring to its previous comments, reiterates its opinion that prisoners working in workshops or undertakings managed by private individuals, companies or associations inside the prison are in no way subject to the private entrepreneur's power of disposal. According to the Government, the prisoners working in such workshops are subject solely to the power of disposal of the prison administration, like those working in workshops which belong to the penitentiary institution. The Government considers that, in the absence of any power of disposal, there can be no question of prisoners being "placed at disposal" within the meaning of Article 2, paragraph 2(c), of the Convention and that this, in its turn, precludes any need for the prisoner's consent, which would be a requirement only in the event that the prisoner was to be subjected to an authority other than that resulting from conviction in a court of law, namely the prison authority. That applies only to prisoners on parole who are called upon to perform work outside the penitentiary establishment for an undertaking which does not belong to that establishment; such prisoners can be assigned to such work only with their consent.

According to the Government, the fact that there is no contractual relationship between the undertaking and the prisoner illustrates that this is a special case of public employment and that the entrepreneur has no power of disposal.

The Committee takes due note of these indications. It is bound to point out that Article 2, paragraph 2(c), of the Convention explicitly prohibits that persons from whom work is exacted as a consequence of a conviction in a court of law be placed at the disposal of private individuals, companies or associations. Only work performed in the conditions of a free employment relationship can be held not to be incompatible with this prohibition; this necessarily requires the formal consent of the person concerned and, in the light of the circumstances of that consent, guarantees and safeguards in respect of wages and social security that are such as to justify the labour relationship being regarded as a free one.

In its previous report, the Government said that negotiations to bring prisoners into the social and unemployment insurance schemes were in progress and that a gradual increase in remuneration for all prisoners, within budgetary possibilities, was contemplated, together with an increase in the deferred pay credited to the prisoner's account in order to meet his needs during the period after his release.

The Committee notes the information given by the Government in its latest report to the effect that a substantial increase in remuneration and the integration of prisoners in the unemployment insurance scheme are among the aims declared by the Government for the present legislature. Negotiations on the subject between the ministries concerned have made progress, so that it is possible to envisage the realisation of these plans in the near future.

The Committee hopes that the Government will soon be in a position to report the adoption of these measures and of all arrangements made to ensure that the prisoners' formal consent is sought for work in workshops managed by private undertakings.