Solicitud directa (CEACR) - Adopción: 2002, Publicación: 91ª reunión CIT (2003)

The Committee has taken note of the Government’s reports received in 2000 and 2002.

Articles 1, paragraph 1, and 2, paragraph 1, of the Convention. Freedom of persons in the service of the State to leave their employment. 1. In previous comments, the Committee pointed out the incompatibility between the Convention and the provisions of national laws and regulations which do not permit persons in the service of the State to leave their employment if they so wish. The provisions concerned are: (a) Act No. 61-33 of 15 June 1961 concerning the general conditions of service of public servants; (b) Decree No. 77-429, updated on 31 December 1987, establishing the organization of the National School of Administration and Magistrates; (c) Decree No. 84-501 of 2 May 1984 concerning the organization and operating rules of the Military Health School; and (d) the texts organizing training schools for persons called upon to serve the State. The Committee expressed the hope that the new texts that were to be adopted, according to the Government’s statement, would guarantee the freedom of state employees to leave their employment at their own initiative. The Committee also hoped that the Government would provide information on the application in practice of Act No. 90-02, establishing incentives for the voluntary departure for state employees. The Government’s last report indicates that around 2,600 employees benefited from the programme of voluntary departure during the period 1990-91. The report also indicates that Act No. 97-17 of 1 December 1997 issuing the Labour Code repeals Act No. 61-34 of 15 June 1961.

2. The Committee recalls that "the effect of statutory provisions preventing termination of employment of indefinite duration by means of notice of reasonable length is to turn a contractual relationship based on the will of the parties into service by compulsion of law, and is thus incompatible with the Conventions relating to forced labour …" (see paragraph 68 of the General Survey of 1979). The Committee has emphasized on many occasions that all persons in the service of the State must be able to leave the service at their own initiative within a reasonable period, either at specific intervals, or with previous notice, and that persons who have benefited at the expense of the State from training which is in their own interests may be required to reimburse part of the cost incurred by the State in proportion to the remaining period for which they had committed themselves.

3. In these circumstances, the Committee notes in particular the reference made by the Government in its report to the Labour Code, section L.4 of which prohibits forced or compulsory labour. In this respect it notes, firstly, that under section L.287 of the Labour Code "all provisions contrary to the present Act, and particularly Act No. 61-34 of 15 June 1961 and its amendments, are repealed". The Committee also notes the transitional provisions set out in this section and in section L.288. Under these two sections, the legislative provisions referred to and the texts issued thereunder are not repealed with immediate effect, and their repeal only takes effect "as new institutions are established" (section L.287 of the Labour Code). Finally, the Committee recalls, as it emphasized in previous comments, that Act No. 90-02 is limited in time and that it does not cover certain public officials. Its limited scope is reflected in the low number of officials who benefited from the voluntary departure programme for the period 1990-91.

4. The Government has informed the Committee on several occasions that public officials in practice have the freedom to leave their employment through resignation. Nevertheless, the Committee requests the Government to indicate in its next report the measures which have been taken to repeal or amend the provisions of Act No. 61-33, Decree No. 77-429 and Decree No. 84-501, the texts organizing training schools, and those of laws and regulations respecting the conditions of service of particular categories of officials, so that persons in the service of the State have the freedom to leave their employment at their own initiative, either at specified intervals, or with previous notice. In this regard, the Committee requests the Government in particular to specify the new institutions, as envisaged in section L.287 of the Labour Code, that have been established to make effective the repeal of the provisions referred to in that section.

Articles 1, paragraph 1, and 2, paragraphs 1 and 2(c). Prison labour. 5. The Committee notes the Government’s reply in its last report to its general observation of 1998. In the view of the Committee, the information contained in this report touches upon several aspects of the application of the Convention, each of which is raised below. The Committee recalls that under the terms of Article 2, paragraph 2(c), prison labour is excluded from the scope of the Convention under the following conditions: (a) such work or service is the consequence of a conviction in a court of law; (b) said work or service is carried out under the supervision or control of a public authority; and (c) the said person is not hired to or placed at the disposal of private individuals, companies or associations. In this respect, the Committee recalls that conditions (b) and (c) are cumulative and apply independently. This means that the fact that the prisoner remains at all times under the supervision and control of a public authority does not dispense with the requirement to comply with the second condition, namely that the person is not hired to or placed at the disposal of private individuals, companies or associations (see paragraph 119 of the General Report in the report of the Committee for the 89th Session of the ILC and points 6 and 7 of the general observation of 2001). Finally, the Committee recalls that work by prisoners for private enterprises or individuals is not considered to be incompatible with the Convention where such work is carried out under conditions approximating a free employment relationship. This implies, firstly, that such work must be subject to the consent of the prisoners concerned given freely prior to any employment and without the threat of any penalty. Moreover, such freely given consent must be corroborated by conditions of employment (particularly in terms of wages and social security) approximating those of a free employment relationship (see in particular paragraphs 133 to 143 of the General Report in the Committee’s report for the 89th Session of the ILC and point 10 of the general observation of 2001).

