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

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Previous comment

Article 2(2)(c) of the Convention. Prison labour hired to private enterprises. Referring to its previous comments, the Committee notes the detailed information provided by the Government on labour carried out by convicted persons in the form of general service work or labour hired to private enterprises. It notes, in particular, the information on the procedures for detainees to access employment in the framework of hired labour (request for work, waiting list, signing of a deed of commitment). The Government reiterates that prison labour is of an entirely voluntary nature and that there is still more demand than there are jobs available. The Committee takes due note of this information. It requests the Government to continue to provide information on the measures taken to further align the working conditions of detainees working as hired labour with those of free workers, particularly with regards to the wage level.

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Article 2(2)(c) of the Convention. Prison labour hired to private enterprises. The Committee previously noted that under section 717-3 of the Code of Criminal Procedure, applicable in French Polynesia under Decree No. 2009-537 of 14 May 2009, prison work is voluntary. It noted, however, that sections D.P. 98 and D.P. 99 of the Code of Criminal Procedure, applicable in French Polynesia, based on Decree No. 95-300 of 17 March 1995, seem to imply that prison work is compulsory and therefore requested the Government to indicate the measures taken to ensure that the voluntary nature of prison work is unequivocally reflected in the legislation applicable on the territory of French Polynesia. It also noted that the Prison Act adopted in 2009, which is applicable to French Polynesia subject to certain adjustments, provides that the participation of prisoners in occupational activities organized in prisons is governed by a tender document drafted by the prison administration, and that under Decree No. 2011-1576 of 17 November 2011, the level of remuneration is established at 45 per cent of the minimum wage for productive activities. The Committee therefore requested the Government to provide information on the measures taken to continue to ensure that the conditions of work of detainees working for private entities approximate those of a free working relationship.

The Government indicates in its report that, in the Tatutu de Papeari and Faa’a-Nuutania detention centres on Tahiti Island, prison labour, namely work carried out by detainees for private entities, is based on the principle of voluntariness. The Government indicates that Tatutu de Papeari prison is currently working in cooperation with four private legal entities, which employ a total of 23 prisoners. The activities included are the wiring of electric meters, sewing and packaging of food. Remuneration is paid per item, depending on the time required to complete the task and the complexity of the operations carried out. In Faa’a Nuutania prison, prison labour involves the packaging of headphones and ironing. The Committee further notes that, according to the “Opinion on the Penitentiary Issue in Overseas Territories” of the National Consultative Commission for Human Rights of 18 May 2017, the number of full-time equivalent prison jobs in the Faa’a-Nuutania prison stands at 22.1, and for the general service it is 84.5.

The Committee recalls that, to be compatible with the Convention, prisoners working for private enterprises must have given their formal consent to this work and a certain number of safeguards must be in place to ensure that this work is carried out in conditions which approximate a free labour relationship. The Committee therefore requests the Government to take the necessary measures to amend the legislation to ensure that any work carried out by prisoners for private enterprises is entirely voluntary, in order to align legislation with the Convention and practice mentioned. It requests the Government to keep it abreast of any amendments to the provisions applicable to prison work in the French Polynesia territory. The Committee also requests the Government to provide information on the number of prisoners working for private enterprises, the nature of the work carried out and the hourly rates of pay, in all detention centres in French Polynesia.

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The Committee notes with regret that the Government’s report has not been received. It hopes that the next report will contain full information on the matters raised in its previous comments initially made in 2014.

Repetition

Article 2(2)(c) of the Convention. Prison labour hired to private enterprises. In its previous comments, the Committee recalled that, to be compatible with the Convention, prisoners’ work for private enterprises must be carried out under conditions that approximate those of a free working relationship, implying the full and informed consent of the prisoner and a certain number of safeguards ensuring that this work is carried out in conditions which approximate a free labour relationship. It requested the Government to provide information on the voluntary nature of prison work and on their level of remuneration. The Committee notes that the Government has transmitted the report prepared by the Government of French Polynesia and that the latter indicates that the issues raised by the Committee of Experts are of the competence of the State and not of the Government of the French Polynesia. The Committee expresses the firm hope that the Government will not fail to provide a report containing information on the following points, as it has committed itself in declaring the Convention applicable to the territory French Polynesia.

(a) Free consent to work. The Committee notes that section 717-3 of the Code of Criminal Procedure, which contains the principle of voluntariness of prison work, was made applicable in French Polynesia under section 3 of Decree No. 2009 537 of 14 May 2009. However, sections D.P. 98 and D.P. 99 of the Code of Criminal Procedure applicable in French Polynesia, based on Decree No. 95-300 of 17 March 1995, seem to imply 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 (this is confirmed by a reading a contrario of section D.P. 493, clause 2). The Committee requests the Government to indicate the measures taken to ensure that the voluntary nature of prison work is unequivocally reflected in the legislation applicable on the territory of French Polynesia.

