Comments adopted by the CEACR: Austria

ADOPTED_BY_THE_CEACR_IN 2021

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Articles 1(1), 2(1) and 2(2)(c) of the Convention. Work of prisoners for private companies. For a number of years, the Committee has been examining the situation of prisoners who are obliged to work, without their formal consent, in workshops run by private enterprises within state prisons, pursuant to section 46(3) of the Law on the execution of sentences. The Committee noted the indication of the Government that the prisoners working in private-run workshops are supervised only by prison staff and paid by the prison. The Committee repeatedly pointed out that the practice followed in this regard corresponds in all aspects to what is expressly prohibited by Article 2(2)(c), namely, that a person is “hired to” private contractors. It noted, in particular, that the term hired to covers not only situations where prisoners are “employed” by the private company, but also situations where prisoners are hired to private enterprises but remain under the authority and control of the prison administration.

The Committee further noted the Government’s repeated indication that prisoners working for private contractors benefit from rights and conditions of work that are similar to those guaranteed in a free labour relationship. Although the Government indicated that it has stipulated that inmates working in privately run workplaces inside the prison must also provide freely given and informed consent, the Committee noted that section 46(3) of the Law on the execution of sentences was not amended to this effect. Moreover, it noted that according to a document named “Correctional services in Austria” issued by the Ministry of Justice in August 2016, convicts and prisoners subject to precautionary measures of placement, who are fit to work, are obligated by law to take over work. Prisoners who are required to work have to do the work that has been allocated to them, except for work which might endanger their life or subject them to serious health hazards. Moreover, 75 per cent of work remuneration is withheld as contribution to prison costs indicating that on average, prisoners receive €5 per day, after deduction of their contribution to prison costs and of their contribution towards unemployment insurance. The Committee requested the Government to take the necessary measures to ensure that section 46(3) of the Law on the execution of sentences is revised, in order to bring it into conformity with the requirements of the Convention as well as the indicated practice by the Government.

The Committee notes the Government’s information in its report that there have not been any legislative amendments regarding the implementation of the Convention. However, there has been an increase in the rate of pay for those serving custodial sentences in line with the 61.31 per cent increase in the negotiated standard wage index. The Committee also notes the Government’s reference to section 49(3) of the Law on the execution of sentences which guarantees the protection of life, health and safety of the workers as well as other social security benefits, rights and employment conditions that are applicable to prisoners working for private enterprises. Moreover, the Government states that although, the institutions involved in the implementation of custodial sentences may enter into agreements with commercial enterprises on the employment of prisoners, such enterprises have no disciplinary authority over the prisoners and are not permitted to exercise any kind of direct or indirect coercion or issue any orders to the prisoners. The Government further provides examples of private enterprises that offer special professional training and excellent working conditions with additional payments which is on high demand among inmates.

The Government considers that the work prisoners do for private enterprises is given legal status with rights and employment conditions attached which are similar to those of employment outside prisons. It reiterates that, in practice, the free and well-informed consent is obtained from the inmates to work in privately run workshops within the prison premises. It therefore considers that no revision of section 46(3) of the Law on the execution of sentences is required.

The Committee notes with regret that the Government does not envisage taking any measures to legislate and give legal recognition to this point nor has it taken any measures to revise section 46(3) of the the Law on the execution of sentences according to which prisoners are obliged to work, in workshops run by private enterprises without any reference to their consent. The Committee recalls that, by virtue of Article 2(2) of the Convention, the compulsory labour of convicted persons is excluded from the scope of the Convention, provided that it is “carried out under the supervision and control of a public authority” and that such persons are not “hired to or placed at the disposal of private individuals, companies or associations”. These two conditions are equally important and apply cumulatively: the fact that the prisoner remains at all times under the supervision and control of a public authority does not itself dispense the Government from fulfilling the second condition, namely that the person is not hired to or placed at the disposal of private undertakings. If either of the two conditions is not observed, compulsory labour exacted from convicted persons under these circumstances is prohibited by virtue of Article 1(1) of the Convention. The Committee has nevertheless considered that work by prisoners for private enterprises can be held compatible with the requirement of the Convention, if such work is performed by prisoners under a “free employment relationship”, as referred to by the Government. In such circumstances, the prisoners concerned must offer themselves voluntarily, without being subjected to pressure or the menace of any penalty, by giving their free, formal and informed consent to work for private enterprises in law and in practice. The Committee therefore once again requests the Government to take the necessary measures to ensure that section 46(3) of the Law on the execution of sentences is revised, in order to bring it into conformity with the requirements of the Convention and the indicated practice. The Committee also requests the Government to provide information on the number of prisoners working in privately run workplaces inside prison premises. Noting that institutions involved in the implementation of custodial sentences may enter into agreements with commercial enterprises on the employment of prisoners and that such enterprises have no disciplinary authority over the prisoners, the Committee requests the Government to provide information on the manner in which the prison authorities exercise control and, if appropriate, discipline on prisoners engaged in work benefiting commercial enterprises. The Committee further requests the Government to indicate the circumstances in practice of what is characterized as free and well-informed consent of the prisoners and to indicate whether their refusal to carry out such work is subject to disciplinary sanctions.

