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

The Committee has noted the information provided by the Government in reply to its earlier comments.

1. Articles 1(1) and 2(1) of the Convention. Domestic workers and similar categories. In its earlier comments, the Committee expressed concern about the conditions under which domestic servants can freely leave their employment  and their possibility to have recourse to courts if necessary.

The Committee previously noted that the Labour Code currently in force excludes domestic workers but that, according to the Government, the new draft Labour Code would cover this category of workers and, pursuant to section 5 of the draft Labour Code, the competent minister would make an order specifying the rules governing the relationship between domestic servants and their employers. Having noted the Government’s indication in its 2003 report that the new Labour Code has not yet been adopted and that no ministerial order on the subject has been issued, the Committee expresses the firm hope that the new Labour Code will provide adequate protection for these workers as regards their freedom to terminate employment, and that the Government will communicate a copy of the new Code, as soon as it is adopted, as well as any ministerial order or any other legislative text specifying the rules governing the relationship between domestic servants and their employers.

Pending the adoption of these provisions, the Committee asks the Government to continue to provide information on any judicial procedures relating to the freedom of domestic workers to terminate employment.

2. Article 25. In its earlier comments, the Committee noted that the legislation does not contain any specific provision under which the illegal exaction of forced or compulsory labour is punishable as a penal offence, and invited the Government to take the necessary measures, for example, by introducing a new provision to that effect in the legislation. The Committee has noted that the Government referred in its reports to various penal provisions (such as sections 49 and 57 of Act No. 31 of 1970 on the amendment of the Penal Code, or section 121 of the Penal Code) prohibiting public officials or employees from forcing a worker to perform a job for the State or for any public body, as well as to section 173 of the Penal Code, which provides for the imposition of penalties on anyone who threatens another person physically or with damage to his reputation or property with a view to forcing the victim to do something or to refrain from doing something.

While noting these indications, the Committee wishes to point out once again that the abovementioned provisions do not appear to be sufficient to give effect to this Article of the Convention which stipulates that "the illegal exaction of forced or compulsory labour shall be punishable as a penal offence", and that "it shall be an obligation on any Member ratifying this Convention to ensure that the penalties imposed by law are really adequate and strictly enforced".

The Committee hopes that the Government will take the necessary measures (e.g. through the adoption of the new Labour Code) in order to give full effect to this Article of the Convention. Pending the adoption of such measures, it asks the Government to provide information on the application of these penal provisions in practice, supplying copies of the court decisions and indicating the penalties imposed.

3. Measures to prevent, suppress and punish trafficking in persons for the purpose of exploitation. The Committee previously noted the Government’s statement in its reply to the Committee’s 2000 general observation on the subject that the victims of forced labour have the right to refer to the authorities, though without being allowed to stay in the country during the civil action unless their legal residence allows them to do so. The Committee asked the Government to indicate the measures taken or envisaged to allow the victims of forced labour to stay in the country at least for the duration of court proceedings.

Having noted from the Government’s report that no such measures have been taken, the Committee asks the Government to indicate any other measures taken or contemplated to encourage the victims to turn to the authorities, such as, for example, protection of victims willing to testify from reprisals by the exploiters. Please indicate whether there is an intention to introduce penal provisions aiming specifically at the punishment of trafficking in persons for the purpose of exploitation.

The Committee is also addressing a request directly to the Government on certain other points.