Individual Case (CAS) - Discussion: 2002, Publication: 90th ILC session (2002)

A Government representative stated that the question at issue was to what extent work performed by prisoners complied with the provisions of the Convention. In 1929-30, when the Convention was elaborated, two aspects had appeared important to the drafters of the Convention. At that time, the widespread view on prison labour was that work to be performed by inmates constituted part of the punishment and this had to be reflected in the particularly unfavourable working conditions. Another particularly important aspect for the ILO was that prison labour should not be used by employers in order to gain an unfair advantage, i.e. prison labour could not be a tool to exercise pressure on the other workers in order to impose lower working conditions. Convention No. 29 had been elaborated by taking into consideration these fundamental views prevailing at that time. Today, the issue of reintegration of prisoners through work was prominent in most countries, because prisoners had to be reintegrated in both the society and the world of work. In the light of the Convention, a possible conclusion was that prisoners working for private enterprises must be considered equal with workers in freedom, since reintegration into the world of work was only possible if prisoners performed work for private employers. The Government representative recalled that the State was never a good employer in the productive sector. Private employers had to have the function to help reintegrate prisoners. Two distinct possibilities for prisoners to perform work for private enterprises were available. The first was the outside employment of prisoners in a free employment relationship. In this case, the prisoner had a normal labour contract and came under the same legal provisions as workers in freedom. The Committee of Experts had considered this a case of progress. The second possibility was that prisoners performed work for private enterprises within state prisons, which had been criticized by the Committee of Experts. The Government representative emphasized that the provision of work within the state prisons was indispensable, because not all prisoners could be sent to private enterprises outside the prisons, particularly if the sentence had been pronounced just a short time ago. The provision of work to prisoners was only possible if the State created incentives for private enterprises to transfer their production inside the prisons. The idea that prison work was as attractive to employers as workers in freedom did not correspond to reality. One of the reasons for this was the limited availability of occupational qualifications amongst prisoners. The employer was not able to select his staff on the basis of the occupational qualification required for the production. Another reason was the rotation in prisons. Prison workers stayed with the enterprise established inside the prison until the imprisonment was finished. These factors did not contribute to the creation of favourable production conditions. Therefore, the State had to create incentives for private enterprises.

Turning to the report of the Committee of Experts, the Government representative emphasized that the Committee had only made observations regarding the German practice of prison work for enterprises inside the prisons. The Committee of Experts had referred to the Government's report of 2000 which did not reflect anymore the situation prevailing in the country. The Government had transmitted its report for 2000 rather late and, consequently, it had not been possible for the Committee of Experts to examine it at its session in 2000, but at its session in 2001. In the meantime, a new law had been enacted which became effective on 1 January 2001 and which addressed the points raised by the Committee of Experts. The Government representative suggested that, in the case the Committee of Experts was not able to examine a government's report and would examine it at its next session, the Office could send a communication, inviting the Government to transmit additional information on any changes. This would help avoid relying on outdated information.

The Government representative further indicated that the legislative changes introduced in 2001 were based on a decision of the Constitutional Court of 1998 which, before making its decision, had asked for, and received from the Office, information on the comments of the Committee of Experts, so that its decision may be considered as being influenced by the Experts' opinion. As to the content of the Act on the execution of sentences, as amended, the level of remuneration for prisoners had been increased from 5 per cent to 9 per cent of the average remuneration of workers covered by the pension scheme. For calculation purposes, the reference was the average remuneration level during the last two years. Prisoners now received a wage of approximately DM400 a month, compared with DM220 previously. The Act further granted one free day from work after work had been performed for two consecutive months. The prisoner was given the choice to spend the days off either as work-free days inside the prison; as additional holidays outside the prison, but only in the case of prisoners who were entitled, on grounds of their good behaviour, to spend holidays outside the prison; or to accumulate these days to shorten their term of imprisonment. With regard to the legislative amendments introduced in 2001, the Government representative was looking forward to the assessment of the Committee of Experts which would be a determining factor in any subsequent amendments. The adoption of any further amendments, however, would take some time, due to the federal system of the country.

The Employer members wished, before commenting on the case, to touch upon the procedural aspects mentioned in the previous intervention. There were several examples where the government report arrived in October and the Experts were apparently unable to process it at that time while in other cases the Experts would take into account information from other sources, sometimes without sufficient analysis. It was unclear at what point in time the Experts were unable to process information. The Employer members wished to make two suggestions for consideration. First, the Experts might consider providing governments with some clear and transparent guidance as to the timing of the submission of reports. Second, some consideration could be given to ensuring more transparency and consistency in examining information from other sources when dealing with government reports.

This was the first time that this case was being discussed by this Committee although the Experts had commented on it 11 times since 1991. The case concerned the situation of prisoners working in private enterprises under the constant supervision of the Government. The Experts had made a distinction between two situations, namely, "outside employment in a free employment relationship" and "compulsory work in a workshop run by a private enterprise". It was important to note that in both circumstances the work was supervised at all times by the State. Therefore, this distinction was misleading as in fact there was little difference in context between the two situations. In the first case, the Experts had found that this practice fell outside the scope of Convention No. 29, because the prisoners were able to get out of prison either as a result of good behaviour or because they had served a large part of their sentence and had not committed a serious crime. In these cases, the prisoners did not present a threat to society. The second case involved more hard core circumstances where the prisoners could not be released from prison. In this case, the Employer members held that the Committee of Experts' observation was too strict. The State clearly had a legitimate right to limit its activities to its core competencies. At the same time, society had an interest to see that prisoners performed useful work, in particular, for rehabilitation purposes. The private sector provided the appropriate framework to help accomplish this goal. While the Experts had acknowledged this in the first case, they had not done so in the second. In Germany, the prisoner remained under the supervision of the State at all times. In a modern developed state there clearly was a difference between the rehabilitative purpose of prison labour and the conditions which prevailed in 1930. Prison labour enabled workers to do something constructive with their time. The issue of consent of the prisoner was in their view a theoretical question. As a practical matter, virtually all prisoners consented to work. In a prison under the control of the public sector, the Employers found it difficult to accept that someone who had committed a crime against society deserved the same circumstances as someone who had not. Regarding the conditions of employment the private employers must take those prisoners who were available regardless of skills and productivity. These shortcomings needed to be balanced with the level of social insurance and wages.

The Employer members found it hard to understand how the Experts with all the vast changes that had taken place in the world since 1930 could not recognize the changes in prison practice and prison rehabilitation, particularly within a developed and democratic country and particularly where there was ongoing governmental supervision, and see this as within the scope of the Convention. The current practices were different from what the Conference had in mind in 1930 when Convention No. 29 had been adopted. Today the approach was not to use prison labour as punishment. The static historical view of the Experts undermined the basis of work of this Committee.

The Worker members stated that for the past number of years this Committee had discussed extensively the privatization of prisons and prison labour. This practice was growing quickly in many developed countries, in particular in France, Austria, Australia, the United Kingdom, the United States and of course in Germany, but also constituted a profound problem in many developing countries. The discussion would focus on the issue of prisoners held in public prisons performing work for private enterprises and, in this regard, the Government had provided information in writing, complemented by the statement before the Committee, on two aspects: (a) outside employment in a free employment relationship; and (b) compulsory work in a workshop run by a private enterprise. Regarding the first aspect, the Government reported that prison authorities were obliged to promote free employment relationships; these came into being only at the prisoner's request; the prisoner had a normal labour contract, came under the same legal provisions as workers and trainees in freedom, received wages established by collective agreement, and was covered by the social security system including pension, health, accident and unemployment insurances. A contribution for detention costs might be levied that could not exceed DM660, which seemed quite reasonable. The German situation demonstrated that the measures compatible with Convention 29 regarding outside prison employment could in fact be implemented if there was the political will to do so. For this, the Worker members commended the German Government.

