Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

Forced Labour Convention, 1930 (No. 29) - Austria (Ratification: 1960)
Protocol of 2014 to the Forced Labour Convention, 1930 - Austria (Ratification: 2019)

Articles 1(1), 2(1) and 2(2)(c) of the Convention. Work of prisoners for private enterprises. In comments made for a number of years on law and practice in Austria, the Committee examined the situation of prisoners who are obliged to work, without their consent, in workshops run by private enterprises within state prisons. It referred in this connection 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 pointed out on numerous occasions (see e.g. the 2007 General Survey on the eradication of forced labour, paragraph 109 and footnote 272) that the practice followed in this regard in Austria corresponds in all respects to what is expressly prohibited by Article 2(2)(c), namely, that a person is “hired to” private contractors. It noted, in particular, that it is in the very nature of such hiring agreements to include mutual obligations between the prisons administration and the private enterprise. The fact that prisoners remain at all times under the authority and control of the prison administration does not detract from the fact that they are “hired to” a private enterprise – a practice which is incompatible with this fundamental human rights instrument.

In its report, the Government reiterates its view that private enterprise’s employees perform only a technical supervisory role in respect of prisoners, but do not have any disciplinary powers, which remain with the prison’s administration, and therefore do not exercise any compulsion over them. The Government concludes that the prisoners are not at the disposal of the private enterprise, supervision being carried out by the prison staff.

While having noted these views, the Committee draws the Government’s attention once again 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 2007 General Survey 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 in this connection to paragraph 106 of its 2007 General Survey, where it considered that the prohibition for prisoners to be hired to private parties is absolute and not limited to work outside penitentiary establishments, but applies equally to workshops operated by private undertakings inside prisons.

However, the Committee has considered in paragraphs 59–60 and 114–120 of its 2007 General Survey referred to above that work of 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 therefore considered that, taking into account their captive circumstances, it is necessary to obtain prisoners’ formal, free and informed consent to work for private enterprises both inside and outside prisons. The Committee recalls that, in the prison context, 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.

The Committee notes with regret that, according to the Government’s latest report, no steps have been taken with a view to amending the existing legislation governing the work of prisoners, and no measures aimed at obtaining the free, formal and informed consent of convicts to work for private enterprise workshops inside prisons has been introduced. As the Committee noted previously, national legislation requires such consent only for work outside prison premises.

The Committee notes the Government’s indications in its report concerning the rise in the prisoners’ wages in January 2010, in accordance with the 25.69 per cent increase in the wages index above the level of 1 March 2000. It also notes the information on prisoners’ conditions of work, including guarantees concerning prisoners’ hours of work, occupational safety and health, their entitlement to medical treatment and social security coverage. However, the Committee points out once again that, in the absence of the consent requirement, the general scope of protective legislation cannot be regarded as an indicator of a freely accepted labour relationship. Taking into account the statistical data communicated by the Government, according to which in the 27 penal institutions in Austria there are about 50 different kinds of employment and business activity, the Committee expresses its concern that, more than 50 years after the ratification of this fundamental human rights instrument, a significant number of prisoners in Austria is hired to private enterprises without evidence of their consent, which is incompatible with the Convention.

The Committee trusts that the necessary measures will at last be taken to grant prisoners working for private enterprises a legal status with rights and conditions of employment that are compatible with this fundamental human rights instrument. In particular, the Committee expresses the firm hope that measures will be taken to ensure that free, formal 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.