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

Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

The Committee notes that the first report of the Government on the application of the Protocol of 2014 to the Forced Labour Convention, 1930, has not been received. The Committee requests the Government to provide the first report on the Protocol of 2014 along with its next report on the Convention due in 2024.

The Committee notes the observations made by the Federal Chamber of Labour (BAK) communicated with the Government’s report.

Articles 1(1), 2(1) and 25 of the Convention. Trafficking in persons. 1. Programme of Action. Following its previous comments, the Committee notes the implementation report for the National Action Plan (NAP) to combat Trafficking in Human Beings 2018–2020 attached to the Government’s report. According to this report several projects, initiatives and measures were carried out for strengthening national and international cooperation against trafficking in persons, for sensitization and awareness raising of various occupational groups as well as for improving victim protection and support. The Government also refers to the adoption of a new NAP for 2021–2023, which brings together a total of 109 measures under various topics namely: (i) national and international coordination and collaboration; (ii) prevention; (iii) victim protection; (iv) law enforcement; and (v) monitoring and research. The Action plan also determines who is responsible for, and the time frames for its implementation and identifies indicators of whether and how the measures have been implemented. The Committee encourages the Government to continue taking effective measures to combat trafficking in persons, within the framework of the NAP 2021-23. It requests the Government to transmit information providing an overview of the measures taken in this context as well as on the assessment of the implementation of the NAP, indicating the results achieved, the challenges faced and the measures envisaged to overcome them.

2. Prosecution and penalties. The Committee notes the Government’s information that training courses and other awareness-raising programmes to help identify victims of human trafficking are regularly offered to monitoring authorities such as the police and labour inspectors, judicial officers or youth protection authorities. With regard to the application of section 104(a) of the Penal Code, which criminalizes trafficking in persons with imprisonment for up to five years, the Committee notes that according to the report of the Working Group against Human Trafficking for the Purpose of Labour Exploitation 2018–2020, in 2019 the police carried out a total of 42 preliminary investigations against 62 suspects of human trafficking. A total of 66 victims (including 14 underaged victims) were identified. Most of the cases concerned the offense of trafficking for the purpose of sexual exploitation. Furthermore, according to the report of the Federal Criminal Police Office’s entitled Situation Report, Smuggling and Trafficking in Human Beings 2019, a total of 17 victims were identified in eight investigations into suspected human trafficking for labour exploitation in 2019. According to the evaluation of judicial proceedings from the prosecutor’s office, from 2017 to 2020, there were 318 cases under section 104(a) and 218 cases under section 217 of the Criminal Code relating to cross-border trafficking for prostitution, with 1,002 recorded victims. These included 61 cases under section 104(a) and 41 cases under section 217 in 2020. A total of 25 convictions were secured between 2017 and 2020. The Committee observes that the number of convictions is low compared to the number of cases recorded.

The Committee notes the observations made by the BAK that the strict implementation of effective sanctions, more frequent monitoring and greater cooperation between labour inspectors and agriculture and forestry inspectors on the one hand, and the financial police and the Austrian Healthcare Insurance Fund on the other are required in order to combat trafficking in persons. The Committee further notes that the United Nations Committee on the Elimination of Discrimination against Women (CEDAW), in its concluding observations of 2019, while welcoming the increased number of investigations and prosecutions of traffickers, expressed concern at the lenient sentences imposed on traffickers (CEDAW/C/AUT/CO/9, paragraph 24). The Committee requests the Government to continue to take measures to ensure that investigations and prosecutions of cases of trafficking of persons are carried out and that sufficiently effective and dissuasive penalties are imposed. It requests the Government to continue providing information on the application in practice of sections 104(a) and 217 of the Penal Code criminalizing trafficking in persons and cross-border trafficking for prostitution, including the number of convictions and penalties applied.

3. Identification and protection of victims. The Committee previously noted the Government’s information on the victim protection institutions, which provide psycho-social counselling, accommodation, medical care and legal assistance to victims of trafficking. It further noted that foreign victims of trafficking are granted a period of 30 days to recover and reflect prior to taking any stay-related steps after which they may receive a “special protection” residence permit, if criminal proceedings have been commenced or other claims have been raised.

The Committee notes from the NAP implementation report that a new shelter for male victims of trafficking was opened in 2018, which is fully operational throughout the year with a capacity of over 60 people which will be further extended in 2020. This shelter offers safe accommodation, medical, legal and psychosocial support, crisis intervention as well as litigation support. Furthermore, the red-white-red cards (settlement permit issued pursuant to section 41a of the Settlement and Residence Act, which grants unlimited access to the labour market) were issued for 28 victims of trafficking in 2018, for 45 victims in 2019 and for 33 victims in 2020. The Committee observes that in its observations, the BAK refers to the need to facilitate the acquisition and extension of the right of residence of victims and to improve their access to employment. The Committee requests the Government to continue providing information on the measures taken to improve the identification of victims of trafficking and on services provided to victims of trafficking through different institutions to support their rehabilitation and social reintegration.

Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

Articles 1(1), 2(1) and 2(2)(c) of the Convention. Work of prisoners for private companies. For a number of years, the Committee has been examining the situation of prisoners who are obliged to work, without their formal consent, in workshops run by private enterprises within state prisons, pursuant to section 46(3) of the Law on the execution of sentences. The Committee noted the indication of the Government that the prisoners working in private-run workshops are supervised only by prison staff and paid by the prison. The Committee repeatedly pointed out that the practice followed in this regard corresponds in all aspects to what is expressly prohibited by Article 2(2)(c), namely, that a person is “hired to” private contractors. It noted, in particular, that the term hired to covers not only situations where prisoners are “employed” by the private company, but also situations where prisoners are hired to private enterprises but remain under the authority and control of the prison administration.

The Committee further noted the Government’s repeated indication that prisoners working for private contractors benefit from rights and conditions of work that are similar to those guaranteed in a free labour relationship. Although the Government indicated that it has stipulated that inmates working in privately run workplaces inside the prison must also provide freely given and informed consent, the Committee noted that section 46(3) of the Law on the execution of sentences was not amended to this effect. Moreover, it noted that according to a document named “Correctional services in Austria” issued by the Ministry of Justice in August 2016, convicts and prisoners subject to precautionary measures of placement, who are fit to work, are obligated by law to take over work. Prisoners who are required to work have to do the work that has been allocated to them, except for work which might endanger their life or subject them to serious health hazards. Moreover, 75 per cent of work remuneration is withheld as contribution to prison costs indicating that on average, prisoners receive €5 per day, after deduction of their contribution to prison costs and of their contribution towards unemployment insurance. The Committee requested the Government to take the necessary measures to ensure that section 46(3) of the Law on the execution of sentences is revised, in order to bring it into conformity with the requirements of the Convention as well as the indicated practice by the Government.