(b) Conditions of work approximating those of a free labour relationship. The Committee previously noted that the Prison Act adopted in 2009, which is applicable to French Polynesia subject to certain adjustments (section 99), provides that the participation of prisoners in occupational activities organized in prisons is governed by a tender document drafted by the prison administration, and that the prisoners’ remuneration may not be lower than a rate fixed by decree and indexed according to the minimum wage established locally by the competent authorities of French Polynesia.

The Committee notes the adoption of Decree No. 2011-1576 of 17 November 2011 modifying the Code of Criminal Procedure applicable in French Polynesia in relation to the remuneration applicable to work performed by prisoners. It notes that the level of remuneration is established at 45 per cent of the minimum wage for productive activities and this level varies from 33 to 20 per cent of the minimum wage for general service work. The Committee requests the Government to provide information on the number of prisoners working for private enterprises, the nature of the work carried out and the hourly rates of pay. Please also indicate the measures taken to continue to ensure that the conditions of work of detainees working for private entities approximate those of a free working relationship.

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The Committee notes that the Government’s report has not been received. It hopes that the next report will contain full information on the matters raised in its previous comments initially made in 2014.

Repetition

Article 2(2)(c) of the Convention. Prison labour hired to private enterprises. In its previous comments, the Committee recalled that, to be compatible with the Convention, prisoners’ work for private enterprises must be carried out under conditions that approximate those of a free working relationship, implying the full and informed consent of the prisoner and a certain number of safeguards ensuring that this work is carried out in conditions which approximate a free labour relationship. It requested the Government to provide information on the voluntary nature of prison work and on their level of remuneration. The Committee notes that the Government has transmitted the report prepared by the Government of French Polynesia and that the latter indicates that the issues raised by the Committee of Experts are of the competence of the State and not of the Government of the French Polynesia. The Committee expresses the firm hope that the Government will not fail to provide a report containing information on the following points, as it has committed itself in declaring the Convention applicable to the territory French Polynesia.

(a) Free consent to work. The Committee notes that section 717-3 of the Code of Criminal Procedure, which contains the principle of voluntariness of prison work, was made applicable in French Polynesia under section 3 of Decree No. 2009 537 of 14 May 2009. However, sections D.P. 98 and D.P. 99 of the Code of Criminal Procedure applicable in French Polynesia, based on Decree No. 95-300 of 17 March 1995, seem to imply 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 (this is confirmed by a reading a contrario of section D.P. 493, clause 2). The Committee requests the Government to indicate the measures taken to ensure that the voluntary nature of prison work is unequivocally reflected in the legislation applicable on the territory of French Polynesia.

(b) Conditions of work approximating those of a free labour relationship. The Committee previously noted that the Prison Act adopted in 2009, which is applicable to French Polynesia subject to certain adjustments (section 99), provides that the participation of prisoners in occupational activities organized in prisons is governed by a tender document drafted by the prison administration, and that the prisoners’ remuneration may not be lower than a rate fixed by decree and indexed according to the minimum wage established locally by the competent authorities of French Polynesia.

The Committee notes the adoption of Decree No. 2011-1576 of 17 November 2011 modifying the Code of Criminal Procedure applicable in French Polynesia in relation to the remuneration applicable to work performed by prisoners. It notes that the level of remuneration is established at 45 per cent of the minimum wage for productive activities and this level varies from 33 to 20 per cent of the minimum wage for general service work. The Committee requests the Government to provide information on the number of prisoners working for private enterprises, the nature of the work carried out and the hourly rates of pay. Please also indicate the measures taken to continue to ensure that the conditions of work of detainees working for private entities approximate those of a free working relationship.

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Article 2(2)(c) of the Convention. Prison labour hired to private enterprises. In its previous comments, the Committee recalled that, to be compatible with the Convention, prisoners’ work for private enterprises must be carried out under conditions that approximate those of a free working relationship, implying the full and informed consent of the prisoner and a certain number of safeguards ensuring that this work is carried out in conditions which approximate a free labour relationship. It requested the Government to provide information on the voluntary nature of prison work and on their level of remuneration. The Committee notes that the Government has transmitted the report prepared by the Government of French Polynesia and that the latter indicates that the issues raised by the Committee of Experts are of the competence of the State and not of the Government of the French Polynesia. The Committee expresses the firm hope that the Government will not fail to provide a report containing information on the following points, as it has committed itself in declaring the Convention applicable to the territory French Polynesia.

(a) Free consent to work. The Committee notes that section 717-3 of the Code of Criminal Procedure, which contains the principle of voluntariness of prison work, was made applicable in French Polynesia under section 3 of Decree No. 2009-537 of 14 May 2009. However, sections D.P. 98 and D.P. 99 of the Code of Criminal Procedure applicable in French Polynesia, based on Decree No. 95-300 of 17 March 1995, seem to imply 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 (this is confirmed by a reading a contrario of section D.P. 493, clause 2). The Committee requests the Government to indicate the measures taken to ensure that the voluntary nature of prison work is unequivocally reflected in the legislation applicable on the territory of French Polynesia.