The Experts emphasized, however, that the conditions of a free employment relationship did not apply to the second type of private use of prison labour in Germany, namely, compulsory work in a privately run workshop. The Experts reminded this Committee that the current practice corresponded exactly to the description given in the ILO Memorandum of 1931 of the "special contract system", a system in which the labour of prisoners was hired to private contractors. The fact that prisoners remained at all times under the authority and control of the prison administration, did not detract from the fact that they were hired to a private enterprise - a practice designated in Article 2(2)(c) of the Convention as being incompatible with this basic human rights instrument. For many years the Experts had identified two additional conditions in order to overcome the problems associated with a prisoner who had been convicted in a court of law and hired or placed at the disposal of private individuals, companies or associations. First, the prisoner must freely consent to the arrangement and, second, the conditions of work should approximate a free labour relationship.

The Worker members had listened carefully to the comments made by the Employer members during the discussion of Côte d'Ivoire. The Employer members' position was that governments had the right to demand that prisoners work, but that governments were increasingly unable to provide meaningful work due to increased privatization of production. Therefore, only cooperative arrangements between the State and the private sector could provide such meaningful work. The Worker members did not dispute the right of governments to force prisoners to work when such work fell under the exclusions of Convention No. 29. They had often emphasized in this Committee the importance of rehabilitation of prisoners so that they could re-enter society as productive citizens and with skills to enter the labour market once they had served their debt to society. However, they reminded the Committee that Convention No. 29 was not a prisoner rehabilitation Convention but a core human rights instrument. Its drafters had recognized the vulnerability of prisoners as captive labour and had drafted a Convention that provided a framework to ensure that compulsory prison labour was indeed rehabilitative and not exploitative. As the Experts stated, prisoners did not need to be protected from their own free will in accepting work, but rather from exploitation of their deprivation of freedom. The Employer members seemed eager to take advantage of the potential for exploitation while at the same time indifferent to the need for protection. They conveyed an attitude that the key to rehabilitation was the private sector and therefore the State should get out of the way. Even the Employer members would accept that the pursuit of profit by companies employing prisoners took precedence over their altruistic desire to rehabilitate prisoners. In this context, it was important that conditions were set to ensure that the nature of the work provided by prisoners employed by private companies was indeed rehabilitative and not exploitative. This was one of the objectives of Convention No. 29 which did in fact provide for the private sector to employ prisoners without exploiting them.

Regarding the issue of "free consent" in relation to the existing situation in Germany, the Experts had noted that under section 41(3) of the Act on the Execution of Sentences, adopted in 1976, employment in a workshop run by a private enterprise was to depend on the prisoner's consent, which might be withdrawn later on, subject to six weeks' notice if no other prisoner could fill the vacancy earlier. This sounded reasonable. However, this provision of the law had been suspended before entering into force and had remained dead letter ever since. The Worker members asked the Government representative to update the Committee on the status of this suspension and any possibilities that it may be lifted. In regard to "conditions approximating a free labour relationship", the Experts commented on two issues, the absence of any social security benefits for prisoners working in private workshops and the level of wages earned by the prisoners. The Government representative had provided new information today on these issues. In regard to the absence of social security benefits, the Worker members inquired whether the new legislation now extended some coverage to prisoners working in private workshops. The Experts had indicated that sickness and old age insurance might have been extended to such prisoners. While the Worker members welcomed this partial step they wondered why the full range of social security coverage available in Germany had not been extended to these prisoners. They asked the Government representative to explain why full social security benefits including the national pension scheme and the national health insurance system had been denied and what plan might exist to provide them in the future. In regard to the wages paid to prisoners in private workshops, the Experts noted that the 1976 legislation established an initial wage level at only 5 per cent of the average wage of comparable workers but that this rate would steadily increase beginning in 1980. This had never happened. For 25 years since the enactment of the legislation the wage level had stood at only 5 per cent. The Experts had reminded this Committee in paragraph 8 that on 1 July 1998 the Federal Constitutional Court had found this level of prisoners' remuneration incompatible with the principle of rehabilitation and instructed the legislature to set new rules in conformity with the German Constitution. In other words, the level of remuneration was so inadequate that it did not provide a sufficient incentive to encourage prisoners to work voluntarily. This Committee was now told that in response to this Court order the rate had recently been raised to 9 per cent. The Worker members needed to express the view that going from 5 to 9 per cent was hardly sufficient and surely did not move the country very much closer to meeting its treaty obligations under Convention No. 29. The Government representative had also spoken of a new concept contained in the new legislation that should be considered in connection to the remuneration scheme. Prisoners may now be able to reduce their time in prison by working in private workshops. A prisoner could reduce his time in prison by six days for every year worked. So a prisoner working in a private workshop for ten years would be able to reduce his sentence by 60 days. Again, the Worker members had great difficulty seeing this new scheme as a major step forward. This new concept also raised the issue of duress as discussed in the past.

Finally, the Experts noted with concern that "45 years after ratification of this basic human rights Convention, prisoners working for private enterprises in Germany fall into two categories, with some enjoying the full benefits of a free employment relationship, while the others were hired to those who used their labour without their consent and in conditions bearing no resemblance whatsoever to the free labour market". The Experts expressed the hope that the Government would at last take the required measures to bring the legislation and practice into conformity with Article 1(1), read together with Article 2(1) and 2(c) of the Convention. Although the Worker members accepted that some positive steps had been recently adopted in regard to compulsory work in workshops run by a private enterprise, they found that these steps were insufficient and were only very preliminary steps toward bringing Germany closer to meeting its full obligations under the Convention. They hoped that the German Government would recognize the authority of the Committee of Experts in regard to this aspect of the Convention as it had in regard to outside employment in a free market relationship.

The Worker member of Germany welcomed the fact that the Committee of Experts paid attention to the conditions under which prisoners worked in industrialized countries. While it was true that the forms of prison labour had changed over time, the basic problems remained. In no case should the condemnation in a court of law result in the prisoners' loss of all their rights at work, nor should it lead to unfair competition. Despite longstanding criticism, the previous German Government had not lived up to the commitments it had initially made, which was why the Federal Constitutional Court had to deal with the issue in 1998. The German Confederation of Trade Unions (DGB) had referred, in its submission to the Court, to Convention No. 29 and the practice of the Committee of Experts. The Office had been represented at the oral proceedings and the Court's judgment expressly referred to Convention No. 29. The Federal Constitutional Court had recently declared the Act promulgated as a result of its 1998 judgment as being in conformity with the Constitution. The Court had however pointed out that the Government was under the obligation to review periodically whether the evolving circumstances required a further increase of remuneration for prison work. It was now to the Committee of Experts to examine the new legislation. While the legislation was a step in the right direction, it did not remedy all problems. In particular, there was a need to increase the level of remuneration, since the current level at 9 per cent of the average remuneration was not sufficient to allow prisoners to take responsibility for their families and to provide compensation. The proposal to increase the remuneration of prison labour to 15 per cent of the average remuneration had been rejected by the "Länder", which were responsible for prison matters. Moreover, the coverage of prisoners by the social security system remained insufficient, in particular concerning pension schemes. In concluding, the Worker member of Germany stated that human dignity and the task of re-socialization required the creation of positive perspectives through freely chosen labour. Reintegration was the best protection from new criminal behaviour, from a lifelong need for public assistance and the best protection for potential victims. He called on the Government to take further positive steps to fully satisfy the requirements of the Convention.

The Worker member of the United Kingdom associated himself with the comments made by the Worker members and by the Worker member of Germany.

