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

1. Freedom of seafarers to leave their employment. In its previous comments, the Committee noted that section 67 of the model conditions of service of seafarers (Decree No. 88-17 of 13 September 1988) provides that the employment relationship may in no event be terminated outside the national territory. Section 65 of the conditions of service provide for a three-month period of notice for hands and supervisors and six months for officers.

The Committee noted previously that, although section 67 of the conditions of service protects seafarers against dismissal which may result in their being put off the vessel outside the national territory, this provision does not permit seafarers to leave their employment after completion of the period of notice if, at the time, they are not on national territory. After requesting the Government to re-examine this provision and indicate the measures taken to bring it into conformity with the Convention, the Committee noted that Decree No. 88-17 had been submitted for examination to the relevant department of the Ministry of Transport.

The Committee noted the explanations provided by the Government in its report which confirmed that the employment relationship cannot in any event be terminated outside the national territory.

The Committee considered that the provision prohibiting seafarers from terminating their employment, even after the completion of the statutory period of notice, while they are outside the national territory, has the effect of turning a contractual relationship based on the will of the parties into service by compulsion of law for a period without limit of time.

As the Government has not provided any information on this subject in its latest report, the Committee once again requests it, firstly, to re-examine Decree No. 88-17 of 13 September 1988 in the light of the explanations provided in paragraphs 67 to 73 of its 1979 General Survey on the abolition of forced labour and to indicate the measures which have been taken or are envisaged to ensure that seafarers can terminate their employment by giving a reasonable period of notice. It would also be grateful if the Government would indicate the nature and provide a list of the commitments undertaken by officers at the time of recruitment, since officers can only leave their employment after fulfilling all the commitments which they have undertaken.

2. Article 2, paragraph 2(a), of the Convention. In its previous comments, the Committee noted the provisions of Act No. 87-16 of 1 August 1987 to set up and determine the functions and organization of the people’s defence. The Committee noted that, under sections 1 and 3 of the Act, citizens aged between 18 and 60 years inclusive are subject to the obligations of the people’s defence, set up within the framework of the national defence; under section 8, the conditions for the deployment of the people’s defence forces in peacetime are set out in regulations; and, by virtue of section 9 with respect to economic defence, the people’s defence forces participate in the protection of production units and the strengthening of the economic capacity of the country. The application of section 9 of the Act is determined by means of regulations.

The Committee noted the Government’s repeated indications that the regulations on the application of section 9 had not yet been adopted and it requested information on the effect given in practice to section 9 of Act No. 87-16.

The Committee notes the information provided by the Government in its latest report to the effect that Act No. 87-16, of 1 August 1987, has fallen into abeyance, as it has never been given effect since its enactment.

While noting this information, the Committee requests the Government to take the necessary measures to bring its legislation into conformity with practice and, by the same token, with these provisions of the Convention. It also requests the Government to continue providing information on this subject in its next report.

3. Article 2, paragraph 2(c) and (d). In its previous comments, the Committee noted that under sections 4 and 5 of Executive Decree No. 91-201 of 25 June 1991 determining the limits and conditions of referral to a security centre, issued under section 4 of Presidential Decree No. 91-196 proclaiming martial law, the military authorities, which were assigned the powers of the police, can make detention orders against adults whose activities endanger public order and safety or the normal operation of public services (section 4(1)) through their refusal to comply with a written requisition order issued by the authority exercising the powers of the police and the maintenance of public order, thereby seriously affecting the functioning of the national economy (section 4(6)), or by opposing the execution of a requisition order issued by reason of the emergency and the need for services to be provided by a public or private service (section 4(7)). The period of detention in a security centre was set at 45 days, which could be renewed only once (section 5).

With reference to the explanations provided in paragraphs 63 to 66 of its 1979 General Survey on the abolition of forced labour, the Committee indicated that it should be clear from the legislation itself that the power to exact labour is to be limited to what is strictly required in order to cope with circumstances endangering the existence or well-being of the whole or part of the population.

The Committee notes the information provided by the Government in its last report to the effect that Executive Decree No. 91-201 of 25 June 1991, issued under section 4 of Presidential Decree No. 91-196 of 4 June 1991 proclaiming martial law, is now officially null and void, even though it has not explicitly been repealed, as martial law was raised by Presidential Decree No. 91-336 of 22 September 1991. It notes that security centres were established under section 5(2) of Presidential Decree No. 92-44 of 9 February 1992 declaring a state of emergency, as supplemented, and that detention in a security centre was imposed under section 3 of Executive Decree No. 92-75 of 20 February 1992 establishing the conditions for the implementation of certain provisions of Presidential Decree No. 92-44 of 9 February 1992. According to the Government, all the security centres which were opened have since been closed.

While noting this information, the Committee requests the Government to take the necessary measures to bring its legislation into conformity with practice and to continue providing information on this subject in its next report.

4. The Committee notes the information provided by the Government in reply to its general observation of 1998. It notes that, according to the Government, section 143 of Ordinance No. 72-02 of 10 February 1972 issuing the Code on prison organization and rehabilitation provides that convicts may be employed in the context of external worksites, thereby establishing the possibility of assigning detainees outside the establishment and under the supervision of the prison administration to work of general interest carried out on behalf of public administrations or communities, public establishments and enterprises and the self-managed sector, although excluding the private sector. According to the Government, section 146 of the Ordinance of 10 February 1972 provides that the assignment of convicts to either of the systems envisaged by the Code on prison organization is decided upon by the Minister of Justice, upon the proposal of the magistrate for the application of penal sentences, based on the opinion of the Classification and Disciplinary Commission.

The Committee notes the information that it is planned to include in the draft text amending the Code on prison organization private enterprises the activities of which lie within the scope of work of general interest. The Committee indicates that, under the terms of Article 2, paragraph 2(c), of the Convention, the term "forced or compulsory labour" does not include any work or service exacted from any person as a consequence of a conviction in a court of law, provided that the said work or service is carried out under the supervision and control of a public authority and that the said person is not hired to or placed at the disposal of private individuals, companies or associations. The Committee refers to its 1979 General Survey, in which it considered that "provided the necessary safeguards exist to ensure that the persons concerned offer themselves voluntarily without being subjected to pressure or the menace of any penalty, such employment does not fall within the scope of the Convention" (paragraph 97). Among the guarantees which should be afforded to prisoners, the Committee enumerated the payment of normal wages and social security, and the consent of trade unions.

The Committee also refers to its general observation of 2001, and particularly paragraph 10, in which it recalled the conditions for the private employment of prisoners. The Committee indicated 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 or an unfavourable assessment of behaviour taken into account for reduction of sentence.

It added that, 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 (leaving room for deductions and attachments), social security and safety and health.

The Committee hopes that the Government will take these elements into account when reviewing the Code on prison organization and requests it to provide a copy of the revised Code once it has been adopted, together with its implementing regulations.