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

The Committee has noted the information supplied by the Government in its report received in November 2000 and the comments on that report made by the Trades Union Congress (TUC) in a communication of 23 November 2000, a copy of which was sent to the Government for any further comments it might wish to make. The Committee has also noted the Government’s statements to the Conference Committee on the Application of Standards in 2000 and 2001, as well as the discussion on the observance of the Convention in the United Kingdom that took place in the Conference Committee in 2000.

I.  Domestic workers from abroad

1. In its previous observation, the Committee had noted that following concerns at reports of abuse of domestic workers accompanying their employers to the United Kingdom, a number of conditions under which they were admitted had been reviewed with the assistance of Kalayaan, the organization which represents overseas domestic workers, and a number of changes had been agreed with effect from 23 July 1998. Noting also that serious problems remained with the effective implementation of the new rules as set out in an observation by the TUC, the Committee hoped that these problems would be addressed in discussions that were to take place between the Government and Kalayaan, and that the Government would supply information on further measures taken. In its report, the Government indicated that, as a result of a November 1999 meeting between the Minister for Immigration and representatives of Kalayaan, special casework procedures were agreed and are in operation and a significant number of outstanding applications for the regularization of overseas domestic workers’ stay have been cleared. The Government also supplied information on three specific cases referred to by the United Kingdom Worker member at the Conference Committee, as well as copies of a form that employers must complete before obtaining entry clearance for a domestic worker and of an information leaflet provided to all domestic workers from overseas which includes details of employment rights and contact addresses. The Committee noted that these details centre on the terms and conditions of employment as set out by the employer himself in the abovementioned form, to be seen and agreed by the employee, and otherwise contain a general reference to protection "by regulation on matters including rest breaks, paid holidays, sex and race discrimination, and maternity and parental leave". With regard to criminal law, the leaflet specifies that everybody in the United Kingdom has full protection, whatever the nationality or conditions of stay, and provides examples regarding sequestration, rape and violence. The Committee takes due note of these indications and hopes that the Government will also comment on the statement made by the United Kingdom Worker member at the Conference Committee in 2000 that "the underlying problem, which still appeared to be unresolved, was that the de facto relationship under which the domestic worker was admitted to the United Kingdom was not recognized under British law, so that normal legal employment protections did not attach".

2. In earlier direct requests, the Committee had noted the indications of the Government concerning the cases of abuse of domestic workers which had been brought before the courts, and requested the Government to communicate details concerning the court decisions, including the number of convictions and the penal sanctions imposed, in accordance with Article 25 of the Convention. In its report, the Government replied that, as had been explained previously, it is unable to provide details of individual cases brought before the courts as the Home Office Court Proceedings Central Database does not record cases by gender, status or nationality of the victim. The Committee notes this explanation.

II.  Prisoners working for private companies

3. Further to its previous comments, the Committee notes the Government’s statement to the Conference Committee in 2000 that no prisoner in the United Kingdom - whether in a publicly run or privatized prison or workshop - was hired to, or placed at the disposal of, private individuals, companies or associations. The Government explained that while private sector companies might supervise the work on a day-to-day basis, the prisoner remained under the ultimate care and control of prison service officials; wages were paid to prisoners by the prison and not by the private company providing the work; and the Government considered that its present policies for the employment of prisoners conformed with the requirements of the Convention and were in the best interests of prisoners. These views were repeated in the Government’s latest report on the Convention and rejected by the TUC in its comments on that report.

The Committee has taken due note of these views and comments. With regard to the notions of "hiring to" and "placing at the disposal of" and their relationship with "public supervision and control" and the flow of payments among the various parties involved, the Committee refers to the explanations given in paragraphs 96 and 118-127 of its general report to the International Labour Conference in 2001 and in points 6 and 7 of its general observation on the Convention this year, confirming the conclusion that the exception from the scope of the Convention provided for in Article 2(2)(c) of the Convention for compulsory prison labour does not extend to privatized prisons and prison workshops - even under public supervision and control.

4. In its previous comments the Committee recalled that, to be compatible with the Convention, work of prisoners for private companies thus must depend on the freely given consent of the workers concerned. This requires, inter alia, the absence of any menace of a penalty or duress such as making work an element in assessing behaviour for the purposes of reduction of sentence. Moreover, in the context of a captive labour force having no alternative access to the free labour market, "free" consent to a form of employment going prima facie against the letter of the Convention 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. With this background, referring also to its general observation under the Convention, the Committee once more addresses the following matter.

