Direct Request (CEACR) - adopted 2001, published 90th ILC session (2002)

Forced Labour Convention, 1930 (No. 29) - New Zealand (Ratification: 1938)
Protocol of 2014 to the Forced Labour Convention, 1930 - New Zealand (Ratification: 2019)

The Committee has noted the Government’s report with responses to the Committee’s 1999 direct request and 1998 general observation, as well as the comments of the New Zealand Employers’ Federation on the Government’s report.

1. Obligations imposed on social security beneficiaries. Further to its previous comments, the Committee notes with interest the Government’s indication in its response that it intends to take a more facilitative approach to assisting people to find work, with less emphasis on compulsion and more on obtaining sustainable results through working with beneficiaries on an individual level to build their capacities and make the most of opportunities. Noting also with interest the adoption and entry into force of the Social Security Amendment Act, 2001, the Committee looks forward to learning about administrative practice under the amended legislation.

2. Privatized prisons and prison labour. (a) Inmates of privatized prisons. The Committee notes from the Government’s response to the 1998 general observation that the new remand centre in Auckland is administered by Australasian Correction Management, a private concern, and that internal services (e.g. cleaning, kitchen, laundry) will be manned by inmates. The Committee requests the Government to indicate whether the new remand centre in Auckland houses only remand prisoners, or also convicted prisoners and, if so, which category or categories perform work or services.

(b) Conditions of employment. The Committee notes the Government’s indication that section 20(1) and (2) of the Penal Institutions Act, 1954, requires that each inmate (excluding those awaiting trial or on remand) shall be employed in such work as may be directed by the superintendent of the institution.

The Committee refers to Articles 1(1) and 2(1) and (2)(c) of the Convention, which neither permit work to be imposed on unconvicted prisoners anywhere, nor allow that convicted prisoners be hired to or placed at the disposal of private individuals, companies or associations; thus, the manning of internal services by any inmates in a privately administered institution would only be compatible with the Convention under the conditions of a free employment relationship, that is, with the person’s consent, free from the menace of any penalty in the wide sense (such as a reduced prospect of early release) and, since those concerned remain a captive labour force, under arm’s length conditions of employment, including wages approximating those accepted by workers having access to the free labour market. The Committee refers in this regard to the explanations provided in its general observation under the Convention as well as in paragraphs 82-146 of its General Report of last year.

(i) Consent. The Committee notes from the Government’s reply to point (viii) of the 1998 general observation that inmates are provided with a written document "stating what the work is", etc. which they "then sign ... to signify their understanding of the rules and expectations of both parties". This does not appear to imply that they are being asked for their consent. The Government is requested to supply a specimen of the document in question, as well as information on any further measures taken, also in respect of section 20(1) and (2) of the Penal Institutions Act, to make work by any prisoners in privately managed institutions subject to their formal consent.

(ii) Menace of a penalty. In point (viii) of its 1998 general observation, the Committee also asked how consent is guaranteed to be free from the menace of any penalty, including any loss of privileges or other disadvantages following a refusal to work. The Committee notes that the Government’s reply addresses the procedure for dispute resolution, but not the issue of how refusal to work may reflect on prisoners’ privileges and prospects of early release. It hopes that the relevant rules will be reviewed in this light and that the Government will forward a copy thereof.

(iii) Arm’s length conditions. The Committee notes the Government’s indication that weekly allowances for inmates engaged in internal services are up to NZ$17 per week, that is, less than 7 per cent of the adult minimum wage rate in New Zealand, and that "no other benefits accrue". The Committee hopes that the necessary measures will be taken to ensure that prisoners in privatized institutions will be offered arm’s length conditions of employment, including wages that would be acceptable to workers having access to the free labour market, as well as accident insurance, and that the Government will report on action taken to this end.

(c) Private use of labour in state prisons. In points (iii) and (iv) of its general observation of 1998, the Committee had asked whether private parties are admitted by the prison authorities into prison premises of any kind for the purpose of engaging prisoners in employment, and whether employment of prisoners outside prison premises, either for a public authority or for a private enterprise, was allowed. The Government has replied to both questions negatively, explaining that "direct employment of prisoners by private parties is not permitted", and that "the individual prison may hold contracts for the supply/manufacture of goods and services to third parties, but all inmates so engaged are under the total control, administration and supervision of the prison".

The Committee takes due note of these indications. It, however, understands that at the time of the Government’s reply, the Inmate Employment Programme comprised not only state-owned and managed enterprises that produced goods for the open market, but also "private sector industries", where the prison hired the labour of prisoners to privately owned and managed businesses run inside the prison. Furthermore, it understands that prisoners, under the supervision of prison officers, were hired, inter alia, to private owners to carry out work such as fruit picking or tree planting.

Referring to the explanations given in point 6 of its general observation, the Committee must point out that the fact that prisoners remain at all times under the supervision and control of a public authority does not absolve the Government from the requirement that the persons are not to be hired to private individuals, companies or associations.

Thus, all prisoners working for private persons or enterprises need to be granted the conditions of free employment, as set out under (b) above with regard to privatized prisons. The Committee hopes that the Government will report on measures taken to this end.