Demande directe (CEACR) - adoptée 2009, publiée 99ème session CIT (2010)

1. The Committee notes a communication received in August 2009 from the Netherlands Trade Union Confederation (FNV), which contains observations concerning the application of the Convention by the Netherlands. It notes that this communication was sent to the Government in September 2009 for any comments it might wish to make on the matters raised therein. The Committee hopes that the Government’s comments will be supplied in its next report, so as to enable the Committee to examine them at its next session.

Articles 1 (paragraph 1), 2 (paragraph 1), and 25, of the Convention. Trafficking in persons. The Committee notes with interest the information provided by the Government in its report concerning measures taken to combat trafficking in human beings, including the information contained in the sixth report of the Dutch National Rapporteur on Trafficking in Human Beings annexed to the Government’s report, as well as statistical information on the application of section 273(f) of the Penal Code punishing human trafficking. The Committee would appreciate it if the Government would continue to provide, in its future reports, information on the legal proceedings that have been instituted under the penal provisions punishing trafficking in persons, indicating the penalties imposed on perpetrators.

2. The Committee notes that the Government’s report contains no reply to the following matters raised in its previous direct request and hopes that the next report will include full information on these matters:

Article 2, paragraph 2, subparagraph (c). Work of prisoners for private employers. In its earlier comments, the Committee noted the Government’s indications concerning the work of prisoners for private employers. It noted that, as regards work carried out outside penitentiary institutions by detainees who reside in open penitentiary institutions, the contract with the employer is concluded by the institution itself, but the detainees have no terms of employment with the employer concerned. The Committee has also noted the comments made by the Trade Union Federation of Middle and Senior Staff Personnel (MHP), communicated by the Government with its 2005 report, concerning compulsory participation of convicts in work and the absence of a labour law relationship between a detainee and an employer. Further, the MHP indicated that persons who reside in an open penitentiary institution and who cannot or do not want to take part in such work are returned to a closed institution.

The Committee previously noted the Government’s explanations concerning the level of remuneration for detainees working outside the institution, which is based on the gross minimum wage, as well as the Government’s statement that outside work is subject to working conditions legislation. It noted, however, that detainees in an open institution do not come under the social security legislation.

The Committee notes the Government’s statement in its 2005 report that work carried out by detainees for a private employer outside penitentiary institutions is important for rehabilitation purposes. The Committee recalls that Article 2(2)(c), of the Convention prohibits that convicts 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. However, the Committee has pointed out in its previous General Surveys, including its most recent General Survey of 2007, paragraphs 59–60, that, provided convicted prisoners voluntarily consent to such work without being subjected to pressure or menace, such work does not fall within the scope of the Convention. At the same time the Committee has indicated that, bearing in mind the captive circumstances of prisoners, there must be safeguards to ensure their consent is given freely and voluntarily. The Committee in paragraphs 114–122 of the General Survey of 2007 discussed the safeguards which include not only written formal consent but, further, that the most reliable indicator of voluntariness of the labour is if the work is performed under conditions which approximate a free labour relationship. Factors to be taken into account in such circumstances would include, for example, that there was a level of wages and social security provisions which approximate a free labour relationship. In addition, the Committee in the General Survey of 2007 indicated that other factors that can be regarded as objective and measurable advantages which the prisoner gains from the actual performance of the work could be considered in determining whether free and informed consent is given. The Committee gave examples such as learning new skills which could be deployed by prisoners when released; the offer of continuing the work of the same type upon their release; or the opportunity to work cooperatively in a controlled environment enabling them to develop team skills. The Committee indicated that all of these factors should be taken as a whole in determining whether consent was freely given and they should be considered and assessed by the public authorities.

Bearing in mind these features, the Committee requests the Government in its next report to provide information to the Committee on the following matters:

–      the objective and measurable factors which authenticate the voluntariness of the consent of the prisoners to the performance of work whilst in open penitentiary institutions, such as the performance of work in conditions approximating a free labour relationship, together with other advantages such as learning new skills which could be deployed when released; the offer of continuing work of the same type upon release; or the opportunity to work cooperatively and develop team skills, or other similar factors;

–      the procedures undertaken by public authorities to regularly assess that such objective and measurable factors are in place in order to ensure that work performed by such prisoners is voluntary.

The Committee also requests the Government to supply a copy of the general terms and conditions governing work carried out by inmates of custodial institutions, to which reference is made in paragraph (h) of the additional clauses of the sample agreement between a penitentiary institution and an employer, annexed to the Government’s 2003 report.