The Worker member of France pointed out that this case was being examined by this Committee for the first time. Although the decision of the Constitutional Court was welcome, the Government could have taken into account more quickly the comments that the Committee of Experts had been making for over 45 years. The doubling of prisoners' wages and the granting of sentence reduction or rest days constituted a limited progress for prisoners and for the amelioration of their daily life. Even if prison work generated a productivity inferior to that of the free market, a pay rate equal to 9 per cent of the minimum wage was not just, in particular taking into consideration the fact that this wage could serve to compensate victims. On the other hand, it was impossible to estimate the price of a one-day sentence reduction; as freedom was in fact priceless. Social protection in the areas of health and old-age pensions represented in fact a deferred pay, of which prisoners did not benefit. Also, upon their release, prisoners were not affiliated to the social security system, which hindered their rehabilitation, constituted a supplementary source of precariousness and could favour recidivism. Prison must not be a social vengeance but a means of rehabilitation, if prisoners so wished. Thus, in their eyes, work had to maintain a real "value". The levels of training, qualification and schooling of prisoners were obviously below average. That was why efforts had to be made to facilitate their rehabilitation and accompany their release. This matter was not covered by the Convention, but resulted from a modern and humanist vision of imprisonment and its practical application. In conclusion, certain prison work remained compulsory in Germany, which, given its low wage rate, appeared to be more of a complementary sentence than a rehabilitation measure. This case would have to be re-examined in light of the comments to be made by the Committee of Experts regarding the new legislation.

The Government representative, in response to a question raised by the Worker members concerning the extent to which prison labourers were covered by the social security scheme, explained that they were covered by the unemployment and accident insurance, but that medical care was generally ensured by the prison medical service. Once released from prison, those concerned would be covered by health insurance. He acknowledged, however, that they had no access to the pension scheme either as workers or as beneficiaries of the unemployment insurance system. With regard to the number of prisoners employed in a free employment relationship outside the prison, statistical data was regrettably not available, but affirmed that this was a widespread practice. The Constitutional Court had obliged the Government to review periodically the level of remuneration of prison labourers. In this connection, the views expressed by the Committee of Experts and the Conference Committee would also play a decisive role.

The Worker members confined themselves to the points that they hoped to see included in the conclusions. First, in regard to the question of outside employment in a free market relationship, the situation in both law and practice appeared to be in full compliance with the Convention. Second, the Committee should welcome the new legislation improving the remuneration provided to prisoners working in workshops run by a private enterprise as a first step to bringing the law more in line with this aspect of the Convention. Third, the Committee should ask the Government to include all relevant information in its next report in respect to the new legislation and all other issues observed by the Committee of Experts, such as the branches of the social security system extended to prisoners working in workshops run by a private enterprise.

The Employer members observed that the issue before this Committee was not the words of Convention No. 29 but the interpretation of these words. The Committee was witnessing a failure on the part of the Committee of Experts to see the world as evolving. As the Government representative had pointed out, the situation today with regard to prison labour was simply not the same as in 1930. This was because the work being performed in prison was intended to develop relevant skills for when the prisoners left prison. It was disingenuous of the workers to say that employers preferred prison labour. In fact, as the Government representative had affirmed, incentives were needed to get the employers to provide these jobs. And the idea that persons who had committed crimes against society were entitled to the same level of terms and conditions of employment as other workers was not reflecting reality, particularly in situations like this one where there was high turnover, low productivity and risk to property. The most this Committee could conclude was that the Government should continue to take the positive steps that it had indicated and that there was a clear difference of view in this Committee regarding the Experts' static approach to prison labour in a modern developed and democratic society where such labour took place under governmental supervision.

The Worker member of France suggested that the Government be requested to supply statistics on the practice in different Länder.

The Committee took note of the statement made by the Government representative and of the discussions which followed on the question of compulsory work of prisoners for private enterprises within the state prisons. The Committee took note of the observations that the Committee of Experts had made for many years, on the question of prisoners working in prisons in the context of concessions to enterprises without being able to give their consent to this work, and in conditions which could not be compared to those of the free labour market. The Committee equally noted that concerning outside employment, prisoners benefited from the advantages of a free employment relationship. The Committee also noted the information supplied by the Government representative on the question of prisoner consent and on the Act adopted in December 2000, which provides that the remuneration rate of these prisoners, fixed at 5 per cent of the average wage of free workers, would be increased to 9 per cent. The Committee expressed its desire to return to this question after examination by the Committee of Experts of the abovementioned Act, expressing the hope that new progress could be noted in the near future, with a view to the rehabilitation objectives reaffirmed by the German Government. More generally, the Committee discussed general questions on the protection of prisoners against exploitation of their work and the relevance of this situation with regard to the protection provided for in the Convention. The objectives of rehabilitation, which were being more and more emphasized were not incompatible, quite the contrary, with Convention No. 29.

The Worker member of France suggested that the Government be requested to supply statistics on the practice in different Länder.

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Direct Request (CEACR) - adopted 2018, published 108th ILC session (2019)

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

Article 1(1) and Article 2(1) and (2)(c), of the Convention. Work of prisoners for private enterprises. In comments made for many years on law and practice in Germany, the Committee referred to the situation of prisoners working for private enterprises. It noted, in particular, that such prisoners fall into two categories: (a) prisoners performing work on the basis of a free employment relationship outside penitentiary institutions; and (b) prisoners who are obliged to work, without their consent, in workshops run by private enterprises within state prisons, in conditions bearing no resemblance whatsoever to the free labour market. The Committee pointed out that the latter situation is incompatible with Article 2(2)(c) of the Convention, which expressly prohibits convicted prisoners from being hired to or placed at the disposal of private individuals, companies or associations. It also noted with regret that the requirement of the prisoner’s formal consent to be employed in a workshop run by a private enterprise, laid down in section 41(3) of the Act on the execution of sentences of 1976, was suspended by the Second Act to improve the budget structure, of 22 December 1981, and had remained a dead letter since that time.

The Committee has noted the Government’s indication in its 2006 and 2008 reports that, when work is carried out for private companies in prisons, only the material for the work is brought into the prisons by the companies, the supervision of the prisoners concerned being the sole responsibility of the prison staff. The Committee recalls in this connection that compulsory work or service exacted from any person as a consequence of a conviction in a court of law is compatible with the Convention only if two conditions are met: namely, that the said work or service is carried out under the supervision and control of a public authority and that the said person is not hired to or placed at the disposal of private individuals, companies or associations. The fact that prisoners remain at all times under the authority and control of the prison administration does not detract from the fact that they are “hired to” a private enterprise – a practice designated in Article 2(2)(c) of the Convention as being incompatible with this basic human rights instrument.

Referring to the explanations in paragraphs 59–60 and 114–120 of its General Survey of 2007 on the eradication of forced labour, 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 be also 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).

The Committee notes with regret the Government’s statement in its 2006 and 2008 reports that, in view of the overall economic situation in Germany, the federal Government has still not taken any steps to bring into force a provision for the consent of prisoners to work in private workshops, as laid down in section 41(3) of the Act on the execution of sentences of 1976, or any steps to raise prisoners’ remuneration or include them in the pension insurance scheme.

The Committee notes the Government’s indication in its latest report that, throughout the federal territory, an average of 11.61 per cent of prisoners worked for private enterprises in 2006, though figures for the Länder ranged from 2 up to 20 per cent. The Government states that the work situation in prisons is characterized by a job shortage, and the prison authorities are therefore striving to increase the percentage of private companies in prisons to bring down the number of unemployed. As regards the wages earned by prisoners working in private workshops, the Committee previously noted the Government’s view that the existing level of prisoners’ remuneration in Germany was still insufficient and that, in spite of the Federal Constitutional Court’s decision of 24 March 2002, which currently precludes the success of any policy initiatives aimed at further increasing prisoners’ remuneration, the Government would nevertheless continue to promote its view and monitor closely the budgetary situation in the Länder. The Government also expressed its intention to pursue its efforts as regards the inclusion of prisoners in the state pension schemes. As regards conditions of work of prisoners working for private enterprises, the Committee has noted from the Government’s reports that their hours of work generally correspond to the regular weekly working hours in the public service, and the statutory safety and health and accident prevention provisions are also fully applied.

