Observation (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee has noted the Government’s response to its 1998 observation and general observation.

Articles 1(1) and 2(1) and (2)(c) of the Convention.
Prisoners hired to private enterprises

1. The Committee notes the Government’s indication in its report that the national legal order does not make provision for prisons managed by private enterprises. The Government further states that access to prison premises is not permitted for the purpose of employment of prisoners by private parties. This, the Committee understands, is merely to say that prisoners who in fact do work for private enterprises (whose agents do have access to prison premises) are not given an employment contract with these enterprises, nor indeed the protection of general labour legislation.

2. The Committee observes that under section 46, paragraph 3, of the law on the execution of sentences, as amended by Act No. 799/1993, prison labour may be the subject of contracts concluded between prisons and enterprises of the private sector; these may use prison labour in privately run workshops and workplaces both inside and outside prisons. The Committee has earlier had occasion to examine several such contracts for the hiring of prison labour to private enterprises, under which the prison authorities select the prisoners who are allotted to the private contractor, while the private contractor provides the tools, equipment and materials and in some cases pays part of the building costs, or rent, for workshops established inside prison premises and has at any time free access to these premises. The prisoners are being directed in their work by civilian employees of the contractor, who pays the prison authorities for the labour hired (plus a bonus to the prisoners as an incentive for performance and diligence). The products of the work, as well as the machines and equipment installed, remain the property of the contractor.

3. In the view of the Committee, this arrangement corresponds in all respects to what is meant by the terms "person ... hired to ... private individuals, companies or associations" in Article 2(2)(c) of the Convention. Referring in this regard to the explanations in paragraphs 96 123 of its General Report of last year and in points 6 and 7 of its general observation this year, the Committee further observes that the two conditions in Article 2(2)(c) for the use of compulsory prison labour are cumulative and apply independently: i.e. the fact that the prisoners remain at all times under the supervision and control of a public authority does not in itself absolve the Government from the requirement to fulfil the second condition, namely that the person is not hired to or placed at the disposal of private individuals, companies or associations.

4. Thus the work of prisoners for private enterprises is only compatible with the Convention where it does not involve compulsory labour. The Committee has always made it clear that in order to comply with the Convention, the work of prisoners for private companies requires the freely given consent of the workers concerned, without the menace of any penalty in the wide sense of Article 2, paragraph 1, of the Convention, such as loss of privileges.

5. Obligation to work and consent requirement. The Committee notes that prisoners’ obligation to work, as laid down in Article 44 of the Act on the execution of sentences, concerns any work to which they are assigned, and is enforceable with fines of up to Austrian S2,000 under section 107(1) No. 7, read together with section 109, No. 4 and section 113 of the Act on the execution of sentences, as amended by Act No. 799/1993. The prisoner’s consent is not required for work in private enterprise workshops on prison premises, but only for such work outside prison premises (section 126(3)), and there is a very limited choice between accepting such work and the obligation to perform any other work that can anyway be imposed on the prisoner. Moreover, under section 24 of the Act, a range of "privileges" such as decorating one’s room, drawing and painting or watching television depend on good behaviour, i.e. "cooperation with the educational purpose of the punishment".

6. Captive labour and arm’s length conditions of employment. As indicated by the Committee in point 10 of its general observation, 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 arm’s length 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.

7. 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.

(b) According to the Government’s report, the planned extension of social security coverage to prisoners "regrettably continues to be prevented by lack of budgetary means".

(c) Prisoners’ gross remuneration, paid by the State (with the exception of limited incentive bonuses that may be paid by private contractors) is benchmarked at 60 per cent of the gross remuneration of an unskilled metal worker performing light work and may be increased by up to half as much again for qualified and heavy work (section 52(1) of the Act on the execution of sentences), but this amount is immediately reduced by three-quarters as a contribution to prison costs, and by unemployment insurance contributions (section 32(2) and 54(1)). As to the remainder, it is available for disciplinary fines (section 113), payments to dependents and to victims of the penal offence, payment of debts (section 54(a)), voluntary affiliation in the social security scheme (section 75(3)) and any attachments permitted under the attachment regulations (section 54(6)). It appears to the Committee that with a contribution for board and lodging taking away 75 per cent of a remuneration that is already fixed 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, and may often not allow him or her to meet a range of legal commitments.

8. The Committee hopes that, over 40 years after ratifying the Convention, 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.