(b) Conditions of work approximating those of a free labour relationship. The Committee previously noted that the Prison Act adopted in 2009, which is applicable to French Polynesia subject to certain adjustments (section 99), provides that the participation of prisoners in occupational activities organized in prisons is governed by a tender document drafted by the prison administration, and that the prisoners’ remuneration may not be lower than a rate fixed by decree and indexed according to the minimum wage established locally by the competent authorities of French Polynesia.

The Committee notes the adoption of Decree No. 2011-1576 of 17 November 2011 modifying the Code of Criminal Procedure applicable in French Polynesia in relation to the remuneration applicable to work performed by prisoners. It notes that the level of remuneration is established at 45 per cent of the minimum wage for productive activities and this level varies from 33 to 20 per cent of the minimum wage for general service work. The Committee requests the Government to provide information on the number of prisoners working for private enterprises, the nature of the work carried out and the hourly rates of pay. Please also indicate the measures taken to continue to ensure that the conditions of work of detainees working for private entities approximate those of a free working relationship.

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Article 2(2)(c) of the Convention. Prison labour hired to private enterprises. The Committee previously recalled that, to be compatible with the Convention, prisoners’ work for private enterprises must be carried out under conditions that are similar to those of a free working relationship, implying the consent of the prisoner and a certain number of safeguards ensuring that this work is carried out in conditions which approximate a free labour relationship.

a) Free consent to work. The Committee notes that section 717-3 of the Code of Criminal Procedure, which contains the principle of voluntariness of prison work, was made applicable in French Polynesia under section 3 of Decree No. 2009-537 of 14 May 2009. However, sections D.P. 98 and D.P. 99 of the Code of Criminal Procedure applicable in French Polynesia, based on Decree No. 95-300 of 17 March 1995, seem to imply 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 (this is confirmed by a reading a contrario of section D.P. 493, clause 2).

The Government previously indicated that any amendment to the regulations on prison work was a matter for the State, and that French Polynesia would ask the State to envisage bringing the regulations in force in French Polynesia into line with those of metropolitan France with respect to prison work. The Committee requests the Government to indicate the measures taken to ensure that the voluntary nature of prison work is unequivocally reflected in the legislation applicable on the territory of French Polynesia.

b) Conditions of work approximating those of a free labour relationship. The Committee had noted that in metropolitan France, under section D102, paragraph 2, of the Code of Criminal Procedure, the organization, methods and remuneration of work should be as close as possible to those of external occupational activities with a view to preparing prisoners for normal conditions of free work. The Committee had noted that these provisions were absent from the regulatory part of the Code of Criminal Procedure applicable in French Polynesia.

The Committee notes that, according to the Government, no text has been adopted by the High Commissioner of the Republic under section D.P. 104 of the Code of Criminal Procedure to establish the clauses and general working conditions for work being contracted out inside prisons. Furthermore, the Committee notes the adoption, on 13 October 2009, of the new Prison Act which, subject to certain adjustments, is applicable to French Polynesia (section 99). The Committee notes that, according to section 33, the participation of prisoners in occupational activities organized in prisons is governed by a tender document drafted by the prison administration, and that the prisoners’ remuneration may not be lower than a rate fixed by decree and indexed according to the minimum wage established locally by the competent authorities of French Polynesia (section 57). The Committee requests the Government to specify if, on the one hand, the High Commissioner of the Republic has established general terms and conditions of work contracted out inside prison establishments and, if on the other hand, the decree establishing the hourly pay rates of prisoners has been adopted; if so, the Government is requested to send a copy of the relevant texts. It is also asked to continue sending information on the number of prisoners working for private enterprises, the nature of the work carried out and the hourly pay rates.

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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.

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In its previous direct request, the Committee asked the Government to indicate the texts currently governing prison labour in French Polynesia. The Committee notes the information supplied by the Government to the effect that the applicable text is the Decree of 17 March 1995 (95-300) on performance procedures applicable in French Polynesia.

Article 2, paragraph 2(c), of the Convention. Prison labour and work in the general interest. The Committee notes that, according to the Government’s report, a detailed response to the questions on prison labour and work in the general interest raised in the Committee’s previous direct request is being prepared with the various partners concerned. The Committee hopes that this information will be provided with the Government’s next report.

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The Committee notes the last two reports submitted by the Government. In the first place, it wishes to come back to the issue of prison labour with a view to requesting clarifications from the Government on the applicable laws and regulations, and on certain aspects of prison labour for private associations. In the second place, the Committee wishes to be provided with details on another type of work to which detainees may be convicted, namely work of general interest referred to by the Government in its report of June 2000.

Article 1, paragraph 1, and Article 2, paragraph 2(c) of the Convention.  Prison Labour. The laws and regulations applicable. The Committee notes that in the past the Government has indicated that the competence of the territory of French Polynesia in relation to the regulation of prison labour has been transferred to the State by virtue of Act No. 94-499 of 21 June 1994, which makes penal procedure a State competence. The Committee also notes that in its previous comments it requested the Government to indicate the text implementing this Act.