The Committee notes the Government’s information in its report that there have not been any legislative amendments regarding the implementation of the Convention. However, there has been an increase in the rate of pay for those serving custodial sentences in line with the 61.31 per cent increase in the negotiated standard wage index. The Committee also notes the Government’s reference to section 49(3) of the Law on the execution of sentences which guarantees the protection of life, health and safety of the workers as well as other social security benefits, rights and employment conditions that are applicable to prisoners working for private enterprises. Moreover, the Government states that although, the institutions involved in the implementation of custodial sentences may enter into agreements with commercial enterprises on the employment of prisoners, such enterprises have no disciplinary authority over the prisoners and are not permitted to exercise any kind of direct or indirect coercion or issue any orders to the prisoners. The Government further provides examples of private enterprises that offer special professional training and excellent working conditions with additional payments which is on high demand among inmates.

The Government considers that the work prisoners do for private enterprises is given legal status with rights and employment conditions attached which are similar to those of employment outside prisons. It reiterates that, in practice, the free and well-informed consent is obtained from the inmates to work in privately run workshops within the prison premises. It therefore considers that no revision of section 46(3) of the Law on the execution of sentences is required.

The Committee notes with regret that the Government does not envisage taking any measures to legislate and give legal recognition to this point nor has it taken any measures to revise section 46(3) of the the Law on the execution of sentences according to which prisoners are obliged to work, in workshops run by private enterprises without any reference to their consent. The Committee recalls that, by virtue of Article 2(2) of the Convention, the compulsory labour of convicted persons is excluded from the scope of the Convention, provided that it is “carried out under the supervision and control of a public authority” and that such persons are not “hired to or placed at the disposal of private individuals, companies or associations”. These two conditions are equally important and apply cumulatively: the fact that the prisoner remains at all times under the supervision and control of a public authority does not itself dispense the Government from fulfilling the second condition, namely that the person is not hired to or placed at the disposal of private undertakings. If either of the two conditions is not observed, compulsory labour exacted from convicted persons under these circumstances is prohibited by virtue of Article 1(1) of the Convention. The Committee has nevertheless considered that work by prisoners for private enterprises can be held compatible with the requirement of the Convention, if such work is performed by prisoners under a “free employment relationship”, as referred to by the Government. In such circumstances, the prisoners concerned must offer themselves voluntarily, without being subjected to pressure or the menace of any penalty, by giving their free, formal and informed consent to work for private enterprises in law and in practice. The Committee therefore once again requests the Government to take the necessary measures to ensure that section 46(3) of the Law on the execution of sentences is revised, in order to bring it into conformity with the requirements of the Convention and the indicated practice. The Committee also requests the Government to provide information on the number of prisoners working in privately run workplaces inside prison premises. Noting that institutions involved in the implementation of custodial sentences may enter into agreements with commercial enterprises on the employment of prisoners and that such enterprises have no disciplinary authority over the prisoners, the Committee requests the Government to provide information on the manner in which the prison authorities exercise control and, if appropriate, discipline on prisoners engaged in work benefiting commercial enterprises. The Committee further requests the Government to indicate the circumstances in practice of what is characterized as free and well-informed consent of the prisoners and to indicate whether their refusal to carry out such work is subject to disciplinary sanctions.

The Committee is raising other matters in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 2017, published 107th ILC session (2018)

Articles 1(1), 2(1) and 25 of the Convention. Trafficking in persons. 1. Programme of Action. The Committee previously noted the adoption of the third National Action Plan (NAP) on Combating Human Trafficking for 2012–14, which includes, among other measures, the establishment of the Task Force with three thematic working groups on labour exploitation, child trafficking and sexual exploitation.

The Committee notes the implementation report for NAP 2012–14 attached to the Government’s report. The Government indicates in its report that, the NAP is evaluated by the Task Force, which meets between eight and ten times per year and produces annual internal reports. The three working groups also developed reports in 2014 in their respective working field. The Government also indicates that the forth NAP for 2015–17 is being implemented, and that its implementation report is to be published in early 2018. The Committee therefore requests the Government to continue providing information on the implementation of the NAP on Combating Human Trafficking 2015–17, including a copy of its implementation report. It also requests the Government to provide information on the adoption of a new NAP for the next period.

2. Penalties and law enforcement. The Committee previously noted the detailed report published on 15 September 2011 by the Group of Experts on Action against Trafficking in Human Beings (GRETA), concerning the application by Austria of the Council of Europe Convention on Action against Trafficking in Human Beings. It noted, in particular, the observation made by the GRETA regarding the low number of convictions for trafficking in persons and the absence of convictions in cases of labour exploitation other than domestic servitude. The Committee noted that trafficking in persons is criminalized under section 104(a) of the Penal Code, and is punishable with up to three years’ imprisonment.

The Committee notes the Government’s information that an amendment to section 104(a) of the Penal Code was made through the Sexual Offences (Amendment) Act 2013. According to it, trafficking in persons is punishable by imprisonment of up to five years and, if the victim is a minor above the age of 14, up to ten years. In addition, exploitation now also includes exploitation for the purpose of begging and for the commission of an offence. The Committee also notes the Government’s indication that, in 2015, three convictions were handed down under section 104(a) of the Penal Code; while in 2014, 13 convictions were handed down. Moreover, in 2015, 15 convictions were handed down under section 217 of the Penal Code relating to cross-border trafficking for prostitution; while in 2014, 13 convictions were handed down. The Committee further notes that, according to the GRETA report of 3 July 2015 (GRETA (2015)19), from 2010 to 2013, two convictions were handed down under section 104(3) each year. In comparison, there were considerably more convictions for cross-border trafficking for prostitution (section 217). Moreover, there were very few convictions in cases of labour exploitation. The GRETA also indicates that, with regard to prosecuting cases of trafficking for the purpose of labour exploitation, difficulties have been experienced stemming mainly from the lack of clarity and understanding of the occurrence, nature and impact of exploitation (paragraphs 182–184).

The Committee notes the Government’s indication that, the working group on trafficking for the purpose of labour exploitation has met 19 times in total since its establishment in late 2012. Trainings sessions are also provided to labour inspectors and police officers. According to the implementation report for NAP 2012–14, continuous training is provided to judges and prosecutors. A special unit at the Higher Court in Vienna is established with a special competence for trafficking cases and enhanced cooperation with victim protection institutions. The Committee therefore requests the Government to continue providing information on the application in practice of sections 104(a) and 217 of the Penal Code criminalizing trafficking in persons and cross-border trafficking for prostitution, including the number of convictions and penalties applied. It also requests the Government to continue providing information on any measures taken to address the difficulties encountered by the competent authorities when carrying out law enforcement activities, as well as the results achieved.