While having duly noted this information, the Committee reiterates its concern that, more than 50 years after the ratification of this fundamental human rights Convention, a significant proportion of the prisoners working for private enterprises in Germany is hired to private enterprises which use their labour without their consent and in conditions bearing no resemblance whatsoever to the free labour market. While noting the Government’s repeated statement in its reports that the Federal Constitutional Court has ruled that compulsory work of prisoners for private companies is compatible with the Basic Law, the Committee points out once again that, as explained above, the situation is still not in conformity with the Convention, both in legislation and in practice.

Noting the Government’s view expressed in its reports that the work of prisoners for private companies should be adapted as closely as possible to normal working conditions – so as to facilitate the prisoners’ reinsertion into working life – the Committee expresses the firm hope that the necessary measures will at last be taken, both at the federal and at the Länder levels, to ensure that free and informed consent is required for the work of prisoners in private enterprise workshops inside 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 hopes, in particular, that the provision for the consent of prisoners to work in private workshops, already made in section 41(3) of the 1976 Act referred to above, will at last be brought into operation, together with the provisions regarding their contribution to the old-age pension scheme, as foreseen by section 191 et seq. of the same Act, and that the Government will soon be in a position to report the progress made in this regard.

Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee has noted the Government’s reply to its earlier comments.

Articles 1(1), 2(1) and(2)(c) of the Convention. Prisoners working for private enterprises

1. In its earlier comments, the Committee noted with concern that prisoners working for private enterprises in Germany fell into two categories: (a) prisoners performing work on the basis of a free employment relationship outside penitentiary institutions; and (b) prisoners who are obliged to work, without their consent, in workshops run by private enterprises within state prisons, in conditions bearing no resemblance whatsoever to the free labour market.

2. The Committee recalls that, to be compatible with Article 2(2)(c) of the Convention, which expressly prohibits convicted prisoners from being hired to or placed at the disposal of private companies, work of prisoners for private enterprises should be carried out in conditions approximating a free employment relationship; this necessarily requires the formal consent of the persons concerned, as well as further guarantees and safeguards covering the essential elements of a free labour relationship, such as wages and social security, etc. (see paragraphs 119 and 128 to 143 of the Committee’s general report to the 89th Session of the International Labour Conference, 2001).

3. As the Committee previously noted, if the conditions of a free employment relationship are satisfied in regard to the first category of prisoners referred to above ("outside employment"), such conditions do not yet apply to the second category of prisoners performing compulsory work in a privately run workshop within the prison, which is still being practiced under national law.

Compulsory work of prisoners in a privately run workshop

4. In comments made for many years on law and practice in Germany, the Committee has observed that, contrary to the Convention, prisoners are hired to or placed at the disposal of private enterprises. The fact that prisoners remain at all times under the authority and control of the prison administration does not detract from the fact that they are "hired to" a private enterprise - a practice designated in Article 2(2)(c) of the Convention as being incompatible with this basic human rights instrument. In this connection, the Committee noted with regret that the requirement of the prisoner’s formal consent to be employed in a workshop run by a private enterprise, laid down in section 41(3) of the Act on the execution of sentences, of 1976, was suspended by the Second Act to improve the budget structure, of 22 December 1981, and has remained a dead letter since that time.

5. As regards the wages earned by prisoners working in private workshops, the Committee previously noted that, in 2001, the prisoners’ benchmark remuneration was raised to 9 per cent of the average wage of those covered by the workers’ and employees’ pension insurance scheme. The Committee notes from the Government’s latest report that the Government remains of the view that the existing level of prisoners’ remuneration in Germany is still insufficient. The Government indicates that, in spite of the Federal Constitutional Court’s decision of 24 March 2002, which currently precludes the success of any policy initiatives aimed at further increasing prisoners’ remuneration, and the limited financial scope of the Länder, the Government will nevertheless continue to promote its view and monitor closely the budgetary situation in the Länder. According to the report, the Government will also continue to pursue its efforts as regards the inclusion of prisoners in the state pension schemes.

6. The Committee notes that the report refers to a survey on prison labour carried out by the Government at the Länder level. The survey reveals a persistent shortage of employment vacancies for prisoners: in 2002, only between 40 and 60 per cent of prisoners were offered work or vocational training, the majority of working prisoners being employed at enterprises managed by the penal institutions, and not by private companies; the proportion of prisoners working for private enterprises outside the institution on the basis of a free employment relationship was approximately 20 per cent, and of those working in privately run workshops inside prisons was around 8.2 per cent of all prisoners. According to the survey, hours of work generally correspond to the habitual weekly working hours in the civil service, and the statutory safety and health and accident prevention provisions apply without restriction.

7. While having duly noted this information, the Committee reiterates its concern that, almost 50 years after the ratification of this fundamental human rights Convention, an important proportion of the prisoners working for private enterprises in Germany is hired to those who use their labour without their consent and in conditions bearing no resemblance whatsoever to the free labour market. The Committee therefore expresses firm hope that the necessary measures will at last be taken to bring into force the provision for the consent of prisoners to work in private workshops, already made in section 41(3) of the 1976 Act referred to above, as well as the provisions regarding their contribution to the old-age pension scheme, as foreseen by section 191 et seq. of the same Act, and that their remuneration will be brought into line with the wages of workers under a free employment relationship.

Observation (CEACR) - adopted 2003, published 92nd ILC session (2004)

Further to its previous observation, the Committee has noted the Government’s report and the discussion that took place in the Conference Committee in 2002 on the application of the Convention by Germany.

Articles 1(1) and 2(1) and (2)(c) of the Convention. Prisoners working for private enterprises

1. The Committee recalls that under Article 2(2)(c) of the Convention, compulsory prison labour is not exempted from the scope of the Convention when a prisoner is hired to a private enterprise. In its previous observation, the Committee noted with concern that prisoners working for private enterprises in Germany fell into two categories, with some enjoying the full benefit of a free employment relationship, while others were hired to those who use their labour without their consent and in conditions bearing no resemblance whatsoever to the free labour market.

2. The Committee notes the statement made by a Government representative in the Conference Committee in 2002 that in 1929-30, when the Convention was elaborated, the widespread view was that work to be performed by inmates constituted part of the punishment and this had to be reflected in the particularly unfavourable working conditions; that the Convention had been elaborated by taking into consideration these fundamental views prevailing at that time; that today, the issue of reintegration of prisoners through work was prominent in most countries; and that in the light of the Convention, a possible conclusion was that prisoners working for private enterprises must be considered equal with workers in freedom.

A.  Private employment in a free employment relationship

3. The Committee recalls the Government’s indications in its previous report that prisons authorities were obliged to promote free employment relationships; these came into being only at the prisoner’s request; the prisoner had a normal labour contract, came under the same legal provisions as workers and trainees in freedom, received wages established by collective agreement, and was covered by the social security systems (pension, health, accident and unemployment insurances) to the same extent as workers in freedom. A contribution for detention costs could be levied, the amount of which depended on the board and lodging provided but could not (in 2000) exceed the equivalent of 337.55 euros. In its latest report, the Government adds that the significance attached to day release by certain Länder in order to permit free employment relationships to take place has resulted in such release being granted in 1999 in a total of 21,395 cases among the approximately 50,000 prisoners within the German federal penitentiary system.

4. The Committee notes these indications with interest. However, the conditions of a free employment relationship do not yet apply to the second type of private use of prison labour that is still being practised under national law, as recalled below.

B.  Compulsory work in a privately run workshop

5. In comments made for a great number of years, the Committee has noted that under the legislation in force, prisoners may be obliged to work in workshops run by private enterprises within state prisons, as already described in the ILO Memorandum of 1931. The fact that prisoners - now as then - remain at all times under the authority and control of the prison administration does not detract from the fact that they are "hired to" a private enterprise - a practice designated in Article 2(2)(c) of the Convention as being incompatible with this basic human rights instrument.