The Committee notes that work by detainees is governed by the third part (decrees) of the Code of Criminal Procedure. In this respect, the Committee takes due note of the Government’s statement in its report of June 2000, that the relevant provisions in this respect have been reproduced with a view to their application in the overseas territories, in Decree No. 84-577 of 6 July 1984, applying the third part of the Code of Criminal Procedure in the overseas territories.

However, the Committee notes that there exists Decree No. 95-300 of 17 March 1995 amending the Code of Criminal Procedure (third part: decrees) applicable in the overseas territories and establishing implementing procedures in French Polynesia. This Decree, of which the introductory provisions refer to Decree No. 84-577, issues detailed regulations respecting work by detainees.

The Committee also notes Decree No. 98-1099 of 8 December 1998 amending the Code of Criminal Procedure (third part: decrees) respecting the organization and functioning of prison establishments. This text amends, among others, the provisions of the Code of Criminal Procedure respecting the rules for detention and work by detainees. The Committee also notes that this text refers explicitly, in its introductory provisions, to Act No. 94-499 transferring the competence of the territory of French Polynesia in respect of penal procedure to the State. However, the Committee notes that this Decree does not contain any explicit mention of its application in the territory of French Polynesia and, in this respect, contains no reference to Decree No. 95-300, nor to Decree No. 84-577.

The Committee therefore requests the Government to indicate which, of Decree No. 95-300 or Decree No. 98-1099, currently governs work by detainees on the territory of French Polynesia. If it is Decree No. 98-1099, the Committee requests the Government to indicate whether it repeals in whole or in part Decree No. 95-300 and, if it repeals the latter Decree in part, which provisions have been repealed. In the case that the provisions of Decree No. 98-1099 have been taken up in another text for their application in the territory of French Polynesia, the Committee requests the Government to provide a copy of the text in question.

While awaiting these clarifications, the Committee considers that it would already be useful to address certain aspects of a matter of substance which arises irrespective of the decree that is applicable, namely the issue of the employment of prisoners for private associations.

Prisoners working for private associations. The Committee recalls that, under the terms of Article 2, paragraph 2(c), prison labour is excluded from the scope of the Convention under the following conditions: (a) the work or service is a consequence of a conviction in a court of law; (b)  such work or service must be carried out under the supervision and control of a public authority; (c) the person must not be placed at the disposal of private individuals, companies or associations. With regard to this latter aspect, the Committee recalls that to be compatible with the Convention, work by prisoners for private associations must, firstly, be subject to the consent of the persons concerned given freely prior to any employment and free of the menace of any penalty and, secondly, such free consent must be corroborated by conditions of work (particularly in terms of wages and social security) approximating those of a free employment relationship.

The Committee recalls that under the terms of the two Decrees (section D.P. 103 in the case of the Decree of 1995 and D.103 for the Decree of 1998), work in prisons is performed principally under one of the three following systems: general service work (intended to carry out the various services and tasks required for the operation of the prison); the hiring of prison labour; and work under an agreement concluded between the prison administration and the national service responsible for work in penitentiaries. Furthermore, the Committee notes that convicts may be employed outside the prison under the supervision of prison personnel (section D.P. 126 et seq.in the case of the Decree of 1995 and section D.126 et seq. for the Decree of 1998). In this context, the Committee notes that work may be performed on the account, among others, "of an individual or an association". Finally, the Committee notes that "detainees may be authorized ..." to work on the account of "associations established with a view to preparing their social and vocational reintegration" (section D.P. 102 in the case of the Decree of 1995 and D. 101 for the Decree of 1998).

The Committee also notes the following information contained in the Government’s report of June 2000 and its reply to the general observation of 1998. Firstly, the hiring of prison labour within prisons has "concerned three individuals and came to an end in January 2000". Secondly, there are no prisons managed by private enterprises on the territory of French Polynesia. Finally, detainees who work outside the prison are employed by a municipal authority. The Committee also notes the Government’s general indication that prison labour, whether it is carried out within the prison or outside it, is optional for the detainee.

Free consent. In its observation of 2001 on the application of the Convention in Metropolitan France, the Committee noted that since the adoption of the Act of 22 June 1987 convicted persons are no longer in principle compelled to work. The Committee referred in this respect to section D.99(1) of the Code of Criminal Procedure as amended by Decree No. 98-1099. In the view of the Committee, and in the light of sections D.P. 98 and D.P. 99 of Decree No. 95-300, this principle is far from being reflected as clearly in the latter Decree. If this Decree is the applicable text, and while noting that according to the Government’s report the cases of work by prisoners for private associations are very limited in their numbers, the Committee requests the Government to indicate: (a) the manner in which in practice the free consent of prisoners is ensured for any work performed for the benefit of private associations or private persons, both within and outside the prison; and (b)  whether measures are envisaged to ensure that free consent is more clearly required by the applicable law and regulations on the territory of French Polynesia. In this respect, the Committee would be grateful if the Government would indicate whether progress has been achieved with a view to ensuring that an employment contract is concluded for all detainees working for a private enterprise in the context of the planned reforms of the prison administration, which were noted by the Committee in its direct request of 2001 concerning the application of the Convention in Metropolitan France.