  A.  "Outside employment"

5. In its previous observation, the Committee noted with interest the Government’s indication in its 1999 report that:

There are a number of prisons which allow the release, on a daily basis, of prisoners in the last six months of their sentence to enable them to work. These prisoners are normally employed within a free labour relationship as a part of their rehabilitation and resettlement back into society.

...

Prisoners who do work out are subject to normal requirements in respect of income tax and national insurance contributions from the wages they receive for their work. However, it should be noted that:

-  prisoners who work outside are released on temporary facility
  licence (under rule 9(3)(b) of the Prison Rules, 1999) with the main
  or primary purpose of allowing them to undertake work for outside
  employers, and are working "in pursuance of prison rules". They
  are therefore excluded from the national minimum wage by virtue
  of section 45 of the National Minimum Wage Act, 1998;

-  it is, nevertheless, prison service policy that such arrangements must not
  give an unfair competitive advantage to those who employ prisoners, and
  employers must not treat prisoners less favourably than other workers in
  comparable employment. It is expected, therefore, that prisoners who work
  for outside employers, doing a normal job ..., will be paid the appropriate
  rate for the job. Where prisoners work less than the normal working week,
  it is acceptable for them to be paid pro rata.

6. The Committee had hoped that prisoners who were thus released on a daily basis to work for outside employers, doing a normal job "within a free labour relationship", would benefit from general labour legislation, and that in view also of prison service policy regarding the payment of normal wages, the anomaly of their exclusion from the National Minimum Wage Act, 1998, would be resolved.

7. In response, the Government indicated in its latest report that:

Release from prison can only be ordered by the courts. Prisoners involved in outside work have been licensed by the prison Service to leave prison for the purpose of attending work. The Government therefore continues to be of the view that such prisoners are not "released" to engage in employment.

The Committee notes the subtlety of these distinctions but must point out that they contradict not only the Government’s previous report, as quoted in paragraph 5 above, but also the very terms of rule 9 of the Prison Rules, 1999 which provides that:

(1)  The Secretary of State may ... release temporarily a prisoner to whom this rule applies.

(2)  A prisoner may be released under this rule for any period or periods and subject to any conditions.

(3)  A prisoner may only be released under this rule: ... (b) to engage in employment ...

8. The Government further explained in its latest report that "prisoners are not covered by the National Minimum Wage Act because they do not constitute a ‘worker’ as defined by section 53(3) of that Act in that they do not have a contract of employment or a contract for personal work or services". The Committee notes these explanations but must recall that it is precisely on these points that a change in law and practice appears desirable and feasible for outside employment in the light of the Government’s indications in its 1999 report. Prisoners "employed within a free labour relationship" ought to have a contract of employment with the private enterprise using their services and labour legislation, including the minimum wage legislation, should be made applicable to such employment. The Committee hopes that measures will be taken to introduce the corresponding changes in law and practice.

9. In its report, the Government further states:

Another relevant factor is that prisoners’ accommodation, clothing, meals, etc., are provided by the prison service, without any costs to the prisoner. It is therefore likely that a prisoner undertaking outside employment and benefiting from the national minimum wage would, in practice, be at an advantage to a person outside prison doing the same work for the same wages, who would be expected to pay for his or her own accommodation, clothing and meals.

Commenting on this, the TUC expresses surprise:

... that the Government fails to mention the Prisoner’s Earnings Act, 1996, which addressed the matter of prisoners earning "enhanced wages" for work which is not "directed work" in pursuance of prison rules, and provides, inter alia, for deductions for such costs, for income tax and national insurance deductions, for attachments to earnings to support the prisoner’s family or for victim support, and for savings to be used on release to aid social reintegration. Section 1(3) of the Act specifically alludes to earnings paid otherwise than by the prison governor on behalf of the Secretary of State.

