Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

Article 2(2)(c) of the Convention. 1. Work of prisoners for private companies. In its earlier comments, the Committee referred to the national provisions allowing the law enforcement authorities to conclude agreements concerning the employment of prisoners not only with public bodies or institutions, but also with private companies (section 101(3) of Order No. 6/1996 (VII 12) of the Ministry of Justice on the implementation of provisions concerning prison sentences and detention). It noted that Law-Decree No. 11 of 1979 on the execution of prison sentences provides for an obligation of convicts to work (section 33(1)(d)). The Committee also noted that the employment-related rights of prisoners are governed by the general provisions of labour law (subject to certain deviations), but their minimum remuneration corresponds only to one third of the general minimum wage (section 124(2) of the above Order No. 6/1996 (VII 12)) and they do not acquire pension rights under the existing legislation.

The Committee noted the Government’s repeated statement in its reports that prisoners are in a legal relationship with a penitentiary institution and are not directly employed by a third party, and perform labour under the supervision and control of the law enforcement bodies. It also noted the Government’s statement that the principal goal of employing inmates is to promote their rehabilitation and reintegration into society, as well as the Government’s view (also reiterated in its latest report) that the work performed by convicts (including the  “public utility labour”) is covered by the exception provided for in Article 2(2)(c) and therefore should not be considered as forced or compulsory labour.

The Committee recalled, however, that Article 2(2)(c) of the Convention expressly prohibits that convicted prisoners are hired to or placed at the disposal of private individuals, companies or associations, in a sense that the exception from the scope of the Convention provided for in this Article for compulsory prison labour does not extend to work of prisoners for private companies, even under public supervision and control. Under this provision of the Convention, work or service exacted from any person as a consequence of a conviction in a court of law is excluded from the scope of the Convention only if two conditions are met, namely: (i) that the said work or service is carried out under the supervision and control of a public authority; and (ii) that the said person is not hired to or placed at the disposal of private individuals, companies or associations. The Committee has always made it clear that the two conditions are applied cumulatively; i.e. the fact that the prisoner remains at all times under the supervision and control of a public authority does not in itself dispense the Government from fulfilling the second condition, namely that the person is not hired to or placed at the disposal of private individuals, companies or associations. The Committee therefore asked the Government to take the necessary measures to ensure observance of the Convention, such as, e.g., to provide that any prisoners working for private companies offer themselves voluntarily without being subjected to pressure or the menace of any penalty and, given their conditions of captive labour, subject to guarantees as to wages and other conditions of employment approximating a free employment relationship.

The Government reiterates in its latest report that, in national law and practice, contracts exist only between the economic organizations of penal authorities and private companies, while prisoners, who are under an obligation to perform prison labour, are in relation solely with the economic organizations of penal authorities; however, general labour legislation is applicable with regard to their conditions of work (with certain differences). It follows from the sample contracts concluded between the economic organizations of penal authorities and private companies, supplied by the Government, that the economic organization of penal authorities is responsible for providing prison workforce for the production, which will be organized under the job description and instructions as well as regular quality control of the private company, which will also supply all the necessary raw materials and tools and provide training for the workers; the private company will also pay a rental fee for the premises provided for the production and the “fee for the leased work”. It is specifically mentioned that the private company shall continuously control the production through its technical specialists, that the economic organization of penal authorities shall obey the instructions given by the private company, and that the contracting parties agree that they will cooperate during the term of the “lease work agreement”. The Government reiterates, however, that prisoners remain at all times under the supervision and control of the staff of the economic organization of penal authorities, in accordance with the provisions of the Convention.

In this connection, the Committee draws the Government’s attention to the explanations concerning the scope of the terms “hired to or placed at the disposal of” in paragraphs 56–58 and 109–111 of the Committee’s 2007 General Survey on the eradication of forced labour and observes that these terms cover not only situations where prisoners are “employed” by the private company or placed in a position of servitude in relation to the private company, but also situations where the companies do not have absolute discretion over the work performed by the prisoner, since they are limited by the rules set by the public authority. The Committee also refers to paragraph 106 of its 2007 General Survey, where it considered that the prohibition for prisoners to be placed at the disposal of private parties is absolute and not limited to work outside penitentiary establishments, but applies equally to workshops operated by private undertakings inside prisons.