Furthermore, the Committee wishes to refer to the comments that it made on sections 720(1) and 721(1) of the Code of Criminal Procedure in its direct request of 2001 on the application of the Convention in Metropolitan France. Under the terms of these two sections, which are also applicable on the territory of French Polynesia, a reduction of the sentence may depend on the work performed. As the Committee recalled on that occasion, the "menace of any penalty" referred to in the definition of forced labour contained in Article 2, paragraph 1, of the Convention does not necessarily have to take the form of a penal sanction. It may also consist of the loss of rights or privileges. The Committee emphasized on that occasion that the above provisions of the Code of Criminal Procedure call into question the principle of the consent of the prisoner being freely given in the case of work for private associations. The Committee therefore requests the Government to indicate whether measures have been taken to ensure that prisoners can give their consent freely to work for private associations without fear of being denied a reduction in their sentence.

Finally, the Committee requests the Government to provide practical information on the conditions under which a prisoner may request authorization to work for associations with a view to preparing her or his reintegration, and information on the associations concerned.

Conditions of employment approximating those of a free employment relationship. With regard to the conditions of employment, and more particularly of the remuneration of detainees, the Committee notes the general indication by the Government that such remuneration corresponds to the guaranteed inter-occupational minimum wage. The Committee also notes that the two Decrees Nos. 98-1099 and 95-300 provide that, aside from the deductions made by the prison, social contributions for health, maternity and old-age insurance are deducted at source. The Committee however requests the Government to indicate for each system of work, both outside and inside the prison: (a) the rate of remuneration applicable, compared to that applicable to free workers performing similar work; and (b) the level of net remuneration of detainees before any deductions made under the rules of the prison system.

Finally, with regard to the health and safety conditions in force for work by detainees, the Committee wishes to refer to its observation of 2001 on the application of the Convention in Metropolitan France. The Committee had noted with interest that, following its previous comments on this matter, Decree No. 98-1099 had amended section D. 109 of the Code of Criminal Procedure, thereby making applicable to work performed by detainees "the safety and health measures provided for by the Labour Code ...". If Decree No. 98-1099 governs prison labour on the territory of French Polynesia, the Committee requests the Government to provide information on the implementation of the above measures in the territory, and in particular on the intervention of the labour inspection services in this respect. If this is not the case and if Decree No. 95-300 is applicable, the Committee requests the Government to indicate the measures which have been taken or are envisaged to guarantee for detainees on the territory of French Polynesia occupational and health measures comparable to detainees in Metropolitan France. The Committee also requests the Government to provide information on the supervision of compliance with these measures.

Article 1, paragraph 1, and Article 2, paragraph 2(c) of the Convention. Work of general interest. The Committee notes, that according to the Government’s report of June 2000, work of general interest may be applied optionally to detainees in the territory of French Polynesia. Under the terms of the relevant provisions of the new Penal Code declared applicable to the territory of French Polynesia, the Committee notes that work of general interest is envisaged in the following cases:

(a)  Work of general interest imposed as a correctional penalty and as an alternative to imprisonment (sections 131-3, 131-8 and 131-9 of the new Penal Code) for offences punishable by a sentence of imprisonment; the Committee notes in this respect that, by virtue of section 131-4 of the new Penal Code, the scale of prison sentences is between six months and a maximum of ten years.

(b)  A suspended sentence conditional upon proof of good conduct and involving the obligation to perform work of general interest (sections 132-54 et seq. of the new Penal Code) applicable in the context of a conviction to a penalty of imprisonment of up to five years for a common law crime or offence (section 132-40 and 41); the Committee also notes the particular case of section 132-57, under which the jurisdiction has imposed "in the absence of the person charged" a sentence to imprisonment for up to six months and which cannot be appealed by the convicted person. In this specific case, the jurisdiction may impose a suspended sentence combined with the obligation to perform work of general interest.

The Committee notes that in all cases, work of general interest is defined as unpaid work (although section 132-54 is not explicit on this point) for a public association or an association. The Committee also notes that the duration of such work is between 40 and 240 hours and that, by virtue of section 131-22, the jurisdiction imposing the sentence of work of general interest is responsible for determining the period within which such work must be performed. Furthermore, the conditions for the execution of the obligation to perform work of general interest are decided upon by the sentencing judge (section 131-22) and the convicted person has to comply with certain supervisory measures (section 132-55). The Committee notes that, under the terms of section 131-23, the work of general interest is subject to the laws and regulations applicable with regard to night work, safety and health, and work by women and young persons. Finally, the Committee notes that it is clear from sections 131-8 and 132-54 that a sentence to perform work of general interest or a suspended sentence combined with the obligation to perform work of general interest cannot be imposed in the event of the refusal of the person concerned or in her or his absence from the hearing. However, no reference is made to the need for such consent in the particular case covered by section 132-57.