6. Conviction in a court of law. The Committee notes that the Government’s report does not contain any indication on this matter. The Committee notes that in the past the Government provided the text of Decree No. 66-1081 of 31 December 1966 concerning the organization and rules for prisons. Under this Decree, only persons condemned to sentences of imprisonment may be subjected to forced labour, with detainees being excluded from it. Finally, the Committee notes that section L.4 of the Labour Code prohibiting forced or compulsory labour excludes from its scope "any work or service exacted from a person as a consequence of a conviction by the judicial authority". Having regard to these matters, the Committee requests the Government in its next report: (a) to indicate whether the relevant provisions of Decree No. 66-1081 are still in force; and (b) if not, to indicate whether it is section L.4 of the Labour Code which ensures compliance with the Convention on this point and to provide copies of any text implementing section L.4 in relation to prison labour.

7. Prisoners hired to private companies or individuals. The Committee notes that, according to the Government’s report, no prisons are administered by private profit-making companies. Furthermore, the Committee notes from the Government’s report that prison labour may take three forms: labour under the authority of the State, hired labour and labour under concession. The Committee understands from the information provided by the Government that the prison administration alone intervenes in labour under the authority of the State. However, it notes that the report also refers to "other users … who pay 50 CFA francs an hour in relation to work under the authority of the State". Under the system of hired labour, the Committee notes that prisoners are placed at the disposal not only of the administration, but also of private companies and individuals. With regard to labour under concession, the user is a private company on the basis of a contract concluded with the prison administration and the prisoner. Finally, the Committee notes that individuals may be admitted into prisons for the purposes of recruiting prisoners, although no indication is given as to the type of work concerned. The Committee also notes that prisoners may be employed outside prison premises by public authorities or for private companies. Finally, the Committee notes that the applicable texts were not provided by the Government in its last report, and also notes that Decree No. 66-1081 also covered prison labour.

8. The Committee requests the Government in its next report: (a) to indicate whether the three forms of prison labour concerned are still governed by Decree No. 66-1081 and, as appropriate, to provide any amendments made to this text, or any new text in force that has replaced it; (b) to provide copies of the model contract, if it exists, or copies of several contracts concluded between the prison administration, the prisoner and a company in the context of work under concession; (c) to indicate the identity of any users other than the prison administration that intervene in labour under the authority of the State; (d) to indicate the individuals who may intervene in prison labour and the types of work concerned (hired labour or other types); and (e) to describe the conditions under which prisoners are employed outside prison premises by private companies.

9. Prisoners hired to private enterprises or individuals and the consent of the prisoners concerned. The Committee notes that the Government’s report does not contain any information on this matter. The Committee also notes Decree No. 68-583 of 28 May 1968 amending and supplementing Decree No. 66-1081, a copy of which was provided by the Government with previous comments. Decree No. 68-583 makes the hiring of prison labour to private individuals, companies or associations subject to the "consent of the prisoners concerned …". The Committee therefore requests the Government in its next report: (a) to indicate whether Decree No. 68-583 is still in force; and (b) if not, to provide copies of the laws or regulations which ensure that the prior consent of prisoners is required before any work for private enterprises or individuals and, in this respect, to specify how in practice it is ensured that prisoners give their consent.

10. Prisoners hired to private companies or individuals and conditions of employment approximating those of a free employment relationship. With regard to the issue of the remuneration of hired labour (in so far as it concerns private companies and individuals), the Committee notes the Government’s indication, firstly, that the work is covered by a flat-rate payment and, secondly, that "users pay CFA 50 francs an hour". In the case of labour under concession, the Committee notes that, according to the information provided by the Government, remuneration is paid "according to the scales in force in the labour legislation". The Committee also notes that, when they are employed by individuals within prison premises, prisoners receive a wage "and other emoluments envisaged by the labour legislation". Finally, the Committee notes that in the past the Government had provided a copy of a Ministerial Order dated 8 May 1967 which set at 40 or 30 francs an hour, according to the region, "the fees intended for the remuneration of work by prisoners". The Committee therefore requests the Government to indicate in its next report: (a) the average remuneration actually received by prisoners in the context of hired labour and, if it is different, that actually received when they are employed by individuals within prison premises; (b) the scales of remuneration applicable to labour under concession and the average remuneration actually received by prisoners, after the deduction of social contributions; (c) the hourly rate of the guaranteed inter-occupational minimum wage in force as it applies to work identical to that performed by prisoners; (d) the working hours applicable to prisoners; and (e) whether prisoners are paid a higher rate for additional hours and the manner in which this rate is calculated.

11. Finally, with regard to social protection, the Committee notes that in the case of hired labour, prisoners are covered by the prison administration. The Committee also takes due note that, in the case of labour under concession, prisoners are covered by the Social Security Code and it appears to be the same where prisoners are employed by individuals within prison premises. The Committee requests the Government to indicate in its next report: (a) the actual composition of the social protection for prisoners covered by the prison administration for hired labour and whether this coverage is also applicable when prisoners work for private individuals or companies; and (b) the social benefits to which the Social Security Code gives prisoners entitlement.