Observation (CEACR) - adoptée 2007, publiée 97ème session CIT (2008)

Article 2(2)(c) of the Convention. Prison labour. Hiring of prison labour to private enterprises. The Committee notes that Decree No. 2006‑015 of 17 January 2006 on the general organization of prison administration has repealed Decree No. 59-121 of 27 October 1959, which allowed prison labour to be hired out to private enterprises and persons detained pending trial to be required to perform work.

With regard to the latter provision, the Committee notes with satisfaction that with the repeal of Decree No. 59-121 and the provisions introduced by Decree No. 2006-015, persons detained pending trial are no longer subjected to compulsory labour. In its previous observation, the Committee noted that under section 4(4) of the new Labour Code (Act No. 2003-044), it was prohibited to require persons detained pending trial to work. It notes that, according to section 109(2) of Decree No. 2006-015, for such persons to be employed, prior authorization must be obtained from the magistrate in charge and that such authorization is granted only for persons who have been in pre-trial detention for more than two months.

The Committee notes the provisions of Chapter XIX of Decree No. 2006‑015, “Work by Prisoners” (sections 104–115). It notes that under these provisions, as under those of Decree No. 59-121 prior to its repeal, prison labour may be hired out to private enterprises. According to section 109(1) of Decree No. 2006-015, prison labour is carried out under general service or hiring arrangements. Under section 112(1), in the case of prison labour under a hiring arrangement, the prisoner may either be placed at the disposal of public or semi-public services or establishments or hired out to private enterprises. The Committee recalls that according to Article 2(2)(c), of the Convention, prison labour is excluded from the Convention’s scope only on condition that the work or service is carried out under the supervision and control of a public authority and the convicted person is not hired to or placed at the disposal of private individuals, companies or associations. In its 2007 General Survey on the eradication of forced labour, the Committee has taken the view that, as long as the necessary safeguards exist to ensure that the persons concerned offer themselves voluntarily and without being subjected to pressure or the menace of any penalty, such employment does not fall within the scope of the Convention (paragraph 59). The Committee also indicated that the most reliable indication of authenticating voluntariness and free consent is where the work is performed under conditions which approximate a free labour relationship (paragraphs 115–120). The Committee notes with interest in this connection that some provisions of Chapter XIX of Decree No. 2006-015 are an improvement in comparison with previous legislation. It notes that under section 105, persons in custody, regardless of their penal status, may ask to be offered work. According to section 106, work provided to prisoners takes into account the requirements for the proper running of establishments in general and penal camps in particular. Section 107(1) provides that daily and weekly working hours, which are set by internal rules of the establishment, must approximate working hours in the corresponding region or type of occupation and must on no account exceed the working hours practised. Section 107(2) provides that observance of weekly rest periods and holidays must be ensured and that the necessary provision must be made in work schedules for rest periods and for meals. According to section 108, independent of prisoner surveillance, staff must ensure observance of the rules on discipline and security in the workplace. Under section 110, work in the service, or for the personal convenience, of individuals, whether magistrates, public servants or private persons, is prohibited. Section 112(3) provides that for prison work carried out under a hiring arrangement, remuneration and working conditions must approximate those provided in the Labour Code. Lastly, under section 114, prisoners employed outside prison establishments under a hiring arrangement or in penal camps remain under the control of the prison staff.

In view of the foregoing, the Committee requests the Government to indicate whether, in practice, persons convicted in a court of law are hired to private enterprises and to indicate what measures are taken to ensure that the consent of the persons concerned is free and informed. Please indicate in particular what consequences would result from refusing to work for a private enterprise, for example, with regard to the possibilities for conditional release in the event of such refusal, and specify the level of remuneration actually received by prisoners as compared to free workers in the same occupational category, the daily, weekly and monthly working hours actually in force, as well as measures taken concerning the occupational safety and health of prisoners.

Article 2(2)(a). National service. In its previous observations the Committee took note of the indications of the Government that it was contemplating the amendment of Ordinance No. 78-002 of 16 February 1978 setting forth general principles of national service, which define national service as the compulsory participation of young Malagasies in national defence and in the economic and social development of the country. The Committee noted that, according to the Government’s report, changes were to be made and would be communicated in due course. Having received no fresh information on this matter, the Committee must point out once again that to force young people to participate in development work as part of compulsory military service, or as an alternative thereto, is incompatible with the Convention. It again expresses the hope that the Government will take the necessary steps to bring the legislation into line with the Convention, in particular by ensuring that participation by young persons in national service is voluntary and that work required under military service laws is of a purely military character.