The Committee recalls that Article 2, paragraph 2(c), of the Convention excludes from its scope "... any work or service exacted from any person as a consequence of a conviction in a court of law, provided 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". Under the terms of the above sections of the new Penal Code, work of general interest is work required of a person by virtue of a conviction in a court of law. In order to establish that it does not constitute forced or compulsory labour, in accordance with Article 2, paragraph 2(c), the Committee has to ascertain that such work fulfils the two conditions laid down by this provision. In the view of the Committee, certain of the principles that it has recalled with regard to prison labour are also applicable to work of general interest. This is the case, firstly, of the cumulative nature of the two conditions laid down by the above provision: the fact that an individual remains constantly under the supervision and control of a public authority does not in itself dispense the Government from abiding by the second condition, namely that the person is not hired to or placed at the disposal of, among others, private associations, and vice versa. Furthermore, as indicated above, the Committee recalls that in order to be compatible with the Convention, work resulting from a conviction in a court of law which is performed for the benefit of a private association must be conditional upon the consent of the persons concerned freely given prior to any employment and without the menace of any penalty. Finally, as the Committee indicated in paragraph 125 of its General Report to the 89th Session of the ILC, the term "associations" in the Convention "would also cover non-profit-making associations".

Supervision and control of a public authority. In the light of the above provisions of the new Labour Code, the Committee notes that the public authorities intervene at several stages in the performance of work of general interest. However, the Committee requests the Government to indicate the public law associations for which a convict may perform work of general interest, over and above public communities. With regard to the performance of work of general interest for the benefit of an association, the Committee also requests the Government to indicate: (a) the precise conditions for the performance of work of general interest which are determined by the sentencing judge; (b) whether the association for which the convicted person will work intervenes in the determination of such conditions and on which elements it would intervene; (c) in what form the conditions are notified to the association; (d) whether, during the performance of the work, the sentencing judge supervises compliance with these conditions and how frequently; and (e) whether it is the responsibility of the sentencing judge to determine whether the work of general interest has duly been accomplished.

The Committee also notes that there is a procedure for the approval of the associations concerned. The Committee requests the Government to provide information on: (a) this approval procedure, and in particular the selected criteria for approval; and (b) the duration of such approval. The Committee also requests the Government to indicate whether verifications of compliance with any criteria for approval are carried out by the public authorities.

Finally, the Committee would be grateful if the Government would indicate whether the performance of work of general interest for a public law association, in addition to the role played by the sentencing judge in all circumstances, is carried out under the same conditions as for an association.

Work for the benefit of an association and free consent. The Committee notes that the consent of the prisoner is explicitly required in at least two cases. In the view of the Committee, one of the determining factors in the person concerned giving such consent could be the duration of the work of general interest to be performed instead of the sentence of imprisonment. The Committee requests the Government in this respect to indicate whether a specific duration of work of general interest is determined for each sentence of imprisonment by the implementing texts or whether it is left to the discretion of the competent jurisdiction. Furthermore, the Committee would be grateful if the Government would provide indications on the conditions under which a convicted person gives consent to perform work of general interest. The Committee therefore requests the Government to indicate: (a) whether, when the question is posed to the convicted person by the competent jurisdiction, she or he is informed of the duration of the sentence of imprisonment and of the work of general interest; (b) whether prior explanations are provided to the convicted person concerning the conditions for the performance of work of general interest, and particularly the nature of the work which may be performed and the entity for which it is to be carried out; and (c) whether the convicted person is granted a period of reflection to make the choice. With regard to the case covered by section 132-57 of the new Penal Code, the Committee requests the Government to indicate whether the consent of the convicted person is necessary and the conditions in which it is obtained.

Furthermore, the Committee requests the Government to provide the following practical information: (a) the number of cases of conviction to sentences of work of general interest (including cases in which proof of good conduct is required, combined with the obligation to perform work of general interest); (b) the sentences of imprisonment for which work of general interest is offered most frequently as an alternative; and (c) the nature and duration of the work performed. Finally, in general terms, the Committee requests the Government to provide any implementing text developing the above provisions of the new Penal Code on the territory of French Polynesia, and copies of judicial decisions imposing sentences of work of general interest.

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Article 1, paragraph 1, and Article 2, paragraphs 1 and 2(c), of the Convention. Further to its previous comments, the Committee recalls the Government's statement in 1995 to the effect that prison regulations would be amended and that implementing decrees were in the process of being drawn up. The Government also indicated that there was no hiring out of prison labour. The Committee notes that the last report contains no new information on this point, and requests the Government to provide up-to-date information with its next report on the application of the Convention.

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The Committee notes with regret that no report has been received from the Government. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the following matters raised in its previous direct request:

Article 2, paragraph 2(c), of the Convention. In its previous comments the Committee referred to the provisions of the annex to Decision No. 88-193 AT of 8 December 1988 to regulate the penitentiary system in French Polynesia, the Committee asks the Government to supply information on the following matters:

(a) The Committee noted that persons sentenced to imprisonment for acts which constitute crimes or common law offences may ask to be provided with work (section RP 98). The Committee also noted that the necessary arrangements must be made to provide prisoners with work which is productive and sufficient to occupy them for a normal working day; that the organization and methods of work and their remuneration must approximate as far as possible those of occupational activities outside the prison in order, in particular, to prepare prisoners for the normal conditions of free work; that prisoners performing prison labour are entitled to compensation for occupational accidents and illness (sections RP 101, 102 and 110).