3. Identification and protection of victims. The Committee notes the Government’s information that, from 2013 to 2014, the working group on trafficking for labour exploitation developed a list of indicators for competent authorities regarding the identification of victims of trafficking for labour exploitation, supplemented with information on how to report suspected cases to the Austrian Criminal Intelligence Service. However, the Committee notes that, according to the GRETA report of 2015, the number of identified victims of trafficking for the purpose of labour exploitation remains low, due to the absence of a national referral mechanism defining the roles and responsibilities of all relevant actors and a lack of clarity as to the rules and procedures for sharing information between different entities (paragraph 97).

The Committee also notes that, according to the implementation report of the NPA 2012–14, the NGO Intervention Centre for Migrant Women Affected by Human Trafficking (LEFÖ-IBF) for women and girls from the age of 15, the Men’s Health Centre (MEN VIA) for men and “Drehscheibe” for children are the most important victim protection institutions and members of the Task Force. Psycho-social counselling, secure accommodation, medical care and legal assistance are provided in these institutions. In the period 2012–14, LEFO IBF provided services and care to a total of 506 victims, and 249 were offered legal assistance. Meanwhile, “Drehscheibe” provided care and support to 828 unaccompanied alien minors and examined 332 cases of suspected child trafficking. MEN VIA was established at the end of 2013 and started to operate since the beginning of 2014.

The Committee further notes that, according to the implementation report of NPA 2012–14, foreign victims of human trafficking are granted a period of 30 days to “recover and reflect” prior to taking any stay-related steps. After that period, victims and witnesses of human trafficking may receive a “special protection” residence permit, if criminal proceedings have been commenced or other claims have been raised. The Committee requests the Government to continue providing information on any measures undertaken to improve the identification of victims of trafficking for labour exploitation and on services provided to all victims of trafficking through different institutions.

Observation (CEACR) - adopted 2017, published 107th ILC session (2018)

Articles 1(1), 2(1) and 2(2)(c) of the Convention. Work of prisoners for private companies. For a number of years, the Committee has been examining the situation of prisoners who are obliged to work, without their consent, in workshops run by private enterprises within state prisons, pursuant to section 46(3) of the Law on the execution of sentences. The Committee noted the indication of the Government that the prisoners working in private-run workshops are supervised only by prison staff and paid by the prison. The Committee repeatedly pointed out that the practice followed in this regard in Austria corresponds in all aspects to what is expressly prohibited by Article 2(2)(c), namely, that a person is “hired to” private contractors. It noted, in particular, that the Convention addresses 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 prisoners are hired to private enterprises but remain under the authority and control of the prison administration.

The Committee also noted the Government’s repeated indication that prisoners working for private contractors benefit from rights and conditions of work that are similar to those guaranteed in a free labour relationship. Additionally, the Government stated that only about 2.5 per cent of companies operating in Austrian prisons are privately run and that care is taken to ensure that prisoners are free and willing to carry out work in prison premises on a fully informed basis.

The Committee notes the Government’s information in its report that, as of 1 January 2017, the remuneration for work by detained persons was increased by 46.9 per cent in the standard wage index compared with the level of 1 March 2000. The Government also indicates that it is stipulated that inmates working in privately run workplaces inside the prison must also provide freely given and informed consent. However, the Committee notes that section 46(3) of the Law on the execution of sentences was not amended during the reporting period. The Committee also notes that, according to a document named “Correctional services in Austria” issued by the Ministry of Justice in August 2016, convicts and prisoners in precautionary measures of forensic placement, who are fit to work, are obligated by law to take over work. Prisoners who are required to work have to do the work that has been allocated to them; however, they must not be employed for work which might endanger their life or subject them to serious health hazards. The amount of work remuneration is in keeping with the wage of workers in the metal-processing industry resulting from collective bargaining. However, 75 per cent of work remuneration is withheld as contribution to prison costs. On average, prisoners in Austrian prisons receive €5 per day, after deduction of their contribution to prison costs and of their contribution towards unemployment insurance.

The Committee once again points out that, in the absence of the voluntary consent of the concerned prisoners, the other factors mentioned by the Government cannot be regarded as indicators of a freely accepted employment relationship. The Committee once again draws the Government’s attention to the fact that the work of prisoners for private companies is only compatible with the Convention where it does not involve compulsory labour. To this end, the formal, freely given and informed consent of the persons concerned is required, in addition to further guarantees and safeguards covering the essential elements of a labour relationship, such as wages, occupational safety and health and social security. Noting that section 46(3) of the Law on the execution of sentences remains in force, the Committee requests the Government to provide information on how the freely given and informed consent of prisoners to work in private enterprise workshops inside prison premises is ensured in practice. The Committee also requests the Government to take the necessary measures to ensure that section 46(3) of the Law on the execution of sentences is revised, in order to bring it into conformity with the indicated practice by the Government and the requirements of the Convention.

The Committee is raising other matters in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 2014, published 104th ILC session (2015)

Articles 1(1), 2(1) and 25 of the Convention. Trafficking in persons. The Committee notes the detailed report published on 15 September 2011 by the Group of Experts on Action against Trafficking in Human Beings (GRETA), concerning the application by Austria of the Council of Europe Convention on Action against Trafficking in Human Beings. It notes, in particular, the observation made by the GRETA regarding the low number of convictions for trafficking in persons and the absence of convictions in cases of labour exploitation other than domestic servitude (GRETA (2011) 10, paragraph 151). The Committee notes that trafficking in persons is criminalized under section 104(a) of the Penal Code, and is punishable with up to three years’ imprisonment. In this connection, the Committee notes the adoption of the third National Action Plan (2012–14), which includes, among other measures, the establishment of a working group on labour exploitation chaired by the Federal Ministry for Labour, Social Affairs and Consumer Protection. The Committee requests the Government to provide information on the application in practice of the National Action Plan (2012–14), indicating whether the objectives set out have been achieved and whether an evaluation has been undertaken in order to assess the impact of the measures adopted. The Committee also requests the Government to provide information on the application in practice of section 104(a) of the Penal Code criminalizing trafficking in persons, including on the number of convictions and specific penalties applied, as well as on the difficulties encountered by the competent authorities in identifying victims and initiating legal proceedings.

Observation (CEACR) - adopted 2014, published 104th ILC session (2015)

Articles 1(1), 2(1) and 2(2)(c) of the Convention. Work of prisoners for private companies. For a number of years, the Committee has been examining the situation of prisoners who are obliged to work, without their consent, in workshops run by private enterprises within state prisons. In this connection, it referred to section 46, paragraph 3, of the Law on the execution of sentences, as amended by Act No. 799/1993, according to which prisoners may be hired to private enterprises that may use their labour in privately run workshops and workplaces both inside and outside prisons. The Committee repeatedly pointed out that the practice followed in this regard in Austria corresponds in all aspects to what is expressly prohibited by Article 2(2)(c), namely, that a person is “hired to” private contractors. It noted, in particular, that the Convention addresses 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 prisoners are hired to private enterprises but remain under the authority and control of the prison administration.

