Geneva, June 1999
Report of the Committee on the Application of Standards
OBSERVATIONS AND INFORMATION CONCERNING PARTICULAR COUNTRIES
II. Observations and Information concerning the Application of Conventions in Non-Metropolitan Territories (articles 22 and 35 of the Constitution)
to the Competent Authorities of the Conventions and Recommendations Adopted
by the International Labour Conference
(article 19 of the Constitution)
General Survey on Migration for Employment Convention (Revised) No. 97 and Recommendation (Revised) No. 86, 1949, and on Migrant Workers (Supplementary Provisions) Convention No. 143 and Recommendation No. 151, 1975
AND INFORMATION CONCERNING REPORTS ON RATIFIED CONVENTIONS
(ARTICLE 22 OF THE CONSTITUTION)
A. General Observations and Information concerning Certain Countries
(a) Failure to supply reports for the past two years or more on the application of ratified Conventions
The Employer members explained that the use of the term "automatic cases" could give rise to the wrong impression and make them sound unimportant. However, the fulfilment of the fundamental obligation of member States under the ILO Constitution to submit reports was not a matter to be taken lightly. Compliance with this obligation was the basis of all the work, not just of the Conference Committee, but of the whole supervisory machinery, of which everyone was justly proud and which was broadly admired. Many other international organizations did not have such an effective system. However, the supervisory machinery could only work if member States complied with their reporting obligations. The procedure which had been developed was very fair, since the basis for the supervision of compliance with the respective obligations was provided by the member States themselves. It was therefore very important for all member States to comply with these obligations. Indeed, if the number of countries fulfilling their reporting obligations did not increase, the supervisory machinery would lose much of its authority. It was therefore a very important task of the Committee to ask each country which had not fulfilled its obligations why this was so. Paragraph 186 of the report listed countries which had not supplied all or most of the reports requested on ratified Conventions. The Employer members noted in this respect that the periodicity of the reporting cycle had been modified. Member States should therefore be in a position to fulfil their reporting obligations timely.
The Worker members endorsed the comments of the Employer members in so far as compliance with the obligation to communicate reports was the key element upon which the ILO supervisory system was based. The information contained in these reports must be as detailed as possible. It was regrettable to note that the changes that had taken place these past years in the report procedure in order to simplify the task of governments had not yet resulted in an improvement of the situation. In this respect, it was appropriate to recall the remark made last year by the Committee to the effect that those countries that had not fulfilled their obligation to communicate a report had an unjustified advantage in that the absence of a report made it impossible to examine their national legislation and practice with regard to ratified Conventions. The Committee must insist that member States take the necessary measures to comply with this obligation in the future.
The Government representative of Bosnia and Herzegovina deplored the fact that her Government had not up until now been in a position to submit its reports. This situation had resulted from the reorganization that was being undertaken by the State, as well as from the process of getting institutions functioning, which was actually taking place. She assured the Committee that the Minister of Foreign Affairs and the permanent mission would do everything possible to obtain the relevant responses to the comments of the Committee of Experts and to forward them as soon as possible.
A Government representative of Burundi stated that he took note of the comments of the Committee of Experts concerning compliance with the obligation to send reports. The absence of communication of these reports was not due to a lack of willingness but to a situation of crisis that had existed for some time, as well as an embargo that had isolated his country. Burundi promised to communicate these reports as it had done in the past.
The Government representative of the Democratic Republic of the Congo stated that his country, having been mentioned twice in the Committee of Experts' report -- for failing in its obligation to send reports and for not responding to the comments of the supervisory bodies -- was obviously the result of the difficulties that the country was facing, in particular, the conflict that had been going on for some time. Far from seeking to avoid its obligations, the Democratic Republic of the Congo had recently taken steps towards the ratification of a number of Conventions. He assured the Committee that his Government intended to make every effort to forward the reports due to the ILO as soon as possible. Aware of the necessity to fulfil its obligations, particularly by submitting reports on ratified Conventions, the Government would examine the possibility of calling for the assistance of the international labour standards specialists on the multidisciplinary teams.
A Government representative of Denmark, referring to the comments that he had made on this subject the previous year, regretted that the Faeroe Islands had not provided the reports due on the Conventions it had ratified. He noted that the Faeroe Islands was a very small society with a small public administration and that it therefore experienced difficulty in fulfilling all of its obligations. The failure to submit reports was not due to a failure to implement ratified Conventions. It was also necessary in this respect to take into account the relationship between Denmark and the Faeroe Islands. The Faeroe Islands enjoyed independence and sovereignty in nearly all policy areas, including social policy. The Government of Denmark was therefore not in a position to demand any reports from the Government of the Faeroe Islands within the area of social policy. Its only option to improve the situation was to make recommendations, as it had done on several occasions, and to offer technical assistance. However, he acknowledged the fact that, under the ILO Constitution, it was the responsibility of the Government of Denmark to ensure the fulfilment of reporting requirements on ratified Conventions. Denmark would therefore do its utmost to ensure that the respective reports were transmitted to the ILO before the next meeting of the Committee of Experts.
A Government representative of Mali said that his delegation had noted the observations of the Committee of Experts concerning the obligation to submit reports and his Government remained determined to meet all its commitments to the ILO, particularly concerning the transmission of reports on ratified and non-ratified Conventions. The difficulties in that regard were mainly due to the inadequacy of human resources and technical capabilities. Mali remained attached to promotion of the ILO's fundamental Conventions and the strengthening of its supervisory system and vowed to do its best to overcome the administrative and technical problems. Concerning the follow-up to the comments by supervisory bodies, the initial exchange had led to requests for clarification, to which the forthcoming communications from the Government should provide a satisfactory response. In relation to technical assistance, the Government hoped that the ILO would help in providing training at headquarters and Turin for officials responsible for standards matters, in organizing seminars for labour services officials and social partners and in establishing a documentation base on standards with the assistance of the standards expert in the multidisciplinary team in Dakar.
A Government representative of the United Republic of Tanzania (Zanzibar), after admitting that her Government had not submitted the reports due in respect of Zanzibar for the past two years, recalled that Zanzibar had its own labour policy and legislation and that the information required for the preparation of reports on ratified Conventions had to be supplied to the Tanzanian Government by the Government of Zanzibar. However, the Ministry of Labour had recently convened a tripartite meeting prior to the International Labour Conference, which had been attended by a full tripartite delegation from Zanzibar. The problem had been discussed in detail and a promise had been made to provide the necessary information. She therefore assured the Committee that the reports in question would be submitted accordingly.
She also informed the Committee of the efforts made by her country to ratify ILO Conventions since 1995. The Parliament had approved the ratification of Conventions Nos. 138, 154 and 170, as well as the 1995 Protocol to Convention No. 81. Her country had also ratified Conventions Nos. 29, 98 and 105 among the core Conventions. The process for the ratification of Convention No. 87 had also reached an advanced stage, while the ratification process had commenced for Conventions Nos. 100 and 111.
The Worker members noted that only five countries had spoken on their failure to meet their obligation to submit reports; the other countries that had been invited to do so were absent or not accredited to the Conference. The countries concerned had cited a number of factors to explain their non-compliance, including the crisis or conflict situations in their respective countries, the absence of competent personnel or the lack of adequate resources. Nevertheless, the commitments undertaken and the promises made by the speakers in that regard should be noted. The Committee must continue to urge States to take all possible measures to comply with the obligation. The need to strengthen the supervisory system, referred to by several speakers, would remain theoretical unless governments observed their obligation to submit reports. Lastly, the Committee should remind governments that it was possible to seek technical assistance from the Bureau.
The Employer members endorsed the comments made by the Worker members and noted that a number of reasons were often cited for failure to comply with the reporting obligations, including economic and technical difficulties, a lack of human resources and a lack of knowledge. The ILO offered assistance to help in fulfilling these obligations, particularly through its specialists in the field. Countries which were not able to meet their obligations should therefore make use of the assistance which was available so that they could submit their reports promptly. The Employer members noted that, despite the change in the reporting cycle, there had been no significant improvement in compliance with reporting obligations. However, they speculated that if the changes had not been introduced, the situation might well have deteriorated further. They still believed that the changes in the reporting periods for the various categories of Conventions had been justified. Finally, they joined the Worker members in requesting countries which had fallen behind in the submission of the reports due to make up their delay as soon as possible. They also encouraged other countries to continue to respect the reporting system.
The Committee recalled the fundamental importance of the supply of reports on the application of ratified Conventions, not just of their supply as such, but of doing so within the stipulated time limit. This obligation constituted the foundation of the supervisory system, and the Committee expressed its firm hope that the Governments of Afghanistan, Antigua and Barbuda, Armenia, Bosnia and Herzegovina, Burundi, Democratic Republic of the Congo, Denmark: Faeroe Islands, Georgia, Grenada, Mali, Saint Lucia, Leone, Somalia, United Republic of Tanzania (Zanzibar) and Uzbekistan which have not, to date, submitted reports on the application of ratified Conventions would do so as soon as possible and decided to mention these cases in the appropriate section of its General Report.
(b) Failure to supply first reports on the application of ratified Conventions
The Worker members emphasized that more than one-third of the reports expected had not been received, which represented a worsening of the situation in comparison to the previous year. The first reports were particularly important in so far as they provided the Committee of Experts with a basis for its first evaluation of the application of ratified Conventions. Moreover, they removed from the beginning certain misunderstandings regarding the implementation of the Conventions. The communication of these first reports was an indispensable part of the supervisory system.
The Employer members expressed agreement with the comments made by the Worker members and regretted that the countries concerned had failed to supply the first reports due on the application of ratified Conventions. This was the first step required of a country once it had ratified a particular Convention. It was somewhat surprising that, when a member State had taken the necessary measures for ratification, in full awareness of the corresponding requirements, it should omit to take the next step. Ratification was a conscious decision which normally involved a decision by the national parliament. The first report on a ratified Convention was particularly important and member States concerned should know that the law and practice was in conformity with the Convention in the view of the supervisory bodies. The Employer members therefore urged member States to comply with the obligation to submit the first report on the application of ratified Conventions.
A Government representative of Burundi stated that he recognized the shortcomings of his country referred to in the report of the Committee of Experts. He recalled that these shortcomings were not the result of a failure to recognize the importance of the obligation of sending reports but because of the socio-economic situation that had prevailed in Burundi since 1993 as well as the embargo that had isolated his country and heightened the frustration of citizens and of the Administration. This isolation was accompanied by the suspension of international cooperation in so far as other concerns were prevailing. The lack of communication of reports was explained by the destabilization of the labour administration services that were experiencing a shortage of managers and administrative staff. New staff must be recruited and trained, particularly in the area of international labour standards, which is the reason why ILO technical assistance had been requested on several occasions. This assistance could consist of ensuring the financing of the training of managers and the holding of a training seminar with technical support of an international labour standard specialist of a multidisciplinary team. The spokesperson assured the Committee that his Government was committed to catch up on its late reports, in this regard with the assistance of the ILO and the sending of an international labour standards specialist to his country in order to facilitate the preparation of reports on the application of ratified Conventions and therefore to comply with its constitutional obligations.
A Government representative of Latvia noted that, although there had been a delay due to technical problems, the first reports on Conventions Nos. 111, 122, 129, 132, 135, 151, 154 and 158 had been submitted. The only exceptions were Conventions Nos. 81 and 155, for which the reports would be submitted by 1 September 1999, as the ILO had been informed in a letter from the Ministry of Social Affairs. He hoped that the next reports and replies to the comments of the Committee of Experts would be submitted in full and in due time.
A Government representative of Mali indicated that the explanations that he had previously provided regarding the failure to comply with the obligation to send reports was equally valid for the failure to send first reports. The Conventions concerned had been ratified with full knowledge of the implications. However, the application of some of them concerned particular groups such as rural workers or disabled persons for which the information requested required that research be carried out at the present time by the technical services. His Government promised to follow up on the requests of the Committee in this regard.
The Employer members observed that only one-third of the countries mentioned had provided information to the Committee on their failure to comply with the corresponding obligations. Many of the same reasons had been given once again and it was particularly worrying that first reports had been due on ratified Conventions since as long ago as 1992. These constituted very serious shortcomings and the Employer members therefore urged member States to recall that the obligation to submit first reports was as important as any other obligation in relation to the supervisory system.
The Worker members endorsed the remarks made by the Employer members. They shared their concerns and joined in their request.
The Committee noted the information supplied and explanations given by the Government representatives who took the floor. It reiterated the crucial importance of submitting first reports on the application of ratified Conventions.
The Committee decided to mention these cases: namely, since 1992: Liberia (Convention No. 133); since 1995: Armenia (Convention No. 111), Burundi (Conventions Nos. 87, 100 and 111), Kyrgyzstan (Convention No. 133); since 1996: Armenia (Conventions Nos. 100, 122, 135 and 151), Grenada (Conventions Nos. 87, 100 and 144), Latvia (Conventions Nos. 81 and 155), Uzbekistan (Conventions Nos. 47, 52, 103 and 122); and since 1997: Mali (Conventions Nos. 135, 141, 151 and 159) in the appropriate section of the General Report.
(c) Failure to supply information in reply to comments made by the Committee of Experts
The Employer members emphasized that the obligation to supply information in reply to the comments and questions made by the Committee of Experts was the logical continuation of the reporting requirements of member States. However, many of the reports supplied were not complete, were unclear or were missing annexes. When reports were dealt with by the supervisory bodies, questions might be raised which required a response. It was necessary to provide the requested information so that compliance with ratified Conventions could be supervised. The large number of cases cited in paragraph 197 of the report of the Committee of Experts showed that many of the reports supplied were inadequate. Compliance with this requirement was therefore just as urgent as the primary reporting obligations themselves. The additional information requested by the Committee of Experts needed to be provided within the established time limits so that the supervisory machinery could function properly.
The Worker members endorsed the comments by the Employer members on the question and shared their concerns and findings. The communication of incomplete or late reports hampered the task of the Committee of Experts and of the Conference Committee. The remarks made by the Committee of Experts should be taken seriously and the replies to be given by governments were part of their obligation to submit reports.
The Government representative of Burkina Faso stated that his Government had given effect to the comments of the Committee of Experts in adopting Act No. 13/AN of 28 April 1998 concerning the legal status of public employees and civil servants, which resulted in the repeal of provisions that had previously been criticized by the Committee of Experts in the context of Convention No. 87. The text of this instrument would be forwarded as soon as possible. With respect to Act No. 45-60/AN of 1960 concerning the right to strike, the Committee would be informed of the outcome of the consultations undertaken with the social partners as well as all progress achieved in this regard.
A Government representative of Burundi said that the information he had given regarding the reasons for the failure to submit the first reports on application of the Conventions ratified also applied to the case under discussion.
A Government representative of Denmark recalled his earlier comments concerning the Faeroe Islands and said that his Government would do its utmost to encourage the Faeroe Islands to supply the reports due.
A Government representative of Fiji recalled that Fiji had become a member of the ILO in 1974 and remained deeply committed to the Organization's values, principles and objectives. It had ratified 19 Conventions, including three core Conventions. The Government's participation in the ILO had been sustained by its traditional strong adherence to the principles of tripartism and social protection, as shown by the level of unionism in the country, which was currently the highest in the Asian and Pacific region. He emphasized that there had been no deliberate attempt by his Government to deviate from the ILO's standard-setting procedures. However, it had been impossible to fulfil the reporting obligations due to the constant changes made to the Civil Service, which had particularly affected the Ministry of Labour and Industrial Relations. These changes had included the transfer of staff and responsibilities in order to accommodate the former Government's policy of zero growth and compulsory retirement at the age of 55. These changes affected all aspects of the Ministry's functions, including compliance with reporting requirements. The situation had improved recently and an official was now working full-time on ILO matters. Indeed, the replies to the comments of the Committee of Experts and reports on unratified Conventions had been finalized and would be transmitted to the ILO in the near future.
A Government representative of France said that his country had ratified many Conventions, which implied the preparation of a number of reports, and the French authorities were well aware of the responsibilities involved. The communication of reports containing information in response to observations by the Committee of Experts was the foundation of the Organization's supervisory system and the Government was endeavouring to ensure that the reports had substance. The issues in this particular case, however, concerned territories that were not in metropolitan France and were subject to different statutes that were being amended. Consequently, dialogue was not facilitated. He indicated nonetheless that the situation could be improved and undertook to remind the competent services of their obligations and the importance of respecting the timetable.
A Government representative of Ghana informed the Committee that his Government had established a tripartite body composed of representatives of the Government, employers' associations, the Ghana Trades Union Congress and other workers' organizations, and the Office of the Attorney-General. This body was examining all the national labour legislation and considering its codification. The examination of labour legislation was being undertaken in the context of the comments made by the ILO supervisory bodies. At a very recent meeting, a document had been produced and submitted to the authorities which, when it became law, would resolve all the questions which had been raised. Progress was also being made in formulating replies to the comments of the Committee of Experts. He therefore hoped that the Government's next report would provide all the information that had been requested.
The Government representative of Guinea, indicating that his Government had taken due note of the comments of the Committee of Experts, assured the Committee that the adoption of the proposed new Labour Code, which had been drafted with ILO technical assistance, would bring the legislation into conformity with the ratified Conventions. He took the opportunity to request ILO technical assistance to train a specialist in international labour standards which would permit the Government to better meet its constitutional obligations arising from membership in the Organization. The speaker reiterated Guinea's intention to collaborate fully with the ILO.
A Government representative of Guinea-Bissau indicated that the war which had raged in her country had paralysed the public administration and, for this reason, despite the good will of civil servants it had not been possible for her Government to honour its obligations with respect to the ILO. Upon the return of peace a reconstruction process had begun, and the revision of a certain number of laws, particularly labour legislation, was anticipated. Her Government promised to comply with its obligations regarding the communication of reports under articles 19 and 22 of the Constitution, and would accept technical assistance that the ILO could provide and, in particular, the assistance of the international labour standards specialist of the Dakar multidisciplinary team.
A Government representative of Haiti declared that his country had many problems to resolve, such as the organization of elections, the fragility of parliament, the socio-economic situation and the unstable political situation. In spite of these administrative, technical or economic difficulties, the Government was completely determined to take the necessary measures to comply with the observations of the Committee of Experts and to regularly submit reports concerning ratified Conventions.
A Government representative of Iraq informed the Committee that a tripartite consultative committee existed in his country, in accordance with the requirements of Convention No. 144, which examined the comments made by the Committee of Experts. Replies to these comments were made in accordance with national law and practice and were transmitted to the competent bodies in the ILO. Reports had been sent, among others, on Conventions Nos. 100, 105, 111, 136, 138, 142 and 167. If the reports in question had not reached the Office, this could be due to the difficulties experienced as a result of the embargo which had been imposed on his country for the past nine years. He noted that the replies to the comments of the Committee of Experts were formulated by the tripartite consultative committee, based on national law and practice, in accordance with section 151 of the 1987 Labour Code. He also recalled that, in the absence of provisions on a particular subject in the Labour Code, the provisions of the international labour Conventions and Arab labour Conventions ratified by Iraq were applicable.
