Demande directe (CEACR) - adoptée 1999, publiée 88ème session CIT (2000)

The Committee notes the Government's report.

1. Article 1(1) and Article 2(1) of the Convention. In its earlier comments the Committee noted that under section 49(1) of the Small Charges Act any person being able wholly or in part to maintain himself by work or by other means, and wilfully refusing or neglecting to do so, is deemed an idle and disorderly person and may be imprisoned for a term of up to one month. The Government indicates in its report that, though a Bill to amend the Small Charges Act was recently enacted by Parliament, steps have not yet been taken with a view to amend or repeal section 49(1). It reaffirms its previous statement that section 49(1) of the Act has never been applied. The Committee emphasizes that the mere fact that no persons have been charged with a violation of the section does not absolve the responsibility of the Government to amend or repeal the legislation to bring it into conformity with the requirements of the Convention. The Committee therefore again requests the Government to take the necessary measures in this regard. Pending such amendment or repeal, the Committee repeats its request to the Government to continue to supply information on any cases of practical application of section 49(1) of the Small Charges Act.

2. Article 2(2)(a) and (d). In its earlier comments the Committee referred to the National Service Act, 1977. It noted that persons between the ages of 18 and 21 years, among others, are required to perform service with the National Service (sections 12 and 28). Servicemen are to undertake training and employment and perform such duties as may be prescribed and, where possible, be engaged in development and self-help projects including housing, school, construction, agriculture and road building (section 29). Persons who fail without reasonable excuse to present themselves to serve when called upon may be punished with a fine and imprisonment (section 35(2)).

While noting the Government's repeated statements that the National Service was created to respond to national disasters and that section 35(2) of the Act has not been applied, the Committee points out once again that the objectives of the National Service, defined in section 9(1) of the 1977 Act "shall be to mobilize the energies of the people of Dominica to the fullest possible level of efficiency, to shape and direct those energies to promoting the growth and economic development of the State". There is no reference to natural disasters, let alone a limitation in scope to such occurrences.

Referring also to Article 1(b) of the Abolition of Forced Labour Convention, 1957 (No. 105), ratified by Dominica in 1983, which specifically prohibits the use of forced or compulsory labour "as a means of mobilizing and using labour for purposes of economic development", the Committee trusts that the necessary measures will be taken to repeal or amend the 1977 National Service Act so as to bring national legislation into conformity with Conventions Nos. 29 and 105 as well as actual practice.

3. In the absence of the Government's report covering point 3 of the Committee's previous direct request, the Committee must repeat its previous comments which read as follows: Article 2(2)(c). In comments made in 1986, the Committee noted that under section 61(2) of the Prison Ordinance Chapter 251 of the 1961 Revised Laws of Dominica, work by prisoners for the private benefit of any person is prohibited, except with the authorization of the Superintendent of Prison. The Committee noted the Government's indication that the practice of private individuals, companies or associations using convict labour had long been discontinued and prisoners were engaged almost exclusively in the maintenance of government grounds and parks. The Committee expressed the hope that, when the opportunity of amending the Prison Ordinance arose, section 61(2) would be brought into conformity with Article 2(2)(c) of the Convention and with practice, and that the Government would indicate in its future reports any measures taken to this end, as well as any change in practice. Noting the Government's indication, referred to in point 2 above, that there is a 1990 version of the Revised Laws of Dominica, the Committee requests the Government to indicate in its next report any measures taken with regard to section 61(2) of the Prison Ordinance to ensure the observance of Article 2(2)(c) of the Convention. In this connection, the Committee recalls that while Article 2(2)(c) of the Convention strictly prohibits prisoners being 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 1979 General Survey 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, 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. Only in these conditions can the employment be removed from the scope of Article 2(2)(c), which prohibits hiring or placing at the disposal of private companies persons who are under an obligation to perform prison labour. The Committee accordingly requests the Government to indicate the measures taken to ensure that any authorization under section 61(2) of the Prison Ordinance is granted only for work performed in conditions of a free employment relationship.