Observation (CEACR) - adoptée 1995, publiée 82ème session CIT (1995)

Article 2, paragraph 2(c), of the Convention. In its previous observation, the Committee referred to the conditions under which prison labour for private enterprises could be considered as a free work relationship and thus avoid the prohibition of Article 2, paragraph 2(c), of the Convention. The Committee has taken note of section 720 of the Code of Criminal Procedure, as amended in 1987, according to which penitentiaries will take all necessary measures to provide work for inmates who so desire. It was also noted that employment relationships for prisoners (other than prisoners on semi-release), are not covered by an employment contract (section 720, paragraph 3). The Committee also referred to the level of remuneration paid to prisoners under concessionary agreements and in prison industries.

The Committee notes the comments of the French Democratic Confederation of Labour (CFDT) on the application of Convention No. 105 presented by the Government in December 1994. According to the CFDT, the attribution and withdrawal of prisoners' work assignments depends primarily on the attitude of the prison authorities and not particularly according to the wishes of the prisoners. The CFDT alleges that prison labour, which is no longer compulsory, cannot become a privilege granted and sometimes withdrawn from prisoners as a punishment, and that this presupposes a specific procedure for attributing work assignments and the setting of contractual labour relations according to clear and serious bases. The CFDT further adds that a contractual document should state the terms of employment and remuneration, and that withdrawal of the authorization should be subject to procedural safeguards, including notice to the prisoner, and that only when such conditions are met can one speak of free consent to work.

In its last report, the Government indicates that prisoners are not required to work but may do so if they wish, while restating that prisoners are always paid for their work, and that their remuneration is always set with reference to the legal minimum wage for free labour (SMIC), and that in this framework remuneration takes into account the productivity of a prisoner in comparison with a free labourer performing the same work. The Government further notes that wages are subject to both employer and employee social contributions (withholding) and that prisoners have old-age, sickness, maternity, accident and widow/widower insurance. It is further noted that work in workshops must comply with health and safety regulations for free workers.

The Committee recalled in its previous observation that only work performed under free employment relations, i.e. with the prisoner's consent accompanied by guarantees concerning wages and social welfare, is not within the scope of the text of the Convention.

Prisoner consent. The Committee observes that the law of 22 June 1987 amending section 720 of the Code of Criminal Procedure made prison labour voluntary; however, according to the same law, both work and professional training are factors in assessing a convict's good behaviour and reinsertion potential. The Committee notes that under section 721 of the Code of Criminal Procedure, a reduction of sentence can be granted to prisoners for good behaviour. This assessment, which is to be made by the judge charged with following up the implementation of sentences, as provided under article D.253 of the Code of Criminal Procedure, is based on the prisoner's overall behaviour, but also on his assiduousness at work. The Committee requests that the Government indicate the measures taken to ensure that the prisoner's consent cannot be vitiated by the fact that a favourable assessment implies assiduousness at work. In private prisons there are two interrelated forms of constraint: first, the private enterprise operating the prison includes prison labour in its profit calculations and, second, the private enterprise is not only a user of prison labour, but also retains, both in law and in practice, a large part of the authority which belongs to the prison administration.

Employment contract. The Committee observes that under section 720, paragraph 3, of the Code of Criminal Procedure, the employment relationships of incarcerated persons are not covered by employment contracts. Section D.103 of the aforementioned Code excludes employment contracts in the relations between the prison administration and the detainee, for whom the administration obtains work, and between the concessionary enterprise and the prisoner, who is placed at its disposal as provided in an administrative agreement setting, in particular, the wages and working conditions. The prisoner at work is then a worker deprived of a contract and labour protection. Considering that in the case of private prisons the prison administration is, in law or in practice, in the hands of the enterprise using prison labour, the Committee requests that the Government examine the terms of sections 720, paragraph 3, and D.103 of the Code of Criminal Procedure and take necessary measures so that labour relations and conditions of employmet of prisoners are governed by labour law and subject to labour inspection.

Remuneration. With regard to remuneration, in its previous observation the Committee requested that the Government provide detailed information on changes in the remuneration of prisoners employed by private enterprises, whose "minimum prison wage" was set at 50-60 per cent of the normal minimum hourly wage, according to the regime. The Committee had also noted that the Government was aware of the inadequate level of remuneration, the difficulties of low inmate productivity and the low level of skills of the prison population.

The Committee requests that the Government re-examine the level of remuneration according to different regimes, and to indicate all measures taken or envisaged so that the national minimum wage (SMIC) applies to prisoners working for private firms.

Free employment relationship in private prisons. The Committee has noted that, by agreement, the construction and management of prisons had been put into the hands of private enterprises in the context of "Programme 13,000" (recourse to private capital to build and manage prisons). The Committee notes that "work" is part of the responsibilities given to private management in these prisons. The Committee requests that the Government provide information as to legal regulations applicable to private prisons and on the conditions under which the prisoner is subjected to this "private operator". Such information will help to determine whether, as concerns employment, a relationship similar to that of a free worker can be established.