A Government representative of Madagascar assured the Committee of the genuine willingness of his country to fulfill its obligations with regard to the ILO. Therefore, although in 1995 only two of the 13 requested reports were communicated, nine were sent this year. An interministerial committee was able to resolve the problem of compartmentalization in the use of information among the various departments. In application of Convention No. 144, the Government established the National Employment Council. Five Conventions (including Convention No. 138) were ratified during the past two years. The Government would keep the Committee of Experts informed of submission of instruments to the competent authorities and took note of the observations of the Committee of Experts with regard to Conventions Nos. 29, 100, 111 and 118.
A Government representative of Mali stated that the explanations that he had previously provided regarding the reasons for failing to send reports remained valid for the present case. He regretted that he had not been able to satisfy the requests of the ILO. The last replies provided by the Government had given rise to new observations of the Committee of Experts that required investigation. These investigations were taking place and the maximum would be done in order to respond. The spokesperson renewed his request for assistance and cooperation with regard to national labour standards.
A Government representative of the Netherlands (Aruba) did not want to justify the non-compliance of the Government of Aruba with its obligations to the ILO, but wished to report on the progress which had been made. Aruba was now on the right track and should be allowed time to prove it. Aruba was a relatively young autonomous country within the Kingdom of the Netherlands, with its own parliamentary system and Government. It had inherited a number of international treaties and would comply with the related obligations. The Government of Aruba had requested and received technical assistance from the ILO, the Netherlands and the Netherlands Antilles. It requested the ILO to continue providing technical assistance during this transitional period. Her country had been requested to submit no fewer than 29 reports on the application of ratified Conventions in 1999. It was therefore working very hard to bring itself up to date with its reporting obligations and to reply to the comments made by the Committee of Experts. The significant progress achieved in this respect was illustrated by the delivery at the beginning of the week of 12 reports to the ILO, including replies to the questions raised by the Committee of Experts. Finally, she informed the Committee that the Government of Aruba had also reactivated the national tripartite ILO consultation committee in March 1999 and that the committee had held regular meetings since then.
A Government member of Niger noted the observations made by the Committee of Experts concerning the failure to transmit information in response to its comments. In that connection, following the Committee's comments on the application of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), appropriate measures had been taken. Recent political events in Niger, however, had not allowed the measures to be followed up nor the submission of a report on the application of the Convention. The return to stability would allow the Government to meet its international obligations and to submit the reports due at the next session.
The Worker members said that they had listened to the same explanations as in the past concerning the reasons why governments were unable to respond to the comments made by the Committee of Experts. Several governments had not spoken on the issue, despite the invitation extended to them. In view of the importance of the obligation to submit a report, it was necessary to insist that governments take all the measures required to respond in due time to the comments by the Committee of Experts. In addition, some of the countries that had not fulfilled their obligation possessed, or should possess, the requisite technical capacity and should strengthen their labour departments for that purpose. With regard to territories in southern and Antarctic latitudes, it was not possible to accept the explanations given by the Government member of France as the central authorities were responsible for dealing with such matters.
The Employer members pointed to the unsatisfactory nature of the number of member States which had come forward to provide information to the Committee, as well as the contents of the information provided. They recalled that the fulfilment of the obligation to supply information in reply to the comments made by the Committee of Experts was part of the normal reporting process. Additional information was often required because the contents of the original reports had been inadequate. Many of the governments concerned stated that their administration was too small. In some other cases, however, the problem was that national administrations were too large and that there was little clear delineation of responsibility for replying to the comments. This meant that, in certain cases, no action was taken even in large modern industrialized States which had the necessary resources. The Employer members therefore supported the comments made by the Worker members.
The Committee took due note of the various information provided and explanations given by the Government representatives who took the floor. It insisted upon the great importance, for the continuation of an essential dialogue, of communicating clear and complete information in response to comments made by the Committee of Experts. It reiterated that this was an aspect of the constitutional obligation to report. In this connection, it expressed its profound concern at the very high number of cases of failure to supply information in reply to comments made by the Committee of Experts. It reiterated that assistance from the ILO could be requested by governments in order to overcome any difficulties they may be facing.
The Committee urged the Governments concerned, namely, Afghanistan, Antigua and Barbuda, Australia: Norfolk Island, Bosnia and Herzegovina, Burkina Faso, Burundi, Comoros, Democratic Republic of the Congo, Denmark: Faeroe Islands, Djibouti, Equatorial Guinea, Fiji, France: French Polynesia, France: French Southern and Antarctic Territories, France: Guadeloupe, Ghana, Grenada, Guinea, Guinea-Bissau, Haiti, Iraq, Kyrgyzstan, Latvia, Libyan Arab Jamahiriya, Madagascar, Mali, Malta, Mongolia, Netherlands: Aruba, Niger, Nigeria, Paraguay, Rwanda, Saint Lucia, Sao Tome and Principe, Sierra Leone, Solomon Islands, Somalia and Togo to spare no effort to provide the information requested as soon as possible. The Committee decided to mention these cases in the appropriate section of its General Report.
(d) Written information received up to the end of the meeting of the Committee on the Application of Standards(1)
Belize. Since the meeting of the Committee of Experts, the Government has sent replies to most of the Committee's comments.
Cape Verde. Since the meeting of the Committee of Experts, the Government has sent replies to all of the Committee's comments.
Congo. Since the meeting of the Committee of Experts, the Government has sent replies to most of the Committee's comments.
Cyprus. Since the meeting of the Committee of Experts, the Government has sent the first report concerning the application of Convention No. 147.
Dominica. Since the meeting of the Committee of Experts, the Government has sent replies to most of the Committee's comments.
Kenya. Since the meeting of the Committee of Experts, the Government has sent replies to all of the Committee's comments.
Latvia. Since the meeting of the Committee of Experts, the Government has sent all the first reports due since 1994 on the application of Conventions Nos. 111, 122, 135, and 151, as well as some of the first reports due since 1996 on the application of Conventions Nos. 129, 132, 154 and 158.
Liberia. Since the meeting of the Committee of Experts, the Government has sent most of the reports due concerning the application of ratified Conventions, as well as replies to most of the Committee's comments.
Madagascar. Convention No. 173, adopted at the 79th Session (1992) of the International Labour Conference, has been ratified.
Mauritania. Since the meeting of the Committee of Experts, the Government has sent replies to most of the Committee's comments.
Republic of Moldova. Since the meeting of the Committee of Experts, the Government has sent most of the reports due concerning the application of ratified Conventions, as well as the first report concerning the application of Convention No. 105.
Nepal. Since the meeting of the Committee of Experts, the Government has sent replies to most of the Committee's comments.
Nigeria. Since the meeting of the Committee of Experts, the Government has sent most of the reports due concerning the application of ratified Conventions, as well as the first report concerning the application of Convention No. 144.
Philippines. Since the meeting of the Committee of Experts, the Government has sent replies to most of the Committee's comments.
Senegal. Since the meeting of the Committee of Experts, the Government has sent replies to most of the Committee's comments.
Seychelles. Since the meeting of the Committee of Experts, the Government has sent the first report concerning the application of Convention No. 149, as well as most of the reports due concerning the application of ratified Conventions.
Tajikistan. Since the meeting of the Committee of Experts, the Government has sent replies to most of the Committee's comments.
United Republic of Tanzania. The Protocol of 1995 relating to the Labour Inspection Convention, 1947, adopted at the 82nd Session (1995) of the International Labour Conference, has been ratified.
Uganda. Since the meeting of the Committee of Experts, the Government has sent replies to all of the Committee's comments.
B. Observations and Information on the Application of Conventions
Convention No. 26: Minimum Wage-Fixing Machinery, 1928
Chad (ratification: 1960). A Government representative of Chad stated that her Government's unsatisfactory reply to the observations of the Committee of Experts should not be interpreted as a deliberate desire not to reply to the Committee but was due to difficulties caused by current technical problems in Chad.
Regarding the observation on Article 3 of the Convention, she explained that the Government had decided to raise the minimum interoccupational guarantee wage rate (SMIG) in 1995 in order to comply with paragraphs 428 and 429 of the 1992 General Survey on minimum wages, despite the structural adjustment measures being applied. The SMIG had been discussed by the Higher Committee for Labour and Social Security, which was a tripartite body composed of five government representatives, five employers' representatives, and five workers' representatives appointed by their respective organizations. Although the Government had unilaterally decided on a wage freeze, it had reversed the decision in order to maintain social peace. Regarding the exclusion of the Trade Unions' Confederation of Chad (CST) from the negotiations, she pointed out that the discussions on the SMIG had been held before the creation of the CST. The bodies that had taken part in the negotiations were the Union of Chadian Trade Unions (UST) and the Free Confederation of Chadian Workers (CLTT). As the term of office of the Higher Committee for Labour and Social Security had come to an end, in the draft decree appointing the new members the Government had included the CST. Once the decree had been signed, it would be transmitted to the ILO. The five seats for workers in the Higher Committee were allocated according to the size of the organization and the figures were the following: UST: 2; CLTT: 2; and CST: 1. The representatives were nominated by their respective organizations. She apologized for her Government's late response to the observations by the CST.
With regard to the observations on Article 4, paragraph 1, and Article 5 of the Convention, she emphasized that since 1995 the SMIG had applied to the private sector as a whole and to the parastatal sector. It did not apply, however, in the state sector because of the State's undertakings with international financial institutions.
In response to the request for information on the measures taken in respect of employers in the private sector who failed to respect the SMIG, she said that, pursuant to articles 249 and 250 of the Labour Code, the labour inspectorate was responsible for monitoring application and, if violations were noted, it drew up an indictment which it sent to the public prosecutor. The latter decided whether or not to instigate proceedings against the employer concerned. Despite its limited resources, the labour inspectorate had carried out visits, but had not noted any violations in the private sector.
The Government recognized the need to respect the fundamental objectives and would ensure that they were taken into account during the forthcoming discussions with the social partners and members of the Higher Committee for Labour and Social Security.
The Employer members reaffirmed the importance of fulfilling obligations relating to minimum wage fixing machinery and noted that the Government representative had provided information concerning some of the questions raised by the Committee of Experts with regard to the situation in this respect in Chad. Nevertheless, the situation was still not absolutely clear. The Committee of Experts had stated that a freeze had been applied to a proposed increase in the minimum wage, while the Government representative had stated that the freeze had been lifted shortly afterwards. It was not clear whether this had been understood by the Committee of Experts. However, it was evident that the level of the increase in the minimum wage was very low. The minimum wage clearly needed to be raised periodically to maintain the standard of living of workers to some extent. The Government representative had provided some information concerning the participation of the CST in the fixing of minimum wages in the country. But more information was required in the process of fixing minimum wages and the level of participation of representative organizations.
In response to the comments by the Committee of Experts concerning the importance of the labour inspection services, the Government representative had indicated that labour inspection activities were continuing. The question was, however, at what level and with what frequency inspection was being undertaken. In this respect, the Government representative had indicated the existence of financial difficulties. It was also unclear how severe the situation was and the number of workers who were affected. The Government should be requested to provide detailed information in a timely manner, and certainly before the next meeting of the Committee of Experts.
The Worker members recalled that this case concerning the application by Chad of the Convention, had already been examined in 1993. In December 1996, the competent authorities had amended the Labour Code to enable employers' and workers' organizations to participate in the fixing of minimum wage rates and the minimum wage had been revised.
The observations made by the Committee of Experts and Case No. 1857 of the Committee on Freedom of Association had highlighted the persistence of problems in applying the Convention. Since the Government had not supplied a report or provided responses to the questions raised, the Committee of Experts had been bound to reiterate its previous observation. In fact, the three problems in applying the Convention concerned: (i) the revision and the effective application of minimum wages within a context of structural change, taking account of the fact that the fundamental objective of the minimum wage was to ensure a decent standard of living for workers and their families; (ii) the appointment of the members of a joint committee which to date had excluded the CST and which had prevented the CST from participating in collective bargaining concerning the fixing of minimum wage rates. In this regard, it was necessary to emphasize that a social dialogue based on the integral respect of freedom of association and tripartism in conformity with Conventions Nos. 87 and 98 constituted the key to the functioning of minimum wage fixing machinery; (iii) the non-respect of the revised minimum wage rates in the private and public sectors were shortcomings which the Government acknowledged. The Committee of Experts had recalled the need for an effective supervisory and inspection system.
The Worker members considered the response of the Government representative to be imprecise and expressed the hope that the Government would again be requested to provide detailed information on the appointment of members to the committee responsible for fixing minimum wage rates as well as the participation of the CST in the activities of this joint committee, in accordance with Article 3 of the Convention. They also recalled the need, in accordance with Articles 4, paragraph 1, and 5 of the Convention, for effective sanctions against employers in the private and public sectors who violated the regulations on minimum wage rates and called for the Government to be requested to provide the Committee of Experts with information on the measures taken in this regard.
The Government representative stated that she had noted the comments made by the Employer and Worker members. Regarding the participation of the CST in the Higher Committee for Labour and Social Security, she pointed out that the Committee had commenced its discussions before the CST had been established so it was only when its first term of office came to an end that the CST was able to participate. Regarding the form in which the three most representative organizations participated in the Committee, the Government simply provided the breakdown of seats -- two for the UST, two for the CLTT and one for the CST, which was slightly smaller -- and the organizations were free to appoint their own representatives. It should also be noted that the CST participated in the governing body of the ONAP. Moreover, since the structural adjustment initiated in 1995, the aforementioned bodies participated in all the negotiations as part of the normal functioning of social dialogue.
Regarding the labour inspectorate, the Government did not deny that the problems referred to existed, but it wished to draw attention to the inadequacy of the resources available to it. Nevertheless, taking into account those elements, the two series of inspections carried out during the year reflected the determination and efforts of the services.
Concerning the revision of the minimum interoccupational guaranteed wage rates (SMIG), according to article 249 of the Labour Code, the organizations representing employers and workers fixed the rates by negotiation and the Government only intervened if there was disagreement. The labour inspectorate was also responsible for the practical application of the SMIG in different sectors. It was of course a difficult task, especially in the informal sector, notably because of the lack of resources available to the department.
In conclusion, she stated that the Government would transmit to the Committee of Experts as soon as possible all the information and documents available so that the Committee could have a better picture of the effects of the measures taken. She also reaffirmed the Government's willingness to cooperate with the Committee.
The Committee noted the oral information supplied by the Government representative and the discussion which took place. The Committee reaffirmed that the appropriate functioning of the machinery established for the fixing of minimum wages, in which the participation of the social partners should be assured, was essential to respond to the requirements of the Convention. The Committee, therefore, hoped that the Government would adopt the necessary measures in the near future to ensure that the law and practice were in conformity with the provisions of the Convention and that the Government would provide the corresponding detailed information to the Committee of Experts in its next report due this year, particularly regarding the measures adopted to guarantee the effective participation of the representatives of employers' and workers' organizations in the existing machinery for the fixing of minimum wages and on the practical measures taken to ensure the effective application of the minimum wages which were fixed. The Committee also emphasized the importance of the participation of the social partners in contributing to the analysis and development of solutions to problems arising as a result of the economic situation of the country, including the implementation of measures decided upon within the framework of structural adjustment programmes.
Convention No. 29: Forced Labour, 1930
Australia (ratification: 1932). A Government representative expressed strong support for both the Convention, which was one of the ILO's core standards, and the work of the Committee of Experts. His Government believed that it complied with the Convention in all respects and did not agree that work performed in privately-managed prisons constituted forced labour, since there was appropriate state control and no profit motive in relation to prison labour. While recognizing the right of the Committee to address matters of concern, he nevertheless expressed surprise that the present case had been brought before the Committee at this initial stage of dialogue. The Government had responded willingly, at length, and in a timely fashion to the issues raised by the Committee of Experts in late 1998 and would address those points in a detailed report later in 1999.
The text of the Convention needed to be understood with reference to the intentions of its drafters, in accordance with international law. Its application to modern practices should be examined in that light. It would be a mistake for the Committee to interpret the Convention in a narrow, textual manner, without placing its wording in the context of the instrument's aims. It was clear from the preparatory work that the Convention had grown out of international concern over slavery and so-called "native labour" in colonies. While the need was accepted in certain circumstances for compulsory work to be imposed for public purposes, the ILO had taken a firm position, in view of the serious abusive and exploitative practices which had occurred, that such work should not be imposed for the benefit of private individuals. The contributions of member States on this issue had made it clear that private profit or benefit was the issue which was being addressed. In addition, another recurrent theme had been concern about abusive practices which often occurred when forced labour was made available to private employers.
When developing the Convention, and particularly Article 2, paragraph 2(c), the drafters had discussed the specific issue of penal labour and had noted the problem of abusive practices in some countries under which prisoners were placed at the disposal of private individuals to work in a form of slavery or debt bondage. The concept which the drafters had in mind was clearly that penal labour constituted forced labour in cases where it was farmed out to private employers in the exploitative sense. It was clear from the preparatory work that such "farming out" to private employers had been equated with labour not carried out under government supervision. However, this was clearly not the situation in modern prisons, which were managed by private companies under contract to the Government, in a situation in which the private companies did not stand to benefit or profit from the labour of the prisoners.
In 1930, the Committee which had discussed the proposed instruments had reported to the Conference that prisoners under sentence and labouring under the terms of their sentence did not represent the kind of forced labour contemplated and that, therefore, such labour should be exempted from the terms of the Convention. His Government believed that this exception should apply equally to prisoners held in privately-managed prisons as to those held in public prisons. In each case, the prisoners were under sentence and required to work while serving their sentence.
Although Convention No. 29 was a self-contained instrument, it was applied against a backdrop of developing international law. In supervising compliance with the Convention, attention should therefore be paid to other significant human rights instruments dealing with the same issues in the interests of ensuring cohesive international jurisprudence. For example, article 8 of the International Covenant on Civil and Political Rights, which was more recent than the Convention, provided that the term "forced or compulsory labour" did not include work or service normally required of persons under detention pursuant to the sentence of a court. The United Nations Standard Minimum Rules for the Treatment of Prisoners provided that all prisoners under sentence should be required to work with the objective of rehabilitation and preparing them for life after their release.
It was also necessary to apply the Convention, which had been designed in a very different social and economic context, to the modern world, while remaining true to its aims and principles. The principles and practice of public administration in Australia and a number of other countries had been transformed in recent decades. This transformation had largely been due to pressure on public finances generated by international economic changes, including the economic forces associated with globalization. There had been a shift in the delivery of traditional public services, with emphasis being placed on governments ensuring that publicly funded services were provided efficiently and effectively, rather than actually delivering the services themselves. Against that background, in 1993, the Government of Victoria had launched the New Prisons Project, which sought private sector involvement in the construction and operation of three new prisons.