The Committee notes the information provided by the Government concerning the rise in convicts’ wages in January 2014, in accordance with the 37.89 per cent increase in the wages index above the level of 1 March 2010. It also notes the Government’s repeated indication that prisoners working for private contractors benefit from rights and conditions of work that are similar to those guaranteed in a free labour relationship. Additionally, the Government states that only about 2.5 per cent of companies operating in Austrian prisons are privately run and that care is taken to ensure that prisoners are free and willing to carry out work in prison premises on a fully informed basis.

The Committee notes further that, in its observations attached to the Government’s report, the Federal Chamber of Labour indicates that no complaints appear to have been submitted by prisoners regarding their conditions of work. The Chamber also expresses the view that it would be desirable to continue with the integration of prisoners into social insurance systems and to ensure that prisoners willing to work are able to do so.

While noting the information from the Government that prisoners are free and willing to work in prison premises on a fully informed basis, the Committee once again points out that, pursuant to section 46, paragraph 3 of the Law on the execution of sentences currently in force, prisoners’ consent is not required for work in private enterprise workshops inside prisons, but only for such work outside prison premises. In the absence of such voluntary consent, the other factors mentioned by the Government, cannot be regarded as indicators of a freely accepted employment relationship. The Committee once again draws the Government’s attention to the fact that the work of prisoners for private companies is only compatible with the Convention where it does not involve compulsory labour. To this end, the formal, freely given and informed consent of the persons concerned is required, as well as further guarantees and safeguards covering the essential elements of a labour relationship, such as wages, occupational safety and health and social security. The Committee therefore urges the Government to take the necessary measures to ensure that freely given and informed consent is required for the work of prisoners for private companies, both inside and outside prison premises, in accordance with the Convention. In particular, the Committee requests the Government to indicate the action taken to ensure that the consent to perform work is obtained from such prisoners without the menace of any penalty, such consent being authenticated by the existence of objective and measurable factors such as conditions of work that approximate those of a free labour relationship, with regard to wage levels, occupational safety and health and social security.

The Committee is raising other matters in a request addressed directly to the Government.

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

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.

Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

Article 1, paragraph 1, and Article 2, paragraphs 1 and 2(c) of the Convention. Prisoners hired to private enterprises. In its earlier comments, the Committee referred 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 recalled that compulsory work or service exacted from any person as a consequence of a conviction in a court of law is compatible with the Convention only if two conditions are met: namely, that the said work or service is carried out under the supervision and control of a public authority; and that the said person is not hired to or placed at the disposal of private individuals, companies or associations. The Committee has always made it clear that the two conditions apply cumulatively, i.e. the fact that the prisoner remains at all times under the supervision and control of a public authority does not in itself dispense the Government from fulfilling the second condition, namely, that the person is not “hired to or placed at the disposal of private individuals, companies or associations”. The Committee asked the Government to take the necessary measures to ensure observance of the Convention, such as for example to provide that any prisoners working for private enterprises offer themselves voluntarily without being subjected to pressure or the menace of any penalty and, given their conditions of captive labour, subject to guarantees as to wages and other conditions of employment approximating a free employment relationship.

The Committee previously noted the Government’s indications that, in national law and practice, contracts exist only between the prisons administration and private enterprises, while prisoners, who are under an obligation to perform prison labour, have no labour contract with either an enterprise or the prisons administration; however, conditions of work are to a large extent determined by law, violations of which can be the subject of complaints by prisoners. The Government reiterates in its 2006 report that private enterprise employees give only technical instructions to prisoners hired to them and exercise only “specialist supervision”, but they do not have any disciplinary powers, which remain with the prisons administration. The Government argues that a private company does not thereby have any right of disposal of the prisoners, since supervision is carried out by the prison staff.

In this connection, the Committee draws the Government’s attention 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 General Survey of 2007 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 to paragraph 106 of its 2007 General Survey, where it considered that the prohibition for prisoners to be placed at the disposal of private parties is absolute and not limited to work outside penitentiary establishments, but applies equally to workshops operated by private undertakings inside prisons.

The Committee previously noted the Government’s indication that, in conformity with the first condition set out in Article 2(2)(c) of the Convention, the work is carried out “under the supervision and control of a public authority”. However, as regards the second condition, namely, that the person “is not hired to or placed at the disposal of private individuals, companies or associations”, the Committee has already pointed out on numerous occasions that contracts for the hiring of prison labour to private enterprises in Austria correspond in all respects to what is expressly prohibited by Article 2(2)(c), namely, that a person is “hired to” a private company. It is in the very nature of such hiring agreements to include mutual obligations between the prisons administration and the private enterprise.

Referring to the explanations in paragraphs 59–60 and 114–120 of its 2007 General Survey referred to above, the Committee points out once again that work by 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 considered that, taking into account their captive circumstances, it is necessary to obtain prisoners’ formal consent to work for private enterprises both inside and outside prisons. Further, since such consent is given in a context of lack of freedom with limited options, there should be indicators which authenticate this free and informed consent. The Committee recalls that 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. In addition, there may be also other factors that can be regarded as objective and measurable advantages which the prisoner gains from the actual performance of the work and which could be considered in determining whether consent was freely given and informed (such as the learning of new skills which could be deployed by prisoners when released; the offer of continuing the work of the same type upon their release; or the opportunity to work cooperatively in a controlled environment enabling them to develop team skills).

The Committee has noted the Government’s indications in its 2006 and 2008 reports concerning the rise in the prisoners’ wages in accordance with the rise in the wages index, as well as guarantees concerning the prisoners’ working time, occupational safety and health and social security. It has also noted the Government’s view concerning other factors that makes work in the prison system valuable from the prisoners’ perspective, such as the learning of new vocational skills, enjoying social contacts within the penal institution, etc., which may contribute to their rehabilitation in society after release. However, as the Committee noted previously, under the Act on the execution of sentences, prisoners’ consent is not required for work in private enterprise workshops inside prisons, but only for such work outside prison premises. In the absence of the consent requirement, the general scope of protective legislation, as well as other factors mentioned by the Government, cannot be regarded as indicators of a freely accepted employment relationship.

The Committee therefore reiterates its hope that the Government will at last take the necessary measures to grant prisoners working for private enterprises a legal status with rights and conditions of employment that are compatible with this basic human rights instrument. In particular, the Committee hopes that measures will be taken to ensure that free 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, as well as by other objective and measurable factors referred to above.

Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

Article 1(1) and Article 2(1) and (2)(c) of the Convention. A. Prisoners hired to private enterprises. 1. In its previous observation, the Committee noted that under section 46, paragraph 3, of the law on the execution of sentences, as amended by Act No. 799/1993, 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 that compulsory labour of prisoners for private enterprises is not compatible with the Convention.

