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

Forced Labour Convention, 1930 (No. 29) - Belarus (Ratification: 1956)

The Committee notes the provisions of the Decree of the Council of Ministers on the approval of the Regulations governing the procedure and conditions for carrying out paid public works, of 23 December 2006 (No. 1716), communicated by the Government with its report.

Article 2(2)(c) of the Convention. Work of prisoners for private enterprises. In its earlier comments, the Committee noted that work of prisoners for private enterprises outside prison premises is allowed in accordance with the legislation in force, and that private parties are entitled to conclude contracts on the use of labour of prisoners with the administration of a correctional institution. The Committee also noted the provisions of the Execution of Penal Sentences Code, 2001, concerning the obligation of convicts to work at the enterprises determined by the administration of correctional institution, including private enterprises, the refusal to work being punishable with sanctions (section 98 of the Code). It further noted that conditions of work of convicts (including hours of work and rest periods, occupational safety and health and social security) are established in accordance with the labour legislation of Belarus, and their wage rates shall not be lower than those established by the labour legislation for the performance of corresponding types of work (sections 99 and 100 of the Code).

The Committee pointed out that, to be compatible with Article 2(2)(c) of the Convention, which expressly prohibits convicted prisoners from being hired to or placed at the disposal of private individuals, companies or associations, such work should not involve compulsory labour and should be carried out with the freely given consent of the persons concerned.

The Committee takes due note of the Government’s view expressed in the report that, since the work of convicted persons is carried out under constant supervision by the authorities, the procedure established by the national legislation concerning such work does not provide for these persons being hired to or placed at the disposal of private enterprises. However, the Committee draws the Government’s attention to the explanations concerning the scope of the terms “hired to or placed at the disposal of” in paragraphs 56–58 and 109–111 of the Committee’s 2007 General Survey on the eradication of forced labour and observes that these terms cover not only situations where prisoners are “employed” by the private company or placed in a position of servitude in relation to the private company, but also situations where the companies do not have absolute discretion over the type of work they can request the prisoner to do, since they are limited by the rules set by the public authority. The Committee also refers in this connection to paragraph 106 of its 2007 General Survey, where it considered that the prohibition for convicted persons to be hired to private parties is absolute and applies to work both outside and inside penitentiary establishments; in other words, such prohibition applies to all work performed by convicted persons for private enterprises.

The Committee recalls that work or service exacted from any person as a consequence of a conviction in a court of law is compatible with the Convention only if two conditions are met, namely, “that the said work or service is carried out under the supervision and control of a public authority”, and “that the said person is not hired to or placed at the disposal of private individuals, companies or associations”. The Committee has always made it clear that the two conditions are cumulative and apply independently, i.e. the fact that the convicted person remains at all times under the supervision and control of a public authority does not in itself dispense the Government from fulfilling the second condition, namely, that the person is not “hired to or placed at the disposal of private individuals, companies or associations”.

As the Committee has considered in paragraphs 59–60 and 114–120 of its 2007 General Survey referred to above, work of prisoners for private companies can be held compatible with the explicit prohibition of the Convention only where the necessary safeguards exist to ensure that the prisoners concerned offer themselves voluntarily, without being subjected to pressure or the menace of any penalty, as required by Article 2(1) of the Convention. In such a situation, work of prisoners for private companies does not come under the scope of the Convention, since no compulsion is involved. The Committee has therefore considered that, taking into account their captive circumstances, it is necessary to obtain prisoners’ formal consent to work for private enterprises both inside and outside prisons. The Committee recalls that, in the prison context, the most reliable indicator of the voluntariness of labour is the work performed under conditions approximating a free labour relationship, which include wage levels (leaving room for deductions and attachments), social security and occupational safety and health.

While having previously noted that, under the national legislation in force, convicts’ conditions of work may be considered as approximating those of a free labour relationship, the Committee expresses the firm hope that measures will be taken, both in law and in practice, to ensure that any work or service by convicted persons for private enterprises is performed only with the formal, voluntary consent of the persons concerned, so that such consent is freely given and informed and is free from the menace of any penalty, including any loss of privileges or other disadvantages following from a refusal to work. The Committee hopes that the Government will provide, in its next report, information on the progress made in this regard.