Demande directe (CEACR) - adoptée 2016, publiée 106ème session CIT (2017)

Repetition

Articles 1(1), 2(1) and 25 of the Convention. Trafficking in persons. In its previous comments, the Committee noted that section 119 of the Penal Code prohibits trafficking in persons, and that the adoption of the Law on the prevention and suppression of human trafficking strengthened the definition of trafficking in persons provided for in this section. It requested information on the application of this legislation in practice.

The Committee notes the detailed information provided in the Government’s report concerning the application of section 119 of the Penal Code. In 2010, there were 124 cases prosecuted, involving 207 defendants and, in 2011, there were 131 cases prosecuted, involving 237 defendants. The majority of persons sentenced received between three and 15 years of imprisonment. Regarding the enforcement of the Law on the prevention and suppression of human trafficking, the Government indicates that the Ministry of Public Security and the Ministry of Defence have been working closely to strengthen their operations in order to investigate and identify perpetrators of human trafficking. The Ministry of Public Security has developed a plan with regard to investigating trafficking for the purpose of forced labour, and has directed local police forces to carry out activities aimed at combating trafficking in persons, specifically in border areas. The Government also indicates that it has promulgated several decrees and decisions relating to the implementation of the Law on the prevention and suppression of human trafficking, regarding victim identification, victim protection and the provision of support services to such victims. The Committee requests the Government to pursue its efforts to prevent and combat trafficking in persons, and to provide information on measures taken in this regard. It also requests the Government to continue to provide information on the measures taken to ensure that victims of trafficking are provided with appropriate protection and services, as well as on the number of persons benefiting from these services. Lastly, it requests the Government to continue to provide information on the application in practice of section 119 of the Penal Code as well as the Law on the prevention and suppression of human trafficking, including the number of prosecutions, convictions and the specific penalties imposed.

Articles 1(1) and 2(1). Freedom of civil servants to terminate their employment contract. The Committee previously noted that, under section 3 of the Decree on job discontinuation and retirement procedures applicable to civil servants (Decree No. 46/2010), civil servants are entitled to terminate their employment contracts at their own will, subject to the consent of the competent agencies, organizations or units. Pursuant to section 4(1) of the Decree, in order to terminate employment, civil servants must submit written applications to the competent agencies, organizations or units, which have 30 days to accept it or not. In the latter case, the competent authority shall state the grounds for refusal, which may include, inter alia, the workers’ non-fulfilment of “an obligation to pay money or assets under their personal liability towards their agencies, organizations or units” or task requirements of the workers’ agencies, organizations or units. In this regard, the Committee noted the Government’s indication that national law does not restrict the rights of civil servants to resign, but purports to avoid arbitrary job discontinuation and difficulties for management agencies. Civil servants are not allowed to resign if they still owe money to the management agency and, in exceptional cases, civil servants are required to pay back fees for sponsored training courses and higher education before being entitled to resign. In order to ensure that a refusal to grant termination of employment is not of indefinite duration and that civil servants are allowed to resign within a reasonable period of time, the Committee requested information on the application of the Decree in practice.

The Committee notes the Government’s statement that, as Decree No. 46/2010 was only issued two years ago and the Ministry of Home Affairs has not reviewed its implementation to date, there is not yet any statistical data available in this regard. The Government reiterates that an application for resignation cannot be accepted if the obligation to repay money or assets under their personal liability is not fulfilled. With reference to the General Survey on the fundamental Conventions concerning rights at work, 2012, paragraphs 271 and 290, the Committee once again recalls that the effect of statutory provisions preventing termination of employment of indefinite duration by means of notice of reasonable length, in practice transforms a contractual relationship based on the will of the parties into service by compulsion of law, and is thus incompatible with the Convention. The Committee therefore requests the Government to provide, when available, information on the application of section 4(1) of Decree No. 46/2010 in practice, indicating the cases in which resignations were refused. In particular, it requests the Government to indicate the number of cases where workers’ non-fulfilment of “an obligation to pay money or assets under their personal liability towards their agencies, organizations or units” or task requirements of the workers’ agencies, organizations or units were considered as grounds for refusal.

Article 2(2)(c). 1. Prison labour. The Committee previously noted that section 3(4) of the Penal Code establishes that persons sentenced to imprisonment must be “compelled to serve their sentences in detention camps, to labour and study so as to become persons useful to society”. It notes that the Law on the execution of criminal judgments was adopted in June 2010. Section 29 of this Law specifies that labour shall be organized for inmates to suit their age and health, and should meet management, education and community integration requirements. The Government states that this Law does not stipulate that the use of inmate labour for private or individual enterprises is prohibited. However, the Government indicates that, in practice, there are no prisoners working in enterprises. In this regard, the Committee requests the Government to provide information, in its future reports, on any changes to the indicated practice. Additionally, it requests the Government to indicate if, under any circumstances, private entities or enterprises could be allowed to operate workshops within prisons and, if so, to provide information in this regard.