The interpretation of the exception contained in the Convention for certain kinds of prison labour also required an understanding of the nature of such work. Article 10(3) of the International Covenant on Civil and Political Rights provided that the treatment of prisoners in the penitentiary system should have the aim of their reformation and social rehabilitation. Indeed, the Government of Victoria recognized the causal relationship between unemployment and crime. Employment in prison industries, including service industries, had therefore focused on the development of the work-readiness of a group of people who had experienced long periods of unemployment or limited employment, with the objective that upon their release they would be better equipped to gain employment and integrate more effectively into the community. Prison work programmes, therefore, included a heavy emphasis on work preparation and the development of skills for employment through the practical application of vocational integration and training. Prison managers were required to provide accredited education and training programmes which enabled prisoners to continue training as they moved through the prison system. They also had to allow prisoners to pursue part-time studies which were accredited with outside education providers.
The contemporary circumstances of imprisonment should, therefore, be viewed as a denial of freedom for a specified period, during which work provided an opportunity for rehabilitation and reparation to the community. Prison work was not undertaken in the context of an employment relationship comparable to employment in the wider community. Prison work should not, therefore, be treated as a labour relations issue.
Prison work in the state of Victoria met the two key criteria for prison labour to fall within the exception set out in Article 2, paragraph 2(c), namely that the work was carried out under the supervision and control of a public authority and that the prisoners were not hired to or placed at the disposal of private individuals, companies or associations. The framework for the supervision and control of prisons, including prison work, as established by the Parliament of Victoria, included guarantees of prisoners' rights and the creation of the Correctional Services Commissioner as the public authority for the supervision and control of prisons for adults, whether privately or publicly operated. This legislative framework reflected the commitment of the state of Victoria to upholding the rights of prisoners in accordance with Australia's legal obligations, and was buttressed by the prison services agreements concluded between the Government of Victoria and prison operators. Responsibility and overall authority for the operation of the adult correctional system rested with the Correctional Services Commissioner, who was responsible for monitoring performance in the provision of all correctional services to achieve the safe custody and welfare of prisoners and offenders, as well as for the classification and placement of prisoners across the system and for monitoring prisoner welfare and management, in accordance with the service standards and requirements of the Corrections Act. There were, therefore, numerous and extensive safeguards to ensure that providers delivered the best in correctional facilities and services.
The Government of Victoria did not, therefore, transfer the legal custody of prisoners to private providers of prison services. Prisoners remained in the custody of the state, which retained responsibility for their legal custody and welfare. Supervision and control of all prisons, whether publicly or privately operated, was underpinned by the prison service agreement concluded with the prison operator, which included provision for monitoring the performance of prison operators, including reviews by the sentence management unit of the sentence management plans for individual prisons. The Commissioner monitored the performance of prison providers, both public and private, against the established correctional policy and management standards, which applied to the whole system. The Commissioner was also responsible for issuing authorizations to all personnel working in public and private prisons. No person employed by a private prison operator could supervise or have custodial responsibility over prisoners without the express authorization of the Commissioner. It was, therefore, clear that the Commissioner exercised control and supervision over all aspects of the operation of prisons in Victoria.
The second requirement of Article 2, paragraph 2(c), was that prisoners were not to be hired to or placed at the disposal of private individuals, companies or associations. This covered situations in which the prisoner was either required to undertake work by the operator of a privately-managed prison, or, regardless of whether the prison was privately or publicly operated, in which the prisoner was required by the prison operator to undertake work for the benefit of a private entity. He considered that a prisoner could only be considered to be hired to or placed at the disposal of a private company in cases where the prisoner was employed by the private company, which might be either the prison operator or a third party, or where the prisoner was placed in a position of servitude in relation to the private company. Neither of these circumstances existed in prisons in Victoria. The prisoners were not involved in an employment relationship. The performance of work, unless prisoners were excused by the Correctional Services Commissioner on certain grounds, was merely one of the conditions of imprisonment imposed by the state.
He reaffirmed that the prisoner could not be considered by any means to be a slave of either the prison operator or the third party for whom the work was performed. The prison operators had no legal authority to "hire" the prisoner to a third party company, because the prisoner was at all times under the supervision and control of the Commissioner. The prison operator was, therefore, no more than an agent of the Commissioner for the purposes of organizing work to assist in the rehabilitation of prisoners. Nor did private entities in Victoria obtain any significant economic benefit from the labour of prisoners in private prisons. Whatever argument was used, prisoners in the private prisons of the state of Victoria who were required to work were not consequently hired to or placed at the disposal of private entities.
He added that, under the prison services agreements, any surplus income derived from prison industries did not return to the private prison operator. The agreements stipulated that the operator should ensure that all income from industries was kept separate from the income of the contractor and that any profit from the industries was reinvested in the industry or expended in such other manner as approved by the Secretary of the Department of Justice.
Since the work undertaken in Australian prisons did not come within the definition of forced or compulsory labour for the purposes of the Convention, no issue arose in relation to the other conditions put forward by the Committee of Experts as being relevant to the work of prisoners, such as equal wages with those paid on the market. These issues might be relevant in a situation where labour was imposed on prisoners for private interests in order to ensure that the prisoners were not exploited for the benefit of a private employer. However, they were not relevant where the work in question simply did not come within the term of "forced or compulsory labour" as defined in the Convention.
In conclusion, while recognizing that the Committee of Experts had raised important points, he did not consider that they were sufficiently serious as to warrant urgent consideration by the Conference Committee. He looked forward to the Committee of Experts' further examination of the detailed report on the Convention which would be supplied by his Government, confident that its concerns would be fully and satisfactorily addressed. In thanking the Committee for its attention, he noted that his country had provided a substantive paper to the secretariat for the attention of the Committee of Experts, which reflected the significance placed by his country on ensuring its compliance with such fundamental instruments as Convention No. 29.
The Employer members thanked the Government representative for the comprehensive information which he had provided. Work by prisoners in private prisons and for private employers had become a topical subject in recent years, and the Employer members referred to the comments that they had made on this subject in the general discussion. The Committee was now examining the issue in the context of Australia, not because the application of the Convention raised any particularly severe concerns in that country, but to offer an opportunity to examine the manner in which the question related to compliance with the provisions of the Convention. The Committee of Experts had noted that there were three private prisons in the state of Victoria, where prisoners faced certain disadvantages if they refused to work and received payment for their work which was below the minimum wage. The Government representative had provided a great deal of detail on the subject and had stated that work in private prisons was supervised by the state and the public authorities. This meant that prisoners in private prisons were still under state custody and that the prison relationship was with the state, rather than a private enterprise. The authorities had access at all times to these private prisons, so that they could verify the situation and the relevant documentation. The wage rates were laid down by the state authorities, and any revenue accruing from work performed by prisoners either had to be reinvested in the facilities or authorization had to be obtained from the public authorities for its use.
The Employer members recalled that the Committee of Experts had commented on a number of occasions on the question of the relationship between work performed by prisoners in private prisons and the requirements of the Convention. The Committee of Experts had noted that private prisons existed in several states in Australia and that prisoners who refused to undertake work in them suffered no direct disadvantage or punishment. However, such a refusal was regarded as a failure to participate in rehabilitation activities. This was a fair description of the situation. Article 2, paragraph 2(c), of the Convention was quite clear in this respect. It excluded from the definition of forced or compulsory labour "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".
The Employer members emphasized that work performed by prisoners was indeed based on a conviction in a court of law and did not, therefore, constitute forced labour. It therefore constituted one of the permitted exceptions from the term. However, supervision and monitoring by the public authorities needed to be guaranteed, which was in the interests of the state itself. The Employer members pointed out in this respect that the trend towards the more widespread emergence of private prison administrations could not be compared with the much more complete privatization processes which were occurring in many countries in such areas as telecommunications, railways and air transport. The problem which arose in relation to the Convention was that it did not contain detailed provisions concerning the scope of the supervision and monitoring which was required by the public authorities. It was important in this respect to note that it was not possible to develop a more far-reaching legal interpretation of the provisions of the Convention to establish the manner in which such supervision complied with the requirements of the Convention. The Committee of Experts had referred to a possible requirement that all prisoners would need to freely give their consent to the performance of work in private prisons. However, this was an extension of the provisions contained in the Convention. Indeed, such a requirement would tend to privilege prisoners held in private prisons in respect of those in public prisons, where there would be no such requirement for their consent to work.
With regard to the significance of prison labour for the prisoners themselves, the Employer members hoped that there was no fundamental disagreement on the importance of taking all possible measures to help in the rehabilitation of prisoners, and in particular by giving them the opportunity to perform work. One of the major difficulties experienced by public prisons in this respect was to provide prisoners with sensible and constructive work, rather than the merely menial tasks which were often allocated to them in public prisons. Work was an important part of the rehabilitation process for prisoners and helped them maintain their vocational skills and earn some money, with which they could help to support their families. To some extent, it also allowed them to compensate for the act for which they had been convicted.
With regard to the level of the wages provided to prison workers, the Employer members warned that it was not appropriate to compare such wages with those provided in employment outside prisons. In general terms, private enterprises which provided work in prisons ran a number of risks. They were not covered by liability insurance against any damages which might occur and the level of productivity was usually rather low.
They concluded by stating that the President of the Committee of Experts, in his address to the Committee, had rightly identified this as a subject which the Conference Committee and the Committee of Experts would need to examine more closely in the future. However, adequate information was not yet available to undertake an appropriate evaluation of the issue. In the specific case of Australia, the Committee of Experts had not raised any major concerns and there was no question of any major violation of the provisions of the Convention. The case had been examined by the Conference Committee more as a means of discussing this emerging phenomenon. In its conclusions, the Committee should, therefore, confine itself to a request for the Government to provide information on future developments, as it had already promised to do.
The Worker members thanked the Government representative for the information that he had provided and noted with interest that a more detailed report had been communicated to the Office. They recalled that last year the Committee had discussed the special report of the Committee of Experts concerning the Convention. In this report, the Committee of Experts duly took note of the points of view of the Employer and Worker members regarding the problem of prison labour. It stated that it was aware of the risk of exploitation that prison labour represented. During the general discussion that took place this year the problem was briefly raised, and the Committee of Experts considered that the question of prisoners "hired to or placed at the disposal of private individuals, companies or associations" according to the terms of the Convention, merited fresh attention at the present time. Comments of the Committee on the application of the Convention in privatized prisons in Australia should be placed in this context.
They recalled that prison labour was excluded from the scope of the Convention when two conditions were met: it was "carried out under the supervision and control of a public authority" and the prisoner was not "hired to or placed at the disposal of private individuals, companies or associations". The Committee of Experts noted in paragraph 4 of its report that the two conditions were applied independently and that, therefore, the Convention provided for no exceptions with regard to the second condition. The prohibition was absolute and, as indicated in the 1979 General Survey on this matter, this prohibition applied "equally to workshops which may be operated by private undertakings inside prisons" and, all the more so, to all organized work in private prisons.
With regard to the case under examination, the Australian Council of Trade Unions stated that in all the private prisons of Victoria, the work was placed under the supervision of private operators and the prisoners must work for a private company. The wage and working conditions in prison workshops run and managed by private companies were greatly inferior to those of local companies. According to the information available to the Worker members, local companies, which were often small and medium-sized enterprises (SMEs), were confronted with unfair competition, as the wages in the prison workshop were sometimes ten times lower than in normal companies. Moreover, in practice, the national authorities had no influence on the kind of products manufactured and services rendered in private prisons. These products and services would more and more often enter into unfair competition with those manufactured by local producers. Private prisons and their workshops were managed by several large companies operating at the global level. The Worker members were of the view that this relationship between local SMEs and workshops managed by several large companies was not in conformity with Paragraphs 6 and 16, clause 2 of the Job Creation in Small and Medium-Sized Enterprises Recommendation, 1998 (No. 189), because the above paragraphs provided that the authorities must take measures to protect the legitimate interests of SMEs and their workers in the context of relations between large and small and medium-sized companies. Moreover, the contents of the contracts entered into between public authorities and large enterprises which operated workshops in private prisons could not be transparent; too often their contents were not accessible to financial authorities and to competing SMEs.
The Government should provide detailed information on the extent of contracts concluded between companies that managed workshops in prisons or the prisons themselves and the public authorities so that the ILO could verify that these contracts did not have a direct or indirect influence on working conditions and the voluntary nature of prison labour. The Worker members considered that there was a lack of transparency that risked damaging the voluntary nature of prison labour in view of the standards for profitability of the large companies that managed these workshops and prisons. In the context of prison labour, the ILO should therefore take into account the provisions of Recommendation No. 189, which referred in its Preamble to Convention No. 29, and more particularly to Paragraphs 6, clause 1(b) and 16, clause 2. The Government should provide all information on measures adopted or contemplated to guarantee the voluntary nature of prison labour and its supervision by the authorities.
The Worker member of Australia stated, in the first place, that Australian workers supported the need for suitable and creative rehabilitation programmes for prisoners. However, the issue of forced labour, wherever it occurred, was an extremely serious matter and the Convention covered fundamental human rights.
He recalled that since 1930, when the Convention had come into force, and 1979, when the most recent general survey on the Convention had been undertaken, there had been significant changes in the prison system. These had included the rapid development of the privatization of the prison system and the globalization of companies, which could hardly have been envisaged in either 1930 or 1979. He therefore welcomed the fact that the supervisory system had been effective in identifying this new and emerging market, to which fundamental labour rights should be applied. In this respect, there could be no doubt whatsoever that Australia had failed to comply with its obligations under the Convention.
He drew the attention of the Committee to the complex commercial arrangements governing the relationship between private companies and the prison authorities in Australia. The globalization process had added to this complexity. By way of illustration, he cited the case of an Australian-based British company which had recently won contracts to run prisons in South Africa. Moreover, with reference to the statement by the Government representative that all profits from prison industries were required to be reinvested in the industry or in other amenities, he emphasized that the situation was much more complex. In the case of goods manufactured in prison for a contractor, the goods were then sold to a wholesaler, then to the retailer and then on to the consumer. This constituted a four-stage distribution chain with a profit margin at each level, all of which was based on the forced and cheap labour of prisoners. More importantly, in the case under consideration, there was a blatant lack of transparency in the commercial arrangements between the Government and private contractors. The Auditor General of Victoria had recently reported to Parliament concerning the privatization of the prison system and its commercial arrangements, and had stated that he was unable to fulfil his role in that respect. He had noted that legislative secrecy provisions rendered any financial information relating to public contracts with private prison operators subject to commercial confidentiality. He had not, therefore, been able to scrutinize or monitor the arrangements.
He also drew attention to other issues which arose in relation to work by prisoners in private prisons. In the first place, in relation to their social protection, the prisoners concerned were not covered by compensation requirements in the same way as other workers. Moreover, their rate of pay was very low in comparison with wages outside the prison system.
Although the Government representative had argued that the operation of prison industries was subject to the supervision and control of the public authorities, he stated that there existed real doubts as to their capacity to fulfil their functions in this respect. Indeed, the Auditor General had concluded that the existing framework did not enable the public authority to operate in an effective and independent manner as an industry monitor. Moreover, the Catholic Commission on Justice and Peace had recently reported that prison officers and managers were over-stretched and struggling with their workloads.
In conclusion, he hoped that the other members of the Committee would give strong support for the consideration by the Governing Body of the possibility of undertaking another general survey on the Convention. He appreciated the attention given to the case by the Committee and supported the finding of the Committee of Experts that the Australian Government had not complied with its obligations under the Convention on this matter.
The Employer member of Australia emphasized that the current conditions relating to work by prisoners had not existed when the Convention had first been developed nearly 70 years ago. This had been explicitly recognized by the Worker member of Australia, and implicitly in the comments made by the President of the Committee of Experts in his address to the Committee, and in paragraphs 71 and 72 of the report of the Committee of Experts. The issue deserved careful consideration, not only in relation to the present case, but also in a more general context. He gave thanks to the Government representative for the information supplied and expressed support for his statement. He also warned that the issue of competition between prison enterprises and certain other commercial establishments were not matters which should be considered when examining issues of compliance with the provisions of the Convention.
The Government member of New Zealand emphasized that the Convention was one of the core international labour Conventions and dealt with one of the worst forms of exploitation of labour. It was, therefore, extremely important that its application should remain relevant in an ever-changing economic and social environment. The comments made by the Committee of Experts on the situation in prisons in the state of Victoria suggested that the relevance of the Convention was being placed at risk in the context of the changing ways in which prisons were managed, and particularly their management by private prison operators in an increasing number of countries.
Although the report of the Committee of Experts contained no evidence that the abuses which the Convention was designed to eliminate were practised in Australian prisons, it nevertheless tentatively concluded that Australia was in breach of the Convention. In its General Report, the Committee of Experts had expressed the belief that the position of prisoners in privately-managed prisons merited fresh attention. It had noted that the last general survey on the subject had been conducted in 1979 and had suggested that the Governing Body might wish to schedule a new survey on the relevant Conventions in the near future. The comments made by the Committee of Experts on the situation in Australian prisons added force to that conclusion.
The Worker member of the United States recalled that the use of prison labour in private prisons was a relatively new issue for the Committee. The practice was growing not only in Australia, but also in the United States and other countries. Indeed, it had become a multibillion dollar global industry in only a few short years. In the United States alone, the sale of the private prison industries would exceed $9 billion by the year 2000 and there were large multinational corporations, many of which were based in the United States, operating private prisons in a number of countries. The practice was spreading rapidly because it was profitable and offered a certain public appeal. Indeed, it was profitable not only for the companies which operated private prisons, but also for those which used prison labour to produce goods for the market.
He noted the argument of the Government representative that prison industries were established to provide work skills and work experience as part of the rehabilitation process to facilitate the integration of prisoners into the labour market upon their release. He stated in this respect that no one was opposed to an effective rehabilitation process. Moreover, the Committee had also been informed that some of the income generated by private prison industries was put back into the industry, thereby benefiting the taxpayer. There were also alleged cost savings. Indeed, labour represented between 60 and 80 per cent of the operating costs of a prison. It was interesting to note in this respect that, in the United States, correctional officers in a growing number of private prisons earned lower wages than the officers employed by state governments, many of whom were members of trade unions, while receiving fewer benefits and no pensions. In contrast, managers and administrators earned much more than their public sector counterparts. The situation in the United States showed that much of the savings made by private prison companies were derived from the use of non-union workers, with the overwhelming majority of private prisons in the United States being located in southern states which were hostile to unions.
In the comments that it had made on the situation in Australia, the Committee of Experts appeared to envision circumstances under which the use of prison labour in private prisons could be consistent with the Convention. Such labour would need to be carried out under the supervision and control of a public authority. It would have to be completely voluntary and should not be placed at the disposal of private individuals, companies or associations. Moreover, the remuneration should reflect normal wages. The clear concern of the Committee of Experts, based on the information received on the situation in Australia, was that these conditions were not being met in that country. The Worker member of Australia had presented a compelling case that this concern was well-founded.
