Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

Forced Labour Convention, 1930 (No. 29) - French Polynesia

The Committee notes the information supplied by the Government concerning work of general interest.

Article 2(2)(c) of the Convention. Prison labour hired to private enterprises. The Committee notes the information in the Government’s report concerning the number and nature of jobs offered to prisoners and levels of remuneration. According to this information, four prisoners are working on the packaging of headphones for a private airline. They are paid 18 CFP francs per item. The work is performed on the prison premises under the supervision of the prison staff. According to the Government, this work is chosen freely, since it is proposed only to prisoners who have expressly requested it. In addition, an ironing workshop operates on behalf of a rehabilitation association. Prisoners are paid 512.50 CFP francs per hour for an average of 12 hours per week. However, no prisoners work outside the prison premises for any private individual or association. The ten prisoners who work on an external site and, the Committee understands, in the public sector, are paid 2,500 CFP francs per day of work. A total of 83 prisoners also work in general service and 11 are hired out, making a total of 224 prisoners. The Committee notes the Government’s statement that since the demand for work greatly exceeds supply, the question of free consent in terms referred to by the Committee does not arise. It notes that the Government therefore is not contemplating any measure to improve guarantees of the free consent of prisoners. The Government also indicates that, for the same reason, there is no point in adopting measures that ensure that prisoners’ free consent to work for private associations is not conditioned by fear of being denied a reduction in their sentences. The Committee notes that, according to the Government, reductions in sentences are granted almost automatically provided that no disciplinary incidents occur and that they depend on various criteria connected with a clearly demonstrated wish to be rehabilitated, the request for work being only one of many elements which are subject to the discretion of the judge responsible for sentence enforcement.

The Committee has pointed out in previous General Surveys, including its most recent General Survey of 2007, paragraphs 59–60, that, provided convicted prisoners voluntarily consent to such work without being subjected to pressure or menace, such work does not fall within the scope of the Convention. At the same time, the Committee has indicated that, bearing in mind the captive circumstances of prisoners, there must be safeguards to ensure their consent is given freely and voluntarily. The Committee in paragraphs 114–122 of its General Survey of 2007 discussed the safeguards which include not only written formal consent but, further, that the most reliable indicator of voluntariness of the labour is if the work is performed under conditions which approximate a free labour relationship. Factors to be taken into account in such circumstances would include, for example, that there was a level of wages and social security provisions which approximate a free labour relationship.

(a) Free consent to work. In its direct request of 2002, the Committee noted the information supplied by the Government in its 2000 report indicating the optional nature of prison work. It noted that, in the light of the provisions applicable in metropolitan France (section D99(1) of the Code of Criminal Procedure as amended by Decree No. 98-1099 of 8 December 1998), this optional aspect was far from being reflected with the same clarity in the Code of Criminal Procedure applicable in French Polynesia (sections D.P. 98 and D.P. 99 based on Decree No. 95-300 of 17 March 1995). Indeed, the Committee notes that the wording of sections D.P. 98 and D.P. 99 appears to show that prison work is compulsory except for persons who have not been sentenced, debtors, prisoners following a course of education or vocational training, those medically certified as unfit to work and convicted prisoners subject to a special regime, i.e. prisoners convicted or being prosecuted for crimes or offences against state security (section D.P. 490). In addition, a reading, by negative inference, of section D.P. 493(2) of the Code of Criminal Procedure applicable in French Polynesia would appear to result in prisoners not subject to the special regime being forced to work. Moreover, the Committee notes that the second subparagraph of section 717-3 of the Code of Criminal Procedure (former section 720), which sets forth the principle of the voluntary nature of prison work, is expressly excluded in French Polynesia by section 804 of the Code of Criminal Procedure. Hence, despite the explanations provided by the Government in its reports, the Committee observes that the legislation applicable in French Polynesia does not contain any provision laying down the principle of the optional nature of prison work, as is the case in the French legislation applicable on metropolitan territory. The Committee therefore requests the Government to take steps to ensure that the voluntary nature of prison work is reflected in the legislation applicable on the territory of French Polynesia, as is the case in the legislation applicable on the territory of metropolitan France, so as to ensure the application of the provisions of the Convention.

