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

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

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.