6. The Committee notes with regret that section 41(3) of the Act of 13 March 1976 on the execution of sentences under which employment in a workshop run by a private enterprise is to depend on the prisoner’s consent, has up to now remained a dead letter, after its entry into force was suspended by the "Second Act to improve the budget structure" of 22 December 1981.

7. Further provisions in the Act on the execution of sentences were to progressively raise the existing conditions of employment of prisoners, including those working in private workshops, by reference to those of a free employment relationship. The Committee notes the Government’s indication in its report that it attempted in the eighth, ninth and tenth legislative periods of the federal Parliament to bring into force the provisions on the inclusion of prisoners into the pension insurance scheme, but that these attempts failed due to resistance by the federal council. It thus appears that since the end of the tenth legislative period in 1987, no more attempts were made to restore in any part of Germany the social insurance coverage that had already been effectively extended to prisoners under Prussian legislation referred to in the ILO Memorandum of 1931 on prison labour.

8. As regards the wages earned by prisoners working in private workshops, the Committee previously noted that the 1976 Act on the Execution of Sentences recognized all prisoners’ right to wages, but established the initial benchmark level at only 5 per cent of the average wage of workers and employees covered by the old-age insurance scheme. A first increase of this percentage was to be envisaged on 31 December 1980, but not enacted until the federal Constitutional Court found the existing level of prisoners’ remuneration incompatible with the principle of rehabilitation and instructed the legislature to set new rules by 31 December 2000 at the latest. The Committee notes from the Government’s report that on 1 January 2001, the prisoners’ benchmark remuneration was raised to 9 per cent of the average wage (in 1999) of those covered by the workers’ and employees’ pension insurance scheme. Furthermore, six days off were added per calendar year worked. The Committee notes that the Government shares the view that this is not sufficient; but that draft legislation to raise the benchmark wage to 15 per cent of the reference value could not be passed due to the resistance of the Länder. The Government, however, is still endeavouring to reach an agreement with the Länder on this question.

9. The Committee also notes the view expressed by the Employer members in the Conference Committee, that with regard to conditions of employment, private employers had to take those prisoners who were available, regardless of skills and productivity, and that these shortcomings needed to be balanced with the level of social insurance and wages. However, in the view of this Committee, this factor has no bearing on the system under consideration, since there is no link between the level of payments made by a private enterprise under contract to the prison authorities for the work of the prisoners hired to the enterprise. The level of payments by the prison authorities to the prisoners is an incommensurably lower statutory amount. Moreover, the latter remuneration may be even further lowered according to performance: under section 45, paragraph 2 of the Act on the execution of sentences, it may fall below 75 per cent of the benchmark remuneration - that is, below 6,75 per cent of the average outside wage - if the performance of the prisoner does not meet the minimum requirements.

10. Referring to the fact that the wages paid by private enterprises to the prisons at the level fixed by collective agreements are passed on to the prisoners only up to their statutory remuneration (of 9 per cent of the general average), with the remainder going to the judiciary budget, the Government states in its report that this is justified. The Government claims that because the level of prisoners’ wages (leaving aside those under free employment relationships) is fixed by law, a considerably higher remuneration of those prisoners who, more or less by chance, are working for private companies rather than in institutional workshops, is not justified. The Committee must point out that prisoners working under a free employment relationship do draw normal wages and contribute to the detention cost to the reasonable extent mentioned in paragraph 5 above. Such free employment relationships are compatible with the Convention, while the hiring of compulsory prison labour to private employers is specifically prohibited by Article 2(2)(c). Also, the present state of national legislation is no justification for non-compliance with the Convention, ratified in 1956. Finally, the Convention is neither concerned with the level of remuneration in state workshops, nor an obstacle to bringing it into line with the private sector.

11. The Committee has noted the assurances given by the Government representative to the Conference Committee in 2002 that he was looking forward to the present Committee’s assessment which would be a determining factor in any subsequent amendments of the Act on the execution of sentences, which would, however, take some time, due to the federal system of the country. The Committee accordingly trusts that the provisions for the consent of prisoners to working in private workshops, already made in section 41(3) of the 1976 Act, will at last be brought into force, as well as arrangements for their contribution to the old-age pension scheme, as foreseen by section 191 et seq. of the 1976 Act in conformity with much earlier state legislation; and that in respect of wages and deductions for detention costs, their position will also be brought into line with that of prisoners already working under a free employment relationship. The Committee looks forward to learning of concrete steps towards these changes.

Observation (CEACR) - adopted 2001, published 90th ILC session (2002)

Further to its earlier observations on the observance of the Convention in Germany, the Committee notes the Government’s reply to the 1998 general observation under the Convention.

Articles 1(1) and 2(1) and (2)(c) of the Convention.
Prisoners working for private enterprises

1. The Committee notes the Government’s indication in its report that there is no penal institution administered as a whole by a commercial or other enterprise in the country, and that such practice would be inadmissible under the national Constitution. The Government reports on two distinct possibilities of prisoners performing work for private enterprises: (a) outside employment in a free employment relationship ("Freigang"); (b) compulsory work in a workshop run by a private enterprise.

A.  Outside employment in a free employment relationship

2. Under section 39(1) of the Act on the execution of sentences:

The prisoner is to be permitted to take up work or further vocational training on the basis of a free employment relationship outside the [penal] institution, if this … serves the objective of transmitting, preserving or furthering capacities for a gainful activity after release and is not contrary to overbearing reasons of the execution [of the sentence].

The Government indicates in its report that prison authorities are obliged to promote free employment relationships; these come into being only at the prisoner’s request; the prisoner has a normal labour contract, comes under the same legal provisions as workers and trainees in freedom, receives wages established by collective agreement, and is covered by the social security systems (pension, health, accident and unemployment insurances) to the same extent as workers in freedom. A contribution for detention costs may be levied, the amount of which depends on the board and lodging provided and currently may not exceed DM660.20.

3. The Committee notes these indications with interest. They set out the very model described by the Committee in paragraph 97 of its 1979 General Survey, of a system of private employment of prisoners that does not fall within the scope of the Convention. However, the conditions of a free employment relationship do not apply to the second type of private use of prison labour that is still being practised under national law, as recalled below.

B.  Compulsory work in a privately run workshop

4. In comments made for a great number of years, the Committee has noted that under the legislation in force, prisoners may be obliged to work in workshops run by private enterprises within state prisons. As the Committee noted in paragraphs 96 and 100 of its general report of last year, the practice followed in this regard in Germany corresponds exactly to the description given in the ILO Memorandum of 1931 of the "special contract system", a system in which the labour of prisoners is hired to private contractors. The fact that prisoners - now as then - remain at all times under the authority and control of the prison administration does not detract from the fact that they are "hired to" a private enterprise - a practice designated in Article 2(2)(c) of the Convention as being incompatible with this basic human rights instrument.

5. In 1978, the Committee noted with interest the adoption of the Act on the Execution of Sentences, of 13 March 1976. Under section 41(3) of the Act, employment in a workshop run by a private enterprise is to depend on the prisoner’s consent, which may be withdrawn later, subject to six weeks’ notice if no other prisoner can fill the vacancy earlier. However, the consent requirement of section 41(3), which was to enter into force on 1 January 1982, was suspended by the "Second Act to improve the budget structure" of 22 December 1981, and has remained a dead letter ever since.

6. Further provisions in the Act on the execution of sentences were to progressively raise the existing conditions of employment of prisoners, including those working in private workshops, by reference to those of a free employment relationship. Thus, sections 191 to 193 of the Act make provision for the extension of sickness and old-age insurance to prisoners, and the Government reported from 1979 onwards on draft legislation to this end. However, although such social insurance coverage had already been effectively extended to prisoners under Prussian legislation referred to in the ILO Memorandum of 1931 on prison labour, no provisions to this effect are now in force in any part of Germany.