In conclusion, he supported the view expressed by the Committee of Experts that the rapidly growing use of private prison labour merited further attention, both in Australia and in other countries. He also supported the suggestion that a new general survey should be carried out on the Convention, paying particular attention to the use of private prison labour.
The Worker member of Pakistan expressed support for the comments made by previous speakers on the subject and noted that the ILO was carrying out a campaign for the further ratification of the Convention. Although the democratic traditions of Australia were not to be doubted, the statements made by the Government representative had been clearly rebutted by the Worker member of the country. The wording of Article 2, paragraph 2(c), of the Convention left no doubt that prisoners were not to be hired to or placed at the disposal of private individuals, companies or associations. Nevertheless, some 65 per cent of prisoners in the state of Victoria were held in private prisons. Although the Committee of Experts had established a number of conditions which needed to be fulfilled if work by prisoners in private prisons was to be in compliance with the Convention, including the freely given consent of the prisoners concerned and the payment of minimum wages, he emphasized that the remuneration received by the prisoners in Victoria was ten times lower than the minimum wage. Moreover, the Worker member of Australia had provided a clear warning of the dangers of legal and commercial secrecy as it affected the supervision carried out by the public authorities concerning the arrangements by which private enterprises managed prisons. The Convention in question upheld the fundamental freedom of workers not to be subjected to forced labour and, therefore, needed to be applied by all member States. The Government should therefore examine its law and practice to identify those areas which violated the provisions of the Convention.
The Government member of the United Kingdom confirmed that his Government took a strong interest in the issue of prison labour and welcomed the advice of the Committee of Experts on the application of the Convention. He noted the detailed information provided by the Government representative and took account of the clear positions stated by the Worker and Employer members.
He emphasized that responsibility for prison administration rested exclusively with governments. In this respect, the United Kingdom had much in common with Australia and a number of other countries in seeking to provide decent, constructive prison regimes geared to the rehabilitation of offenders. Prison privatization was a recent development which clearly could not have been taken into account in 1930, when the Convention was drafted. He fully shared the concern expressed by the Committee of Experts that convicted prisoners should not be subjected to exploitation, but found it difficult to accept that work and training carried out in privatized prisons should, by its definition, constitute forced labour, particularly where the regulations and conditions were identical to those in publicly managed prisons. In the general discussion, he and a number of other Government members had emphasized the need for a realistic and up-to-date interpretation of this fundamental Convention. In the current case, it would be premature to draw definitive conclusions until recent developments had been reviewed in a general survey on forced labour. He hoped that the Committee's conclusions would fully reflect this position.
In addition, the Government member of the United States pointed out that this case provided an opportunity to examine the important aspects of prison labour, a key principle in one of the fundamental Conventions. The discussion in this Committee and the Committee of Experts' response would assist in keeping the interpretation of Convention No. 29 current. He indicated that Convention No. 29 was adopted in 1930 and the last General Survey had been issued in 1979. Times had changed since then, prisons were different and the work prisoners did was different. In his Government's view, private prisons and workshops in prisons were considered a public good benefiting both the prisoner by providing rehabilitation through job training, and the Government by reducing the taxpayers' burden of funding public prisons. He was encouraged by the Committee of Experts' request for information from ratifying countries on their present position in law and practice with regard to the work of prisoners in private prisons and for private contractors. He also supported the call for a new General Survey on forced labour, and in particular prison labour. On the one hand, there was a need to protect prisoners from unjust forms of forced labour, while, on the other hand, there was a need to provide them with some programme of rehabilitation and sustainable job skills, so that they could become productive citizens upon their release; and do that in the most cost-effective way. That balance needed to be reassessed by the ILO to assure that the interpretation of Convention No. 29 regarding prison labour conformed to modern practice. He encouraged the Office and the Committee of Experts to listen carefully and take full note of the Worker, Employer and Government comments on this case.
The Worker member from France observed that the Government representative of Australia did not seem convinced that the Convention applied to prison labour in both private and public prisons. He expressed his disagreement with this position and insisted that this instrument was a fundamental Convention which applied to all. Its importance tended to increase as systems of private prisons were developing. It was thus inappropriate to maintain that this Convention was obsolete and of relevance only in the context of old forms of slavery.
The speaker noted that vocational training and work were well-known elements of rehabilitation of prisoners. Moreover, prisoners frequently had educational difficulties and were in need of training and a development of professional skills. He insisted however, that prisoners remained human beings and that they, therefore, were entitled to benefit from certain rights including those contained in the Declaration of Philadelphia which, inter alia, referred to the right to freely chosen, productive employment. Prisoners were also entitled to a decent salary so they could have some savings for when they left prison, as well as social protection and a pension. If this was not the case how would it be possible for prisoners to reintegrate into society at the end of their imprisonment? The speaker further noted that the meagre salaries paid to prisoners competed with the salaries in the free labour market. Moreover, the emergence of private prisons entailed a troublesome exploitation of prison labourers as the entities engaged in this area were primarily profit-seeking.
The speaker insisted on the fact that the conditions of work of prisoners should abide by relevant established standards. He emphasized that he did not share the views expressed by the Employer members that the Convention should be interpreted restrictively. Finally, he underscored that it was important that the Government submit a detailed report which would thoroughly examine the actual practice and conditions of work in prisons run by private enterprises.
The Government member of Germany welcomed the Committee of Experts' comments according to which labour in private prisons was a new issue and needed to be evaluated in the light of the present situation. Until now, in discussions on prison labour, emphasis had been on its penalizing character as well as unjustified advantages private employers might have if they provided work to prisoners. In this regard, he referred to article xx(e) of the GATT Regulations which permit the introduction of measures aimed at limiting trade in products produced in prisons. However, the situation had changed. Today, the performance of work by prisoners was recognized as a reintegration factor into society. In this respect, he noted the catalogue of questions raised by the Committee of Experts in its general observations on the Convention. He disagreed with the view expressed by the Australian Government representative according to which performing work in private prisons was not covered by the scope of the Convention. The question of whether or not performing work would comply with the provisions of the Convention remained the same, also with regard to private prisons. In conclusion, he said that 20 years after the publication of the last General Survey on forced labour, the issue needed to be re-examined thoroughly. The Government should, therefore, provide full information on the subject.
The Government member of Canada pointed out that new developments had arisen since the last General Survey by the Committee of Experts on Convention No. 29 in 1979. His Government was supportive of Australia's position which was strongly in favour of the Committee of Experts' proposal for a new General Survey on the Convention which would examine new developments on, for example, the issue of prison labour. Such a survey would provide an up-to-date review of practices in various countries, problems in implementation, and the Committee of Experts' illumination of problem areas. A new survey would be in keeping with the objective of ensuring the current relevance of ILO Conventions and the sharing of information on their application in modern circumstances.
The Government member of Japan indicated that he supported the view of the Government member of Australia that the interpretation of the Convention should be made more flexible in keeping with modern-day realities. A new General Survey should also be conducted on this and other Conventions.
The Worker member of Germany agreed with the Committee of Experts' comments as regard the applicability of the Convention to work performed in private prisons. Since the number of private prisons had increased, it was of crucial importance to apply the principles enshrined in the Convention to private prisons. The use of prison labour was compatible with the Convention only if it was the result of freely given consent by the prisoners concerned and included guarantees as to the payment of normal wages, etc. Although a General Survey on the subject was needed, the evaluation and assessment of this phenomenon should not be delayed until the publication of the General Survey. He disagreed with the statement of the Employer member of Australia, saying that unfair competition resulting from very low wages had affected the application of the Convention. In conclusion, he recalled that there was general agreement that the Convention should prevent unfair competition.
The Government representative stressed that there was a threshold issue, namely that Article 2.2(c) was an exclusion clause. The fact that a prison was a private prison did not automatically involve the applicability of the provisions of the Convention. In other words, if the circumstances that were set out in Article 2.2(c) were in place, then the Convention did not apply in respect of private prisons. There was, moreover, no need to consider the level of wages or the composition of work on prisoners or any other factor since Convention No. 29 was simply not applicable to the private prisons in question.
Certain matters raised such as the provisions of the Job Creation in Small and Medium-Sized Enterprises Recommendation, 1998 (No. 189), including issues related to competition, while legitimately of interest to the ILO, were not of interest to this Committee. The issue was of forced labour alone. He referred to the comment by the Worker member of Australia that the Auditor-General of Victoria had raised concerns over the contracts for the operation of private prisons in Victoria. There needed to be a clear understanding of the contracts in question. These were those between the State and the private operator for the administration of the prison. The Government of Victoria had indicated that the issue only related to the withholding of the disclosure of prices for commercial reasons. Other aspects such as performance criteria, conditions for control of prisons and related administrative issues were publicly available. These contracts and the flow of profit to the private operators needed to be differentiated from profits arising from the prison industry where the way that the profits were distributed was clearly stated. The issue raised about the profit claim between distributor, wholesaler and retailer was not relevant to any considerations before this Committee.
His Government supported the proposal that a new General Survey be conducted on this matter by the Committee of Experts. This General Survey should focus on a new examination of the issue of prison labour. The application of Conventions needed to be revisited from time to time to ensure their capacity to deal with rapidly changing developments in modern society. In this case, the need for a fresh examination of the issue stemmed in part from changes in public administrative practices. While such a survey was clearly necessary, it was also quite clear that prison labour in Australia was not forced labour even under the current interpretation of the Committee of Experts. The facts provided by the Government of Victoria demonstrated that work in privately managed prisons was carried out under the supervision and control of a public authority and was supported by substantial regulatory framework. Furthermore, prisoners were not hired or placed at the disposal of private entities in the exploitative way that the drafters of the Convention sought to proscribe.
In summary, there was obviously a difficulty in handling the issue of privately administered prisons. The way forth would be for the Committee of Experts to prepare, as soon as possible, a new General Survey on forced labour, focusing on the issues at hand and revisiting their interpretation in the light of the conclusions of that survey. His Government, therefore, suggested that given the uncertainty about this matter, as had been expressed by a number of Government members, Employer members and some Worker members, this matter should be set aside and the Committee should make no findings on the Australian case. It would be appropriate for dialogue to continue in the normal reporting cycle which would enable any developments arising from the survey to be taken into account.
The Employer members noted the lively discussions which showed the general importance of the subject. Although this issue had not been contemplated in 1930 when the Convention had been adopted, it should be taken into account when examining the provisions of the Convention. He noted that the Committee of Experts had not evaluated the entire issue. In this respect, the Employer members supported the statement of the Chairman of the Committee of Experts in the Conference Committee as well as the Committee of Experts' request to the effect that governments should include in their next report the information concerning their current position in law and practice on this issue. Although a General Survey was necessary, the subject should now be examined without further delay. In conclusion, the Employer members supported the Committee of Experts' request for detailed information which could give a realistic picture with regard to the situation worldwide. Since not only Australia was concerned, this Committee should confine itself to request detailed information from the Government.
The Worker members wished to draw the attention of the Committee to two points. First, they insisted that governments respond to all the issues raised in the general observation by the Committee of Experts concerning the Convention, all while fully respecting the principle of tripartism when responding and when preparing reports. The present request for information should be contained in the conclusions by the Committee, so that the Committee would be in a better position to analyse the problems, the trends and the type of guarantees regarding the management and functioning of workshops in prisons. In so doing, governments should take into account paragraphs 70-72 of the General Report of the Committee of Experts as well as paragraphs 112-125 contained in the general part of the Committee of Experts' report of 1998. With reference to the Job Creation in Small and Medium-Sized Enterprises Recommendation, 1998 (No. 189), the Worker members furthermore asked governments to take into account the implications of work in prisons and the services and products emanating therefrom on other enterprises that were subjected to labour legislation, and, in particular, on small and medium-sized enterprises. Governments should inform the ILO on the measures taken and procedures engaged at the national level, taking into account the consequences on the employment situation in small and medium-sized enterprises, as well as in other enterprises.
Second, as regards the conditions of work of prisoners, the Worker members insisted that the view of the Committee of Experts was clear, and that conditions of work of prisoners who did not enjoy the rights of free workers, should be elaborated in order to ensure that their working conditions were decent and similar to those of other workers.
The Committee noted the information provided orally by the Government representative, and the discussion which followed. It noted that a detailed written report had been submitted for examination by the Committee of Experts. As concerned prison labour in privatized prisons, it noted the concerns expressed by the Australian Council of Trade Unions that supervision of the work of inmates in privatized prisons in the State of Victoria had been delegated entirely to private operators. While noting the assurances provided by the Government in this regard, the Committee asked the Government to provide detailed information on supervision of privatized prison labour to the Committee of Experts for its continued examination. In addition, the Committee stressed the Convention's requirement that prisoners may not be hired to or placed at the disposal of private companies or individuals, and considered that the extent to which this requirement was respected in Australia should be examined further by the Committee of Experts. The Committee urged the Government to continue to supply information to the Committee of Experts in this regard as well. The Committee also encouraged all governments to reply to the Committee of Experts' general observation on the question of privatized prison labour.
Myanmar (ratification: 1955). The Government has supplied the following written information:
The Permanent Mission of the Union of Myanmar to the United Nations Office and other international organizations in Geneva presents its compliments to the ILO, and with reference to the Report of the Director-General to the members of the Governing Body on measures taken by the Government of Myanmar following the recommendations of the Commission of Inquiry established to examine its observance of the Forced Labour Convention, 1930 (No. 29), dated 21 May 1999, has the honour to attach herewith a Memorandum in response to the above-mentioned Report.
The Permanent Mission of the Union of Myanmar would like to request that this Memorandum be treated as an official document in response to the Director-General's Report for use in any proceedings of the Governing Body and other relevant meetings.
Myanmar became a Member of the ILO a few months after its independence in 1948. As a responsible Member it has a long record of cooperation with the ILO and had settled several issues in the best spirit of cooperation.
It has been a consistent policy of successive governments of Myanmar to promote the welfare of labour. Myanmar is determined to build a society where peace and prosperity prevail and where rights of women and children are given all the encouragement and protection which they rightly deserve.
From around 1990 allegations were made to the effect that there is use of forced labour in Myanmar. Myanmar strongly feels that these allegations were largely the result of misconceptions and misunderstandings of the situation and the mentality of the Myanmar people.
Since a sound infrastructure is essential for economic development, the Government of Myanmar has placed special emphasis on this sector. Hence, a substantial effort to improve the infrastructure of the country's economy by building roads, bridges, dams and reservoirs has been undertaken. Realizing the benefits to the country from these projects, people have traditionally contributed labour so that they can be completed sooner. Moreover, it is Myanmar's thinking that "you reap what you sow before death in the present world or in the future cycles of life".
This is the background thinking of our people, and without understanding of these facts people tend to make all kinds of false allegations.
International organizations must not be used as forums to put pressure on member States by the powerful and influential quarters as a means to achieve their political objectives.
However, as stated earlier, since the early 1990s, Myanmar has been the subject of political pressure from some quarters who do not understand the reality in Myanmar. They tend to act largely on information from anti-government elements. They are making these politically motivated allegations to tarnish the image of the Government using every opportunity including various international fora.
In a move to further apply political pressure on Myanmar, the anti-government elements succeeded through false allegations in persuading a few members of the Workers' group to file a complaint against Myanmar under article 26 of the ILO Constitution. This resulted in the formation of the Commission of Inquiry in 1996. Myanmar, on the other hand, very firmly stood up against such allegations. However, the Commission, based on reports of certain terrorist organizations, both inside and outside Myanmar, and also on information given by certain other sources, came up with recommendations in July 1998 that:
(1) Myanmar must bring the Village Act, 1907, and Towns Act, 1907, in line with the forced labour Convention, namely, Convention No. 29 of 1930. Certain provisions of this law are also to be put in line with the Convention;
(2) to take measures to stop current practice through public acts and make them public and not through secret directives;
(3) to enforce penalties upon offenders for extraction of forced or compulsory labour.
As we have said earlier, Myanmar is building a modern nation and a society where peace and prosperity shall prevail. In this process, Myanmar does realize that these recommendations were based on false allegations. But with the spirit of cooperation, goodwill and sincerity towards the ILO, it never rejected these recommendations. Furthermore, it is in the process of revising on its own independent sovereign right, old laws that are not in conformity with the present situation. Under public international law, it has every right to perform this task on its own.
Myanmar finds that these recommendations were not too difficult to accommodate. But at the same time, one must take into account that Myanmar is inhabited by some 135 national races, with a changing economic system.
Thus, when Myanmar received the recommendations and the report of the Commission, it made several communications to the ILO which shows that these recommendations were not neglected. As evidence, these communications are: letters dated 23 September 1998, 4 February 1999, 18 February 1999, 12 May 1999 and 18 May 1999.
The fact remains on record that in the letter dated 23 September 1998, the Ministry of Labour said, "We do not see any difficulty in implementing the recommendations contained in paragraph 539 of the report".
True to its word, Myanmar firmly acted in accordance with its legal system and acted in accordance with the law of the land.
The recommendations made by the Commission were: firstly, that the Village Act and Towns Act be brought in line with Convention No. 29. The essence of the recommendation "brought in line" is in the domain of Convention No. 29. But on the other hand, it is the domain of national law or municipal law as to how to put into effect the provisions of the Convention which is not in the domain of the Convention. At this juncture, it is to be pointed out that legal systems of the world differ from State to State. One legal system in a State cannot be the same with the system of another. The modus operandi for putting in effect the essence of the Convention into national law might be different between two States.
Myanmar in its own legal system has on 14 May 1999 put a "stop" to the offending provisions of the above two laws through an Order from the Legislature to the ministry concerned not to exercise powers for the offending provisions under these two laws. In Myanmar's legal system, the State Peace and Development Council is the Legislature of Myanmar. As in all other countries under constitutional law, it is above the Executive. Executive encompasses the various ministries which includes the Ministry of Home Affairs, which implements these two laws. The Memorandum of the State Peace and Development Council was issued on 14 May 1999 and under it the Ministry of Home Affairs issued Order No. 1/99 of 14 May 1999 ordering all implementing authorities not to exercise powers under Towns Act, section 7, subsection (1)(l) and (m), and section 9 and 9A, and similarly in the Village Act, section 8, subsection (1)(g), (n) and (o), and section 11(d) and section 12. This Order has the force of law to stop all implementing authorities from exercising the offending powers of these provisions.
Thus, under our legal system this measure is taken in compliance with the related recommendation of the Commission of Inquiry.
The second recommendation of the Commission of Inquiry stipulates that the Order be made public. The Order has been made public and distributed immediately to 16 authorities. Besides this step, it will be published in the Myanmar Gazette where all laws are published. There is complete transparency. For the sake of the record, it has been circulated for action to the following 16 authorities:
Thus Myanmar firmly believes that the second recommendation is fully complied with.