2. In its reply, the Government recognizes that in national law and practice, contracts exist only between the prisons administration and private enterprises, while prisoners, who are under an obligation to perform prison labour, have no labour contract with either an enterprise or the prisons administration; however, conditions of work are to a large extent determined by law, violations of which can be the subject of complaints by prisoners. The Government further observes that private enterprise representatives give only technical instructions to prisoners hired to them and have no disciplinary powers, which remain with the prisons administration. In this connection, the Government argues that there may be some link between the two cumulative conditions in Article 2(2)(c) of the Convention and that there may be no "placing at the disposal" of the prisoner in the present case, where the private enterprise is under contractual obligations towards the prisons administration.

3. Referring once again to the explanations in paragraphs 96 et seq. of its General Report to the 2001 Conference, the Committee notes from the Government’s indications that in conformity with the first condition set out in Article  2(2)(c) of the Convention, the work is carried out "under the supervision and control of a public authority". However, as regards the second condition, namely, that the person "is not hired to or placed at the disposal of private individuals, companies or associations", the Committee has already pointed out that contracts for the hiring of prison labour to private enterprises in Austria correspond in all respects to what is proscribed by Article 2(2)(c), namely, that a person be "hired to" a private company. It is in the very nature of such hiring agreements to include mutual obligations between the prisons administration and the private enterprise.

4. The Government further states that national law and practice comply in all respects with the United Nations Standard Minimum Rules for the Treatment of Prisoners, which provide, inter alia, in rule 73(1), that "Preferably institutional industries and farms should be operated directly by the administration and not by private contractors". The same preference is followed in Austria, where altogether only 10 per cent of prison labour is hired to private enterprises, including both labour employed in workshops run by private enterprises inside prisons and prisoners working outside for private companies; in the Government’s view, the latter prisoners need not even be considered here, since their consent is required. The Government concludes that compliance with the United Nations Standard Minimum Rules for the Treatment of Prisoners cannot be in contradiction with the Convention.

5. The Committee takes due note of these indications. Referring again to the explanations given in paragraph 102 of its General Report to the 2001 Conference, the Committee must point out that there is no contradiction between the preference expressed by rule 73(1) of the Standard Minimum Rules and the requirements of Article 2(2)(c) of the Convention, and that compliance with a less demanding, non-binding set of standard minimum rules does not dispense the Government from abiding by the stricter rules of a ratified basic human rights Convention.

В. Free employment of prisoners 6. The Committee has always held that the strict conditions laid down by the Convention for exempting from the scope of its prohibition labour imposed on persons as a consequence of a conviction in a court of law should not prevent access by prisoners to the free labour market. Work by prisoners, even for private enterprises, does not come under the scope of the Convention if there is no compulsion involved.

7. Consent requirement and conditions of employment approximating a free labour relationship. The Committee recalls that prisoners’ obligation to work, as laid down in the Act on the execution of sentences, concerns any work to which they are assigned, and is enforceable with fines. The prisoner’s consent is not required for work in private enterprise workshops on prison premises, but only for "uncontrolled" work outside prison premises. Besides, as indicated by the Committee in point 10 of the general observation on the Convention in its report to the 2002 Conference, in the context of a captive labour force which has no alternative access to the free labour market, "free" consent to a form of employment going prima facie against the letter of the Convention furthermore needs to be authenticated by conditions of employment approximating a free labour relationship, such as the existence of a labour contract between the prisoner and the private company using his or her labour and free labour market oriented conditions regarding wage levels, social security and safety and health.

8. In applying these observations to the country circumstances, the Committee notes that:

(a) Under the Act on the execution of sentences, a prisoner has no labour contract with a private company using his or her labour inside or outside prison premises - nor with the prison authorities. The general scope of protective legislation mentioned by the Government in this connection is no indicator of a freely accepted employment relationship.

(b) The Government indicates in its report that safety and health legislation applies in prisons, that prisoners enjoy specific health care, as well as work accident compensation "up to" that provided under general social insurance, and that they are covered by the unemployment insurance, but remain excluded from old-age insurance. It thus appears that, with the exception of unemployment insurance, prisoners, including those working for private enterprises, remain excluded from the social security coverage of free workers.

(c) As regards wages, the Government indicates that gross hourly wages in 2000-02 ranged between 4.08 and 6.13 euros, and from 23 December 2003 between 4.27 and 6.41 euros. The only mandatory deductions are the contributions to prison costs and to unemployment insurance, and the only part of wages that may be attached, within limits, is that which is to be paid upon release from prison. When employed full time, prisoners draw a net monthly work income of around 200 euros after deductions. The Committee has taken due note of these indications. It must, however, again conclude that, with a contribution for board and lodging taking away 75 per cent of a remuneration that is already substantially lower than prevailing rates on the free market, the work income of a prisoner hired to a private enterprise is far from approximating market conditions. In assessing this level of remuneration, the Government considers that reference should be made not only to free market wage rates, but also to the principle of equal treatment among prisoners, all the more where they are not in a position to decide whether to work in a company workshop or for a public authority. As regards equal treatment among prisoners, the Committee already noted in point 12 of the general observation on the Convention in its report to the 2002 Conference that while the Convention provides protection mainly to prisoners working for private enterprises, it is no obstacle to introducing free market principles to state organizations as well.

9. The Committee again expresses the hope that the Government will at last take the necessary measures to grant prisoners working for private enterprises a legal status with rights and conditions of employment that are compatible with this basic human rights instrument.

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

The Committee has noted the Government’s response to its 1998 observation and general observation.

Articles 1(1) and 2(1) and (2)(c) of the Convention.
Prisoners hired to private enterprises

1. The Committee notes the Government’s indication in its report that the national legal order does not make provision for prisons managed by private enterprises. The Government further states that access to prison premises is not permitted for the purpose of employment of prisoners by private parties. This, the Committee understands, is merely to say that prisoners who in fact do work for private enterprises (whose agents do have access to prison premises) are not given an employment contract with these enterprises, nor indeed the protection of general labour legislation.

2. The Committee observes that under section 46, paragraph 3, of the law on the execution of sentences, as amended by Act No. 799/1993, prison labour may be the subject of contracts concluded between prisons and enterprises of the private sector; these may use prison labour in privately run workshops and workplaces both inside and outside prisons. The Committee has earlier had occasion to examine several such contracts for the hiring of prison labour to private enterprises, under which the prison authorities select the prisoners who are allotted to the private contractor, while the private contractor provides the tools, equipment and materials and in some cases pays part of the building costs, or rent, for workshops established inside prison premises and has at any time free access to these premises. The prisoners are being directed in their work by civilian employees of the contractor, who pays the prison authorities for the labour hired (plus a bonus to the prisoners as an incentive for performance and diligence). The products of the work, as well as the machines and equipment installed, remain the property of the contractor.

