Demande directe (CEACR) - adoptée 2010, publiée 100ème session CIT (2011)

Article 2(2)(c) of the Convention. Work of prisoners for private individuals, companies or associations. In its earlier comments, the Committee referred to certain provisions allowing prisoners to work for private employers. The Committee noted that, under the provisions of Chapter 5 of the Executive Penal Code governing employment of convicts, they can be employed not only on the basis of an employment contract, but also on the basis of an order assigning them to a specific job (“a referral to work”). In the latter case the convict’s consent to work is not required, the work is compulsory for convicts under the legislation in force and is carried out on the basis of a contract concluded between a penal institution and a private employer.

The Committee notes the Ordinance of the Ministry of Justice on specific principles pertaining to the employment of convicts of 9 February 2004. It also notes the Government’s indications concerning the preparation of the draft amendment of the Executive Penal Code, which relates to methods of fixing remuneration for work performed by convicts. As the Committee noted previously, labour law provisions concerning hours of work and occupational safety and health are applicable to prison labour (section 121, paragraphs 1, 2 and 5 of the Executive Penal Code). It also noted the Government’s indications concerning the application to convicts of the social security provisions (section 127(1) of the Executive Penal Code).

The Committee recalls that Article 2(2)(c) of the Convention strictly prohibits that prisoners are hired to, or placed at the disposal of, private enterprises, However, the Committee has considered, as explained in paragraphs 59 and 60 of its General Survey of 2007 on the eradication of forced labour, that work for private enterprises can be held compatible with Article 2(2)(c) if prisoners voluntarily enter a normal employment relationship with private employers and perform work in conditions approximating a free employment relationship. This arrangement necessarily requires the informed, formal consent of the person concerned, as well as further guarantees and safeguards covering the essential elements of a labour relationship, such as wages, social security and occupational safety and health. If the above conditions are complied with, the work of prisoners will be removed from the scope of Article 2(2)(c) of the Convention, since no compulsion is involved.

While noting that, under the Executive Penal Code, prisoners’ conditions of work may be considered as approximating those of a free labour relationship, the Committee observes that, under the legislation in force, the formal consent of convicts to work for private enterprises does not appear to be asked for. Moreover, the Government states in its report that, though convicts can submit a request to be assigned to work for an outside entity, the convicts’ assignment to work for an outside contractor (private entrepreneur) does not depend on their consent. A provision of the Ordinance of the Ministry of Justice of 9 February 2004 referred to above, according to which conditions of employment should be accepted by convicts in writing, does not appear to be sufficient to satisfy the above requirements of the Convention.

The Committee therefore hopes that, in the context of the amendment of the Executive Penal Code, the necessary measures will be taken with a view to ensuring compliance with the Convention, for example by introducing a provision requiring an informed, freely given consent of the convicts concerned (including those working in accordance with an order assigning them to a specific job (or “referral to work”) to perform labour for private employers. The Committee requests the Government to provide, in its next report, information on the progress made in this regard.

Articles 1(1), 2(1) and 25. Trafficking in persons. The Committee notes the information provided by the Government in its report concerning measures taken to implement the National Action Plan Against Trafficking in Human Beings for 2009–10. It also notes the Government’s indication concerning the elaboration of a draft act to amend the Penal Code with a view to introducing a definition of trafficking in human beings. The Committee requests the Government to supply a copy of the amendments, as soon as they are adopted, as well as information on the application in practice of the provisions punishing human trafficking and related crimes, including information on the legal proceedings which have been instituted against perpetrators and on the penalties imposed.