7. As regards the wages earned by prisoners working in private workshops, the 1976 Act on the Execution of Sentences recognized all prisoners’ right to wages, but established the initial level at only 5 per cent of the average wage of workers and employees covered by the old-age insurance scheme, with a first increase of this percentage to be envisaged on 31 December 1980.

Over 20 years later, the wage rate still stands at 5 per cent of the average, or less: under section 45, paragraph 2 of the Act "the remuneration may be graduated according to the performance of the prisoner and the kind of work. Less than 75 per cent of the benchmark remuneration [that is, less than 3.75 per cent of the average outside wage] may be paid only if the performance of the prisoner does not meet the minimum requirements".

8. In its previous observation, the Committee noted a decision of the Federal Constitutional Court of 1 July 1998 which found the existing level of prisoners’ remuneration incompatible with the principle of rehabilitation and instructed the legislature to set new rules in conformity with the Constitution by 31 December 2000 at the latest. According to the Government’s report received in October 2000, the Government "intended to submit soon a draft law to parliamentary procedure". No change in the wage level appears to have been legislated by 31 December 2000, nor reported since.

9. The Committee notes with concern that 45 years after ratification of this basic human rights Convention, prisoners working for private enterprises in Germany fall into two categories, with some enjoying the full benefits of a free employment relationship, while the others are hired to those who use their labour without their consent and in conditions bearing no resemblance whatsoever to the free labour market. The Committee must once again express the hope that the Government will at last take the required measures to bring the legislation and practice in this regard into conformity with Article 1(1), read together with Article 2(1) and 2(c) of the Convention.

Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

The Committee notes the Government's report and the decision of the Federal Constitutional Court of 1 July 1998.

In its last observation, the Committee observed that section 41(3) of the 1976 Act on the execution of sentences, which requires the formal consent of the person concerned to working in privately-run workshops, had not been brought into force; that no measures had been taken to implement the provision in section 198(3) of the 1976 Act for the inclusion of prisoners in the health and pension insurance schemes; and that their wages had remained fixed for the last 20 years at 5 per cent of the national average.

The Committee notes that the Government's report refers to a decision of the Federal Constitutional Court of 1 July 1998. According to the Government, this decision considered section 41 of the above-mentioned Act and said that it only applied in so far as the performance of the work comes under the public responsibility of the prison officers. The Government also said the decision confirmed its own view that the employment of prisoners in private enterprises managed by penal institutions does not constitute forced labour. The Government states that the legislator supported its view and expressly declined to bring section 41(3) into force; and that the court's decision declared that, although section 200(1) of the Act, which fixed the level of remuneration of prisoners under section 43, was incompatible with certain principles of rehabilitation, it would nevertheless continue to be applied. The court instructed the legislature to draft a new regulation. The Federal Government indicates its intention of considering together with Länder governments the conclusions to be drawn from the court's decision and says it will report accordingly to the ILO.

While noting this information, the Committee draws the attention of the Government to paragraph 118 of its General Report in 1998 in which it stressed that the provisions of Article 2(2)(c) of the Convention are not conditional on any particular kind of legal relationship. Thus, they are not limited to cases where a legal relationship would come into existence between the prisoner and the private undertaking, but equally covers situations where no such legal relationship exists and the prisoner has a direct relationship only with the prison. The Committee considers that voluntary consent by the prisoner to working for a private employer is one of the two necessary conditions for compliance with the Convention's prohibition on hiring prisoners to, or placing them at the disposal of, the employers. As the Committee has pointed out previously, only when work is performed voluntarily in conditions which guarantee normal wages, social security, etc., can work by prisoners for private companies be held compatible with the explicit provisions of Article 1(1) and Article 2(1) and (2)(c).

The Committee takes due note of the Government's statement and hopes that the Government in its consideration of the effect of the Court decision will take into account the requirements of the Convention and the Committee's observations as well as comments in paragraphs 97 to 101 of its General Survey of 1979, and that it will set out its reflections in its next report.

Observation (CEACR) - adopted 1996, published 85th ILC session (1997)

Article 2, paragraph 2(c), of the Convention. The Committee notes the information supplied by the Government in its report received 6 August 1996 on the application of the Convention. It also has noted a request dated 24 April 1996 by the Second Chamber of the Federal Constitutional Court, asking the Committee to explain in detail why an obligation imposed on prisoners to work, for a wage of approximately 1.50 DM per hour, without their consent, in workshops established by private enterprises within prisons violates Article 2, paragraph 2(c), of the Convention.

The Committee recalls that under Article 2, paragraph 2(c), of the Convention, work or service exacted from any person as a consequence of a conviction in a court of law is not exempted from the scope of the Convention unless a twofold condition is met, namely "that the said work or service is carried out under the supervision and control of a public authority and that the said person is not hired to or placed at the disposal of private individuals, companies or associations". Thus, the mere fact that the prisoner remains at all times under the supervision and control of a public authority does not in itself dispense with fulfilling the second condition, namely, that the person is not "hired to or placed at the disposal of private individuals, companies or associations".

On this latter issue, the Committee had, in comments addressed to the Government of the Federal Republic of Germany in 1974, taken note of a national court decision which argued that in view of the comprehensive regulation of the working conditions between the penal institution and the employer, and because of the extensive rights of interference and disposal reserved to the institution, there was no "placing at the disposal" of the prisoner within the meaning of Article 2(2)(c), since the enterprise was not entitled to "dispose of" prisoners and deal with them on its own authority. In its comment, the Committee stressed that the provisions of Article 2(2)(c) are not limited to cases where a legal relationship would come into existence between the prisoner and the undertaking, but cover equally situations where no such legal relationship exists. Furthermore, Article 2, paragraph 2(c), makes no distinction between work outside and work inside the prison.

Finally, it should be noted that the prohibition in Article 2(2)(c) of the Convention is not predicated on the sole concept of "placing at the disposal of" but specifically includes the "hiring to" private individuals, companies or associations. In the view of the Committee, a prisoner is typically "hired to" an undertaking where there is no contractual relationship between the two, while a contract exists between the undertaking and the penal institution under which the penal institution is paid the price of the labour it provides to the undertaking. Significantly, the amount paid to penal institutions under such contracts corresponds to the market value of the labour and bears no relation with the prisoner's own wage, paid by the penal institution and fixed in Germany by law at 5 per cent of the national average wage.

While Article 2(2)(c) of the Convention strictly prohibits that prisoners be hired to or placed at the disposal of private undertakings, the Committee has accepted, for the reasons set out in paragraphs 97 to 101 of its General Survey of 1979 on the abolition of forced labour, that schemes existing in certain countries under which prisoners may, particularly during the period preceding their release, voluntarily enter a normal employment relationship with private employers, do not fall within the scope of the Convention. As the Committee has repeatedly pointed out, only work performed in conditions of a free employment relationship can be held compatible with the explicit prohibition in Article 2(2)(c); this necessarily requires the formal consent of the person concerned and, in the light of the circumstances of that consent, i.e. the basic obligation to perform prison labour, and other restrictions on the prisoner's freedom to take up normal employment, there must be further guarantees and safeguards covering the essential elements of a labour relation, such as a level of wages and social security corresponding to a free labour relationship, to remove the employment from the scope of Article 2(2)(c) which unconditionally prohibits that persons who are under an obligation to perform prison labour be hired to or placed at the disposal of private companies.

In comments made for many years on law and practice in Germany, the Committee has observed that contrary to the Convention, prisoners are hired to or placed at the disposal of private enterprises and that the provisions of the Act on the execution of sentences, adopted in 1976, that were to bring practice closer to the Convention, have not been put into effect. Thus, the requirement of the prisoner's formal consent to be employed in a workshop run by a private enterprise, laid down in section 41(3) of the 1976 Act which was to enter into force on 1 January 1982, was suspended by section 22 of the Second Act to improve the budget structure, of 22 December 1981; the 1976 Act also recognizes the prisoner's right to wages, but a provision for increases above the level initially fixed at 5 per cent of the national average wage of wage-earners and salaried employees was not given effect; finally, legislation which was to extend sickness and old-age insurance to prison labour was not adopted.