The third recommendation says that penalties should be imposed for persons under section 374 of the Penal Code for transgression. It is pertinent to draw attention to paragraph 6 of the above-mentioned Order which reads: "any person who fails to abide by this Order shall have action taken against him under existing laws". This is beyond all reasonable doubt that offenders will be punished under section 374 of the Penal Code which is enacted as follows:
Unlawful compulsory labour
374. Whoever unlawfully compels any person to labour against the will of that person, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.
Despite these positive actions and steps taken decisively and effectively by the Government, the ILO office on 21 May 1999 issued the "Report of the Director-General to the members of the Governing Body on measures taken by the Government of Myanmar following the recommendations of the Commission of Inquiry established to examine its observance of the Forced Labour Convention, 1930" that:
(1) the Village and Towns Act had not been "amended";
(2) in actual practice, forced or compulsory labour continues to be imposed in a widespread manner;
(3) no action appears to be have been taken under section 374 of the Penal Code to punish those extracting forced labour.
The facts of the report are inaccurate. The alleged facts mentioned in the report are based on allegations supposed to have taken place prior to 14 May 1999. Not a single allegation is found after the Order of 14 May 1999 was issued. Thus, in legal language, one can say of this situation that "things speak for themselves". If there be any alleged acts that supposedly took place after 14 May 1999, the authorities should be directly informed of such allegations.
Myanmar on the other hand continues to be objective and steadfast in its course of building a modern nation where peace and prosperity prevails, taking into account the circumstances as they stand today. Moreover, Myanmar is in the process of making a new Constitution, when after its completion, all laws will be adjusted to meet the requirements of a modern nation.
Meanwhile, Myanmar takes the spirit that it has "charity towards all and malice towards none". There is a saying in law that justice must not only be done but must also be seen to be done. Justice must also be fair. Thus, Myanmar appeals to all Members of the ILO to understand the true facts and seek your help to support it in the discussions at the ILC.
Observations and conclusions
The most pertinent observations to be made of the report of the ILO Office dated 21 May 1999 are on the three negative points contained in paragraph 61.
Although these three points have been adequately countered and addressed in Order No. 1/99 dated 14 May 1999 issued by the Ministry of Home Affairs of the Government of the Union of Myanmar, which is the Order Directing Not to Exercise Powers Under Certain Provisions of the Towns Act, 1907, and the Village Act, 1907, the explanations given in Order 1/99 have not been mentioned in the Director-General's Report, except for the fact that Order 1/99 was simply annexed as Appendix III to the Report.
It may be recalled that in an earlier communication from the Director-General of the ILO, some deadlines had been mentioned for a response to be received from the Myanmar side. Please note that Order 1/99 was issued on 14 May 1999 which, inter alia, specifically orders that the offending paragraphs of the Village Act, 1907, and Towns Act, 1907, not be exercised; that any and all unpaid labour or compulsory labour be terminated henceforth; that any person who fails to abide by this Order have action taken against him; that Order 1/99 is not a secret order but is circulated to all government ministries among others; that it be publicly and openly published in the Myanmar Gazette for all to see, complies with all recommendations of the Commission of Inquiry.
Hence, it can be seen that Myanmar had adequately and specifically taken action to respond to, and to rectify the provisions of the Village and Towns Acts, and also taken additional measures as called for in the recommendations of the Commission of Inquiry. All this had been done in a timely manner.
But the question arises as to why such action taken by the Myanmar authorities was not reflected in the Director-General's Report, which, as a result led to the three negative observations as seen in paragraph 61 of the Report.
The answer would seem to be that Order 1/99 was issued only on 14 May, which was only five working days away from the 21 May deadline. It may be concluded that time constraints prevented any examination of this Order and compelled the drafters of this Report to only affix it to the Report as Appendix III.
But nevertheless, this time constraint cannot be used as an argument to the effect that Myanmar had not complied with the recommendations.
The Report in question contains oversights and omissions as stated above. Furthermore, the following additional observations and conclusions can be found.
The Report is full of unfounded and biased charges deliberately levelled at Myanmar and the Myanmar Government.
The alleged facts in this Report are manifestly false accusations concocted with evil intent to bring about the destruction of Myanmar by Myanmar expatriate organizations abroad and renegade groups that oppose all measures undertaken by the Myanmar Government. They are also based on blatantly false accusations made verbally, in writing and in the form of announcements by the National League for Democracy (NLD), whose only aim is to create difficulties for the Government to place it in an untenable position.
At present the Government is implementing construction projects with systematic planning and proper budget appropriations. Moreover, most of the work being done on these projects is through the use of mechanized implements and machinery. In any project where human labour has to be unavoidably employed, there is a budget allotment for payment of wages to the workers. Any worker so employed is paid fair wages and there is not a single instance or a shred of evidence that forced labour is being used in these projects.
Work on the highways under construction in various regions, including the union highway in the Shan State, and new railroads being laid, are being done by servicemen of the armed forces. There is not a single civilian working on them.
Any jobs in which the people are involved are confined to the digging of small irrigation ditches to convey water to their own private cultivation plots. The larger state projects for the building of irrigation canals and dams do not use forced or conscripted labour of civilians. As stated, if people are at work at all, they are working in their own interest and according to their own plans and schedules on their privately owned plots of land.
State construction projects employ only military servicemen. So the accusation that the Government is using forced labour on these projects is baseless and flagrantly false. Since only members of the armed forces are employed in the construction of rail and motor roads, to say that forced labour is being used is utterly meaningless.
Other ongoing projects such as the reclamation of vacant and fallow lands and the construction of residential housing and hotels are all ventures by private entrepreneurs who have made capital investments. The use of forced labour in such cases is totally out of the question. In fact when incidents arise over labour grievances, the Government stands firmly on the side of the workers in settling such disputes.
Concerning the charge that the army conscripts porters in its military operations, it could be said that this was the practice in former times when the insurgencies were rampant. But the fact remains that these porters were always paid and the defence budget always had an allotment for payment of their wages. These porters enjoyed the same rights as a soldier. He was given the same rations and paid the same wages. Moreover, a porter, if wounded, obtained equal compensation with a serving soldier and he was entitled to the same hardship allowances. But this issue of military porters is no longer relevant and has become a non-issue since military operations are no longer an urgent necessity.
The Myanmar Government categorically refutes all the false information deliberately fed by the NLD.
An esteemed organization like the ILO should not give credence to fabricated news and lies supplied by those who only see Myanmar and the present Government through hostile and resentful eyes, and who are moreover bent upon destroying the country to put the Government in a predicament.
Finally, it is relevant to reiterate that Myanmar, as a responsible Member of the ILO, has a long record of cooperation with the ILO, and has in the past settled issues in a spirit of cooperation. This spirit of cooperation will continue in the future.
As examples of this cooperation, Myanmar had signed a considerable number of ILO Conventions, including some core Conventions.
At present the ILO is in the process of inviting and persuading countries that have not done so, to sign, to ratify or accede to those Conventions that they had not yet become State parties.
In this positive atmosphere being created at present by the Members of the ILO, it would indeed be unfortunate, even counter-productive, to have more and more ILO Members become State parties to core Conventions, if one Member who had signed a core Convention, in this case the Union of Myanmar, is singled out unfairly and unduly criticized.
Such an exercise will no doubt serve as a reminder to those who have not yet signed the core Conventions to maintain their status quo, and will certainly help to dissuade them from signing the core Conventions, much to the detriment of the ILO membership as a whole.
A Government representative reiterated the written information provided by his Government on the case, set forth in the preceeding paragraphs.
The Worker members recalled that in the Committee's general discussion the Government member of India had stated that the article 26 constitutional procedure was an extreme measure designed to address an extreme situation, reached only when a member State wilfully and deliberately refused to take measures to comply with the suggestions and recommendations of the supervisory bodies. He had concluded that article 26 should only be applied as a last resort. By that measure, the Government of Myanmar was particularly deserving of the strongest and most extreme measures available to the supervisory bodies for its stubborn refusal to abide by its commitments under the Convention.
For over 35 years, the Committee of Experts had been denouncing the evils of forced labour in Burma. However, no action whatsoever had been taken by the Government to end the practice. On the contrary, in recent years the practice had grown. This was the fourth time in the past eight years that the Conference Committee had examined the case. In the meantime, an article 24 representation had been accepted by the Governing Body. In 1994, the Governing Body had adopted tripartite conclusions confirming that Myanmar was in fundamental violation of the Convention and calling on the Government to make the necessary changes in the law, to enforce the law, and to punish those responsible for the continued exploitation of forced labour throughout the country. Once again, no action had been taken by the Government in either law or practice.
The Conference Committee had expressed its deep concern at the serious situation in the country in both 1995 and 1996. It had restated in ever stronger terms its admonition to the Government to abolish all legal provisions and immediately abandon all practices which were contrary to the Convention. To emphasize its concern, it had set its conclusions aside in special paragraphs to its report and in 1996 had cited the case as one of persistent failure to implement a ratified Convention. Yet there had still been no action on the part of the Government, except for denials, delays and deception. Finally, after many years of attempting to persuade the Government to fulfil its treaty obligations and end the misery of hundreds of thousands of victims of this egregious practice, a complaint had been submitted under article 26 of the Constitution and rapidly accepted by the Governing Body. A Commission of Inquiry had been established in March 1997, which had held closed hearings in November 1997 and visited the region early in 1998. The military regime could have participated in the hearings and presented its own witnesses. It could have cooperated with the Commission of Inquiry when it travelled to the region, but it had chosen not to and had barred the Commission from even entering the country.
Despite this total lack of cooperation, the Commission of Inquiry had completed its work and submitted a document of almost 400 pages. The Commission had concluded that there was abundant evidence showing the pervasive use of forced labour imposed on the civilian population throughout Myanmar by the authorities and the military for portering, the construction, maintenance and servicing of military camps, other work in support of the military, agricultural work and work on other production projects undertaken by the authorities or the military, sometimes for the profit of private individuals, as well as the construction and maintenance of roads, railways, bridges and other infrastructure. The Commission of Inquiry had also concluded that forced labour in the country was widely performed by women, children and elderly persons and that the burden of forced labour was particularly great for non-Burman ethnic groups, especially in areas where there was a strong military presence.
The recommendations of the Commission of Inquiry had been taken up by the Committee of Experts. These included urging the Government to take all necessary steps to ensure that the relevant legislative texts, and particularly the Village Act and the Towns Act, were brought into conformity with the Convention, as the Government had been promising to do for over 30 years. The Commission of Inquiry had also insisted that no more forced labour should be imposed by the authorities, and particularly by the military. Finally, the Commission of Inquiry had emphasized that the power to impose compulsory labour would continue to be taken for granted unless legal action were taken against those responsible. Information was, therefore, required on whether any offenders had actually been punished.
At its session in March 1999, the tripartite members of the Governing Body had called on the Government to make all the necessary changes in the laws to bring them into compliance with the Convention by 1 May 1999. It had also requested the Director-General to submit a report by 21 May 1999 concerning the measures which the Government had taken to comply with the recommendations of the Commission of Inquiry. The Director-General and the Office were to be congratulated on producing such an exhaustive and well-documented report in such a short period.
The Director-General had invited the Government to inform him in detail by 3 May 1999 at the latest of any measures taken on each of the recommendations of the Commission of Inquiry. He had also invited member States and workers' and employers' organizations to provide information. Fourteen governments, the FAO, UNHCR,UNIDO, IMF and the World Bank, as well as many labour organizations, employers' and human rights organizations, in addition to the exiled Federation of Trade Unions of Burma, had responded to the call to provide information. The Director-General's Report contained new documentation substantiating the conclusions of the Commission of Inquiry that a variety of forms of forced labour were prevalent throughout the country. It provided further evidence of the continued use of forced labour in virtually every ethnic state of the country as part of the campaign to put down the aspirations of ethnic minorities. It also contained evidence of the continued use of forced labour in the Burman areas. The scope and breadth of the information contained in the report of the Commission of Inquiry and of the Director-General were staggering.
The above information provided the context for the information supplied by the Government. It had indicated in a letter of 18 May 1999 to the Director-General that Order No. 1/99 directed the relevant authorities not to exercise the powers conferred upon them by the Village Act and the Towns Act. This letter was a clear admission that the Government had not changed the law by 1 May 1999, as requested by the Governing Body. Indeed, the Director-General had recognized in his Report that the Order did not represent a change in the two Acts, as recommended by the Commission of Inquiry. Moreover, it could be reversed at any time.
Nor had the Government representative provided any new information to suggest that it had implemented the other recommendations. The only new element put forward by the Government representative was the suggestion that all the evidence previously collected had been prior to 14 May 1999, and that the coming into force of the new Order had radically changed the situation.
The Worker members recalled that, as recently as 1 May 1999, the Chairman of the State Peace and Development Council, Senior General Than Shwe, had urged workers to beware of new colonialists meddling and exerting control in international organizations with an air of safeguarding human rights and workers' rights. Two weeks later, at a press conference held during the 13th meeting of ASEAN Labour Ministers, the military regime had reiterated its long-standing blanket denial of the existence of forced labour in Burma and had argued once again that it was one of the noble traditions of the Burmese people to give freely of their labour, since they believed that voluntary labour would bring benefits to them in their present and future existence. These comments revealed the true nature of the regime's cooperation with the ILO.
In conclusion, the Worker members quoted from the conclusions of the Commission of Inquiry, which had considered that "the impunity with which government officials, in particular the military, treat the civilian population as an unlimited pool of unpaid forced labourers and servants at their disposal is part of a political system built on the use of force and intimidation to deny the people of Myanmar democracy and the rule of law. The experience of the past years tends to prove that the establishment of a government freely chosen by the people and the submission of all public authorities to the rule of law are, in practice, indispensable prerequisites for the suppression of forced labour in Myanmar." The Commission of Inquiry had hoped and trusted that in the near future the old order would change, yielding place to the new, where everyone in Myanmar would have an opportunity to live with human dignity and to develop his or her full potential in a freely chosen manner, and that there would be no subjection or enslavement of anyone by others. It had concluded that this could only happen if democracy were restored, so that the people as a whole could wield power for their common good. The Worker members reaffirmed that, until such fundamental change occurred, the challenge of ridding the country of decades of forced labour could not even begin.
The Employer members noted that the Committee of Experts had begun publishing observations in this case in the beginning of the 1990s and that the case was not new to the Conference Committee, which had indeed noted it in special paragraphs in the past. In the meantime, there had also been a representation submitted pursuant to article 24 of the Constitution and a complaint under article 26. They emphasized that all the information presently before them could only confirm their previous apprehensions as to the gravity of the situation in Myanmar. They contended that the situation was simple but sad, and in that regard quoted the following from the report of the Commission of Inquiry:
"There is abundant evidence showing the pervasive use of forced labour imposed on the civilian population throughout Myanmar by the authorities and the military for portering, the construction, maintenance and servicing of military camps, other work in support of the military, work on agriculture, logging and other production projects undertaken by the authorities or the military, sometimes for the profit of private individuals, the construction and maintenance of roads, railways and bridges, other infrastructure work and a range of other tasks ... Forced labour in Myanmar is widely performed by women, children and elderly persons as well as other persons otherwise unfit to work ... All the information and evidence before the Commission shows utter disregard by the authorities for the safety and health as well as the basic needs of the people performing forced or compulsory labour ... and many are killed or injured ..."
They recalled that the concerns raised were based on provisions of the Village Act and Towns Act, and more particularly on the problems in practice. While there was indeed a law providing for the punishment of those compelling any person to labour against their will (section 374 of the Penal Code), they stressed that this provision had not been implemented and that forced labour was being carried out and ordered by the authorities.
They remarked that a Commission of Inquiry seldom uses such forceful terms as those found in its report on forced labour in Myanmar which referred to the "widespread and systematic" use of forced or compulsory labour "with total disregard for the human dignity, safety and health and basic needs of the people of Myanmar". They emphasized the three main recommendations of the Commission of Inquiry: (i) that the relevant legislative texts be amended as had been requested by the Committee of Experts and promised by the Government for over 30 years; (ii) that in actual practice, no more forced or compulsory labour be imposed by the authorities, in particular the military; (iii) that the penalties that may be imposed under the Penal Code be strictly enforced since the power to impose compulsory labour will not cease to be taken for granted unless those used to exercising it are actually brought to face criminal responsibility. According to the Employer members, since the line between ordinary labour and forced labour had become so blurred, as confirmed by the statement of the Government representative to the effect that people have traditionally contributed labour so that projects for the improvement of the country's infrastructure could be completed sooner, enormous efforts would need to be taken to change attitudes and to inform the population of changes in practice. They then referred to the statement of the Government representative to the effect that the Report of the Commission of Inquiry was full of unfounded and biased charges and that the alleged facts were manifestly false accusations which were politically motivated. The Employer members were of the view that this illustrated the attitude of the Government that no changes were needed and none would be carried out. However, the Government had also indicated its intention to cooperate with the ILO to comply with the recommendations. The Employer members viewed the Government's response as continuing to illustrate its contradictory attitude and approach and a lack of credibility. Referring to Order No. 1/99 issued on 14 May 1999, they queried whether such an instrument could amend a law, and whether indeed the Government intended to comply with the recommendations at all. Since the Order provided that any Acts or laws in force should be applied if provisions of the Order were not implemented, the Employer members asserted that this showed clearly that the Government had no intention of abrogating or amending the legislation at issue.
Concerning the recommendation that concrete action be taken to stop the present practice through public acts of the executive promulgated and made known to all levels of the military and to the whole population, the Government representative had pointed out that the new Order had been distributed to 16 authorities and thus in its view it had complied with this requirement. The Government representative had also said that anyone not complying with the new Order would be subject to penalties; however, in the view of the Employer members, such statements could only be evidence of a continuation of the Government's refusal to amend the laws and to apply penalties under existing laws.
The Employer members regretted that they had not heard any clear statement from the Government representative indicating a political willingness to change the existing law and practice. They called on the Committee to note with deep regret the continuation of the practice of forced labour in Myanmar and to urge the Government in the strongest possible terms to meet its obligations.
The Government member of China hoped that the Committee would take note of the new progress achieved by the Government in the application of the Convention, as reported by the Government representative.
The Government member of the United Kingdom, also speaking on behalf of the Government members of Austria, Belgium, Canada, Denmark, Finland, Germany, Iceland, Netherlands, Norway, Portugal, Spain and Sweden, stated that the report of the Committee of Experts once again provided disturbing evidence of the use of forced labour and other human rights abuses in Burma. The Governments on behalf of whom he was speaking had expressed grave concern at this deplorable situation on a number of occasions, both in the Conference Committee and elsewhere.
