Observation (CEACR) - adopted 1995, published 82nd ILC session (1995)

Article 2, paragraph 2(c). Prison labour. In the comments that it has been making for a number of years the Committee has referred to Decree No. 18-17 of 1964 (the Prison Code), which imposes compulsory labour not only on persons who have been convicted (section 269), but on all detainees except those declared medically unfit (section 233). The Committee notes with satisfaction that the adoption of section 79 of the Prison and Penitentiary Code (Act No. 65 of 1993) which provides for an obligation to work in prison establishments only for persons who have been convicted.

Work for private enterprises. In its previous comments on the work undertaken by prisoners for private individuals and enterprises, the Committee indicated that such a labour relationship may be compatible with the Convention in so far as it may be regarded as a free employment relationship, that is to say, if those concerned have freely given their consent, provided that there are appropriate guarantees, such as the payment of normal wages, social security, etc.

The Committee notes that section 84 of the Prison Code referred to above provides that the work contract cannot be concluded between the prisoner and private individuals, who have to conclude it with the administration of each prison centre or with the company "Renacimiento" (a mixed economy company which is to be established by virtue of section 90 of the above Code for the purpose of producing and marketing goods and services produced in prison centres, in which the national Government will hold more than 50 per cent of the share capital). Section 84 provides that "work may be undertaken in prison centres by order of the director of the establishment to the prisoners ...". Section 87 empowers the director of each establishment to "conclude agreements or contracts with public or private law persons or entities ... with a view to assuring work ...".

With regard to the work undertaken by prisoners for private enterprises, whether or not they are profit-making, the Committee notes that the Code contains no provisions establishing that prisoners must be able to give their consent freely to the relationship, in accordance with the Convention.

The Committee notes the agreements concluded (before the adoption of the new Prison and Penitentiary Code) between a number of private enterprises and prison establishments, which were supplied by the Government. The Committee notes that the remuneration agreed between prison centres and private entities is from 20 to 50 per cent less than the statutory minimum wage. In one case, the remuneration envisaged corresponded to the statutory minimum wage. The Committee considers that in cases in which remuneration is not only lower, but considerably lower (50 per cent) than the statutory minimum wage, the relationship clearly cannot be regarded as a free employment relationship and requests the Government to take the necessary measures to ensure that the remuneration conditions of prisoners who work for private enterprises are similar to those of free workers.

The Committee requests the Government to supply information on the application in practice of the provisions respecting work by convicted persons, and particularly the measures established to ensure that they freely give their consent to work for private enterprises. The Committee also requests the Government to supply a copy of the regulations adopted under section 86 of the Prison Code, which determine the social protection of prisoners, and to provide information on the operation of the mixed economy company "Renacimiento" (section 90 of the above Code).