The Committee notes with interest from the Government's latest report that a draft Fourth Act to amend the Act on the execution of sentences, issued by the Ministry of Justice on 10 April 1996, provides for the entry into force of the suspended section 41(3) of the 1976 Act that requires the prisoner's formal consent to being employed in a workshop run by a private enterprise. It notes that the draft is to be submitted before the end of the year to Parliament, if the Federal Cabinet agrees.

The Committee further notes that another draft law, referred to by the Government in its previous report, that was to regulate the execution of sentences imposed on young offenders and which provided in section 42(2) for the formal consent of the young prisoners to being employed in workshops run by private enterprises, has not met with consensus on fundamental issues but is still being promoted by the Government.

The Committee hopes that the Government will soon be in a position to report that section 41(3) of the 1976 Act on the execution of sentences, which requires the formal consent of the person concerned to working in privately run workshops, will at last be brought into force; that effective and rapid measures will also be taken to implement the provision in section 198(3) of the 1976 Act for the inclusion of prisoners in the health and pension insurance schemes; and that their wages, which have remained fixed for the last 20 years at 5 per cent of the national average, although that percentage was to be progressively raised as from 31 December 1980, will be brought without further delay to the level warranted by their work for private undertakings; it being understood that all wages are subject to deductions and attachment within the limits prescribed by national legislation.

Observation (CEACR) - adopted 1994, published 81st ILC session (1994)

The Committee notes 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 a number of years, the Committee has observed that contrary to the Convention, prisoners are placed at the disposal of private enterprises and that the provisions of the Act on the execution of sentences, adopted in 1976, to bring practice into conformity with the Convention, have not been put into effect. Thus, the requirement of the prisoner's formal consent to be employed in a workshop maintained by a private enterprise, as laid down in section 41(3) of the 1976 Act, which was to enter into force on 1 January 1982, was suspended by section 22 of the Second Act to improve the budget structure, of 22 December 1981; the 1976 Act also recognizes the prisoner's right to wages, but a provision for increases above the initial amount, which is 5 per cent of the average wage of wage-earners and salaried employees, was not given effect; finally, legislation which was to extend sickness and old-age insurance to prison labour was not adopted.

The Government stated previously its intention to fully implement the principles contained in the 1976 Act (inclusion of prisoners in the health and pension insurances schemes; consent of the prisoner to be employed in workshops run by a private enterprise). It also stated that a Bill to increase the remuneration of prisoners to 6 per cent of the average remuneration of wage-earners and salaried employees had been submitted to the Parliament. In its report for the period ending 30 June 1991, the Government noted however that this Bill, which was introduced in Parliament during its 11th period, had not been definitively examined and was not submitted to Parliament during its 12th period. The finances of the federal States are currently in a situation in which a new initiative by the federal Government would have little chance of success. This also applies to the coverage of prisoners under the sickness and old-age insurance schemes.

The Committee also noted the Government's statement that it envisaged a solution in the long-term which would take greater account of the obligations deriving from Article 2, paragraph 2(c), of the Convention.

The Committee notes the information supplied by the Government in its latest report, and particularly its renewed statement that it is continuing to endeavour to take greater account of the provisions of the Convention. The Government refers in this connection to the formulation of draft legislation to regulate for the first time in an overall and in-depth manner the execution of sentences by young offenders, which provides in section 42(2) for the formal consent of young prisoners to being employed in workshops run by private enterprises. The Government states that this draft, which has already been examined by the various departments concerned, should be submitted to the legislative bodies, subject to its approval by the Council of Ministers.

The Committee notes this information with interest and requests the Government to supply information on any development in the situation in this respect, and particularly to supply any text adopted by the federal legislatures. The Committee hopes that the Government will also supply information on the provisions which are envisaged to provide young prisoners with the required guarantees and safeguards in respect of wages and social security.

The Committee recalls that Article 2, paragraph 2(c), of the Convention explicity 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 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 free one.

The Committee trusts that the necessary measures will be taken to ensure the observance of the Convention in respect of both young prisoners and all prisoners in general.

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

Article 2, paragraphs 1 and 2(b). In its previous comments, the Committee referred to the situation of persons requesting asylum, who were not normally authorised to take employment for several years beginning from the date of their application for asylum, but who could be called upon to perform socially useful work, which they had no choice but to carry out if they were to maintain their entitlement to public assistance (regulations respecting work permits of 12 September 1981, as amended; Act of 6 January 1987; and Federal Social Assistance Act, as amended by the Second Act to improve the budget structure of 22 December 1981). The Committee referred to paragraph 21 of its 1979 General Survey on the Abolition of Forced Labour, in which it indicated that the penalty set out in Article 2, paragraph 1, of the Convention may take the form of loss of rights or privileges. The Committee noted that, in a situation where the authorities have, through the prohibition of employment, deprived asylum seekers of the possibility of taking up work of their choice and made them dependent on welfare entitlements, the threat to withhold these payments in the event of failure to perform specified work brings that work within the scope of the Convention.

The Committee notes with interest that the Act of 21 June 1991 to amend certain provisions relating to the promotion of employment and other social measures has repealed as of 1 July 1991 the waiting period during which persons requesting asylum could not take employment (section 1 of the Act repealing section 19(1)(a) to (c) of the Employment Promotion Act).

The Committee takes due note of the Government's statement in its report that persons requesting asylum, provided that they are not subject to restrictions concerning their residence, may therefore obtain employment throughout the federal territory. The Government adds that work permits will be granted according to the general employment situation and the evolution of the labour market taking into consideration the facts in each individual case. By virtue of the legal provisions that are in force, priority has to be given to German workers and certain foreign workers.

The Committee also notes the information supplied by the Government concerning social assistance in relation to sections 18 to 20 of the Social Assistance Act (the new version of 10 January 1991).

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

The Committee notes 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 a number of years, the Committee has observed that, contrary to the Convention, prisoners are placed at the disposal of private enterprises and that the provisions of the Act on the execution of sentences, adopted in 1976 to bring practice into conformity with the Convention, have not been put into effect. Thus, the requirement of the prisoner's formal consent to employment in a workshop maintained by a private enterprise, laid down in section 41(3) of the 1976 Act, which was to enter into force on 1 January 1982, was suspended by section 22 of the Second Act to improve the budget structure, of 22 December 1981; the 1976 Act also recognises the prisoner's right to wages, but a provision for increases above the initial amount, which is 5 per cent of the average wage of workers and employees, was not given effect; finally, legislation which was to extend sickness and old-age insurance to prison labour was not adopted.

In its previous report, the Government stated its intention to fully implement the 1976 Act with regard to the inclusion of prisoners in the health and pension insurance schemes and of putting into effect a provision under which employment in workshops run by a private enterprise shall be subject to the consent of the prisoner. It also stated that a Bill to increase the remuneration of prisoners to 6 per cent of the average remuneration of workers and employees had been submitted to the Federal Parliament.

The Committee notes that in its last report the Government refers to the detailed information supplied previously to the effect that it intends in the long term to find a solution which would take greater account of the obligations deriving from Article 2, paragraph 2(c), of the Convention.

With regard in particular to the (gross) daily wage of prisoners, the Government states that it was increased between 1986 and 1990 from DM6.8 to DM7.78, which constitutes an increase of 13.4 per cent in 5 years, whereas the consumer price index only increased by 7.1 points over the same period. The rate of increase of the wages of prisoners is therefore higher than the increase in the cost of living over recent years.