He recalled the findings of the Commission of Inquiry, which had concluded that the military regime in Burma had absolute authority to exploit forced labour under threat of torture, rape and murder, and that the burden of forced labour in the country was felt disproportionately by ethnic minorities and other vulnerable groups, including women, children and the elderly. The Commission of Inquiry had recommended that the use of forced labour should be halted with immediate effect and that the authorities should bring the legislation into conformity with the Convention and enforce existing legal penalties. Despite the repeated assurances made by the Government representative that the regime was taking action to end the use of forced labour, the recent report of the Director-General once again made it clear that the recommendations of the Commission of Inquiry had not been implemented and that the people of Burma continued to suffer gross and systematic human rights abuses.
When adopting the Declaration on Fundamental Principles and Rights at Work, all 174 member States of the ILO had reaffirmed their commitment to the Organization's core human rights principles, including the abolition of forced labour. He warned of the clear danger that the entire Organization and its supervisory system would be discredited if decisive action were not taken to ensure that the Burmese authorities complied with their obligations to the ILO without further delay. All the available options should be considered to secure the compliance of the Burmese authorities with their obligations to the Organization and the Conference Committee should give the clearest possible mandate for such action.
The Government member of Canada noted once again that the situation in Burma remained unchanged. Freedom of association had not been truly respected, the use of forced labour and child labour was pervasive. Burma was the most long-standing and egregious violator of basic workers' rights and international labour standards and continued to show its utter disdain for the proceedings of the ILO and the opinion of the international community, as shown by the total lack of sincerity and substance in the statement of the Government representative.
The case had been discussed by the ILO since 1987, but there had been a consistent lack of concrete action by the Burmese authorities to comply with the recommendations of the Commission of Inquiry. She therefore strongly urged the Burmese authorities to take immediate concrete steps to resolve the unacceptable situation in the country. She expressed agreement with the statement made by the Government member of the United Kingdom that there was a clear danger that the entire Organization and its supervisory system would be discredited if decisive action were not taken to ensure that the Burmese authorities complied with their commitments to the ILO. All the available options should be considered in securing the compliance of Burma with its obligations to the ILO.
The Worker member of Colombia expressed incredulity that, at the close of the century, forced labour or conditions similar to slavery still existed in Myanmar. For years, the Committee of Experts, the Commission of Inquiry and the members of the Committee on the Application of Standards, had called for an urgent solution to the problem, yet the only outcome had been inconclusive promises on the part of the Government of Myanmar. He recalled that the Commission of Inquiry had concluded that, despite Government denials, there was forced labour in Myanmar, involving men, women and children. He said that the Government representative of Myanmar should be asked what type of society it was seeking to build by violating human dignity and how long the members of the Committee would have to listen to justifications that did not resolve the issue. He concluded by urging the Government to end its rhetorical references to legal texts, and to adopt practical measures to bring forced labour to an end.
The Worker member of Ireland emphasized that deception and double-speak had been the hallmarks of the attitude adopted by the Burmese authorities towards the international community in general and the ILO in particular, as demonstrated beyond any shadow of doubt by the issue of forced labour and its failure to comply with the Convention. The situation was graphically described in the reports of the Commission of Inquiry and the Committee of Experts. The persistence of forced labour on a massive scale had been fully revealed, as well as the personal and individual responsibilities of those who perpetrated this crime against humanity. The Commission of Inquiry had demanded the amendment of the Village Act and the Towns Act, an end to the imposition of forced or compulsory labour, and the adoption of legal action under section 374 of the Penal Code against those who imposed forced labour. As demonstrated by the Director-General's Report to the Governing Body in May 1999, these conditions had not been met and the authorities had once again resorted to deception. The authorities had claimed, in a letter to the Director-General, that the offending provisions of the two Acts had been suspended, as required by the ILO, and that this measure had been widely publicized. However, not only had the measure been found to be null and void by the latest ILO report, but information about the change had been suppressed in the country's radio, television and newspapers. It clearly amounted to no more than a cosmetic change designed to deceive the ILO and the international community.
However, she stated that the international labour movement and the international community would not be distracted by yet another promise. The problem of forced labour was not confined to the Village Act and the Towns Act, but had its roots in the fact that it was used by the regime itself. The regime could, therefore, end the practice forthwith if it so wished.
She concluded that all possible steps would have to be taken by the ILO to bring this abominable practice to an end. The findings and conclusions of the Commission of Inquiry needed to be widely disseminated throughout the United Nations system, and particularly to the agencies working in Burma. The ILO would have to continue to closely monitor the situation for as long as it persisted. It should also be taken into account that the data gathered by the ILO might one day be referred to the International Criminal Court. Above and beyond the violation of the Convention, forced labour and slavery constituted crimes against humanity and should be condemned as such. Moreover, the ILO should consider revoking or restricting the privileges accorded to the country as a member State of the ILO until it fully complied with the recommendations of the Commission of Inquiry and basic international standards of decency and respect for humanity, as set forth in the Convention.
The Worker member of Pakistan joined with previous speakers in emphasizing his concern at the situation in the country. The difference between freedom and slavery lay in the right to take up freely chosen, remunerated and productive employment. Slavery consisted of the imposition of labour against the will of the persons concerned. All those who believed in human dignity and respect condemned forced labour and slavery. Indeed, it was one of the basic objectives of the labour movement as a whole to combat these scourges, which destroyed the dignity of mankind in all countries. These principles were adequately established in the United Nations Universal Declaration of Human Rights, the Declaration adopted by the Social Summit and the ILO's Declaration on Fundamental Principles and Rights at Work. Forced labour was a crime against humanity and needed to be stopped wherever it occurred. The Commission of Inquiry had established beyond any doubt that the population of the country, including women, children, the sick and injured, were forced to perform work against their will, under threat of abuse, torture and rape.
Although the Commission of Inquiry had made it clear that the current legislation needed to be amended, the authorities had merely adopted an executive order, which did not have the legal authority to suspend the two Acts in question. Nor had any information been provided on the numbers of persons who had been convicted for the imposition of forced labour, or the other measures adopted. The Committee should express great concern at the situation and demand the country, instead of paying lip-service to the principles involved, to take concrete action to fulfil its obligations towards the international community and give effect to the recommendations of the Commission of Inquiry.
The Worker member of Canada emphasized that the evidence was overwhelming and the crime was heinous. The workers of Canada were deeply offended by the Government's lack of cooperation with the ILO and the continued practice of forced labour in the country. The Government had supplied written information in which it stated that hostile elements had succeeded through false allegations in persuading a few members of the Workers' group to file a complaint under article 26 of the ILO Constitution. However, in practice, the complaint had been submitted by 25 Workers' delegates to the 83rd Session of the ILC, who had all been members and substitute members of the Governing Body. The tripartite Governing Body had decided as a whole to accept the article 26 complaint and establish the Commission of Inquiry.
In accordance with the conclusions and recommendations of the Commission of Inquiry, the Governing Body had requested the Government to amend the offending legislation by 1 May 1999. The Government had not done so and, from its written statements, appeared to be disparaging those recommendations. He, therefore, supported the call for the Committee to adopt the strongest possible conclusions on this worst of cases.
The Worker member of Zimbabwe recalled the conclusion of the Commission of Inquiry that there was abundant evidence of the pervasive use of forced labour imposed on the civilian population by government authorities and the military. Forced labour was used for various purposes, including logging, agricultural work, construction, the maintenance of roads, railways and bridges, and sometimes for the profit of individuals. The worst aspect was that forced labour was performed by women, children and elderly people, including persons who were unfit for work. This was totally unacceptable by any standards. Yet the Commission of Inquiry had also concluded that the Government showed utter disregard for the safety and health and basic needs of the victims of forced labour. Moreover, some of those who were forced to work were beaten whilst engaged in forced labour. In contrast with the Government representative's claims that these were false and politically motivated allegations, it had to be acknowledged that the situation in the country did indeed constitute an extreme case of abuse, torture and slavery of its citizens.
He strongly urged the Government to take the necessary measures immediately to comply with all the recommendations made by the Commission of Inquiry. He called upon the Committee to use the strongest possible language in its conclusions in the hope that the Government would fulfil its obligations.
The Worker member of Greece pointed out that, close to Geneva, a war was being waged in which the international community had decided to defend an ethnic minority whose rights were being violated. After reading the observation of the Committee of Experts, it was time to consider what action the international community should take to defend ethnic groups whose rights were being violated in Myanmar and whose lives depended on an oligarchy. Should the Committee simply take note of the changes announced or should it take practical measures to end the suffering of the Burmese people? While emphasizing that the Committee was not a court, he expressed the conviction that if it had been, the Government would have been given the maximum sentence. The Burmese people had already suffered for too long and their suffering should be ended.
He asked the Government representative of Myanmar about the situation of two trade unionists, asking for confirmation that, on 13 June 1997, Myo Aung Thant and Khin Kyaw had been sentenced to life imprisonment plus seven years and 17 years' imprisonment respectively, and if so on what grounds?
The Government member of Indonesia stated that he had followed the present case with great interest in the Governing Body and the Conference Committee and shared the concerns expressed by the Employer and Worker members and several Government members. In March 1999, his delegation had joined with those of several other countries in requesting the Governing Body to give the Government time to respond to the conclusions of the Commission of Inquiry. He had also stated that he would convey the concerns of the Governing Body to the Government. In May 1999, he had visited the country and had met representatives of the Government. He had been informed that two national teams had been established, one composed of senior officials and one at the ministerial level to prepare the reply and communications to the ILO concerning the case. Both teams had taken several steps in relation to the conclusions of the Governing Body and the Commission of Inquiry. Before he had left the country, the Government had issued Order No. 1/99 prohibiting the exercise of powers under certain provisions of the Towns Act and the Village Act. This appeared to him to be an important step by the Government leading in the right direction towards concrete action. From the informal talks which he had held with government officials and the statement made by the Government representative, he had gained the impression that the Government was committed to reviewing the two Acts.
He expressed the conviction that, after a certain period of time, the Government would be able to comply with the conclusions of the Commission of Inquiry and with the Convention. However, it had to be understood that several years were required to amend legislation. The Committee should, therefore, provide support to the Government so that it could proceed with the steps that it had taken.
The Government member of the United States expressed full support for the statements made by the Government members of the United Kingdom and Canada and recalled that the Committee had been making strong comments on the flagrant violation of the Convention by Burma for a number of years. The allegations of the pervasive use of forced labour imposed on the civilian population by the authorities and the military were supported by thousands of pages of evidence. The abuses affected women, children and the aged and included physical abuse, murder and rape.
At each of the sessions of the Conference Committee and the Governing Body, the authorities had promised change, but none had been forthcoming. The Commission of Inquiry had recommended that these horrible practices cease immediately and had established a deadline of 1 May 1999 for legislative changes. In response to a request by the Governing Body, the Director-General had issued a report on the follow-up to the recommendations of the Commission of Inquiry. No fewer than ten international organizations and 14 member States had contributed information to the report. The Director-General had concluded that, despite the Order issued on 14 May 1999, there was no indication that the recommendations of the Commission of Inquiry had yet been followed up. The Village Act and the Towns Act had not been amended; the practice of forced and compulsory labour continued to be widespread; and no action appeared to have been taken under section 374 of the Penal Code to punish those exacting forced labour. The collective lives of thousands of citizens were still at risk and patience had run out. It was time for the Organization to take its most serious measures to ensure compliance with the obligations accepted voluntarily by the Government when it ratified the Convention.
The Worker member of Germany stated that if any further proof were needed of the lack of the political will by the Government of Myanmar to improve the situation, it was provided in abundance by its reaction to the recommendations of the Commission of Inquiry. The written information provided by the Government showed that it considered that it had already fulfilled the second of the Commission of Inquiry's recommendations by issuing Order No. 1/99 of 14 May 1999. The Commission of Inquiry had urged the Government to take the necessary steps to ensure that no forced or compulsory labour was imposed by the authorities. The Government gave the impression that it believed it had dealt with the problem by issuing a piece of paper and transmitting it to 16 official entities. He agreed with previous speakers that the strongest measures should be recommended by the Committee in its conclusions on the case.
In reply, the Government representative stated that he had listened with great patience to all the speakers. It was necessary to bear in mind the particular situation of each country and the circumstances of its law-makers. The Convention was an international treaty in the domain of international law. However, every country had its own system of national law or municipal law through which the provisions of the Convention would be put into effect. There was, therefore, no uniform practice for the implementation of treaties at national level. His country had its own system of implementing and amending legislation. If there had not been any political will, no measures would have been adopted.
Scholars of international law in their works had written as their opinion that there is not uniform practice concerning the application with the municipal sphere, each country has its own particularities as regards promulgation or publication of treaties, legislative approval of treaties and so on. As to the manner in which its municipal law it framed, the State has under international law a complete liberty of action, and its municipal law is a domestic matter in which no other State is entitled to concern itself, provided that the municipal law is such as to give effect to all the international obligation of the State. This is the international opinion and practice of the international legal scholars which is a source of international law.
The Order 1/99 is a strict municipal law measure, made under practice as referred to above. The legislature which the legal authority to make laws can provide amendments of laws through an order in the Myanmar's legal system. Here, it gives Orders to the Home Ministry through a memorandum to issue an order to stop the implementation of the offending provision of the Village and Towns Act. Thus, offending provisions that are not in line with Convention No. 29 are stopped. In Myanmar Orders can stop the implementation of certain laws to be in line with the treaty. It is the modus operandi as how to put the municipal law in line with the Convention. This right is given to municipal law by international law and Myanmar has fulfilled this condition.
As already stated, Myanmar made these stops of implementation in accordance with its own sovereign rights under municipal law according to its internal legal practice by international law. The order has been given by the Legislature and an Order has been issued by the Executive.
However, the adoption of Order No. 1/99, constituted a step forward. The instruction had been given by the legislative authority and the Order had been adopted by the executive. The effect was to bring an end to the offending provisions of the Village Act and the Towns Act. He noted in this respect that a press conference had been held on 15 May 1999, on the occasion of the Asian Labour Ministers' meeting, at which publicity had been given to the fact that measures had been taken to bring an end to the implementation of the offending provisions, in accordance with the legal system in the country. He reaffirmed the liberty of action of each State to give effect to the necessary measures according to its own system.
In response to the questions raised by the Worker member of Greece, he affirmed that if the evidence proved that a person had broken the law, that person would be subject to the relevant penalties. He said that in Myanmar no person is above the law. And if any individual is in breach, he shall be penalized. In the same way, the individual mentioned in the breach of criminal law is penalized as a result of it, and not because he/she is a worker. If there are any cases where anybody has broken the law under forced labour after issue of the law, and if there be just one case, once informed the authorities in Myanmar will take legal action. He emphasized that his country was now totally at peace and was not engaged in any wars. That peace is unprecedented since independence. If an official request were to be made in writing for information on the cases in question, it would be given due consideration.
He reaffirmed the differences in national legal systems and circumstances and reiterated that, if there had been no political will, Order No. 1/99 would not have been adopted. The country was in the process of developing a new Constitution. Once the Constitution had been adopted, all of its laws would be reviewed. The members of the Committee needed to show proof of consideration and understanding for the situation of the country. Compliance with the conclusions of the Commission of Inquiry required a change in the law. In this respect, Order No. 1/99 had been publicized.
The Government member of Sri Lanka proposed that, in view of the legal steps taken by the Government to change the law, the Committee should give consideration to the establishment of a time frame for the Government to give effect to the recommendations of the Commission of Inquiry.
The Worker member of Greece stated that the Government representative of Myanmar had not replied to the questions concerning the conviction of the two persons previously mentioned and requested that the minutes reflect that fact. He also queried the nature of the peace that the Government affirmed it wished to establish in the country.
The Committee noted the written and oral information supplied by the Government, and the discussion which followed. It noted in particular the Government's position that the findings of the Commission of Inquiry and the Committee of Experts had no basis, and that the Report of the Director-General of 21 May 1999, supplied to members of the Governing Body, on the measures taken by the Government to comply with the recommendations of the Commission of Inquiry, was based on false and misleading information. The Committee also noted the issuance of Order No. 1/99 of 14 May 1999, directing that the power to requisition forced labour under the Towns Act, 1907, and the Village Act, 1907, not be exercised.
The Committee recalled the long history of the case and the series of actions taken by the ILO supervisory bodies, including the recommendations of the Commission of Inquiry established by the Governing Body. It considered that the explanations provided by the Government did not respond to the detailed and well-substantiated findings and recommendations of the Commission of Inquiry and the Committee of Experts. It noted with deep concern the findings of the Commission of Inquiry that there was convincing information available that forced and compulsory labour on a very large scale still occurred in Myanmar. The Committee regretted that the Government had not allowed the Commission of Inquiry to visit the country to verify the situation for itself. It could also have been the occasion for the Government to present its own position before the Commission in a very objective and impartial manner. It regretted that the Government had shown no inclination to cooperate with the ILO in this respect.
It called upon the Governing Body, the Committee of Experts and the Office to continue taking all possible measures to secure the observance by Myanmar of the recommendations of the Commission of Inquiry, which confirmed and expanded the Committee of Experts' own previous conclusions.
The Worker members, in view of the continued failure of the Government to implement the conclusions of the Commission of Inquiry, called for the Committee to include its conclusions in a special paragraph of its report on the grounds of flagrant, persistent and repeated failure to comply with the provisions of a ratified Convention.
The Employer members observed that the case was particularly serious and that the Committee had already dealt with it on several occasions in the past by expressing its deep concern in a special paragraph of its report. It would, therefore, be consistent and appropriate once again to place its conclusions in a special paragraph for consistent failure to comply with the provisions of a ratified Convention.
The Committee decided to include this case in a special paragraph in its report and to mention it as a case of continued failure to implement a ratified Convention.
Pakistan (ratification: 1957). A Government representative of Pakistan indicated that the Government agreement on the elimination of child labour in the carpet-making industry was signed on 22 October 1998, between the International Programme for the Elimination of Child Labour (IPEC) of the International Labour Organization and the Pakistan Carpet Manufacturers' and Exporters' Association (PCMEA). It sought to create a project to initially phase out some 8,000 children involved in the carpet industry within a period of 36 months. He pointed out that the agreement had been concluded with the general overall objective of meeting the deadline in the South Asian Association for Regional Cooperation (SAARC) Male (Maldives) Declaration on Eliminating Child Labour by the end of 2010. Other objectives were to prevent further entry of children into the industry, as well as to withdraw those children already in the industry.
The Government's commitment to the elimination of bonded labour was evident from the fact that, on 21 May 1997, it signed an agreement with the European Commission and the International Labour Organization to launch a programme to eliminate bonded child labour in Pakistan. The programme would raise awareness on exploitative and hazardous child/bonded labour practices; increase the capacity of the government machinery, employers' and workers' organizations and NGOs to withdraw children from bondage and prevent children from entering into bondage. The programme targeted the small group of child/bonded labour and their families. Its major focus was on rehabilitation activities.
