Observation (CEACR) - adopted 2003, published 92nd ILC session (2004)

Further to its previous observation, the Committee has noted the Government’s report and the discussion that took place in the Conference Committee in 2002 on the application of the Convention by Germany.

Articles 1(1) and 2(1) and (2)(c) of the Convention. Prisoners working for private enterprises

1. The Committee recalls that under Article 2(2)(c) of the Convention, compulsory prison labour is not exempted from the scope of the Convention when a prisoner is hired to a private enterprise. In its previous observation, the Committee noted with concern that prisoners working for private enterprises in Germany fell into two categories, with some enjoying the full benefit of a free employment relationship, while others were hired to those who use their labour without their consent and in conditions bearing no resemblance whatsoever to the free labour market.

2. The Committee notes the statement made by a Government representative in the Conference Committee in 2002 that in 1929-30, when the Convention was elaborated, the widespread view was that work to be performed by inmates constituted part of the punishment and this had to be reflected in the particularly unfavourable working conditions; that the Convention had been elaborated by taking into consideration these fundamental views prevailing at that time; that today, the issue of reintegration of prisoners through work was prominent in most countries; and that in the light of the Convention, a possible conclusion was that prisoners working for private enterprises must be considered equal with workers in freedom.

A.  Private employment in a free employment relationship

3. The Committee recalls the Government’s indications in its previous report that prisons authorities were obliged to promote free employment relationships; these came into being only at the prisoner’s request; the prisoner had a normal labour contract, came under the same legal provisions as workers and trainees in freedom, received wages established by collective agreement, and was covered by the social security systems (pension, health, accident and unemployment insurances) to the same extent as workers in freedom. A contribution for detention costs could be levied, the amount of which depended on the board and lodging provided but could not (in 2000) exceed the equivalent of 337.55 euros. In its latest report, the Government adds that the significance attached to day release by certain Länder in order to permit free employment relationships to take place has resulted in such release being granted in 1999 in a total of 21,395 cases among the approximately 50,000 prisoners within the German federal penitentiary system.

4. The Committee notes these indications with interest. However, the conditions of a free employment relationship do not yet apply to the second type of private use of prison labour that is still being practised under national law, as recalled below.

B.  Compulsory work in a privately run workshop

5. In comments made for a great number of years, the Committee has noted that under the legislation in force, prisoners may be obliged to work in workshops run by private enterprises within state prisons, as already described in the ILO Memorandum of 1931. The fact that prisoners - now as then - remain at all times under the authority and control of the prison administration does not detract from the fact that they are "hired to" a private enterprise - a practice designated in Article 2(2)(c) of the Convention as being incompatible with this basic human rights instrument.

6. The Committee notes with regret that section 41(3) of the Act of 13 March 1976 on the execution of sentences under which employment in a workshop run by a private enterprise is to depend on the prisoner’s consent, has up to now remained a dead letter, after its entry into force was suspended by the "Second Act to improve the budget structure" of 22 December 1981.

7. Further provisions in the Act on the execution of sentences were to progressively raise the existing conditions of employment of prisoners, including those working in private workshops, by reference to those of a free employment relationship. The Committee notes the Government’s indication in its report that it attempted in the eighth, ninth and tenth legislative periods of the federal Parliament to bring into force the provisions on the inclusion of prisoners into the pension insurance scheme, but that these attempts failed due to resistance by the federal council. It thus appears that since the end of the tenth legislative period in 1987, no more attempts were made to restore in any part of Germany the social insurance coverage that had already been effectively extended to prisoners under Prussian legislation referred to in the ILO Memorandum of 1931 on prison labour.

8. As regards the wages earned by prisoners working in private workshops, the Committee previously noted that the 1976 Act on the Execution of Sentences recognized all prisoners’ right to wages, but established the initial benchmark level at only 5 per cent of the average wage of workers and employees covered by the old-age insurance scheme. A first increase of this percentage was to be envisaged on 31 December 1980, but not enacted until the federal Constitutional Court found the existing level of prisoners’ remuneration incompatible with the principle of rehabilitation and instructed the legislature to set new rules by 31 December 2000 at the latest. The Committee notes from the Government’s report that on 1 January 2001, the prisoners’ benchmark remuneration was raised to 9 per cent of the average wage (in 1999) of those covered by the workers’ and employees’ pension insurance scheme. Furthermore, six days off were added per calendar year worked. The Committee notes that the Government shares the view that this is not sufficient; but that draft legislation to raise the benchmark wage to 15 per cent of the reference value could not be passed due to the resistance of the Länder. The Government, however, is still endeavouring to reach an agreement with the Länder on this question.

9. The Committee also notes the view expressed by the Employer members in the Conference Committee, that with regard to conditions of employment, private employers had to take those prisoners who were available, regardless of skills and productivity, and that these shortcomings needed to be balanced with the level of social insurance and wages. However, in the view of this Committee, this factor has no bearing on the system under consideration, since there is no link between the level of payments made by a private enterprise under contract to the prison authorities for the work of the prisoners hired to the enterprise. The level of payments by the prison authorities to the prisoners is an incommensurably lower statutory amount. Moreover, the latter remuneration may be even further lowered according to performance: under section 45, paragraph 2 of the Act on the execution of sentences, it may fall below 75 per cent of the benchmark remuneration - that is, below 6,75 per cent of the average outside wage - if the performance of the prisoner does not meet the minimum requirements.

10. Referring to the fact that the wages paid by private enterprises to the prisons at the level fixed by collective agreements are passed on to the prisoners only up to their statutory remuneration (of 9 per cent of the general average), with the remainder going to the judiciary budget, the Government states in its report that this is justified. The Government claims that because the level of prisoners’ wages (leaving aside those under free employment relationships) is fixed by law, a considerably higher remuneration of those prisoners who, more or less by chance, are working for private companies rather than in institutional workshops, is not justified. The Committee must point out that prisoners working under a free employment relationship do draw normal wages and contribute to the detention cost to the reasonable extent mentioned in paragraph 5 above. Such free employment relationships are compatible with the Convention, while the hiring of compulsory prison labour to private employers is specifically prohibited by Article 2(2)(c). Also, the present state of national legislation is no justification for non-compliance with the Convention, ratified in 1956. Finally, the Convention is neither concerned with the level of remuneration in state workshops, nor an obstacle to bringing it into line with the private sector.

11. The Committee has noted the assurances given by the Government representative to the Conference Committee in 2002 that he was looking forward to the present Committee’s assessment which would be a determining factor in any subsequent amendments of the Act on the execution of sentences, which would, however, take some time, due to the federal system of the country. The Committee accordingly trusts that the provisions for the consent of prisoners to working in private workshops, already made in section 41(3) of the 1976 Act, will at last be brought into force, as well as arrangements for their contribution to the old-age pension scheme, as foreseen by section 191 et seq. of the 1976 Act in conformity with much earlier state legislation; and that in respect of wages and deductions for detention costs, their position will also be brought into line with that of prisoners already working under a free employment relationship. The Committee looks forward to learning of concrete steps towards these changes.