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Demande directe (CEACR) - adoptée 2011, publiée 101ème session CIT (2012)

Convention (n° 29) sur le travail forcé, 1930 - France (Ratification: 1937)
Protocole de 2014 relatif à la convention sur le travail forcé, 1930 - France (Ratification: 2016)

Autre commentaire sur C029

Observation
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Demande directe
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The Committee noted the observations communicated in May 2010 by the Autonomous National Union of Sciences and the National Union of Scientific Research Workers concerning the impact of the adoption of Act No. 2009-972 of 3 August 2009 concerning mobility and career paths in the public service on the application of the Convention. The Committee notes in this respect that the Government provided detailed information in November 2010 on the objectives of the Act and its implementation and, in particular, on the process of dialogue between the administration and the official concerned with respect to the jobs offered and the possibility of refusing these offers.
Articles 1(1), 2(1) and 25 of the Convention. Trafficking in persons and exploitation of vulnerability. In its previous comments, the Committee noted a certain number of measures taken by the Government designed to strengthen its legal and institutional machinery to combat the complex phenomenon of trafficking in persons. In this respect, it noted that the Penal Code defines the main components of trafficking in persons and provides for adequate penalties (sections 225-4-1 to 225-4-8). It also criminalizes the act of subjecting a vulnerable person to conditions of work incompatible with human dignity (section 225-14). The Committee noted that in 2007 the legislation strengthened the protection of victims of trafficking by allowing, for example, foreign victims in an irregular situation to take advantage of a 30-day cooling-off period. If they made a complaint against their aggressor, they are granted a temporary residence permit giving them the right to carry out an occupational activity; in the event of the final conviction of the person accused, the victim may be granted a long-term residence permit. The Committee requested the Government to provide information on the granting of these documents, on the measures taken to ensure that those responsible are prosecuted and on the difficulties encountered by the public authorities in this regard.
In its report, the Government points out that three criminal offences are considered tantamount to forced labour in France: trafficking in persons; abuse of vulnerability; and underground work. The competent officials to combat forced labour differ depending on the specific criminal offence (criminal investigation department, labour inspection services, customs or public finance officials, etc.). Measures to combat underground work have been a Government priority since 2004 and the Government observes that, even if all the victims of underground work are not necessarily victims of forced labour, the vast majority of forced labour victims are victims of undeground work. The setting up of operational committees to combat underground work at the level of each department, under the responsibility of public prosecutors and involving various actors (labour inspection services/police/“gendarmerie”), has made it possible to carry out coordinated and efficient actions resulting in an increase in the number of criminal offences reported; the numbers increased from 6,758 in 2003 to 14,046 in 2008 (10,457 victims in 2003 compared to 21,795 in 2008). The Government adds that the public prosecutor systematically initiates criminal proceedings against employers when victims are foreigners, or other vulnerable or weak persons.
As regards the crime of exploiting the work of vulnerable persons, the Government states that the competent authorities to deal with such violations are the labour inspection services and the criminal investigation department. The competent body within the “gendarmerie” stresses that the statistics on cases of abuse of vulnerable persons collected by the police throughout the territory do not reflect the actual trends of the phenomenon. As the labour inspection services are increasingly confronted with these situations, a ministerial instruction was issued in 2008 to reinforce that the suppression of this crime is part of the mandate of labour inspection services. In this respect, the Government states that in its opinion on trafficking and the exploitation of human beings in France, the National Advisory Human Rights Committee stressed the need to train more labour inspectors so they might identify situations of trafficking and exploitation, and to provide the labour inspectorate with adequate material resources and personnel in order to enhance the control at all workplaces.
Finally, the Government raises a number of areas in its report in which action might be taken to tackle this problem. These include: harmonizing the status of victims of forced labour who may be entitled to different rights (benefits, residence permits), depending on the nature of the crimes acknowledged by the courts; a proactive approach on the part of the labour inspection services; and the setting up of a partnership between the civil society, labour inspection services and other relevant parties.
The Committee takes due note of all this information. It observes that the priority given by the Government to combating underground work has resulted in the reporting of a greater number of violations unveiled, making it possible to initiate judicial proceedings against the perpetrators. It is therefore important that those involved in this fight should be made aware of the problem and trained to identify victims of forced labour (trafficking in persons or the exploitation of workers by abusing their situation of vulnerability). The Committee considers that although not all cases of underground work constitute forced labour, the latter is characterized by the concourse of several violations of labour law, which must be penalized as such. Furthermore, these violations must be taken as a whole, in order to assess whether they amount to criminal offences of trafficking in persons or exploitation of workers by abusing a situation of vulnerability, which themselves require specific penalties. The records of labour inspectors and criminal investigation departments should be sufficiently specific so as to enable the public prosecutor to have enough evidence to qualify the reported facts as violations and initiate criminal proceedings. The Committee therefore requests the Government to continue providing information on the measures taken to ensure that labour inspectors and the criminal investigation department are more aware and trained so as to identify situations of forced labour. Please also indicate how a better coordination among law enforcement agents (including prosecutors and judges) is sought, so as to strengthen their capacity to respond.