The Committee is raising other matters in a request addressed directly to the Government.

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The Committee notes that the first report of the Government on the application of the Protocol of 2014 to the Forced Labour Convention, 1930, has not been received. The Committee requests the Government to provide the first report on the Protocol of 2014 along with its next report on the Convention due in 2024.

The Committee notes the observations made by the Federal Chamber of Labour (BAK) communicated with the Government’s report.

Articles 1(1), 2(1) and 25 of the Convention. Trafficking in persons. 1. Programme of Action. Following its previous comments, the Committee notes the implementation report for the National Action Plan (NAP) to combat Trafficking in Human Beings 2018–2020 attached to the Government’s report. According to this report several projects, initiatives and measures were carried out for strengthening national and international cooperation against trafficking in persons, for sensitization and awareness raising of various occupational groups as well as for improving victim protection and support. The Government also refers to the adoption of a new NAP for 2021–2023, which brings together a total of 109 measures under various topics namely: (i) national and international coordination and collaboration; (ii) prevention; (iii) victim protection; (iv) law enforcement; and (v) monitoring and research. The Action plan also determines who is responsible for, and the time frames for its implementation and identifies indicators of whether and how the measures have been implemented. The Committee encourages the Government to continue taking effective measures to combat trafficking in persons, within the framework of the NAP 2021-23. It requests the Government to transmit information providing an overview of the measures taken in this context as well as on the assessment of the implementation of the NAP, indicating the results achieved, the challenges faced and the measures envisaged to overcome them.

2. Prosecution and penalties. The Committee notes the Government’s information that training courses and other awareness-raising programmes to help identify victims of human trafficking are regularly offered to monitoring authorities such as the police and labour inspectors, judicial officers or youth protection authorities. With regard to the application of section 104(a) of the Penal Code, which criminalizes trafficking in persons with imprisonment for up to five years, the Committee notes that according to the report of the Working Group against Human Trafficking for the Purpose of Labour Exploitation 2018–2020, in 2019 the police carried out a total of 42 preliminary investigations against 62 suspects of human trafficking. A total of 66 victims (including 14 underaged victims) were identified. Most of the cases concerned the offense of trafficking for the purpose of sexual exploitation. Furthermore, according to the report of the Federal Criminal Police Office’s entitled Situation Report, Smuggling and Trafficking in Human Beings 2019, a total of 17 victims were identified in eight investigations into suspected human trafficking for labour exploitation in 2019. According to the evaluation of judicial proceedings from the prosecutor’s office, from 2017 to 2020, there were 318 cases under section 104(a) and 218 cases under section 217 of the Criminal Code relating to cross-border trafficking for prostitution, with 1,002 recorded victims. These included 61 cases under section 104(a) and 41 cases under section 217 in 2020. A total of 25 convictions were secured between 2017 and 2020. The Committee observes that the number of convictions is low compared to the number of cases recorded.

The Committee notes the observations made by the BAK that the strict implementation of effective sanctions, more frequent monitoring and greater cooperation between labour inspectors and agriculture and forestry inspectors on the one hand, and the financial police and the Austrian Healthcare Insurance Fund on the other are required in order to combat trafficking in persons. The Committee further notes that the United Nations Committee on the Elimination of Discrimination against Women (CEDAW), in its concluding observations of 2019, while welcoming the increased number of investigations and prosecutions of traffickers, expressed concern at the lenient sentences imposed on traffickers (CEDAW/C/AUT/CO/9, paragraph 24). The Committee requests the Government to continue to take measures to ensure that investigations and prosecutions of cases of trafficking of persons are carried out and that sufficiently effective and dissuasive penalties are imposed. It requests the Government to continue providing information on the application in practice of sections 104(a) and 217 of the Penal Code criminalizing trafficking in persons and cross-border trafficking for prostitution, including the number of convictions and penalties applied.

3. Identification and protection of victims. The Committee previously noted the Government’s information on the victim protection institutions, which provide psycho-social counselling, accommodation, medical care and legal assistance to victims of trafficking. It further noted that foreign victims of trafficking are granted a period of 30 days to recover and reflect prior to taking any stay-related steps after which they may receive a “special protection” residence permit, if criminal proceedings have been commenced or other claims have been raised.

The Committee notes from the NAP implementation report that a new shelter for male victims of trafficking was opened in 2018, which is fully operational throughout the year with a capacity of over 60 people which will be further extended in 2020. This shelter offers safe accommodation, medical, legal and psychosocial support, crisis intervention as well as litigation support. Furthermore, the red-white-red cards (settlement permit issued pursuant to section 41a of the Settlement and Residence Act, which grants unlimited access to the labour market) were issued for 28 victims of trafficking in 2018, for 45 victims in 2019 and for 33 victims in 2020. The Committee observes that in its observations, the BAK refers to the need to facilitate the acquisition and extension of the right of residence of victims and to improve their access to employment. The Committee requests the Government to continue providing information on the measures taken to improve the identification of victims of trafficking and on services provided to victims of trafficking through different institutions to support their rehabilitation and social reintegration.

Comments adopted by the CEACR: Austria

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