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

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 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.