3. In the view of the Committee, this arrangement corresponds in all respects to what is meant by the terms "person ... hired to ... private individuals, companies or associations" in Article 2(2)(c) of the Convention. Referring in this regard to the explanations in paragraphs 96 123 of its General Report of last year and in points 6 and 7 of its general observation this year, the Committee further observes that the two conditions in Article 2(2)(c) for the use of compulsory prison labour are cumulative and apply independently: i.e. the fact that the prisoners remain at all times under the supervision and control of a public authority does not in itself absolve the Government from the requirement to fulfil the second condition, namely that the person is not hired to or placed at the disposal of private individuals, companies or associations.

4. Thus the work of prisoners for private enterprises is only compatible with the Convention where it does not involve compulsory labour. The Committee has always made it clear that in order to comply with the Convention, the work of prisoners for private companies requires the freely given consent of the workers concerned, without the menace of any penalty in the wide sense of Article 2, paragraph 1, of the Convention, such as loss of privileges.

5. Obligation to work and consent requirement. The Committee notes that prisoners’ obligation to work, as laid down in Article 44 of the Act on the execution of sentences, concerns any work to which they are assigned, and is enforceable with fines of up to Austrian S2,000 under section 107(1) No. 7, read together with section 109, No. 4 and section 113 of the Act on the execution of sentences, as amended by Act No. 799/1993. The prisoner’s consent is not required for work in private enterprise workshops on prison premises, but only for such work outside prison premises (section 126(3)), and there is a very limited choice between accepting such work and the obligation to perform any other work that can anyway be imposed on the prisoner. Moreover, under section 24 of the Act, a range of "privileges" such as decorating one’s room, drawing and painting or watching television depend on good behaviour, i.e. "cooperation with the educational purpose of the punishment".

6. Captive labour and arm’s length conditions of employment. As indicated by the Committee in point 10 of its general observation, in the context of a captive labour force which has no alternative access to the free labour market, "free" consent to a form of employment going prima facie against the letter of the Convention furthermore needs to be authenticated by arm’s length conditions of employment approximating a free labour relationship, such as the existence of a labour contract between the prisoner and the private company using his or her labour and free labour market oriented conditions regarding wage levels, social security and safety and health.

7. In applying these observations to the country circumstances, the Committee notes that:

(a) Under the Act on the execution of sentences, a prisoner has no labour contract with a private company using his or her labour inside or outside prison premises - nor with the prison authorities.

(b) According to the Government’s report, the planned extension of social security coverage to prisoners "regrettably continues to be prevented by lack of budgetary means".

(c) Prisoners’ gross remuneration, paid by the State (with the exception of limited incentive bonuses that may be paid by private contractors) is benchmarked at 60 per cent of the gross remuneration of an unskilled metal worker performing light work and may be increased by up to half as much again for qualified and heavy work (section 52(1) of the Act on the execution of sentences), but this amount is immediately reduced by three-quarters as a contribution to prison costs, and by unemployment insurance contributions (section 32(2) and 54(1)). As to the remainder, it is available for disciplinary fines (section 113), payments to dependents and to victims of the penal offence, payment of debts (section 54(a)), voluntary affiliation in the social security scheme (section 75(3)) and any attachments permitted under the attachment regulations (section 54(6)). It appears to the Committee that with a contribution for board and lodging taking away 75 per cent of a remuneration that is already fixed substantially lower than prevailing rates on the free market, the work income of a prisoner hired to a private enterprise is far from approximating market conditions, and may often not allow him or her to meet a range of legal commitments.

8. The Committee hopes that, over 40 years after ratifying the Convention, the Government will at last take the necessary measures to grant prisoners working for private enterprises a legal status with rights and conditions of employment that are compatible with this basic human rights instrument.

Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

Article 1, paragraph 1, and Article 2, paragraphs 1 and 2(c), of the Convention. Further to its previous comments on work done by prisoners and performed in workshops run by private enterprises inside the prisons, the Committee notes that the position of the Government remains unchanged and that the report repeats the statements by the Government already noted in its previous comments. The Committee notes that the envisaged inclusion of convicted prisoners in the statutory social insurance (sickness, accident and pension insurances) continues to be prevented by budgetary restrictions. It notes with interest that nevertheless remuneration for the work of convicted prisoners has been increased under the provisions of the Ordinance which came into effect on 1 January 1998.

The Committee noted in earlier comments made under the Convention, and in paragraph 98 of its 1979 General Survey on the abolition of forced labour, that the provisions of the Convention which prohibit convict labour from being hired to or placed at the disposal of private individuals, companies or associations are not limited to work outside the penitentiary establishments but apply equally to workshops which may be operated by private undertakings inside prisons (General Report, 1998, paragraph 117). Only when work is performed voluntarily by prisoners in conditions which guarantee payment of normal wages and social security, etc., can work by prisoners for private companies be held compatible with the explicit prohibition in Article 2(2)(c); this requires the formal consent of the person concerned. The Committee pointed out that a necessary part of consent is that there must be further guarantees and safeguards covering the essential elements of a free labour relationship (ibid., paragraph 125). The Committee asks the Government to communicate information on any development in the matter, especially as regards the envisaged inclusion of convicted prisoners in the statutory social insurance schemes (sickness, accident and pension insurance), and to send the text of the above-mentioned Ordinance.

Observation (CEACR) - adopted 1996, published 85th ILC session (1997)

The Committee notes the information provided by the Government in its reports received on 1 June 1994 and 23 August 1996.

Article 2, paragraph 2(c), of the Convention. In comments made for several years, the Committee has noted that some of the work done by prisoners was performed in workshops run by private undertakings inside the prisons under arrangements made with the prison authorities, who remain responsible for the supervision with regard to security, while the private employees of the private undertakings concerned direct the prisoners' work with the approval of the prison authorities.

The Committee pointed out that Article 2, paragraph 2(c), requires not merely that prison labour be carried out under the supervision and control of public authorities, but also prohibits a prisoner to be hired to or placed at the disposal of private companies, and that these provisions also apply to workshops run by private undertakings inside the prisons.

In its latest reports the Government, referring to its previous statements, reiterates its view that the conditions of employment of prisoners in so-called "private companies" do not run counter to Article 2, paragraph 2(c), of the Convention. In particular, in the view of the Austrian federal Government, only the performance of work for a commercial enterprise outside the institution (on day release) requires the consent of the prisoner concerned, while prisoners who perform work in workshops run by private undertakings inside the prisons are in no way at the disposal of the private entrepreneur, in the absence of any power of disposal on the part of the private entrepreneur over the prisoners. Therefore, the Government considers that there can be no question of such prisoners being "placed at the disposal" of the private entrepreneur within the meaning of Article 2, paragraph 2(c), and that this rules out the deciding factor requiring the consent of the prisoner. The Government adds that in practice, more prisoners are interested in working in private undertakings than there are such jobs available, as this kind of work not only provides the prisoners with a welcome change, but the bonuses paid by private entrepreneurs give them added motivation.