No survey along the lines of an IPEC survey had been carried out regarding child and adult bonded labour. However, he pointed out that the IPEC survey was considered to have included all working children including those working in bondage. The only entity in Pakistan apart from the Government in a position to provide a figure on the number of bonded workers was the Human Rights Commission. He indicated that this problem existed almost exclusively in the Province of Sindh and in some areas of Punjab. He considered that the number of bonded labourers, children and adults was between 5,000 and 7,000. Efforts to address this problem were hindered by the problem of visibility. As bonded labour was forbidden under the law, those using it went to considerable lengths to hide it. He gave examples of raids conducted to uncover incidents of bonded labour, concluding that the problem of visibility posed an obstacle to the full and effective implementation of the Bonded Labour System Abolition Act, 1992. He confirmed that those cases of bonded labour brought to light were immediately investigated.
The Government provided statistical data on prosecutions and convictions under the Employment of Children's Act, 1991. The Government indicated, however, that the 1998 data was not complete. The final figure for 1998 was, therefore, likely to be significantly higher than the figures quoted. The actual number of inspections would also be much higher, as inspections and prosecutions were also carried out under other laws which had a bearing on the employment of children. Data on inspections carried out under the Bonded Labour System Abolition Act, 1992, were in the process of being compiled and would be provided to the Committee of Experts in the Government's next report.
The Government had initiated a media campaign to raise awareness of the problem of child and bonded labour involving newspapers, radio and television. The Ministry of Labour (Directorate of Workers' Education) was publishing a number of documents, posters and flyers for this purpose and had also broadcast a TV documentary in 13 episodes that had created much interest and awareness on the issue of child labour. The Ministry of Labour was also publishing a newsletter on child labour called "The Future". Copies of this newsletter were being provided by the Ministry of Labour to the ILO Office in Islamabad.
Regarding the query of the Committee of Experts as to whether petitions filed in the Federal Shariah Court would affect the application of the Bonded Labour Abolition Systems Act, 1992, and whether the Government would defend the Act in court, he noted that the Government would defend the Act. Its application would not be affected because of the court petitions. He noted that the Advisory Committee on Child Labour was charged with overseeing the implementation of the action plan and policy strategy drawn up by the Task Force on Child Labour. The Task Force had formulated an outline for child labour policy and an action plan. The provincial governments were preparing action plans to give effect to the policy strategy within their provinces. The policy strategy and action plan would be finalized as soon as all of the action plans of the provincial governments were received. The Advisory Committee would then start functioning. The Government would communicate all relevant documentation adopted by the Advisory Committee to the Committee of Experts as soon as it was available. As regards the reports of the Human Rights Commission of Pakistan and the National Commission on Child Welfare and Development (NCCWD), he pointed out that the Human Rights Commission of Pakistan was an NGO with no links to the Government. Its annual report was a public document for sale in Pakistan. The Government representative indicated that Pakistan's second periodic report to the UN Committee on the Rights of the Child was being prepared by the NCCWD. A copy would be provided to the Committee of Experts upon completion. Referring to the composition of the district vigilance committees, he explained that these were chaired by the Deputy Commissioner of the district, with representatives from the police, judiciary, the bar, the municipal authorities, trade unions, employers' unions and NGOs. The district administration was represented in the Committee; therefore, complaints lodged with the district administration were automatically referred to the vigilance committee. Details of the number and character of cases filed and offences tried by district magistrates were in the process of being compiled and would be provided to the Committee as soon as they became available. Monitoring teams set up in 1997 had completed their visits to the provincial headquarters by making direct contacts with the district authorities and members of the vigilance committees of the respective districts. This year, the Secretary of the Ministry of Labour had visited various provinces of Punjab, Sindh and Balochistan and held meetings with the provincial authorities on the implementation of the Bonded Labour System (Abolition) Act. Participation of employers' and workers' organizations had been ensured in the vigilance committee established at district level under the 1992 Act and the 1995 rules.
The Government had attempted to progressively limit the scope of the Essential Services Act, 1952, which was now limited to only five services. Additionally, amendment of the Act would be considered by the newly established Tripartite Commission on Consolidation, Simplification and Rationalization of Labour Laws. The report of this Commission would be available in due course. In conclusion, he emphasized his Government's commitment to the elimination of bonded and child labour. He asked the Committee to note that the Government had answered almost all of the points raised and stated that any outstanding points would be answered in the Government's report to the Committee of Experts. He noted the Government's financial contribution through the Bait-ul-Mal for programmes for the elimination of child labour. Further, he indicted that the Sialkot project in the Sialkot industry was serving as a model for others. He also noted that the employers and the Government of Pakistan had contributed substantial sums of money towards its implementation, and that the workers of Pakistan, despite their difficult circumstances, had also contributed towards this project. He confirmed the expression of Pakistan's will to deal with the issue of child and bonded labour and expressed the hope that the Committee would take note of the Government's commitment in this regard.
The Employer members thanked the Government for the information provided to the Committee and noted that of the 12 requests for information made by the Committee of Experts, the Government had responded in full to nine. While the information was very useful, the scope of the information requested illustrated the dimensions of the problem. They noted that the case had been discussed 12 times since 1982 and had been noted three times in special paragraphs. The case dealt with both adult and child bonded labour, which was an intractable problem. As the Government had pointed out, bonded labour was by its very nature hidden; therefore, it was difficult to obtain accurate figures; however, they suggested that the figures presented by the Government were too low. They asserted that the problem was a difficult one requiring ongoing vigilance.
On the issue of child labour, they welcomed the indications that the Government had been taking a series of positive steps, including through programmes such as the ILO's International Programme for the Elimination of Child Labour (IPEC), initiatives of the European Commission and the United Nations Children's Fund. They also noted the regulations adopted to enforce the provisions of the Bonded Labour System (Abolition) Act, 1992, and the Employment of Children Act, 1991. As a result, cases had been brought before the Vigilance Committees which had been strengthened. It was recalled that it had taken some time for these committees to become effective. The Employer members welcomed that the Government had also established four monitoring teams to assess the effectiveness of these committees.
With regard to adult bonded labour, the Committee of Experts had requested detailed information as to the role of the district magistrates pursuant to the 1992 Bonded Labour (Abolition) Act, 1992, in identifying, freeing and rehabilitating bonded labourers. They stated that one of the weaknesses of the law was the relatively weak rules for the rehabilitation of released bonded labourers.
Finally, concerning the problem of restrictions on termination of employment for employees without the consent of their employers, which can result in imprisonment of up to one year, they noted that this related to essential services. They emphasized that the critical issue was the freedom of workers to terminate employment with notice, and they regretted that the Government had provided no recent information on this point.
In conclusion, they called on the Government to take measures at all levels to address the question of bonded labour. While they applauded what the Government had done thus far, they stressed that, given the dimensions of the problem, much more still needed to be done.
The Worker members thanked the Government representative for the information provided. They recalled that the case of Pakistan had been discussed five times in the 1990s and the last time -- in 1997 -- it had been the subject of intensive debate. The Committee had constantly urged the Government to intensify its action to ensure the effective elimination in practice of child and adult bonded labour. The basic legislation had been in compliance with the Convention for a number of years, but the problem was its application. The observations of the Committee of Experts were not only based on the Government's report, but also on the information supplied through programmes such as IPEC, and in the comments from the All Pakistan Federation of Trade Unions. The observations related to bonded child labour, bonded labour generally, and restrictions on the freedom to terminate employment.
With regard to bonded child labour and bonded labour generally, the Committee of Experts had underlined the seriousness of the problems raised. On the basis of the figures supplied by the Government and the statistics available, it considered that there were between 2.9 and 3.6 million child labourers (between the ages of 5 and 14). Moreover, according to the Committee of Experts, adult bonded labour still appeared to be widespread. The Government had never provided detailed figures on the number of bonded child labourers. For some years, it had recognized the extent of the problem, but confined itself to querying the estimates. It considered that the figures were too high. The Worker members feared, however, that the numbers cited by the ILO were closer to the truth.
The Worker members had for several years urged the Government to draw up viable action programmes, especially to promote awareness, detect, punish and prevent cases, and provide support to freed children. The Government representative had stated that the data received through inspections and other action taken would be transmitted to the Office. The Committee of Experts would have to study them.
The Committee of Experts had noted with interest that the Government had already taken measures to cooperate in particular with IPEC, UNICEF and the European Union. The agreement between the Government and IPEC, which aimed at eliminating child labour in carpet manufacturing, should also be noted. These measures were undoubtedly a small step forward, but they had to be seen in the light of the problem as a whole, and in relation to the actual impact in the provinces and districts, as well as sectors such as brickworks, carpet weaving, building and agriculture. Furthermore, it should not be forgotten that certain social movements and associations in Pakistan had made significant efforts to mobilize against bonded labour. After 1992, the Bonded Labour Liberation Front had launched a campaign to release children in the carpet sector. It had managed to free 30,000 children and had sent 10,000 children to school. Among the 30,000 children freed was the young boy Iqbal Masih, who had subsequently been killed as a result of his action to free children. His case had become known worldwide. Unfortunately, such organizations did not always receive support from the public authorities. Some federal and provincial authorities were sometimes more interested in neutralizing action by social organizations than in trying to free children and adults. The founder of the Bonded Labour Liberation Front, Ehsan Ullah Khan, was accused by the authorities of high treason.
According to the information available to the Worker members, the effectiveness and the number of Vigilance Committees operating were very limited. Action by such committees was, however, essential in order to initiate proceedings and complaints that would free children. The courts did indeed pronounce sentences and issue orders to free children, but the police and the authorities did not carry them out promptly.
Like the Committee of Experts, the Worker members considered that awareness-raising and the various mechanisms and procedures should be considerably reinforced. The Committee of Experts had called on the Government to provide more information on the following points: the cooperation between the Vigilance Committees and magistrates; the resources available to the Vigilance Committees; the operation of the Vigilance Committees, including data and figures concerning the actual members of the committees (according to the regulations in force, 18 categories of persons could belong to the committee and the workers' organizations only had one seat); the procedures envisaged to free the children involved (according to the information available to the Worker members, the implementing regulations for the 1995 Act did not appear to contain any indications on the procedures to be followed in order to free bonded child labourers); and the budgets and programmes envisaged to reintegrate children and adults so that they did not return to being labourers.
The famous Supreme Court ruling of 1988 that pronounced bonded labour as unconstitutional had raised concrete hopes among the workers involved. Two Acts had been adopted: the 1991 Employment of Children Act, and the 1992 Bonded Labour System (Abolition) Act. Bonded labour still existed, however, particularly in the informal and agricultural sectors because a large proportion of the population did not yet have a sufficient level of awareness.
In its report, the Government referred to opposition against the Bonded Labour System (Abolition) Act on the basis of the Shariah. The Government should provide the Committee of Experts with information on the negative impact of such opposition on the application of the 1992 Act and the effective liberation of the workers concerned. The Government should also indicate what measures had been taken to overcome the opposition. The Worker members asked that their request be taken into account in the Committee's conclusions, together with the request of the Committee of Experts for detailed information essential to assess the real impact of the measures, action and programmes announced by the Government. Those measures, action and programmes should be commensurate with the gravity of the situation.
Regarding restrictions on the freedom to terminate employment, the Committee of Experts had once again emphasized that the provisions of the federal and provincial Essential Services Acts prescribed terms of imprisonment for workers who terminated employment without the consent of the employer. The Government seemed to have narrowed the list of jobs concerned to five categories since the last discussion in the Committee. The Acts had not been amended, however. On a number of occasions, the Government had declared its intention to amend the legislative provisions, but it had not yet fulfilled its promises. The Committee of Experts had pointed out that, in its 1996 report, the Government had mentioned that a report had been drawn up by a tripartite working group and that it would consider the recommendations. There had been no further information on the matter, either at the 1997 Conference nor in the latest report by the Government.
The Worker members concluded by stressing that the imposition of penal sanctions in order to bind a worker to an employer was tantamount to forced labour and that, consequently, the Committee's conclusions should underline the fact that the Government must honour its promises.
The Worker member of Pakistan stated that Pakistan, with a population of 140 million, was an important country. He noted that at the time of independence, it was declared that the country would be a democratic and egalitarian one where workers' rights would be ensured. Concerning the Government's assertion that those services considered as essential were being decreased to five, he stated that these categories were in fact now broader than before. In 1998, the Government had committed itself to amending the Essential Services (Maintenance) Act after tripartite consultation; however, as the Committee of Experts had noted, no information had since been given as to what measures were envisaged or had been taken to amend this Act to bring it into conformity with the Convention.
He referred to the case of the suspension of trade union rights of 130,000 workers employed in the largest public utility in the country, the Pakistan Water and Power Development Authority (WAPDA), by exempting WAPDA from the application of the Industrial Relations Ordinance, 1969, and the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, for a period of two years. He stated that as an essential service, the workers' right to terminate their employment was severely restricted and they were denied the right to an independent enquiry. Workers had been subjected to longer hours and were required to undertake very difficult work in difficult conditions. In his view, this constituted a violation not only of the Convention, but also of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Discrimination (Employment and Occupation) Convention, 1958 (No. 111). He noted that a complaint concerning WAPDA had been submitted to the Committee on Freedom of Association and to the Supreme Court. Said restrictions were not only extended by the Government to WAPDA, but also to KESC, suspending their trade union rights. They have been denied job security in comparison with other workers in the country. Management is authorized to dispense with the services of these workers without providing any reason, in violation of ILO Conventions Nos. 29, 87, 105 and 111 ratified by the Government of Pakistan. These restrictions have been placed in the recent ordinance. He also referred to the comments of the Committee of Experts on Conventions Nos. 87, 98 and 105 wherein they declared that the restrictions placed on the rights of workers in the banking and railroad sectors and EPZs were contrary to the ratified Conventions and urged the Government to withdraw these undue restrictions. He requested the Government representative to inform the Committee as to whether and when these restrictions would be lifted, and when the Government intended to fulfil its obligations under the relevant Conventions and the national Constitution.
He submitted that the issue of bonded labour and child labour was a scourge and a crime against humanity. As the Government had acknowledged that such practices still existed, he called on the Government to demonstrate the required political will to remedy the situation. He stressed that children born into bonded labour were denied any chance to develop, and that this was a violation of their right to equal opportunity. He invited the Government to allocate more resources to the education and training of the poor, and to ensure effective punishment for those carrying out bonded labour, including by imposing prison sentences rather than just fining the offenders. He also cited the example of his trade union centre, which had opened a Free Training Competition Centre and had started providing free books by one of the major trade unions to the children of deceased and disabled workers on a modest scale in order to promote education among the children of the poor. He extended full support for the elimination of the scourge of child labour and appreciated the role played by ILO/IPEC in Pakistan in the soccer, surgical and carpet industries in raising awareness of the need to eliminate child labour. On the issue of the Vigilance Committees, he stated that these would be more effective if trade unions were permitted to lodge complaints. He called on the Government to ratify and implement the Convention on child labour being discussed at the present session of the Conference.
The Worker member of Ireland stated that the very detailed and comprehensive comments made by the Committee of Experts was a clear indication of the gravity of the ongoing problem of bonded child and adult labour in the country. Even though ten years had passed since the Supreme Court had declared bonded labour to be unconstitutional, the Committee of Experts noted that there were still between 2.9 million and 3.6 million child labourers between the ages of 5 and 14 years in the country. In relation to adult bonded labour, the Committee of Experts had observed that this still appeared to be widespread.
The Bonded Labour System (Abolition) Act had been enacted in 1992 and the rules for its implementation in 1995. An elaborate administrative system had also been put in place, presumably with the dual aims of maintaining and enforcing compliance with this legislation. The Committee of Experts had referred to the following bodies: the National Commission on Child Welfare and Development; the Advisory Committee on Child and Bonded Labour; the Vigilance Committees at the provincial and district levels; and the four monitoring teams established by the Ministry of Labour. These bodies and structures represented an elaborate network of monitoring and compliance mechanisms. It was, therefore, very difficult to understand why child and adult bonded labour continued to be such a persistent and widespread phenomenon in the economic infrastructure of the country. The report of the Committee of Experts provided a partial answer with its comments on the lack of transparency in the manner in which these bodies functioned and interacted with each other. Indeed, it had requested an explanation of how the Vigilance Committees and the district magistrates cooperated. It had also noted the absence of information on the number and nature of cases filed and dealt with by district magistrates. The Committee of Experts had sought clarification on the mandate and impact of the Advisory Committee on Child and Bonded Labour. It was necessary to know, for example, whether it had produced any reports or recommendations.
In view of the magnitude of the problem of bonded labour in Pakistan, serious questions needed to be asked by the Committee about the failures of these official mechanisms to have any significant impact on the problem in practice. This situation raised doubts about the commitment of the authorities to effectively and seriously address this issue. There was ample evidence that efforts to secure the release of bonded labourers were hampered by a lack of cooperation by local officials. Bonded labourers themselves faced enormous difficulties when police regularly refused to register their complaints on matters ranging from debt bondage to physical assault and abduction. It was, therefore, clear that unless and until the authorities at all levels, and particularly at the local level, actively and consistently enforced the law on the abolition of bonded labour, the practice of bonded child and adult labour would flourish in Pakistan in the face of official bureaucratic inertia, inefficiency and lack of will.
Finally, she expressed concern at the harassment by the authorities of the leaders and activists of the non-governmental organization, the Bonded Labour Liberation Front (BLLF). The arrest and torture of Zafar Yab, the Treasurer of BLLF, was to be deplored.The trumped-up charge of high treason brought against Ehsan Ullah Khan, the founder of BLLF, discredited the judicial and legal system in the country.
The Worker member of India commended the Committee of Experts on its treatment of this case and concurred with its conclusions. He stated that the number of child labourers in the country was far more than the 2.9 to 3.6 million acknowledged by the Government, but rather was three to four times that figure. While the Government had stated that the figures on bonded child labour previously provided by the Committee of Experts were exaggerated, it had not provided its own figures. Nor had the Government supplied statistics concerning the inspections that had been carried out, the court cases filed, or the number of convictions and the nature of the penalties imposed for those violating the legislative provisions concerning child labour. He emphasized that although there were constitutional as well as legal provisions prohibiting bonded child labour, the problem was difficult to overcome since it was closely linked to the very powerful drug trade that was flourishing in the country. He called on the Government to honour the Convention, which would first require it to develop the political will to eradicate forced labour. He stressed that the abuse of female child labourers in particular called for immediate and serious action. Laws alone would not be sufficient, and he urged the Government to work in concert with the social partners in this regard, as they had clearly shown that they were willing to assist in these efforts. He also called on the Government to follow the example of India, which was in the process of enacting legislation setting the minimum age for employment at 14 years, which would result in decreasing the incidences of forced labour and child labour.