The Government adds that the Bill to increase the remuneration of prisoners from 5 to 6 per cent of the average remuneration of workers and employees, which was introduced in Parliament during its eleventh legislative period, had not been definitively examined and was not submitted to Parliament during its twelfth period. The finances of the federal States are currently in a situation in which a new initiative by the federal Government would have little chance of success. This also applies to the coverage of prisoners under the sickness and old-age insurance schemes. The Government states that it would react immediately to any indications in this respect from the federal States.

The Committee notes this information. The Committee is bound to recall its previous comments in which it indicated 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 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.

The Committee considers that, in the absence of the formal consent of prisoners engaged in work, and in view of their remuneration, which amounts to 5 or 6 per cent of the national average, as well as in the absence of sickness, old-age and survivors' insurance coverage, the situation of prisoners who are made available to private enterprises is not comparable with that of the partners to a free employment relationship.

The Committee trusts that the necessary measures to ensure the observance of the Convention, which was ratified over 30 years ago, in respect of prisoners, will be taken without any further delay and the Government will report the provisions that have been adopted.

Observation (CEACR) - adopted 1991, published 78th ILC session (1991)

The Committee notes the information supplied by the Government in its report for the period ending 30 June 1989, which was received by the ILO in March 1990. It also takes note of the observations made by the German Confederation of Trade Unions (DGB) concerning the application of the Convention, and the Government's reply to these observations which reached the ILO in December 1990.

1. Article 2, paragraph 2(c), of the Convention. In the comments it has been making for a number of years, the Committee has observed that, contrary to the Convention, prisoners are placed at the disposal of private undertakings and that the provisions of the Act on the execution of sentences, adopted in 1976 to bring practice into conformity with the Convention, have not been put into effect. Thus, the requirement of the prisoner's formal consent to employment in a workshop maintained by private enterprise, laid down in section 41(3) of the 1976 Act, which was to enter into force on 1 January 1982, was suspended by section 22 of the Second Act to improve the Budget Structure, of 22 December 1981; the 1976 Act also recognises the prisoner's right to wages, but a provision for increases above the initial amount, which is 5 per cent of the average wage of workers and employees was not given effect; finally, legislation which was to extend sickness and old age insurance to prison labour was not adopted.

In its latest report, the Government recalls its previous statements to the effect that the staff of private enterprises can be responsible only for the technical and work-related direction of prisoners and that the prison authorities determine the place and hours of work as well as the nature of the work assigned to the prisoners, thus retaining complete control over them and that the situation of such prisoners is exactly the same as that of prisoners employed in workshops belonging to the prison.

The Government indicates that prisoners are covered by accident and unemployment insurance and receive remuneration, but that they are exempt from paying prison costs in view of the level of their remuneration. A Bill to increase the remuneration of prisoners to 6 per cent of the average remuneration of workers and employees, a level which represents a 20 per cent increase over the present amount, is now before the Federal Parliament. However, the limited financial capacities of the Länder are hampering the full implementation of the 1976 Act; the Government adds that health and pension insurance contributions are paid in respect of prisoners in the open prison system. The Government also recalls that the requirement of the prisoner's consent is already in effect for employment outside the penal institution.

The Government reaffirms its intention of fully implementing the 1976 Act with regard to the inclusion of prisoners in the health and pension insurance schemes and of putting into effect a provision under which employment in workshops run by private enterprise shall be subject to the consent of the prisoner.

In its observations, the DGB refers to doctrine and case law concerning the legal status of prisoners: one prevailing opinion is that prisoners are not workers in view of the fact that they are subject to a special situation of coercion governed by public law; another is that they should be regarded as workers when they are employed in a private enterprise. The DGB registers its disagreement with the Government's position: for the DGB, the decisive factor is not the prisoners' status but "how" the work is performed: in this connection section 41(3) of the 1976 Act, suspended in 1981, establishes the requirement of the prisoner's consent for employment in a workshop maintained by a private enterprise. The DGB adds that it is necessary to harmonise the situation of prisoners with that of free workers by guaranteeing the provision of social insurance protection and by applying the level of wages fixed in collective agreements.

In reply to these observations which it considers irrelevant to an appraisal of the application of the Convention, the Government indicates that the legal situation of the prisoner does not vary according to whether he is employed in a workshop run by the prison authorities or in a workshop maintained by a private enterprise, as the prisoner is subject to the obligation to work solely vis-à-vis the prison authority; the prisoner's consent which is required for work outside does not change the legal nature of the relationship between the prisoner and the authorities. The Government also states that the prisoner's wage which is 5 per cent of the average wage currently stands at DM 7.78 a day and not DM 6 as indicated by the DGB.

The Committee takes due note of the DGB's observations and the Government's comments. The Committee again recalls that Article 2, paragraph 2(c), of the Convention specifically 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 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. As the Committee has already pointed out, with effective normalisation of wages and social security, prisoners are likely to volunteer for employment in private undertakings.

The Committee trusts that the necessary measures will be taken to ensure that the Convention will be observed with respect to prisoners and that the Government will provide information in the near future on the provisions adopted.

2. Article 2, paragraphs 1 and 2(b). The Committee previously noted that, under the Work Permit Decree, persons requesting asylum are normally prohibited from working for at least two years from the date of their request, but that under the Federal Social Assistance Act, as amended by the Second Act to improve the Budget Structure, of 22 December 1981, the same persons may be called upon to perform "socially useful work", which they have no choice but to carry out if they are to maintain their welfare entitlements. The Committee pointed out that by the Act of 6 January 1987 the prohibition for asylum seekers to work has, with certain exceptions, been extended to a period of at least five years following their asylum request. As the Committee recalled in paragraph 21 of its General Survey of 1979 on the Abolition of Forced Labour, a penalty for the purposes of Article 2, paragraph 1, of the Convention may take the form of loss of rights or privileges. In a situation where the authorities have, through the prohibition of employment, deprived asylum seekers of the possibility of taking up work of their choice and made them dependent on welfare entitlements, the threat to withhold these payments in the event of failure to perform specified work brings that work within the scope of the Convention.

The Committee notes that in its report, the Government restates its position to the effect that social welfare is of a subsidiary nature and that all recipients of social welfare must accept the work offered. The Government adds that asylum seekers are comparable with Germans who are unable to find employment: asylum seekers are prevented from working on legal grounds, unemployed Germans on factual grounds. Just as unemployed Germans are required to take into consideration the jobs offered to them, the same is required of asylum seekers; otherwise, asylum seekers would be better off than unemployed Germans.

The Committee takes note of these indications. It considers that the situation of asylum seekers cannot be compared to that of unemployed Germans as the law prohibits asylum seekers from taking up employment for a period of five years. Only if such a prohibition were lifted would asylum seekers be in a situation comparable to that of unemployed Germans in search of work.

The Committee also takes note of the DGB's observations to the effect that the provisions of the Federal Social Assistance Act make it possible to compel the asylum seeker to take up work paid below the minimum market level, and notes the Government's reply to the effect that the work offered is linked to the offer of assistance, but the withdrawal of assistance is not a sanction on the refusal to take up the employment in question but the more general refusal to perform acceptable work.

The Committee recalls that the subsidiary nature of social assistance which implies that one should seek regular employment rather than exist on welfare, is a principle which applies to persons who are free to accept regular work but not to persons who are legally incapacitated because the right to engage in gainful employment has been intentionally withheld from them by an Act of Parliament. If the same persons are then faced with the choice of losing their livelihood in the form of welfare entitlements or having to engage in specific menial services, such services, although legally defined as something other than work, come within the scope of Article 2(1) of the Convention and are not covered by any of the exceptions in Article 2(2). As the Committee pointed out previously, labour performed under such conditions is not part of the normal civic obligations of the citizens of a fully self-governing country.

The Committee again asks the Government to re-examine its position and to take the necessary measures to ensure the observance of the Convention with regard to asylum seekers.