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Repetition

Article 1(1) and Article 2(1) and (2)(c) of the Convention. Work of prisoners for private enterprises. Referring to its earlier comments concerning the work of prisoners for private enterprises, both inside and outside prison premises, the Committee has noted from the Government’s reports that prisoners working outside penitentiary institutions perform their work on the basis of a free employment relationship, whereas prisoners working in workshops run by private enterprises within state prisons are obliged to work without their consent and in conditions apparently bearing no resemblance to the free labour market.

As regards prisoners who participate on a voluntary basis in work placements outside the prisons, the Committee previously noted, in particular, the Government’s indication that all of the elements of employment rights legislation are applicable to them as to any other individual participating in the labour market, as well as the Government’s explanation that a contract of employment may be either verbal or in writing. It has also noted the examples of letters containing offers of employment to prisoners, supplied by the Government. While noting this information, the Committee again requests the Government to supply, with its next report, sample copies of the written contracts of employment concluded by the prisoners with private employers for work outside penitentiary institutions, as well as specimen copies of agreements concluded between prison authorities and private users of prison labour. Please also supply copies of any provisions governing the “outside employment” of prisoners.

As regards work of prisoners inside prison premises, the Committee has duly noted the Government’s repeated indications in its reports that there is a very limited provision of employment and training opportunities for a small number of this group through arrangements with private entities. The prisoners work under the supervision of prison staff for a maximum of four-and-a-half hours per day, but there are no written agreements in regard to these small-scale activities nor are there formal consent arrangements as such applied. However, the Government refers to the “voluntary participation” by the prisoners in these activities. The Committee requests the Government to clarify this issue, supplying copies of the relevant rules and regulations in force and describing the conditions of work of prisoners working for private entities inside prisons.

Regarding the Government’s request for guidance on the issue of “voluntary consent” in relation to work for private entities inside prison premises, the Committee draws the Government’s attention to the explanations in paragraphs 54–61 and 103–120 of its General Survey of 2007 on the eradication of forced labour, where the Committee recalled that Article 2(2)(c) of the Convention expressly prohibits that convicted prisoners 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, even under public supervision and control. The Committee further pointed out that work by prisoners for private companies can be held compatible with the explicit prohibition of the Convention only where the necessary safeguards exist to ensure that the prisoners concerned offer themselves voluntarily, without being subjected to pressure or the menace of any penalty, as required by Article 2(1) of the Convention. In such a situation, work of prisoners for private companies does not come under the scope of the Convention, since no compulsion is involved. The Committee has considered that, taking into account their captive circumstances, it is necessary to obtain prisoners’ formal consent to work for private enterprises both inside and outside prisons. Further, since such consent is given in a context of lack of freedom with limited options, there should be indicators which authenticate this free and informed consent. The Committee recalls that the most reliable indicator of the voluntariness of labour is the work performed under conditions approximating a free labour relationship, which include wage levels (leaving room for deductions and attachments), social security and occupational safety and health. In addition, there may be also other factors that can be regarded as objective and measurable advantages which the prisoner gains from the actual performance of the work and which could be considered in determining whether consent was freely given and informed (such as the learning of 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 hopes that, in the light of the above considerations, measures will be taken to ensure that free and informed consent is required for the work of prisoners in private enterprise workshops inside prison premises, so that such consent is free from the menace of any penalty and authenticated by the conditions of work approximating a free labour relationship, as well as by other objective and measurable factors referred to above. In this connection, the Committee also notes with interest the draft text for rule 32 of the Prison Rules currently under revision, which provides for a consent requirement and a level of remuneration no less favourable than that of a free worker, and requests the Government to communicate a copy of the revised Prison Rules, as soon as they are adopted.

The Committee reminds that, as regards the questions raised by the Government concerning the drafting of agreement/consent forms or contracts of employment of prisoners, the Government may wish to request the Office’s technical assistance.