Observation (CEACR) - adoptée 2008, publiée 98ème session CIT (2009)

Article 1(d) of the Convention. Imposition of prison sentences involving an obligation to work as punishment for having participated in strikes. In its previous comments, the Committee pointed out how proper application of the Convention could be affected by too broad interpretation by national courts of the provisions of section 288 of the Penal Code. According to this provision, anyone, who through violence, the use of force, threats or deception, causes or maintains, or endeavours to cause or maintain, a concerted stoppage of work with the aim of forcing an increase or decrease in wages or jeopardizing the free exercise of industry or work, is liable to a sentence of imprisonment of from one month to two years. It also pointed out that sentences of imprisonment involve an obligation to work pursuant to section 28 of the Penal Code and section 35 of Act No. 23-98 on the organization and operation of prisons.

In its latest report, the Government states that the obligation to work established in section 28 of the Penal Code and 35 of the Act on the organization and operation of prisons applies to convicts, and that prison labour is excluded from the definition of forced labour given in Convention No. 29. The Government again asserts that there is no link between the right to strike and the obligation to work in prison in so far as the prison sentence established in section 288 of the Penal Code applies only in the event of violence, use of force, threats or deception in the course of a strike. It adds that the Bill on the exercise of the right to strike, which needs the consensus of the social partners, has not as yet been enacted.

The Committee takes note of this information. It points out that, although compulsory prison labour carried out under certain conditions does constitute an exception to forced labour within the meaning of Convention No. 29, in certain circumstances compulsory prison labour can, nevertheless, fall within the scope of Convention No. 105. Where work, including prison work, is exacted, in whatever manner, for expressing political views or views opposed to the established political, social or economic system or for participating in a strike, such work imposed in these specific circumstances constitutes forced labour within the meaning of Convention No. 105. Thus, prison sentences, where they involve compulsory work, fall within the scope of the Convention if they sanction the prohibition on expressing views or opposition or participation in a strike.

The Committee concedes that section 288 of the Penal Code does not directly address the right to strike but aims to penalize such violent behaviour or obstruction of freedom to work as might arise during a collective work stoppage, that is to say a strike. However, in the past, the courts have construed these provisions broadly, so that they have enabled strikers whose conduct has been peaceful to be punished. The Committee recalls that a worker having carried out a strike in a peaceful manner may not be liable to penal sanctions, and that in no case may he or she incur a prison sentence. In these circumstances, the Committee requests the Government to indicate whether the courts have had recourse to provisions of section 288 of the Penal Code recently and if so to specify the conduct that they have sanctioned and the penalties they have imposed. Please provide copies of court decisions handed down to enable the Committee to assess the scope of these provisions and thus satisfy itself that no prison sentences involving an obligation to work can be imposed on workers who exercise their right to strike peacefully.