Observation (CEACR) - adopted 2018, published 108th ILC session (2019)

Forced Labour Convention, 1930 (No. 29) - Germany (Ratification: 1956)
Protocol of 2014 to the Forced Labour Convention, 1930 - Germany (Ratification: 2019)

Articles 1(1), 2(1) and 2(2)(c) of the Convention. Compulsory work of prisoners in privately run workshops. For a number of years, the Committee has been drawing the Government’s attention to the need to adopt appropriate measures to bring the legislation and practice into conformity with the Convention, by ensuring that free and informed consent is formally required for the work of prisoners in privately run workshops in state prisons and that the conditions of work of these prisoners approximate a free labour relationship. The Committee noted that, under section 41(3) of the Act on the Execution of Sentences of 13 March 1976, employment in a workshop run by a private enterprise is to depend on the prisoner’s consent. However, the consent requirement provided for by section 41(3) was suspended by the “Second Act to improve the budget structure” of 22 December 1981, and had remained a dead letter since that time.

The Committee also noted that, since 2006, legislation on penal enforcement came within the competence of the federal states (Länder). Among 13 Länder where statutory regulations had been adopted in this regard, four have adopted penal enforcement acts which no longer provide for a duty to work for prisoners (Brandenburg, Rhineland-Palatinate, Saarland and Saxony). A general obligation for prisoners to work is still in force in 12 Länder (whether under the Federal Prison Act or the newly adopted penal enforcement acts). Furthermore, except for three Länder, there remains the possibility of assigning prisoners to work in workshops managed by private enterprises. According to the statistics provided for 2013, 62.5 per cent of the average total number of prisoners were employed or in training, out of which 21.36 per cent worked in entrepreneur workshops. The Government indicated that it had so far been impossible to offer employment to all prisoners willing to work. The Committee also noted the observations of the International Organisation of Employers (IOE) and the Confederation of German Employers’ Association (BDA), according to which, there continued to be a job shortage in prisons and therefore prison authorities welcomed jobs made available by private entities. Prisoners were not forced to work since there were fewer employment possibilities than prisoners who wanted to work.

The Committee notes the Government’s information in its report that all 16 Länder have adopted their own statutory regulations regarding the execution of penal sanctions, including work performed by prisoners when serving their sentences. Except for four Länder mentioned in the previous comments of the Committee, the relevant regulations of the remaining Länder provide for a general obligation to work for convicted prisoners. Moreover, the law of all the Länder, except for Hamburg, provides for a possibility of assigning prisoners to work in “entrepreneur workshops” within the prison institution. The Government emphasizes that, while the staff of the private enterprises may give work-related instructions, the supervision of prisoners and all decisions related to inmate treatment remain the responsibility of the penal enforcement authority. It reiterates that work assigned to prisoners as a consequence of a decision in a court of law is crucial to integration and forms part of social reintegration plans. The Government also indicates that prisoners may engage in a “free employment relationship”, under which appropriate working conditions, including remuneration, are ensured. This employment relationship may continue upon the release of the prisoners concerned.

The Committee also notes the detailed information of each Länd provided by the Government in this regard. In Bremen, the duty to work exists only if considered as necessary during a diagnostic process to determine the sentence serving plan of a prisoner, taking into consideration other social rehabilitation and reintegration measures. Moreover, when a recommendation for employment is made following the diagnostic process, the prisoner concerned shall make a request for work, indicating two desired workplaces. However, the Committee notes that prisoners may be assigned to work in privately managed workshops without their formal consent under the relevant statutory regulations in the remaining Länder, namely Baden-Württemberg, Bavaria, Berlin, Hesse, Mecklenburg-Vorpommern, Lower Saxony, North Rhine-Westphalia, Saxony Anhalt, Schleswig-Holstein, and Thuringi. In 2017, a number of prisoners worked at entrepreneur workshops (ranging from 5.5 per cent in Mecklenburg Vorpommern to 37.27 per cent in Lower Saxony), while some prisoners were provided with opportunities to work under a free employment relationship or be self-employed (ranging from 0.66 per cent in Bavaria to 8.92 per cent in Baden-Württemberg). The Committee further notes that, in Hamburg, although there are no “entrepreneur workshops” operated by private enterprises within the prison institution, 14.84 per cent of the prisoners work outside the institution. The Committee observes that it is unclear whether private undertakings are involved in this work arrangement outside the prison. Additionally, the Committee notes that working prisoners are paid €9.87–€16.44 per day and that regulations regarding occupational safety and health also apply to them, according to the information provided by some Länder, such as Berlin and Hesse.

The Committee considers that, by virtue of Article 2(2) of the Convention, compulsory labour of convicted persons is excluded from the scope of the Convention, provided that it is “carried out under the supervision and control of a public authority” and that such persons are not “hired to or placed at the disposal of private individuals, companies or associations”. These two conditions are equally important and apply cumulatively: the fact that the prisoner remains at all times under the supervision and control of a public authority does not itself dispense the Government from fulfilling the second condition, namely that the person is not hired to or placed at the disposal of private undertakings. If either the two conditions is not observed, compulsory labour exacted from convicted persons under these circumstances is prohibited by virtue of Article 1(1) of the Convention. The Committee once again recalls that it has already considered that work by prisoners for private enterprises can be held compatible with the requirement of the Convention, such as the work performed by prisoners under a “free employment relationship”, as referred to by the Government. In such circumstances, the prisoners concerned offer themselves voluntarily, without being subjected to pressure or the menace of any penalty, by giving their free, formal and informed consent to work for private enterprises. Moreover, as the most reliable indicator of the voluntariness of labour performed in the prison context, working conditions which approximate a free labour relationship shall be ensured, including the level of wages (leaving room for deductions and attachments), the extent of social security and the application of regulations on occupational safety and health (see paragraphs 278, 279 and 291 of the 2012 General Survey on the fundamental Conventions). While noting that some prisoners may be provided with opportunities to work under a free employment relationship, the Committee requests the Government to take the necessary measures to ensure that, both in law and practice, prisoners may perform work for private undertakings inside or outside the prison premises only with their free, formal and informed consent, and that such consent be authenticated by conditions of work approximating a free labour relationship. The Committee also requests the Government to continue providing information on the number of prisoners working in entrepreneur workshops inside or outside prison premises, as well as those working under a free employment relationship or self-employed. It further requests the Government to continue providing information on the level of the remuneration granted to these prisoners and their conditions of employment.

The Committee is raising other matters in a request addressed directly to the Government.