The Committee also points out that the vast majority of victims of human trafficking and labour exploitation are migrant workers who are in a situation of vulnerability – which is compounded when they are in an irregular situation. The Committee notes in this respect that the Government acknowledges, in its report, that depending on the criminal offence reported, the victims are not granted the same status or the same rights. The Committee points out that the victims of forced labour, irrespective of whether they are victims of trafficking in persons or exploited at work on account of their vulnerability, should, regardless of their legal status, enjoy adequate protection so as to be able to invoke their rights before the competent national authorities to obtain the benefits inherent to their job (wage arrears, social protection, etc.) and compensation for the material and moral damage suffered, as well as the conviction of perpetrators. The Committee recalls in this respect that, in accordance with Article 25 of the Convention, adequately dissuasive penalties should be strictly enforced on persons imposing forced labour. The Committee requests the Government to provide information on the measures taken to strengthen the protection of victims of forced labour, irrespective of their legal status on the national territory, so that they might effectively assert their rights. Please also provide statistical data on the violations reported, the number and types of residence documents granted to victims, the criminal proceedings initiated and the sentences handed down, either on account of trafficking in persons, subjecting a person to working conditions incompatible with human dignity or underground work.
Finally, the Committee notes the study carried out by the National Advisory Human Rights Committee on the trafficking and exploitation of human beings in France which provides an in-depth analysis of the measures taken to combat this phenomenon and makes a certain number of recommendations to the public authorities. The Committee asks the Government to indicate whether measures have been taken to follow up on these recommendations.
Article 2(2)(c). Prisoners working for private enterprises. The Committee has previously observed that prisoners may be required to work for private enterprises and in that case may be assigned to general service for jointly managed prison establishments and work related to the operation of these establishments, or to productive activities for private enterprises hiring labour from the prison administration, or in jointly managed establishments. It has stated that the guiding principles of the legislation governing prison work meet, on a number of essential points, the criteria set out by the Committee for work performed by a prisoner for a private entity to be regarded as approximating a free labour relationship and as such does not come under the prohibition set out in Article (2)(2)(c). However, some points for clarification were raised.
(a) Consent to work. Section D99, paragraph 1, of the Code of Criminal Procedure has suppressed the obligation to work in prison by stipulating that “prisoners, whatever their criminal category, may request to have a job offered to them”. The Prisons Act adopted later (13 October 2009) places all convicted persons under the obligation to carry out at least one of the activities offered to them by the head of the establishment and the director of the Prison Probation and Reintegration Service (section 27). The Committee asked the Government to clarify this point, specifying whether work may be offered in the context of the obligation to carry out an activity. The Committee notes that the Government indicates that the application of section 27 of the Act has a subsidiary role since prisoners already involved in a work activity or any other activity (teaching, training or others) are not concerned. Furthermore, the refusal to participate in an activity does not constitute a disciplinary offence.
(b) Remuneration. The Committee recalls that the ways of fixing the remuneration of prisoners depends on the type of work and the category of establishment. With regard to general service, the average remuneration level is set each year by the prison administration for all establishments, regardless of how they are managed. As regards productive activities carried out in the context of a labour hiring contract or in jointly managed establishments, a minimum remuneration threshold (SMR) must be respected. This threshold is set by the administration, but it does not constitute a minimum guaranteed remuneration for the prisoner, since workshops are audited on a monthly basis in order to verify whether the SMR has been reached by dividing the total wages by the number of hours worked: it constitutes therefore an “average collective minimum level of remuneration”. The Government adds that the minimum hourly remuneration for productive activities was €3.97 on 1 January 2010 (which represents 44.8 per cent of the hourly minimum wage – SMIC – set at €8.86 on 1 January 2010). The Government specifies that the discrepancies noted between the average wage of the workshop and the minimum wage are analysed by the head of the establishment and the contractor who take the necessary measures to redress the situation. In the case of jointly managed establishments, the contractor is required to offer prisoners a number of working hours and wages, determined in advance. If the outcome is inadequate, a penalty may be applied, including in the event of failure to respect minimum remuneration objectives.
The Committee takes note of all this information. It also notes that the draft decree implementing section 32 of the Prisons Act, establishing that remuneration for work carried out by prisoners may not be lower than an hourly rate set by decree and indexed to the SMIC, is being examined by the Senate. The Committee requests the Government to send a copy of the decree establishing the remuneration rates for general service and productive activities. The Committee hopes that the introduction into the national legislation of a minimum hourly rate of remuneration indexed to the SMIC will make it possible for the remuneration of prisoner workers to approximate that of free workers. The Committee also asks the Government to send information on the controls carried out to ensure that the minimum remuneration threshold is guaranteed, and on the number of cases in which the heads of the establishment have noted that this threshold has not been respected by the contractors, as well as those in which penalties have been imposed on jointly managed establishments for failure to respect minimum remuneration objectives.
(c) Employment contract. Under sections 717(3) and D103(2) of the Code of Criminal Procedure, the labour relations of prisoners are not covered by an employment contract. Section 33 of the new Prisons Act nevertheless provides that the participation of prisoners in occupational activities organized in prison establishments give rise to the drawing up of an engagement document by the prison administration. The Committee notes the Government’s indication that the aim of this provision is to legally recognize the prisoner as a labour rights’ bearer. As the responsibility for the work is incumbent upon the head of the prison, only the latter may sign the act of engagement (and not the contractor). Noting that the elements that must be contained in the act of engagement will be specified in the decrees implementing the Prisons Act, at present being examined by the Senate, the Committee requests the Government to send it a copy of the decree adopted for this purpose.
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