Direct Request (CEACR) - adopted 2016, published 106th ILC session (2017)

Repetition

Articles 1(1) and 2(1) of the Convention. Trafficking in persons. The Committee previously noted that the national legislation did not contain anti trafficking provisions, and requested the Government to take measures in this regard.

The Committee notes that section 155 of the Crimes Act, adopted in 2013, prohibits trafficking in persons. The penalty for this offence upon conviction is a term of imprisonment not exceeding 14 years. The Committee notes the Government’s statement that, as trafficking is a newly introduced offence in the country, no cases of trafficking had yet been prosecuted as of September 2013. The Committee requests the Government to continue to provide information on the application in practice of section 155 of the Crimes Act, 2013, including the number of investigations, prosecutions and the specific penalties applied. It also requests the Government to provide information on any measures taken with regard to the identification of victims of trafficking, as well as the provision of appropriate protection and assistance to any such victims identified.

Article 2(2)(b) and (e). Normal civic obligations and minor communal services. Following its previous comments, the Committee notes that the definition of forced labour in the Constitution of Samoa excludes any work or service which is required by Samoan custom or which forms part of normal civic obligations. In the newly adopted Labour and Employment Relations Act, 2013, the definition of forced labour excludes work or service which forms part of the normal service of a person towards his or her family, church or village. The Committee notes the Government’s statement that civic or cultural obligations which are excluded from the definition of forced labour could include services as an assessor (pursuant to section 92 of the Criminal Procedure Act), which is a position similar to that of a juror, or work required pursuant to rules regarding the maintenance of hygiene in the village, pursuant to section 5 of the Village Fono Act 1990. However, the Government also indicates that this could include labour to develop village land for the economic betterment of the village, and in this regard, the Committee refers to its comment made under the Abolition of Forced Labour Convention, 1957 (No. 105).

Article 2(2)(c). Prison labour. The Committee notes that the Prisons and Corrections Act was adopted on 5 June 2013. Section 47(1) of the Act provides that a convicted prisoner may be required to undertake labour, within or outside a prison, and to perform any labour prescribed by regulations. The Committee requests the Government to indicate whether prisoners working outside of prisons may perform work for private enterprises, associations or individuals. It also requests the Government to provide a copy of any regulations adopted pursuant to section 47 of the Prisons and Corrections Act.

Article 25. Penalties for the exaction of forced or compulsory labour. The Committee previously noted that the national legislation did not appear to impose penal sanctions for the exaction of forced or compulsory labour.

In this regard, the Committee notes that pursuant to section 78 of the Labour and Employment Relations Act, 2013, an employer who enters into a contract contrary to any of the provisions of the Act shall be liable for a fine not exceeding 50 penalty units. Pursuant to section 4 of the Fines (Review and Amendment) Act of 1998, one penalty unit is equal to 100 Samoan tala (WST) (approximately US$43). Concerning penalties, the Government also refers to Part II of the Constitution, article 8 of which states that no person shall be required to perform forced or compulsory labour. Article 4 of the Constitution states that any person may apply to the Supreme Court to enforce the rights contained in Part II and that the Supreme Court shall have the power to make all such orders as may be necessary and appropriate to secure to the applicant the enjoyment of such rights. The Government states that it considers that the Constitution provides sufficient and adequate sanctions for the courts to consider when prosecuting persons who have imposed forced labour. However, the Committee observes that article 4 of the Constitution appears to only refer to remedies for a victim to secure freedom from forced labour, not to penalties that may be imposed on perpetrators, and that under the Labour and Employment Relations Act, the only penalty that may be imposed on such perpetrators is fines.

In this regard, the Committee once again recalls that Article 25 of the Convention provides that the exaction of forced labour shall be punishable as a penal offence, and that a sanction consisting only of a fine cannot be considered sufficiently effective. The Committee therefore requests the Government to indicate the penalties which could be applied to persons who impose forced labour, specifying the penal provisions that could be used to this end.