In respect of improvements in pay and social security for working prisoners, the Government reports that an amendment to the Penal Act of 1993 that came into effect on 1 January 1994 has brought a significant increase in working prisoners' pay, which is now up to two and a half times more than it was previously; prisoners have also been included in the unemployment insurance scheme. In the medium term, it is intended to include prisoners in the statutory social insurance schemes, especially as regards sickness and accident insurance. For budgetary reasons this plan cannot be immediately implemented.

The Committee takes due note of these indications. It must recall that Article 2, paragraph 2(c), of the Convention makes no distinction between work outside and inside the prison. Under Article 2, paragraph 2(c), of the Convention, work or service exacted from any person as a consequence of a conviction in a Court of Law is not exempted from the scope of the Convention unless a twofold condition is met, namely "that the said work or service is carried out under the supervision and control of a public authority and that the said person is not hired to or placed at the disposal of private individuals, companies or associations". Thus, the mere fact that the prisoner remains at all times under the supervision and control of a public authority does not in itself dispense with fulfilling the second condition, namely that the person is not "hired to or placed at the disposal of private individuals, companies or associations".

As regards the Government's view that a prisoner whose work is directed by private employees of a private enterprise with the approval of the prison authorities is not "placed at the disposal" of the entrepreneur since the latter has no legal "power of disposal", the Committee has pointed earlier that the provisions of Article 2, paragraph 2(c), are not limited to cases where a legal relationship would come into existence between the prisoner and the undertaking, but cover equally situations where no such legal relationship exists. Furthermore, it should be noted that the prohibition in Article 2, paragraph 2(c), of the Convention is not predicated on the sole concept of "placing at the disposal of" but specifically includes the "hiring to" private individuals, companies or associations. In the view of the Committee, a prisoner is typically "hired to" an undertaking where there is no contractual relationship between the two, while a contract exists between the undertaking and the penal institution under which the penal institution is paid the price of the labour it provides to the undertaking. Significantly, the amount paid to penal institutions under such contracts corresponds to the market value of the labour and bears no relation with the prisoner's own wage, paid by the penal institution.

While Article 2, paragraph 2(c), of the Convention strictly prohibits that prisoners be hired to or placed at the disposal of private undertakings, the Committee has accepted, for the reasons set out in paragraphs 97 to 101 of its General Survey of 1979 on the abolition of forced labour, that schemes existing in certain countries under which prisoners may, particularly during the period preceding their release, voluntarily enter a normal employment relationship with private employers, do not fall within the scope of the Convention. As the Committee has repeatedly pointed out, only work performed in conditions of a free employment relationship can be held compatible with the explicit prohibition in Article 2, paragraph 2(c); this necessarily requires the formal consent of the person concerned and, in the light of the circumstances of that consent, i.e. the basic obligation to perform prison labour and other restrictions on the prisoner's freedom to take up normal employment, there must be further guarantees and safeguards covering the essential elements of a labour relation, such as a level of wages and social security corresponding to a free labour relationship, to remove the employment from the scope of Article 2, paragraph 2(c), which unconditionally prohibits that persons who are under an obligation to perform prison labour be hired to or placed at the disposal of private companies.

The Committee notes with interest the improvements in prisoners' pay and their inclusion in the unemployment insurance scheme. It hopes that their planned inclusion in the statutory sickness and accident insurance scheme will soon be realized. In view of the explanations given above and the Government's indication regarding the prisoners' interest in working for private enterprises and improvements in their pay, the Committee also hopes that the basic conditions of a free employment relationship, i.e. consent of the worker, normal wages (subject to normal deductions and attachment) and full social security coverage will soon be extended to all prisoners working for private enterprises, and that the Government will report on provisions adopted to this end.

Observation (CEACR) - adopted 1994, published 81st ILC session (1994)

The Committee notes the information provided by the Government in its report. The Committee also notes the observations made by the Austrian Congress of Chambers of Labour on the application of the Convention.

Article 2, paragraph 2(c), of the Convention. In comments made for several years, the Committee has noted that some of the work done by prisoners was performed in workshops managed by private undertakings inside the prisons under arrangements made with the prison authorities, who place prison labour at the disposal of such undertakings and remain responsible for their supervision with regard to security, while the private employees of the undertaking concerned direct the prisoners' work with the approval of the prison authorities.

The Committee pointed out that Article 2, paragraph 2(c), of the Convention requires not merely that prison labour be carried out under the supervision and control of public authorities, but also prohibits a prisoner to be hired or placed at the disposal of private companies, and that these provisions also apply to workshops managed by private undertakings inside the prisons.

In its latest report the Government, referring to its previous statements, reiterates its view that the conditions for employment of prisoners in workshops or undertakings managed privately are not in contradiction with the Convention and that in particular consent of the prisoner concerned is required only for work outside the prison premises, this being provided for in the law concerning the execution of sentences.

The Committee must point out once more that Article 2, paragraph 2(c), of the Convention explicitly prohibits that persons from whom work is exacted as a consequence of a conviction in a court of law be placed at the disposal of private individuals, companies or associations. Only work performed in conditions of a free employment relationship can be held not to be incompatible with this prohibition; this necessarily requires the formal consent of the person concerned and, in the light of the circumstances of that consent, guarantees and safeguards in respect of wages and social security that are such as to justify the labour relationship being regarded as a free one.

In its previous report the Government indicated that a substantial increase in remuneration and the integration of prisoners in the unemployment scheme were among the declared aims of the Government. The Committee notes the Government's information in its latest report that in 1993 a Bill to amend the law concerning the execution of sentences was submitted to Parliament and provides for a substantial increase in the remuneration for prisoners and the integration of prisoners into the unemployment insurance. These changes should enhance prisoners' chances of social rehabilitation and thus reduce the statistically substantial risk of recidivism. The Government adds that the Bill is currently under consideration by a subcommittee of the Parliament's Committee of Justice and once adopted might enter into force in 1994. It is also planned to include prisoners into the statutory social security insurance but only during the next legislative period.

The Committee notes that the Congress of Chambers of Labour states in its observation that it concurs with the views expressed by the Committee. The Congress further observes that the necessary increase in remuneration and the inclusion in social security schemes are declared objectives of the Government, but have not yet been carried out.

The Committee hopes that the Government will soon be in a position to report on the adoption of the above-announced measures as well as on all arrangements made to ensure that the prisoner's formal consent is sought for work in workshops managed by private undertakings, including those inside prisons.

Observation (CEACR) - adopted 1992, published 79th ILC session (1992)

The Committee has taken note of the information supplied by the Government in its report.

Article 2, paragraph 2(c), of the Convention. In the comments it has been making for several years, the Committee has noted that some of the work done by prisoners is done in workshops managed by private undertakings inside the prisons under arrangements made with the prison authorities, who place prison labour at the disposal of such undertakings and remain responsible for their supervision from the security standpoint, while the private employees of the undertakings concerned may direct the detainees' work with the approval of the prison authorities.