(b) The Committee noted the provisions of the annex respecting forms and conditions of work (sections RP 102 to 110). It observed that work inside the prison may be performed either directly for the prison authorities or employers hiring prison labour. The Committee asks again the Government with its next report to provide the clauses and general conditions governing the hiring of prison labour on prison premises and the remuneration rates which are brought to the attention of detainees (sections RP 103, 104 and 106).

(c) The Committee noted that prisoners may also be employed outside the prison for other administrations or public communities or even for individuals, in which case they are placed under the responsibility and supervision of one or several agents of the employer who have the administration's approval (sections RP 103 and 127).

The Commmittee noted the provisions governing labour outside the prison (sections RP 127 to 135). It noted in particular that the opening of any worksite, using prison labour, for longer than two months is subject to the consent of the President of the Government; that prisoners may be employed by individuals, in which case they are placed under the responsibility and supervision of agents of the employer; that detainees may be placed at the disposal of employers or in an apprenticeship, in which case the employer is responsible for guarding them. The Committee noted that under section RP 134 the remuneration of prison labour must, as far as possible, be equal to the wages and benefits of free workers of the same category employed under the same conditions in respect of tasks and workplaces, minus specific charges borne by the employer.

The Committee again asks the Government or provide a copy of the Decision of the Territorial Assembly establishing the rate of remuneration of hired-out prison labour, in accordance with section RP 134(3), together with indications of the current corresponding wages of free workers.

(d) The Committee also again asks the Government to indicate whether prisoners give their general consent for any jobs they may be called upon to perform or whether, for work outside the prison, their consent is required for each assignment.

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The Committee notes that no report has been received from the Government. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the following matters raised in its previous direct request:

Article 2, paragraph 2(c), of the Convention. In its previous comments the Committee referred to the provisions of the annex to Decision No. 88-193 AT of 8 December 1988 to regulate the penitentiary system in French Polynesia, the Committee asks the Government to supply information on the following matters:

(a) The Committee noted that persons sentenced to imprisonment for acts which constitute crimes or common law offences may ask to be provided with work (section RP 98). The Committee also noted that the necessary arrangements must be made to provide prisoners with work which is productive and sufficient to occupy them for a normal working day; that the organization and methods of work and their remuneration must approximate as far as possible those of occupational activities outside the prison in order, in particular, to prepare prisoners for the normal conditions of free work; that prisoners performing prison labour are entitled to compensation for occupational accidents and illness (sections RP 101, 102 and 110).

(b) The Committee noted the provisions of the annex respecting forms and conditions of work (sections RP 102 to 110). It observed that work inside the prison may be performed either directly for the prison authorities or employers hiring prison labour. The Committee asks again the Government with its next report to provide the clauses and general conditions governing the hiring of prison labour on prison premises and the remuneration rates which are brought to the attention of detainees (sections RP 103, 104 and 106).

(c) The Committee noted that prisoners may also be employed outside the prison for other administrations or public communities or even for individuals, in which case they are placed under the responsibility and supervision of one or several agents of the employer who have the administration's approval (sections RP 103 AND 127).

The Commmittee noted the provisions governing labour outside the prison (sections RP 127 to 135). It noted in particular that the opening of any worksite, using prison labour, for longer than two months is subject to the consent of the President of the Government; that prisoners may be employed by individuals, in which case they are placed under the responsibility and supervision of agents of the employer; that detainees may be placed at the disposal of employers or in an apprenticeship, in which case the employer is responsible for guarding them. The Committee noted that under section RP 134 the remuneration of prison labour must, as far as possible, be equal to the wages and benefits of free workers of the same category employed under the same conditions in respect of tasks and workplaces, minus specific charges borne by the employer.

The Committee again asks the Government or provide a copy of the Decision of the Territorial Assembly establishing the rate of remuneration of hired-out prison labour, in accordance with section RP 134(3), together with indications of the current corresponding wages of free workers.

(d) The Committee also again asks the Government to indicate whether prisoners give their general consent for any jobs they may be called upon to perform or whether, for work outside the prison, their consent is required for each assignment.

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Article 2, paragraph 2(c) of the Convention. Referring also to its observation on the Convention relating to the provisions of the annex to Decision No. 88-193 AT of 8 December 1988 to regulate the penitentiary system in French Polynesia, the Committee asks the Government to supply information on the following matters:

(a) The Committee notes that persons sentenced to imprisonment for acts which constitute crimes or common law offences may ask to be provided with work (section RP 98). The Committee also notes that the necessary arrangements must be made to provide prisoners with work which is productive and sufficient to occupy them for a normal working day; that the organization and methods of work and their remuneration must approximate as far as possible those of occupational activities outside the prison in order, in particular, to prepare prisoners for the normal conditions of free work; that prisoners performing prison labour are entitled to compensation for occupational accidents and illness (sections RP 101, 102 and 110).

