Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

Article 1(1) and Article 2(1) and (2)(c) of the Convention. A. Prisoners hired to private enterprises. 1. In its previous observation, the Committee noted that under section 46, paragraph 3, of the law on the execution of sentences, as amended by Act No. 799/1993, prisoners may be hired to enterprises of the private sector, which may use their labour in privately run workshops and workplaces both inside and outside prisons. The Committee pointed out that compulsory labour of prisoners for private enterprises is not compatible with the Convention.

2. In its reply, the Government recognizes that in national law and practice, contracts exist only between the prisons administration and private enterprises, while prisoners, who are under an obligation to perform prison labour, have no labour contract with either an enterprise or the prisons administration; however, conditions of work are to a large extent determined by law, violations of which can be the subject of complaints by prisoners. The Government further observes that private enterprise representatives give only technical instructions to prisoners hired to them and have no disciplinary powers, which remain with the prisons administration. In this connection, the Government argues that there may be some link between the two cumulative conditions in Article 2(2)(c) of the Convention and that there may be no "placing at the disposal" of the prisoner in the present case, where the private enterprise is under contractual obligations towards the prisons administration.

3. Referring once again to the explanations in paragraphs 96 et seq. of its General Report to the 2001 Conference, the Committee notes from the Government’s indications that in conformity with the first condition set out in Article  2(2)(c) of the Convention, the work is carried out "under the supervision and control of a public authority". However, as regards the second condition, namely, that the person "is not hired to or placed at the disposal of private individuals, companies or associations", the Committee has already pointed out that contracts for the hiring of prison labour to private enterprises in Austria correspond in all respects to what is proscribed by Article 2(2)(c), namely, that a person be "hired to" a private company. It is in the very nature of such hiring agreements to include mutual obligations between the prisons administration and the private enterprise.

4. The Government further states that national law and practice comply in all respects with the United Nations Standard Minimum Rules for the Treatment of Prisoners, which provide, inter alia, in rule 73(1), that "Preferably institutional industries and farms should be operated directly by the administration and not by private contractors". The same preference is followed in Austria, where altogether only 10 per cent of prison labour is hired to private enterprises, including both labour employed in workshops run by private enterprises inside prisons and prisoners working outside for private companies; in the Government’s view, the latter prisoners need not even be considered here, since their consent is required. The Government concludes that compliance with the United Nations Standard Minimum Rules for the Treatment of Prisoners cannot be in contradiction with the Convention.

5. The Committee takes due note of these indications. Referring again to the explanations given in paragraph 102 of its General Report to the 2001 Conference, the Committee must point out that there is no contradiction between the preference expressed by rule 73(1) of the Standard Minimum Rules and the requirements of Article 2(2)(c) of the Convention, and that compliance with a less demanding, non-binding set of standard minimum rules does not dispense the Government from abiding by the stricter rules of a ratified basic human rights Convention.

В. Free employment of prisoners 6. The Committee has always held that the strict conditions laid down by the Convention for exempting from the scope of its prohibition labour imposed on persons as a consequence of a conviction in a court of law should not prevent access by prisoners to the free labour market. Work by prisoners, even for private enterprises, does not come under the scope of the Convention if there is no compulsion involved.

7. Consent requirement and conditions of employment approximating a free labour relationship. The Committee recalls that prisoners’ obligation to work, as laid down in the Act on the execution of sentences, concerns any work to which they are assigned, and is enforceable with fines. The prisoner’s consent is not required for work in private enterprise workshops on prison premises, but only for "uncontrolled" work outside prison premises. Besides, as indicated by the Committee in point 10 of the general observation on the Convention in its report to the 2002 Conference, in the context of a captive labour force which has no alternative access to the free labour market, "free" consent to a form of employment going prima facie against the letter of the Convention furthermore needs to be authenticated by conditions of employment approximating a free labour relationship, such as the existence of a labour contract between the prisoner and the private company using his or her labour and free labour market oriented conditions regarding wage levels, social security and safety and health.

8. In applying these observations to the country circumstances, the Committee notes that:

(a) Under the Act on the execution of sentences, a prisoner has no labour contract with a private company using his or her labour inside or outside prison premises - nor with the prison authorities. The general scope of protective legislation mentioned by the Government in this connection is no indicator of a freely accepted employment relationship.

(b) The Government indicates in its report that safety and health legislation applies in prisons, that prisoners enjoy specific health care, as well as work accident compensation "up to" that provided under general social insurance, and that they are covered by the unemployment insurance, but remain excluded from old-age insurance. It thus appears that, with the exception of unemployment insurance, prisoners, including those working for private enterprises, remain excluded from the social security coverage of free workers.

(c) As regards wages, the Government indicates that gross hourly wages in 2000-02 ranged between 4.08 and 6.13 euros, and from 23 December 2003 between 4.27 and 6.41 euros. The only mandatory deductions are the contributions to prison costs and to unemployment insurance, and the only part of wages that may be attached, within limits, is that which is to be paid upon release from prison. When employed full time, prisoners draw a net monthly work income of around 200 euros after deductions. The Committee has taken due note of these indications. It must, however, again conclude that, with a contribution for board and lodging taking away 75 per cent of a remuneration that is already substantially lower than prevailing rates on the free market, the work income of a prisoner hired to a private enterprise is far from approximating market conditions. In assessing this level of remuneration, the Government considers that reference should be made not only to free market wage rates, but also to the principle of equal treatment among prisoners, all the more where they are not in a position to decide whether to work in a company workshop or for a public authority. As regards equal treatment among prisoners, the Committee already noted in point 12 of the general observation on the Convention in its report to the 2002 Conference that while the Convention provides protection mainly to prisoners working for private enterprises, it is no obstacle to introducing free market principles to state organizations as well.

9. The Committee again expresses the hope that the Government will at last take the necessary measures to grant prisoners working for private enterprises a legal status with rights and conditions of employment that are compatible with this basic human rights instrument.