Demande directe (CEACR) - adoptée 2004, publiée 93ème session CIT (2005)

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

Article 1(1) and Article 2(1) and (2)(c) of the Convention. 1. Work of prisoners for private employers. In its earlier comments, the Committee requested the Government to describe the organization of prisoners’ work for private persons and entities, both inside and outside prison premises, and to supply specimen copies of agreements concluded between prison authorities and private users of prison labour.

The Committee notes the Government’s indication in the report that, in regard to those prisoners who participate on a voluntary basis in work placements outside the prisons, all of the elements of employment rights legislation are applicable to them as to any other individual participating in the labour market. Noting also the Government’s explanation that a contract of employment may be either oral or in writing, the Committee would appreciate it if the Government would supply, in its next report, sample copies of the written contracts of employment concluded by the prisoners with private employers, as well as specimen copies of agreements concluded between prison authorities and private users of prison labour, as it was requested previously.

As regards work of prisoners inside prison premises, the Committee notes the Government’s indications in the report that there is a very limited provision of employment and training opportunities for a small number of this group through arrangements with private entities, the prisoners work under supervision of prison staff for a maximum of four and a half hours per day, but there are no written agreements in regard to these small-scale activities nor are formal consent arrangements as such applied, given the voluntary participation by the prisoners in these activities.

The Committee wishes to recall in this connection that Article 2(2)(c) of the Convention expressly prohibits that convicted prisoners are hired to or placed at the disposal of private individuals, companies or associations, in a sense that the exception from the scope of the Convention provided for in this Article for compulsory prison labour does not extend to work of prisoners for private employers, even under public supervision and control. The Committee recalls that 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 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".

The Committee refers to the explanations given in paragraphs 127-143 of its General Report to the International Labour Conference in 2001 and in points 5-11 of its 2001 general observation under the Convention, where it pointed out that work by prisoners for private companies can be held compatible with the explicit prohibition of the Convention only when such work is performed 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.

In the light of the above considerations, the Committee again requests the Government to indicate how the voluntary consent of prisoners to work for private persons inside prison premises is guaranteed, so that it is free from the menace of any penalty, as well as other measures taken to ensure that such work is performed in conditions approximating a free employment relationship, including guarantees and safeguards referred to above.

2. Referring to its earlier comments made under Convention No. 105, the Committee notes the Government’s indication in its report that the Rules for the Government of Prisons, 1947, have not yet been replaced by the proposed new Prison Rules. The Committee hopes that the Government will supply a copy of the new Rules, as soon as they are adopted.