Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

Article 1, subparagraph d, of the Convention. Imprisonment with compulsory labour as punishment for participation in strikes. In its previous direct request, the Committee referred to section 11 of the State Security Act, which states that collective work stoppages, walkouts or strikes in public services or public utilities or in activities pertaining to production, transport or commerce that are carried out in a manner inconsistent with the law and disturb the peace or disrupt public utilities or services the compulsory operation of which is established by law, or which harm a vital industry, shall constitute an offence and be liable to imprisonment (presidio) or confinement to a specific place in the territory (relegación) (under the terms of section 32 of the Penal Code, persons sentenced to the penalty of presidio are obliged to carry out work as determined by the prison regulations). Incitement or encouragement of the abovementioned unlawful forms of conduct is subject to the same penalties. The Committee also referred to various provisions of the Labour Code concerning strike procedure (sections 372, 373 and 374) and the exercise of the right to strike (sections 381, 384 and 385), which restrict the exercise of the right to strike and are the subject of comments by the Committee regarding the application of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). The Committee previously noted in particular that the definition of services in which strikes may be banned under section 384 and the list of enterprises in which workers may not strike – drawn up every year by the government authorities – are too broad and go beyond essential services in the strict sense of the term, namely, services the interruption of which would endanger the life, safety or health of the whole or part of the population. The Committee requested the Government to take the necessary steps to amend or repeal the provisions of section 11 of the State Security Act.

The Committee notes that, according to the information provided by the Government, section 11 of the State Security Act was not applied during the period covered by the report. It also notes the Government’s indications concerning prison labour, which is excluded from the scope of the Forced Labour Convention, 1930 (No. 29), provided that the prisoner is not hired to private individuals and that the work is carried out under the supervision and control of the authorities.

As already indicated in paragraphs 141 et seq. of its 2007 General Survey on the eradication of forced labour, the Committee observes that the exemption of prison labour from the scope of Convention No. 29 does not automatically apply to Convention No. 105 and that although, in the majority of cases, labour imposed on persons as a consequence of a conviction in a court of law will have no relevance to the application of Convention No. 105, this Convention affords protection against the obligation to work being imposed on a person, regardless of the form that such work may take, including prison labour, as a punishment for having participated in a strike and following a conviction for such participation.

The Committee refers to its observation concerning the application of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and hopes that the Government will take the necessary measures to repeal or amend section 11 of the State Security Act which provides for the penalty of imprisonment with compulsory labour for participation in strikes.