While noting the Government’s indication that, in conformity with the first condition set out in Article 2(2)(c) of the Convention, the work is carried out “under the supervision and control of a public authority”, the Committee observes that, as regards the second condition, namely, that the person “is not hired to or placed at the disposal of private individuals, companies or associations”, contracts for the use of prison labour concluded with private companies in Hungary correspond in all respects to what is expressly prohibited by Article 2(2)(c), namely, that a person is “hired to” a private company. It is in the very nature of such hiring agreements (or “lease work agreements”, as they are called in the sample contracts supplied by the Government) to include mutual obligations between the prison authorities (or their economic branches) and the private company.

Referring to the explanations in paragraphs 59–60 and 114–120 of its 2007 General Survey referred to above, the Committee points out once again that work by prisoners for private companies can be held compatible with the explicit prohibition of the Convention only where the necessary safeguards exist to ensure that the prisoners concerned offer themselves voluntarily, without being subjected to pressure or the menace of any penalty, as required by Article 2(1) of the Convention. In such a situation, work of prisoners for private companies does not come under the scope of the Convention, since no compulsion is involved. The Committee has considered that, taking into account their captive circumstances, it is necessary to obtain prisoners’ formal consent to work for private enterprises both inside and outside prisons. Further, since such consent is given in a context of lack of freedom with limited options, there should be indicators which authenticate this free and informed consent. The Committee recalls that the most reliable indicator of the voluntariness of labour is the work performed under conditions approximating a free labour relationship, which include wage levels (leaving room for deductions and attachments), social security and occupational safety and health. In addition, there may also be other factors that can be regarded as objective and measurable advantages which the prisoner gains from the actual performance of the work and which could be considered in determining whether consent was freely given and informed (such as the learning of new skills which could be deployed by prisoners when released; the offer of continuing the work of the same type upon their release; or the opportunity to work cooperatively in a controlled environment enabling them to develop team skills).

Noting with interest the Government’s indication in the report that, in the course of the preparation of the comprehensive amendment of Law-Decree No. 11 of 1979 on the execution of prison sentences, the provisions of the Convention are being taken into account, the Committee expresses the firm hope that the necessary measures will be taken to ensure that free and informed consent is required for the work of prisoners for private companies both inside and outside prison premises, so that such consent is free from the menace of any penalty and authenticated by the conditions of work approximating a free labour relationship, as well as by other objective and measurable factors referred to above. The Committee requests the Government to supply a copy of the revised penitentiary legislation, as soon as it is adopted.

2. “Public utility labour” performed by convicted persons placed at the disposal of private parties. In its earlier comments, the Committee referred to the Penal Code provisions concerning “public utility labour ”, which shall be performed, as a penal sanction, without deprivation of a person’s freedom and without remuneration, but may be replaced by confinement in prison, if the convicted person fails to fulfil his or her labour obligations (sections 49 and 50 of the Penal Code). The Committee noted the Government’s indications that the work to be performed as public utility labour must be of public interest and that the employer (which may not only be a public institution, but also a private business organization) shall observe the safety provisions and ensure the same working conditions as those enjoyed by workers employed on the basis of a contract.

The Committee notes the Government’s indications concerning the National Strategy of Civil Crime Prevention and the adoption of Government decision No. 1036/2005 (IV.21) on tasks to be implemented in 2005–2006 in this connection, including the organization of special programmes for persons sentenced to public utility labour.

The Committee previously noted the Government’s indication in its report that convicted persons comply with their working obligations voluntarily and can choose freely between the two kinds of punishment. Referring to the above considerations in point 1 of the present observation concerning the prohibition contained in Article 2(2)(c), as well as to the explanations in paragraphs
123–128 in its 2007 General Survey on the eradication of forced labour, the Committee hopes that the Government will indicate, in its next report, how free choice between the two kinds of punishment is guaranteed and whether, in the course of drafting the new penitentiary legislation, a requirement of the voluntary consent of convicts to work for a private employer is taken into account. Please also provide information on the practical implementation of special programmes for carrying out public utility labour referred to above, including a list of authorized associations or institutions using such labour and giving examples of the type of work involved.