(b) Conditions of work approximating to those of a free labour relationship. Employment contract. Remuneration. In its direct request of 2006 concerning the application of the Convention in metropolitan France, the Committee noted that, under section D102(2) of the Code of Criminal Procedure, the organization, methods and remuneration of work shall be as close as possible to those of external occupational activities with a view, inter alia, to preparing prisoners for normal conditions of free work. The Committee observes that these provisions are absent from the regulatory part of the Code of Criminal Procedure applicable in French Polynesia.

With regard to employment contracts, the Committee notes that, as in metropolitan France, the regulations governing prison work which are applicable in French Polynesia rule out the possibility of the existence of an employment contract. Under section D.P. 103(2) of the Code of Criminal Procedure applicable in French Polynesia, the labour relations between the prison administration and the prisoner for whom it provides work and also the relations between the hiring enterprise and the prisoner placed at its disposal according to the conditions of an administrative agreement fixing, in particular, the conditions of work and remuneration are not covered by an employment contract. The Committee notes that section D.P. 103(4) states that, for production activities, conditions of remuneration and employment are fixed by agreement, with reference to external conditions of employment, taking account of the specific features of production work in prisons. Section D.P. 103(6)(c) states that the agreement also contains the pay scale applicable according to the qualifications required for each job.

The Committee refers to its direct request of 2006 concerning the application of the Convention in metropolitan France. In its previous comments, the Committee hoped, in view of the positive information provided by the Government, that measures would be taken to offer prisoners working for a private enterprise an employment contract with the employing entity, whether it is the enterprise for which the work is performed or an entity forming part of the prison administration. The Government indicated in its 2004 report that the Plan for the Improvement of Labour and Employment Conditions (PACTE 2) set three objectives, including bringing the conditions under which prison work is performed closer to the conditions found in the outside world. The Committee also noted that the information report produced by Senator Paul Loridant in 2002 emphasized the need to introduce the rule of law and contracts into the employment relationship for prison work. The Committee also referred to the opinion issued by the Economic and Social Council in February 2006 on the conditions of social and occupational reintegration of prisoners in France and the report of the Court of Accounts entitled “Detention and reintegration: The management of prisons”, published in 2006. In the light of this information, the Committee requests the Government to supply information on the measures which are contemplated to follow up these initiatives on the territory of French Polynesia. It also requests it to send copies of the administrative agreements mentioned in section D.P. 103(1), (2), (4) and (6) of the Code of Criminal Procedure applicable in French Polynesia.

As regards levels of remuneration, apart from the abovementioned provisions, the Committee notes that section D.P. 103(5) of the Code of Criminal Procedure applicable in French Polynesia stipulates at all events that the hourly rate of pay shall not be below a threshold fixed annually by order of the High Commissioner of the Republic. The Committee requests the Government to send a copy of the latest order issued by the High Commissioner of the Republic.

Moreover, the Committee notes that, under section D.P. 103-1 of the Code of Criminal Procedure applicable in French Polynesia, prisoners employed outside prison premises can benefit from all measures designed to facilitate access to employment for free workers and that, in general terms, the provisions of labour regulations are applicable to them.

Under section D.P. 104 of the Code of Criminal Procedure applicable in French Polynesia, the hire of labour inside prisons is governed by the general terms and conditions laid down by the High Commissioner of the Republic. The Committee requests the Government to supply a copy of the text containing these general terms and conditions.

The Committee also notes the other regulatory provisions applicable to prison labour in French Polynesia. It notes that section D.P. 108(1) of the Code of Criminal Procedure applicable in French Polynesia states that daily and weekly hours of work, determined by the internal regulations of the establishment, must be comparable to the hours applicable in the territory or in the type of activity in question and under no circumstances must they be longer. Section D.P. 108(2) states that observance of the weekly period of rest and of holidays must be ensured, and work schedules must lay down the time required for rest, meals, exercise and educational and leisure activities. Under the terms of section D.P. 109 of the Code of Criminal Procedure applicable in French Polynesia, the legislative and regulatory provisions in force locally concerning the health and safety of workers are applicable in prisons. Finally, under section D.P. 110 of the Code of Criminal Procedure applicable in French Polynesia, the right to compensation for industrial accidents and occupational diseases applies to prisoners performing work.

The Committee requests the Government to continue supplying information concerning the number of prisoners who work for private associations, the nature of the work performed, the private enterprises and other private associations concerned, and the hourly or monthly remuneration of the persons concerned.