Observation (CEACR) - adoptée 2005, publiée 95ème session CIT (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.