Demande directe (CEACR) - adoptée 2001, publiée 90ème session CIT (2002)

The Committee has noted the information provided by the Government in reply to its earlier comments.

1. Article 2, paragraph 2(c), of the Convention. The Committee has noted from the Government’s reply to its general observation of 1998 that the law enforcement authorities may conclude agreements with state-owned enterprises or private companies to perform certain works, both inside and outside prison premises, but prisoners are not employed by a third party and perform labour under the supervision and control of the law enforcement bodies. The Government also indicates that the employment-related rights of prisoners are governed by the general provisions of labour law (subject to certain deviations), but their minimum remuneration corresponds only to one-third of the general minimum wage and they do not acquire pension rights under the existing legislation.

While noting this information, 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 excluded from the scope of the Convention if two conditions are met, namely: (i) that the said work or service is carried out under the supervision and control of a public authority; and (ii) that the said person is not hired to or placed at the disposal of private individuals, companies or associations.

The Committee has always made it clear that the two conditions are cumulative and apply independently; i.e. the fact that the prisoner remains at all times under the supervision and control of a public authority does not in itself dispense the Government from fulfilling the second condition, namely that the person is not hired to or placed at the disposal of private individuals, companies or associations (see paragraph 119 of the Committee’s General Report to the 89th Session of the International Labour Conference, 2001). As the Committee repeatedly pointed out, it is only when work or service is performed in conditions approximating a free employment relationship that work by prisoners for private companies can be held compatible with the explicit prohibition of the Convention (ibid., paragraphs 128-143).

The Committee therefore requests the Government to describe the organization of prisoners’ work for private employers, both inside and outside prison premises, and to supply specimen copies of agreements concluded between prison authorities and private users of prison labour. The Government is also requested to indicate any measures taken to ensure that any work or service by prisoners for private persons is performed in conditions approximating a free employment relationship; such measures should include the consent of the person concerned, as well as - given the absence of alternative access to the free labour market - further guarantees and safeguards covering the essential elements of a free labour relationship, such as wages and social security.

2.  In its earlier comments the Committee noted that Act XVII of 1993 on the Amendment of Criminal Laws introduced into the Penal Code provisions concerning "public utility labour". It noted that, according to the new text of section 49 of the Penal Code, public utility labour as a penal sanction is performed, without deprivation of a person’s freedom, at least one day per week, without remuneration, for a period of up to 100 days. The public utility labour may be replaced by confinement in prison, if the convicted person fails to fulfil his or her labour obligations.

The Committee noted the Government’s indications in its previous report that the work to be performed as public utility labour must be of public interest and that the employer (which may be either a public institution or a business organization) shall observe the safety provisions and ensure the same working conditions as those enjoyed by workers employed on a basis of a contract; however, public utility labour is to be performed without any remuneration.

Referring to the above considerations concerning the prohibition contained in Article 2, paragraph 2(c), the Committee requests the Government to indicate measures taken or envisaged, either to limit "public utility labour" to work for public institutions, or to make such labour conditional upon the consent of those concerned to work for a private employer, without the menace of any penalty, and with conditions of employment, including wages, comparable to those offered to free workers.

The Committee hopes that the necessary measures will be taken by the Government to ensure the observance of the Convention in this regard.