Observación (CEACR) - Adopción: 2008, Publicación: 98ª reunión CIT (2009)

Article 1, paragraph 1, and Article 2, paragraphs 1 and 2(c) of the Convention. Prisoners hired to private enterprises. In its earlier comments, the Committee referred to section 46, paragraph 3, of the Law on the execution of sentences, as amended by Act No. 799/1993, under which prisoners may be hired to enterprises of the private sector, which may use their labour in privately run workshops and workplaces both inside and outside prisons. The Committee recalled that compulsory work or service exacted from any person as a consequence of a conviction in a court of law is compatible with the Convention only if two conditions are met: namely, 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 has always made it clear that the two conditions apply cumulatively, i.e. the fact that the prisoner remains at all times under the supervision and control of a public authority does not in itself dispense the Government from fulfilling the second condition, namely, that the person is not “hired to or placed at the disposal of private individuals, companies or associations”. The Committee asked the Government to take the necessary measures to ensure observance of the Convention, such as for example to provide that any prisoners working for private enterprises offer themselves voluntarily without being subjected to pressure or the menace of any penalty and, given their conditions of captive labour, subject to guarantees as to wages and other conditions of employment approximating a free employment relationship.

The Committee previously noted the Government’s indications that, in national law and practice, contracts exist only between the prisons administration and private enterprises, while prisoners, who are under an obligation to perform prison labour, have no labour contract with either an enterprise or the prisons administration; however, conditions of work are to a large extent determined by law, violations of which can be the subject of complaints by prisoners. The Government reiterates in its 2006 report that private enterprise employees give only technical instructions to prisoners hired to them and exercise only “specialist supervision”, but they do not have any disciplinary powers, which remain with the prisons administration. The Government argues that a private company does not thereby have any right of disposal of the prisoners, since supervision is carried out by the prison staff.

In this connection, the Committee draws the Government’s attention to the explanations concerning the scope of the terms “hired to or placed at the disposal of” in paragraphs 56–58 and 109–111 of the Committee’s General Survey of 2007 on the eradication of forced labour and observes that these terms cover not only situations where prisoners are “employed” by the private company or placed in a position of servitude in relation to the private company, but also situations where the companies do not have absolute discretion over the type of work they can request the prisoner to do, since they are limited by the rules set by the public authority. The Committee also refers to paragraph 106 of its 2007 General Survey, where it considered that the prohibition for prisoners to be placed at the disposal of private parties is absolute and not limited to work outside penitentiary establishments, but applies equally to workshops operated by private undertakings inside prisons.

The Committee previously noted the Government’s indication that, in conformity with the first condition set out in Article 2(2)(c) of the Convention, the work is carried out “under the supervision and control of a public authority”. However, as regards the second condition, namely, that the person “is not hired to or placed at the disposal of private individuals, companies or associations”, the Committee has already pointed out on numerous occasions that contracts for the hiring of prison labour to private enterprises in Austria correspond in all respects to what is expressly prohibited by Article 2(2)(c), namely, that a person is “hired to” a private company. It is in the very nature of such hiring agreements to include mutual obligations between the prisons administration and the private enterprise.

Referring to the explanations in paragraphs 59–60 and 114–120 of its 2007 General Survey referred to above, the Committee points out once again that work by prisoners for private companies can be held compatible with the explicit prohibition of the Convention only where the necessary safeguards exist to ensure that the prisoners concerned offer themselves voluntarily, without being subjected to pressure or the menace of any penalty, as required by Article 2(1) of the Convention. In such a situation, work of prisoners for private companies does not come under the scope of the Convention, since no compulsion is involved. The Committee has considered that, taking into account their captive circumstances, it is necessary to obtain prisoners’ formal consent to work for private enterprises both inside and outside prisons. Further, since such consent is given in a context of lack of freedom with limited options, there should be indicators which authenticate this free and informed consent. The Committee recalls that the most reliable indicator of the voluntariness of labour is the work performed under conditions approximating a free labour relationship, which include wage levels (leaving room for deductions and attachments), social security and occupational safety and health. In addition, there may be also other factors that can be regarded as objective and measurable advantages which the prisoner gains from the actual performance of the work and which could be considered in determining whether consent was freely given and informed (such as the learning of new skills which could be deployed by prisoners when released; the offer of continuing the work of the same type upon their release; or the opportunity to work cooperatively in a controlled environment enabling them to develop team skills).

The Committee has noted the Government’s indications in its 2006 and 2008 reports concerning the rise in the prisoners’ wages in accordance with the rise in the wages index, as well as guarantees concerning the prisoners’ working time, occupational safety and health and social security. It has also noted the Government’s view concerning other factors that makes work in the prison system valuable from the prisoners’ perspective, such as the learning of new vocational skills, enjoying social contacts within the penal institution, etc., which may contribute to their rehabilitation in society after release. However, as the Committee noted previously, under the Act on the execution of sentences, prisoners’ consent is not required for work in private enterprise workshops inside prisons, but only for such work outside prison premises. In the absence of the consent requirement, the general scope of protective legislation, as well as other factors mentioned by the Government, cannot be regarded as indicators of a freely accepted employment relationship.

The Committee therefore reiterates its hope that the Government will at last take the necessary measures to grant prisoners working for private enterprises a legal status with rights and conditions of employment that are compatible with this basic human rights instrument. In particular, the Committee hopes that measures will be taken to ensure that free and informed consent is required for the work of prisoners in private enterprise workshops inside prison premises, so that such consent is free from the menace of any penalty and authenticated by the conditions of work approximating a free labour relationship, as well as by other objective and measurable factors referred to above.