In this connection, the Committee refers to paragraph 142 of its general report to the International Labour Conference in 2001, where it recalled that in the free labour market wages may, in the words of Articles 8 and 10 of the Protection of Wages Convention, 1949 (No. 95), be subject to "deductions" and "be attached or assigned" under conditions and within limits prescribed by national laws or regulations. For prisoners employed by private enterprises, this implies that their wages may also be subject to deductions for board and lodging provided and "be attached or assigned" so as to satisfy compensation claims of victims as well as alimony or other obligations of the prisoners, both of which would be illusory if exploitative wage rates prevailed.

  B.  Contracted-out prisons and prison industries

10. The Committee once more notes with regret that the necessary measures to ensure that any work by prisoners for private companies be performed under the conditions of a freely consented upon employment relationship - as recalled in paragraph 4 above and to a certain extent implemented in "outside employment" of prisoners with private employers - have so far not been taken with regard to prisoners working in contracted-out prisons and prison industries.

11. In its report received in November 2000, the Government indicates, with regard to the work performed in contracted-out prisons or workshops in the United Kingdom, that:

All prisoners, whether they are in a public or privatised prison, and whatever work they may be involved in, remain under the ultimate supervision of the State in the United Kingdom. The Government also continues to be of the view that no prisoner is "hired" to a private company. Private companies do not pay the Prison Service to provide it with labour. Nor are prisoners placed "at the disposal" of a private company. Such a term implies private companies being allowed to use prisoners for whatever purposes they wish, whereas the work that prisoners perform in contracted-out prisons or prison industries in the United Kingdom is specific and is comparable with that done by prisoners in public prisons, with the same audit baselines monitored by public authority.

12. The Committee has taken due note of these indications.

(a)  As regards "ultimate supervision" and "audit baselines" monitored by public authority, the TUC in its comments has expressed the view that "ultimate supervision" does not amount to day-to-day supervision, which in contracted-out prisons is performed by employees of private companies and does not meet the requirements of the Convention. In this regard, the Committee, referring also to paragraphs 119 and 120 of its general report of last year, wishes to recall that even where prisoners remain at all times under the supervision and control of a public authority, this does not in itself dispense the Government from fulfilling the other condition in Article 2(2)(c), namely that the person is not hired to or placed at the disposal of private individuals, companies or associations.

(b)  As regards the Government’s statement that prisoners are not "hired" to private companies because these do not pay the prison service to provide them with labour, the Committee notes the comment made by the TUC that:

If private companies are paying £50 million annually to prisons for the fulfilment of contracts, and that £50 million is not being paid in wages to prisoners, to whom is it being paid?

(c)  As regards the notion of "placing at the disposal", the Committee refers to the explanations given in paragraph 123 of its general report of last year and point 7 of its general observation this year.

13. In its report received in November 2000, the Government further indicated that in its view:

... there is, under Convention 29, no requirement that conditions approximating a free employment relationship are necessary to ensure the consent of prisoners to work.

With regard to, in the terms of Article 2(1) of the Convention, "voluntary offer" of services by a person deprived of the choices of the free labour market, the Committee refers to the explanations set out in paragraphs 128 to 142 of its general report of last year and recalled in points 10 and 11 of its general observation, showing the need for arm’s length conditions of employment approximating those accepted by workers having access to the free labour market.

14. The argument about "conditions approximating a free employment relationship" should not divert attention from the fact that in privatized prisons and prison workshops in the United Kingdom even the formal consent of prisoners to work does not appear so far to be asked for. In addition, where the Government in its report referred to prison service pay schemes designed to allow the prison to establish an in-house "labour market" that rewards prisoners for good performance "when addressing those issues identified as necessary to assist with their resettlement, as well as tasks that are performed to allow a prison to function", the TUC in its comments asked how such schemes, if they have become an integral part of assessing, for example, a prisoner’s eligibility for parole, are compatible with the requirement that no duress should be applied in order to persuade a prisoner to perform work for a private company. It is noteworthy that in the one field where the Government appears to reckon with prisoners’ consent, namely "outside employment", it is also expected, in the terms of the Government’s report recalled in paragraph 5 above, "that prisoners who work for outside employers doing a normal job" will "be paid the appropriate rate for the job".

15. The Committee again expresses the hope that with regard to contracted-out prisons and prison industries, the necessary measures will be taken to ensure that any work by prisoners for private companies be performed under the conditions of a freely consented upon employment relationship and that the Government will soon be in a position to indicate steps made to this end.