The Committee has pointed out that Article 2, paragraph 2(c), of the Convention not merely requires that prison work should be carried out under the supervision and control of a public authority but also makes it unlawful for a prisoner to be hired to or placed at the disposal of private companies, and that these provisions also apply to workshops managed by private undertakings inside the prisons.

In its latest report the Government, referring to its previous comments, reiterates its opinion that prisoners working in workshops or undertakings managed by private individuals, companies or associations inside the prison are in no way subject to the private entrepreneur's power of disposal. According to the Government, the prisoners working in such workshops are subject solely to the power of disposal of the prison administration, like those working in workshops which belong to the penitentiary institution. The Government considers that, in the absence of any power of disposal, there can be no question of prisoners being "placed at disposal" within the meaning of Article 2, paragraph 2(c), of the Convention and that this, in its turn, precludes any need for the prisoner's consent, which would be a requirement only in the event that the prisoner was to be subjected to an authority other than that resulting from conviction in a court of law, namely the prison authority. That applies only to prisoners on parole who are called upon to perform work outside the penitentiary establishment for an undertaking which does not belong to that establishment; such prisoners can be assigned to such work only with their consent.

According to the Government, the fact that there is no contractual relationship between the undertaking and the prisoner illustrates that this is a special case of public employment and that the entrepreneur has no power of disposal.

The Committee takes due note of these indications. It is bound to point out that Article 2, paragraph 2(c), of the Convention explicitly prohibits that persons from whom work is exacted as a consequence of a conviction in a court of law be placed at the disposal of private individuals, companies or associations. Only work performed in the conditions of a free employment relationship can be held not to be incompatible with this prohibition; this necessarily requires the formal consent of the person concerned and, in the light of the circumstances of that consent, guarantees and safeguards in respect of wages and social security that are such as to justify the labour relationship being regarded as a free one.

In its previous report, the Government said that negotiations to bring prisoners into the social and unemployment insurance schemes were in progress and that a gradual increase in remuneration for all prisoners, within budgetary possibilities, was contemplated, together with an increase in the deferred pay credited to the prisoner's account in order to meet his needs during the period after his release.

The Committee notes the information given by the Government in its latest report to the effect that a substantial increase in remuneration and the integration of prisoners in the unemployment insurance scheme are among the aims declared by the Government for the present legislature. Negotiations on the subject between the ministries concerned have made progress, so that it is possible to envisage the realisation of these plans in the near future.

The Committee hopes that the Government will soon be in a position to report the adoption of these measures and of all arrangements made to ensure that the prisoners' formal consent is sought for work in workshops managed by private undertakings.

Observation (CEACR) - adopted 1990, published 77th ILC session (1990)

The Committee notes the information supplied by the Government in its report as well as the comments of the Austrian Congress of Chambers of Workers on the application of the Convention.

Article 2, paragraph 2(c), of the Convention. In comments made for a number of years, the Committee noted that some of the work done by prisoners was performed in workshops operated by private undertakings inside prisons under arrangement with the prison authorities, who place prison labour at the disposal of the private undertakings and remain responsible for their supervision with regard to security while private employees of the undertakings involved may direct the work of the prisoners with the approval of the prison authorities.

The Committee recalled that Article 2, paragraph 2(c), of the Convention not only requires prison work to be carried out under the supervision and control of a public authority but also prohibits the prisoner from being hired to or placed at the disposal of private companies, and that these provisions of the Convention apply also to workshops which may be operated by private undertakings inside prisons.

In its latest report, the Government reiterates its view that conditions of employment for prisoners in workshops operated by private undertakings must be distinguished from those of free workers in some essential respects: the prisoners concerned have no contractual relationship with the undertaking; the fact that the labour of certain prisoners is placed at the disposal of private undertakings and the consequent possibility that company employees in qualified positions may in given cases exercise advisory or directive functions in relation to the work process does not alter the fact that this is a special case of public employment and not a private employment relationship. Even in the few exceptional cases where persons belonging to the undertaking direct or advise the prisoners in their work (as a rule this is done by specially trained prison officials), the private company employees do not have in fact or in law authority to give orders to individual prisoners or to discipline them; such authority is reserved exclusively to prison officials.

The Committee takes due note of these indications. It must again point out that compulsory prison labour is exempted from the Convention under Article 2(2)(c) under a twofold condition: not only must the work be carried out under the supervision and control of a public authority, but also the persons concerned must not be hired to or placed at the disposal of private individuals, companies or associations. The latter condition is aimed at any arrangement between the State and a private company whereby prison labour is "placed at the disposal" of the private company. The absence of a labour contract between the company and persons concerned is in the nature of such arrangement, and cannot be invoked to justify the arrangement.

As the Committee pointed out in paragraphs 97 and 98 of its 1979 General Survey on the Abolition of Forced Labour, the use of the labour of convicted persons in workshops operated by private undertakings would fall outside the scope of the Convention only where it is based on conditions of employment comparable to those of free workers, namely, where it is subject to the consent of the prisoners concerned and to safeguards in respect of remuneration and social security.

The Committee also notes the comments made by the Austrian Congress of Chambers of Workers, which fully endorses the concerns expressed in the Committee's comments on the implementation of the Convention and shares the hope that progress will be achieved. The Congress refers again to its communication of 30.8.1988, where it explained that, given the employment situation in prisons, prisoners are likely to consent to working in a workshop run by a private undertaking but a decision made in these circumstances is not really a free one, and it is accordingly essential that working conditions be commensurate with generally accepted norms. The Congress of Chambers of Workers had noted that the extremely low wages of prisoners were determined by using a so-called "netto-system". Under this system deductions, in particular for food, clothing, accommodation and social security, are made from an assumed, equitable wage, as would also apply to a gross wage outside prison. These deductions are actually made from the assumed wage, but no contributions are paid into the social and unemployment insurance. The Congress of Chambers of Workers advocated that prisoners should be included in social and unemployment insurance schemes while serving their prison sentence, as a significant contribution to their social integration and rehabilitation after release, as well as to the observance of the Convention.

In its latest report, the Government states that remuneration under the "netto-system" corresponds to the particular employment conditions in prisons. Full remuneration of those prisoners employed in workshops operated by private undertakings would conflict with current regulations and with the principle of equal treatment of working prisoners. The Government however adds that negotiations with a view to including prisoners in unemployment and social insurance have been going on for some time, and that consideration is being given to gradually raising remuneration for all prisoners, according to budgetary possibilities, and also to raising the deferred pay which is placed into the prisoner's account to provide for his upkeep during the period following his release.

The Committee notes these indications. It hopes that the Government will soon be in a position to report progress in the implementation of these measures, as well as on any steps taken with a view to seeking prisoners' explicit consent to working in workshops operated by private undertakings.