2. Other work imposed as a consequence of a conviction in a court of law. The Committee notes that section 65(2) of the Law on the execution of criminal judgments states that, during a probation term, a person subject to a suspended sentence shall be assisted by the commune-level People’s Committee in finding a job. With regard to persons serving non-custodial reform sentences, section 76(3) of the Law provides that a sentenced person who is not a civil servant or other government employee shall be assisted by the commune-level People’s Committee in seeking employment. The Committee requests the Government to indicate if persons serving non-custodial reform sentences, or persons subject to suspended sentences, are under an obligation to perform work and, if so, to indicate the type of organizations and enterprises for which such work may be performed.

Article 2(2)(d). Cases of emergency. The Committee notes that section 107 of the Labour Code of 2012 states that the employer has the right to require the employees to work overtime on any day, and the employees shall not be entitled to decline such work, if the work is: to implement a conscription order for the purpose of national security or national defence in emergency situations; to implement tasks to protect human life, or the assets of agencies, organizations or individuals; or in the prevention and recovery of natural calamities, fires, epidemics and disasters.

In this connection, the Committee recalls that Article 2(2)(d) of the Convention permits compulsory labour to be exacted only in cases of emergency, in the strict sense of the term, particularly events of war or of a calamity or threatened calamity, and in general to any circumstances that would endanger the existence or the well-being of the whole or part of the population. It accordingly requests the Government to provide information on the application in practice of section 107 of the Labour Code in its next report.

Article 2(2)(e). Minor communal services. Following its previous comments, the Committee notes the Government’s statement that the Law on organization of the People’s Council and the People’s Committee of 2003 does not contain provisions regarding communal service. However, the Government states that section 29(5) and (6) of the Law on the powers and responsibilities of commune-level People’s Committees includes making decisions on measures to: manage, use and protect water resources and irrigation projects; prevent, combat and overcome natural disasters and floods; protect forests; repair and protect local dykes; and to develop and repair roads, bridges and culverts in communes, as well as other local infrastructure. The Government states, in this respect, that it can be understood that a commune-level People’s Committee can mobilize persons to participate in the prevention and overcoming of natural disasters and floods, the protection of forests and the restoration of local dykes.

Referring to its explanation above under Article 2(2)(d), the Committee observes in this respect that certain circumstances provided for in this Law, including the protection of forests, the managing of irrigation projects and the development and repair of roads, bridges and culverts, cannot be considered as situations of emergency, in the strict sense, within the meaning of the Convention. With reference to the General Survey on fundamental Conventions concerning rights at work, 2012, paragraph 281, it also recalls that minor communal services may be allowed under the Convention only if certain specific criteria are met: (i) the services must be “minor services”, that is relating primarily to maintenance work and, in exceptional cases, to the erection of certain buildings intended to improve the social conditions of the population of the community itself; (ii) the services must be performed in the direct interest of the community and not relate to the execution of works intended to benefit a wider group; and (iii) the members of the community itself, that is the community which has to perform the services, or their “direct” representative (for example, the village council) must have the right to be consulted in regard to the need for such services. The Committee therefore requests the Government to provide further information on the exaction of minor communal services in practice, including the duration of the work carried out and the number of persons concerned, as well as on the consultations of the members of the community concerning the need for such services.

Article 25. Penal sanctions. The Committee previously noted that, despite the administrative penalties punishing labour law violations provided for in sections 192 and 195 of the Labour Code, no specific criminal offence concerning forced labour was established in the Penal Code. However, it noted the Government’s indication that the forthcoming Labour Code would more clearly define forced labour, and that proposals had been made to revise the Penal Code with a view to ensuring compliance with the obligations under the Convention.

The Committee notes that section 8(3) of the Labour Code of 2012 prohibits the exaction of forced labour. Section 239 of the Labour Code states that persons who violate the Code’s provisions, depending on the nature and seriousness of their violations, shall be disciplined and administratively sanctioned or prosecuted for criminal liability. In this regard, the Committee notes the Government’s statement that, at present, the Ministry of Justice is conducting consultations on the contents of the Penal Code, and that the Ministry of Labour, War Invalids and Social Affairs has proposed to add the criminal offence of forced labour to the Code. Recalling that, pursuant to Article 25 of the Convention, the exaction of forced or compulsory labour shall be punishable as a penal offence, the Committee requests the Government to pursue its efforts to include the offence of forced labour in the Penal Code, within the framework of the ongoing revision and amendment of this legislation.

Communication of texts. The Committee once again requests the Government to supply, with its next report, copies of the following legislation: Ordinance on mobilization of private sector for national defence 2003; and Ordinance on national defence industry 2008.