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.

Article 2, paragraph 2(c), of the Convention. The Committee previously noted that the Act on the Employment of Persons Deprived of Liberty, of 28 August 1997, which aims at increasing the employment opportunities of inmates, provides for the creation of enterprises attached to penitentiary institutions (section 3), which, inter alia, may take the form of a company in which the State holds more than 50 per cent of shares. The Committee also noted that under section 7 of the Order on specific principles of employing convicts, of 26 August 1998 (Journal of Laws, 1998, No. 113, item 727), they may be employed, inter alia, by enterprises operating in prisons and by other enterprises and natural persons, including in home employment production carried out within custodial premises and penal institutions.

The Committee also noted from the provisions of Chapter 5 of the Penal Executory Code, of 6 June 1997, which governs the employment of prisoners, that inmates are employed on the basis of an order assigning them to a specific job, on the basis of an employment contract or other legal ground; that their employment under an employment contract can take place with the consent of the director of a penitentiary institution who defines the conditions of employment; and that labour law provisions concerning hours of work and occupational safety and health are applicable to prison labour (section 121, paragraphs 1, 2 and 5). An inmate can be discharged from the obligation to work if he or she is undergoing training or if it is justified by other reasons (section 121, paragraph 4).

The Government indicates in its latest report that the employment of convicted persons takes place primarily on the basis of an order assigning them to a specific job ("a referral to work"), which requires the conclusion of a contract between a penal institution and an employer; the convicted person’s consent is not required, since the legislation provides for an obligation of prisoners to perform labour. The Government further states that the penal institutions’ administration has a permanent opportunity of supervising the conditions of work of convicted persons.

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; this necessarily requires the formal consent of the person 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 e.g. paragraphs 112-125 of its General Report to the 86th Session of the International Labour Conference, 1998).

The Committee therefore hopes that the Government will take the necessary measures in order to ensure the observance of the Convention on this point, and that it will supply, in its next report, information on the progress made in this regard.