Observation (CEACR) - adopted 1991, published 78th ILC session (1991)

The Committee notes the information supplied by the Government in its report for the period ending 30 June 1989, which was received by the ILO in March 1990. It also takes note of the observations made by the German Confederation of Trade Unions (DGB) concerning the application of the Convention, and the Government's reply to these observations which reached the ILO in December 1990.

1. Article 2, paragraph 2(c), of the Convention. In the comments it has been making for a number of years, the Committee has observed that, contrary to the Convention, prisoners are placed at the disposal of private undertakings and that the provisions of the Act on the execution of sentences, adopted in 1976 to bring practice into conformity with the Convention, have not been put into effect. Thus, the requirement of the prisoner's formal consent to employment in a workshop maintained by private enterprise, laid down in section 41(3) of the 1976 Act, which was to enter into force on 1 January 1982, was suspended by section 22 of the Second Act to improve the Budget Structure, of 22 December 1981; the 1976 Act also recognises the prisoner's right to wages, but a provision for increases above the initial amount, which is 5 per cent of the average wage of workers and employees was not given effect; finally, legislation which was to extend sickness and old age insurance to prison labour was not adopted.

In its latest report, the Government recalls its previous statements to the effect that the staff of private enterprises can be responsible only for the technical and work-related direction of prisoners and that the prison authorities determine the place and hours of work as well as the nature of the work assigned to the prisoners, thus retaining complete control over them and that the situation of such prisoners is exactly the same as that of prisoners employed in workshops belonging to the prison.

The Government indicates that prisoners are covered by accident and unemployment insurance and receive remuneration, but that they are exempt from paying prison costs in view of the level of their remuneration. A Bill to increase the remuneration of prisoners to 6 per cent of the average remuneration of workers and employees, a level which represents a 20 per cent increase over the present amount, is now before the Federal Parliament. However, the limited financial capacities of the Länder are hampering the full implementation of the 1976 Act; the Government adds that health and pension insurance contributions are paid in respect of prisoners in the open prison system. The Government also recalls that the requirement of the prisoner's consent is already in effect for employment outside the penal institution.

The Government reaffirms its intention of fully implementing the 1976 Act with regard to the inclusion of prisoners in the health and pension insurance schemes and of putting into effect a provision under which employment in workshops run by private enterprise shall be subject to the consent of the prisoner.

In its observations, the DGB refers to doctrine and case law concerning the legal status of prisoners: one prevailing opinion is that prisoners are not workers in view of the fact that they are subject to a special situation of coercion governed by public law; another is that they should be regarded as workers when they are employed in a private enterprise. The DGB registers its disagreement with the Government's position: for the DGB, the decisive factor is not the prisoners' status but "how" the work is performed: in this connection section 41(3) of the 1976 Act, suspended in 1981, establishes the requirement of the prisoner's consent for employment in a workshop maintained by a private enterprise. The DGB adds that it is necessary to harmonise the situation of prisoners with that of free workers by guaranteeing the provision of social insurance protection and by applying the level of wages fixed in collective agreements.

In reply to these observations which it considers irrelevant to an appraisal of the application of the Convention, the Government indicates that the legal situation of the prisoner does not vary according to whether he is employed in a workshop run by the prison authorities or in a workshop maintained by a private enterprise, as the prisoner is subject to the obligation to work solely vis-à-vis the prison authority; the prisoner's consent which is required for work outside does not change the legal nature of the relationship between the prisoner and the authorities. The Government also states that the prisoner's wage which is 5 per cent of the average wage currently stands at DM 7.78 a day and not DM 6 as indicated by the DGB.

The Committee takes due note of the DGB's observations and the Government's comments. The Committee again recalls that Article 2, paragraph 2(c), of the Convention specifically prohibits that persons from whom work is exacted as a consequence of a conviction in a court of law be placed at the disposal of private individuals, companies or associations. Only work performed in conditions of a free employment relationship can be held not to be incompatible with this prohibition; this necessarily requires the formal consent of the person concerned and, in the light of the circumstances of that consent, guarantees and safeguards in respect of wages and social security that are such as to justify the labour relationship being regarded as a free one. As the Committee has already pointed out, with effective normalisation of wages and social security, prisoners are likely to volunteer for employment in private undertakings.

The Committee trusts that the necessary measures will be taken to ensure that the Convention will be observed with respect to prisoners and that the Government will provide information in the near future on the provisions adopted.

2. Article 2, paragraphs 1 and 2(b). The Committee previously noted that, under the Work Permit Decree, persons requesting asylum are normally prohibited from working for at least two years from the date of their request, but that under the Federal Social Assistance Act, as amended by the Second Act to improve the Budget Structure, of 22 December 1981, the same persons may be called upon to perform "socially useful work", which they have no choice but to carry out if they are to maintain their welfare entitlements. The Committee pointed out that by the Act of 6 January 1987 the prohibition for asylum seekers to work has, with certain exceptions, been extended to a period of at least five years following their asylum request. As the Committee recalled in paragraph 21 of its General Survey of 1979 on the Abolition of Forced Labour, a penalty for the purposes of Article 2, paragraph 1, of the Convention may take the form of loss of rights or privileges. In a situation where the authorities have, through the prohibition of employment, deprived asylum seekers of the possibility of taking up work of their choice and made them dependent on welfare entitlements, the threat to withhold these payments in the event of failure to perform specified work brings that work within the scope of the Convention.

The Committee notes that in its report, the Government restates its position to the effect that social welfare is of a subsidiary nature and that all recipients of social welfare must accept the work offered. The Government adds that asylum seekers are comparable with Germans who are unable to find employment: asylum seekers are prevented from working on legal grounds, unemployed Germans on factual grounds. Just as unemployed Germans are required to take into consideration the jobs offered to them, the same is required of asylum seekers; otherwise, asylum seekers would be better off than unemployed Germans.

The Committee takes note of these indications. It considers that the situation of asylum seekers cannot be compared to that of unemployed Germans as the law prohibits asylum seekers from taking up employment for a period of five years. Only if such a prohibition were lifted would asylum seekers be in a situation comparable to that of unemployed Germans in search of work.

The Committee also takes note of the DGB's observations to the effect that the provisions of the Federal Social Assistance Act make it possible to compel the asylum seeker to take up work paid below the minimum market level, and notes the Government's reply to the effect that the work offered is linked to the offer of assistance, but the withdrawal of assistance is not a sanction on the refusal to take up the employment in question but the more general refusal to perform acceptable work.

The Committee recalls that the subsidiary nature of social assistance which implies that one should seek regular employment rather than exist on welfare, is a principle which applies to persons who are free to accept regular work but not to persons who are legally incapacitated because the right to engage in gainful employment has been intentionally withheld from them by an Act of Parliament. If the same persons are then faced with the choice of losing their livelihood in the form of welfare entitlements or having to engage in specific menial services, such services, although legally defined as something other than work, come within the scope of Article 2(1) of the Convention and are not covered by any of the exceptions in Article 2(2). As the Committee pointed out previously, labour performed under such conditions is not part of the normal civic obligations of the citizens of a fully self-governing country.

The Committee again asks the Government to re-examine its position and to take the necessary measures to ensure the observance of the Convention with regard to asylum seekers.