(b) The Committee notes the provisions of the annex respecting forms and conditions of work (sections RP 102 to 110). It observes that work inside the prison may be performed either directly for the prison authorities or employers hiring prison labour. The Committee asks the Government with its next report to provide the clauses and general conditions governing the hiring of prison labour on prison premises and the remuneration rates which are brought to the attention of detainees (sections RP 103, 104 and 106).

(c) The Committee notes that prisoners may also be employed outside the prison for other administrations or public communities or even for individuals, in which case they are placed under the responsibility and supervision of one or several agents of the employer who have the administration's approval (sections RP 103 and 127).

The Committee notes the provisions governing labour outside the prison (sections RP 127 to 135). It notes in particular that the opening of any worksite, using prison labour, for longer than two months is subject to the consent of the President of the Government; that prisoners may be employed by individuals, in which case they are placed under the responsibility and supervision of agents of the employer; that detainees may be placed at the disposal of employers or in an apprenticeship, in which case the employer is responsible for guarding them. The Committee notes that under section RP 134 the remuneration of prison labour must, as far as possible, be equal to the wages and benefits of free workers of the same category employed under the same conditions in respect of tasks and workplaces, minus specific charges borne by the employer.

The Committee asks the Government to provide a copy of the Decision of the Territorial Assembly establishing the rate of remuneration of hired-out prison labour, in accordance with section RP 134(3), together with indications of the current corresponding wages of free workers.

(d) The Committee asks the Government to indicate whether prisoners give their general consent for any jobs they may be called upon to perform or whether, for work outside the prison, their consent is required for each assignment.

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Article 2, paragraph 2(c), of the Convention. With reference to its previous comments concerning prison labour, the Committee notes the provisions of the Annex to Decision No. 88-193 AT of 8 December 1988 to regulate the penitentiary system in French Polynesia, a copy of which was provided by the Government.

The Committee is addressing a direct request to the Government concerning procedures for prison labour and particularly the guarantees and protection provided when they are hired out to an outside enterprise to perform work inside or outside the prison or directly for a private individual.

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Article 2, paragraph 2(c), of the Convention: The Committee previously referred to the provisions of section 81 of Decision No. 76-184 of 30 December 1976, under which persons sentenced to imprisonment, who are obliged to work by virtue of section 60 of this Decision, could be employed outside the prison establishment on behalf of private individuals under the responsibility and supervision of agents furnished by the employer and approved by the administration.

The Committee notes with interest the Government's indication in its report to the effect that Decision No. 88-193/AT of 18 December 1988 issuing the prison regulations for French Polynesia repeals Decision No. 76-184, including sections 60 and 81. The Committee asks the Government to provide a copy of the Decision in question which the Government said it would send but which was not enclosed with the report.

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The Committee notes that no report has been received from the Government. It must therefore repeat its previous observation on the following matters:

Article 2, paragraph 2(c), of the Convention. On several occasions the Committee has drawn the Government's attention to the provisions of section 81 of Decision No. 76-184 of 30 December 1976, under which persons sentenced to imprisonment, who are obliged to work by virtue of section 60 of this Decision, may be employed outside the prison establishment on behalf of private individuals under the responsibility and supervision of agents furnished by the employer and approved by the administration. The Committee noted in previous comments information supplied by the Government that the texts respecting the organisation and regulation of the prison system were being amended, and that sections 60 and 81 would be amended to bring them into conformity with the Convention. The Committee noted the Government's statement in its report received in 1987 that these provisions were to be included in a number of Decisions due to be adopted in 1987 under Act No. 86-845 of 17 July 1986 concerning the general principles of labour law. The Committee hopes that the Government will be able to indicate in the near future the measures that have been taken to bring the provisions of sections 60 and 81 of Decision No. 76-184 into conformity with the Convention, either by forbidding the employment of prisoners by private individuals or by guaranteeing the normal conditions of a voluntarily accepted employment relationship, particularly with regard to formal consent, wages and social security.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

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Article 2, paragraph 2(c), of the Convention. The Committee previously referred to section 81 of Decision No. 76-184 of 30 November 1976, under which persons sentenced to imprisonment, who are obliged to work by virtue of section 60 of this Decision, may be employed outside the prison establishment on behalf of private persons and, if they are so employed, may be placed under the responsiblity and supervision of an agent or agents furnished by the employing service and approved by the Administration.

The Committee notes with interest the statement by the Government in its report that the territorial Government has been reminded that it is essential to amend Decision No. 76-184 of 30 November 1976 respecting the organisation and regulation of prison labour, particularly in respect of sections 60 and 81, with a view to bringing it into conformity with the Convention, either by prohibiting the employment of prisoners on behalf of private individuals or by ensuring to the prisoners the normal conditions of a freely accepted employment relation.

The Committe hopes that the Government will shortly be able to indicate the measures taken to bring the provisions of sections 60 and 81 of Decision No. 76-184 of 30 November 1976 into conformity with the Convention.