The Worker member of the United States stated that he was surprised and pleased to see that the Worker member of Pakistan was present to join in the discussion given the crisis that had been facing the trade unions in his country, particularly regarding the recent suspension of trade union rights of workers employed at the Pakistan Water and Power Development Authority.
He indicated that this was a case of serious and persistent problems of bonded labour and child labour. While noting that the Government had taken some steps to address the problem, one could clearly detect a continuing concern on the part of the Committee of Experts that the practice continued to be widespread and that the Government did not seem to be able or willing to grasp the dimensions of the problem. This was evidenced by the fact that the Government had provided no credible estimates of its own, while insisting that the figures based on the Child Labour Survey, conducted with the technical assistance of the ILO's International Programme on the Elimination of Child Labour, were exaggerated. He noted that the Committee of Experts had requested that the Government provide reliable figures collected at the district, provincial and federal levels on the number of inspections carried out, the number of prosecutions and the number of convictions, and called on the Government to supply this information without delay. He stated, in conclusion, that there was a growing concern on the part of the workers that the political developments in Pakistan were not moving in a direction conducive to a serious and comprehensive governmental attack on the continuing widespread use of bonded labour.
The Worker member of Italy endorsed the comments of the Worker members and the Worker member of Pakistan concerning the complexity of the situation in Pakistan. The country's legislation was adequate, but in practice, the situation remained serious, as evidenced by the figures. Action needed to be taken at two levels. First, local institutions should be strengthened by involving employers' organizations and trade unions. Work should be done to promote awareness so that positive measures were taken by society. The Government should not place obstacles in the path of non-governmental organizations such as the Bonded Labour Liberation Front. Second, the labour market should be strengthened. Unemployment and hunger sometimes incited people to accept bonded labour. International economic cooperation should be developed and national resources allocated to sectors that could assist economic and educational progress.
The Government representative stated that his Government fully shared the concerns expressed by the Committee of Experts and the members of this Committee. He informed the Committee that the issue of labour was subject to both provincial and federal jurisdiction, with the provincial governments being required to pass laws to implement federal laws. While at the federal level measures had been taken to cooperate with the supervisory bodies, delays had resulted from the fact that there were 106 districts each with its own Vigilance Committee, and each committee was reporting in varying degrees. He expressed his Government's commitment to obtaining the information and hoped that better statistics would be provided in the next report to the Committee of Experts.
As to the questions raised concerning the Government's estimate of the extent of child labour, he stated that the figure was based on an independent survey, and represented a realistic appraisal of the situation. He noted that bonded labour had become invisible due to the success of the awareness-raising programmes and therefore was being hidden. However, when such practices came to light, the courts and the district magistrates had taken effective action. He stressed that his Government was committed to ending bonded labour and had recently concentrated on community efforts in this regard, including developing a group of journalists to report on child bonded labour, which had achieved some progress.
On the issue of the Shariah, he stated that it did not acknowledge bondage, but rather the sanctity of contractual relationships and financial commitments. Bonded labour and the financial commitments arising therefrom were within the jurisdiction of the ordinary courts, and the law was clear in prohibiting bonded labour.
He emphasized that child labour could not be eliminated overnight, particularly since there were a number of difficulties to be overcome, and his Government sought the assistance and support of the ILO in this regard, and was committed to honouring its obligations under the Convention. The need to involve actors other than the Labour Ministry had been acknowledged by the ILO in a recent publication, and his Government was indeed seeking to include a number of groups in order to address the problems under the Convention. He expressed the hope that the Government in its next report would be able to show significant progress.
In response to a further question raised by the Worker member of Pakistan concerning the Essential Services (Maintenance) Act, the Government representative stated that the Government was not proud of this piece of legislation and that it was being resorted to only when the Government considered situations to have reached an extreme stage. On the particular issues arising from the dispute at the Pakistan Water and Power Development Authority (WAPDA), he was not in a position to comment; however, he stated that generally the Government was aiming to establish limits in industrial disputes and to move away from the destructive and confrontational approach that had characterized disputes in the past. He emphasized the need for dialogue before extreme measures were taken. The restrictions were only to be in place for a short time, namely four months, although he acknowledged that one ordinance had already been renewed. In the view of his Government, this was a short time to defuse a difficult situation and find a solution through social dialogue.
The Worker member of Pakistan responded that there could only be social dialogue where there were free and independent trade unions. He called on the Government to lift the restrictions concerning the workers at the Pakistan Water and Power Development Authority, at which time true social dialogue could commence.
The Government representative stated that the point raised by the Worker member of Pakistan was in reference to the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), which was not the subject of the present discussion. With respect to the Convention at issue, he stressed that his Government had addressed the matter squarely and had sought the help of the Committee in overcoming the problems of application. He expressed the hope that the lessons learned concerning this Convention would indeed have an influence on the application of other Conventions in the country.
The Committee noted the detailed information provided orally by the Government representative, and the discussion which followed. It recalled that the Committee had discussed this case several times already. As concerned bonded child labour, it noted with interest the recent agreement concluded with the International Programme for the Elimination of Child Labour (IPEC) for the elimination of child labour in the carpet-making industry, as well as other actions reported by the Government to eliminate child labour and bonded labour. Nevertheless, it noted with concern the continued lack of practical action to collect reliable statistics on the numbers of bonded child labourers in the country, and to provide information on the work of monitoring mechanisms inside the country, including the Vigilance Committees. It called on the Government to supply information on actions taken against persons working for the liberation of bonded labourers. Noting the indications that there are very large numbers of bonded child labourers in the country, it again expressed the firm hope that the Government would take all possible additional measures to ascertain the magnitude of, and to eliminate, bonded child labour in Pakistan. The Committee also noted that many adult workers also remain in bondage, and requested the Government to supply detailed information, as indicated by the Committee of Experts, on its action to identify, release and rehabilitate these workers. Finally, the Committee again urged the Government to amend the Essential Services (Maintenance) Acts to bring them into conformity with the Convention as regards the right of workers to leave their jobs after reasonable notice.
Peru (ratification: 1960). The Government has communicated the following information:
In respect of debt servitude affecting the Ashaninka and Ucayali communities, even though the Ashaninka were in the past subjected to debt servitude within the framework of the practices of "engagement or entitlement" ("enganche o habilitación") the struggle for their emancipation and territorial rights has borne fruit in the establishment of the Indigenous Organization of Atalaya Region (OIRA), which has secured land rights for the Ashaninka by establishing links between the indigenous peoples and their land.
The land-owning Ashaninka have been released from servitude to their employer and the Constitution now recognizes that the indigenous land and respective rights are stronger than those inherent to any private property and the land claims on Ashaninkan lands. Land registration has initiated a process of self-development.
The emancipation of slaves in Atalaya is an important example of the liberation of indigenous peoples. The Ashaninka experience shows that the right to self-determination constitutes an antithesis to servitude and that the basis of this freedom is reflected in the recognition of territorial rights.
As regards the action envisaged by the Government for the application of the Convention, in particular to ensure that debt servitude is no longer practised in Atalaya and Ucayali, visits have been carried out to the native communities of Atalaya, to peasants and workers who make up the workforce of woodcutters, and discussions were organized on labour issues to ensure that workers are familiarized with their rights. These visits have been coordinated by the ESSALUD and the Agrarian Agency of Atalaya.
From June until December 1999 the Labour and Social Promotion Zone of Atalaya (Ucayali region) envisages labour inspections in urban and rural zones.
In particular, there were three denunciations to the labour authority of the practice of forced labour of indigenous peoples, who are illiterate and without identity documents, with the imposition of sanctions against employers, in accordance with legislation.
Simultaneously, the OIRA is organizing educational and registration campaigns aimed at all the indigenous communities.
As regards the workers of Madre de Dios, it is important to note that the number of adolescents and, in particular, children working in the Madre de Dios gold mines has dropped significantly for various reasons including:
As regards the activities undertaken by the Ministry of Labour, it is important to note that in 1996 a major operation was carried out throughout Madre de Dios, in which 328 mining centres were found to be employing 1,614 minors. The result of these inspections resulted in the discovery of 54 adolescents, of which 40 were male and 14 female aged between 10 and 18 years. Their employers were subsequently asked to regularize work permits for these adolescents and to pay their debts. In one case, a minor was transferred to a medical centre because of the serious condition of his health.
During vacations young people aged from 16 to 18 years and, in particular, those who live in the rural and mountainous regions of Cuzco, Apurímac and Puno emigrate to Madre de Dios to look for work to finance their studies.
At the same time, young people aged from 16 to 18 are frequently recruited to work as kitchen assistants in the mining camps. In 1996, some had been subjected to sexual aggression by their colleagues and employers. The situation has improved following the imposition of sanctions and provisions taken in this regard.
In reality, the work of adolescents in Madre de Dios, particularly in the gold mines, had escalated to alarming proportions in the 1970s and 80s, where gold mining was carried out in an artisanal fashion which required a significant labour force. Since the beginning of the 1990s, these problems together with the effects of the global economic crisis have eradicated the use of adolescents in this sector. Finally, in Huaypetue, Ministry of Labour officials are ensuring the supervision and application of labour standards and are informing miners of their rights.
This confirms that the Government is taking the necessary measures to apply the Convention, in particular to strengthen the system of inspections in the zones concerned.
As regards convict labour, national legislation includes the following provisions:
(ii) The Penal Code:
It is necessary to specify that work constitutes the basis of social well-being by the improvement of living standards and the advancement of society.
As regards prisoners, national legislation states that prison labour should not represent a hardship, may not be used as a disciplinary measure, and should not undermine the dignity of the prisoner. On the contrary, one of the principles of the Penal Labour Code concerning reduction of sentences is to ensure that work and education are considered beneficial to the prisoner and not compulsory. Where prison labour is obligatory, it shall be remunerated.
Moreover, the Government encourages the education of prisoners, namely through a Convention between the National Penal Institute (INPE) and the Administrative Faculty of the University of Inca Garcilaso de la Vega, which enables prisoners to take a correspondence course in administration.
Finally, the Government rigorously respects the application of the Convention and confirms that forced labour does not exist in Peru.
A Government representative referred first to the question regarding debt servitude in the Ashaninkas communities of Atalaya and Ucayali. In this connection she reiterated the information submitted in writing by the Government, and added that the Government had put into place measures to verify labour conditions and the respect of other labour-related rights. She noted that the work carried out by the health and social security organ (ESSALUD), which was a part of the Ministry of Labour and Social Promotion, had initiated periodic health visits for the people of these communities, thereby raising health and hygiene levels in the region.
With respect to child labour in the Atalaya region, she referred to the written information communicated by the Government, and stated that the sanctions imposed on the employers had ranged from US$10,000 to US$15,000 per enterprise, taking care that the number of minors per enterprise was in no case greater than 50. She further stated that she was aware that the reality largely exceeded the three denunciations submitted, and it was for this reason that the Ministry for Labour and Social Promotion had provided for constant monitoring of the region, to yield sufficient information to permit an updated appraisal of the labour situation in the area. This information would be transmitted to the Office in due course.
With respect to the workers of Madre de Dios, Kosñipata, Lares and other places, she reiterated the written information sent by the Government, and indicated its concern by this problem, and was working with the ILO to establish a centre for the eradication of child labour in mining. She also stated that in spite of the rural geography, the Ministry for Labour and Social Promotion had carried out various operations in the Madre de Dios department, in 1996, 1997 and 1998, with the following results: in listing the results she referred to the written information sent by the Government, adding that a similar operation in 1997 had been carried out, revealing three under-age workers in the mining centres, and finally, that there had been 412 inspections in 1998, both programmed and special, covering all economic activities, but especially mining, and only four under-age workers had been discovered. In the current year "sweeping" operations had been planned in two phases for the rural region. These aimed to cover both woodcutters, in the forestry sector, and the livestock and agricultural sectors, with a view to establishing the measures necessary for the protection of workers. In this connection work would be carried out jointly with the Ministry for Agriculture which would provide the necessary information concerning each of the authorizations and concessions granted for the woodcutting operations. She acknowledged that at present the Government was not able to reply to the questions of the Committee of Experts, but stated that the results of the action undertaken this year would make it possible to supply the statistics and detailed information on each of the cases highlighted within the next few months.
Finally, regarding prison labour, she referred again to the written information sent by the Government. She cited an example of the participation of groups of prisoners from the Chorrillos and Castro Castro prisons in an employment programme of the Ministry for Labour and Social Promotion -- the Women's Programme for Employment and Education (PROFECE). The prisoners had voluntarily formed organized labour groups (GOOLs) according to common manual skills. Products created by the groups were sold for the prisoners' profit, in the various PROFECE centres, and were in some cases exported with the aid of the Government. In this way, prisoners were assisted both in terms of rehabilitation, and also in economic terms, personally, and as regarded their families. She stated that a project aiming at the implementation of an education programme in penitentiaries was being elaborated. Finally, she specified that her Government would send the required detailed information.
The Worker members expressed their gratitude to the Government representative for the written information provided and recalled that this case was again being reviewed within the framework of the Committee of Experts since the Government had not responded to the previous questions raised. The Government had restricted itself to reiterating the facts and situations which were already known and had provided no new information concerning the developments and the new problems which had arisen in applying the Convention. They recalled that the Committee had already examined the situation concerning the Convention in 1992 and 1993 at a time when serious violations had been observed. Moreover in 1993, the Committee's conclusions had formed a special paragraph. The Worker members had recalled that the Committee of Experts' observation concerned three specific points of non-conformity with the terms of the Convention: firstly, forced labour (slavery, debt bondage and bondage) of indigenous peoples; secondly, the exploitation of young people, including children and adolescents in the Madre de Dios mines, which had been under discussion in 1993, and finally, prison labour.
As far as indigenous peoples were concerned, the Worker members recalled that in 1997 the World Confederation of Labour had communicated a number of comments concerning the forms of forced labour and bondage of the indigenous peoples of the Atalaya and Ucayali regions. The Government had still not responded to these comments. In this context, the most current form of forced labour consisted of debt bondage through a system known as "enganche o habilitación", by which indigenous workers were provided with a means of subsistence and work, creating a debt which the worker had to pay off by producing goods or services. In its previous comments, the Committee of Experts had requested the Government to adopt the necessary measures to eradicate the various forms of forced labour, particularly debt bondage, but also certain forms of fraudulent or violent recruitment of labour, the subhuman conditions of work and the exploitation of the indigenous communities of Atalaya, particularly children. The Committee of Experts had also emphasized the problem of in-kind payment of wages with food and clothing for forced labour, as defined in the Convention, by employers known as "madereros" (woodcutters). Moreover, these employers, particularly those in the wood-logging sector, resorted to irregularities which violated labour legislation on working hours, weekly rest and holidays. In 1999, the Committee of Experts had observed that although certain measures had been taken, problems remained which required dynamic and sustained action by the authorities, and it once again expressed the hope that the Government would take the necessary measures to eradicate the practice of the forced labour of workers, including children and adolescents, as required by the Convention.
The Worker members had noted that the Government had submitted written information in which it provided very succinct details on a number of developments which had contributed to raising the standard of living of indigenous peoples, namely, through land registration, which had initiated a process of self-development; visits to the autonomous communities to ensure that debt bondage was no longer applied; and increasing workers' awareness of their rights. The Worker members had recognized that the establishment of the Indigenous Organization of Atalaya Region (OIRA) and the activities of the Inter-Ethnic Association for Development (AIDEPS) had largely contributed to the conceptualization and the implementation of a policy to register lands and forests and to grant land rights to the indigenous communities. However, they had observed that this was not the result of initiatives taken by the Peruvian authorities, but of pressure being exerted on the Government, externally, nationally and by the ILO; through the development of external financing programmes and the implementation of legislation to protect indigenous peoples from slavery. These initiatives had encouraged the self-development of indigenous peoples and had contributed to diminishing their dependency and bondage. The Worker members had noted that the Government had also referred, very succinctly, to several prosecutions and denunciations concerning the practice of forced labour which had resulted in the sanctioning of employers, in accordance with the law. They had noted the oral information given by the Government representative, which should be meticulously examined by the Committee of Experts.
As regards the employment of children, including work being performed by children and adolescents in the Madre de Dios goldmines and washeries, the Worker members had noted that the Committee had also addressed this issue. They recalled that the National Federation of Miners, Metalworkers and Iron and Steel Workers of Peru (FNTMMSP) had denounced, in particular, the dishonest hiring practices of offering employment contracts of 90 days. These contracts were restricted to 90 days to enable employers to circumvent paying workers their return journeys, thereby preventing workers from returning to their place of origin. The FNTMMSP also addressed the issues of low salaries, long working hours and non-existent medical care. In its written comments, the Government had recognized that children and adolescents were included in these practices. It also referred to children and adolescents who were employed as kitchen workers in the mining encampments and acknowledged that a number of children had been subjected to sexual aggression. The Worker members had noted that the Government considered that the forced labour of children and adolescents had dropped, in particular, as a result of the economic recession and the modernization of the Madre de Dios mines and washeries. The Government also stated that several prosecutions and inspections took place between 1996 and 1998, and that fear of incurring legal sanctions had discouraged employers from recruiting adolescents.
Finally, as regards prison labour, the Worker members had recalled that the Committee of Experts had requested information on measures taken or envisaged to ensure the voluntary nature of work performed by prisoners, since the legislation in practice gave no details in this regard. Referring to the previously mentioned written information, the Worker members considered that the information contained therein was ambiguous and inadequate.
In conclusion, the Worker members deplored the brief and limited additional information on forced labour and the indigenous peoples' struggle against forced labour. They insisted that the Government provide detailed information to the Committee of Experts to enable it to closely monitor the situation and developments. They stressed the need for the implementation of a more active policy to prevent and suppress forced labour in order to abolish debt bondage. As regards forced labour of indigenous peoples in the mines, including children and adolescents, the Worker members considered that although the information provided indicated an improvement in the situation, this improvement was essentially the result of external factors and not an active government policy. In this context, the Worker members requested the Government to provide the Committee of Experts with detailed information and to develop an active policy to eradicate the forced labour of children and adolescents. Lastly, as regards prison labour, the Worker members had insisted that the Government should provide precise information, within the specified time limits, of the measures taken to give full effect to the Convention. The necessary consent must be obtained from prisoners to perform work for private individuals. The Government must also provide detailed information on the conditions of work.
The Employer members stated that this case had been discussed by the Conference Committee in 1992 and 1993, when it had noted a number of grave violations of the Convention. Since that time only a few changes had taken place and new allegations had been brought to the Committee of Experts' attention by the World Confederation of Labour (WCL). A widespread form of forced labour in the country was bonded labour which had mostly affected indigenous people in Atalaya and Ucayali regions. The most common form of forced labour was debt bondage. This was established under a system by which indigenous workers were provided with means of subsistence and work, but at the same time accrued a debt which the workers had to pay off by producing goods or services. These workers, however, lived without ever having the means to pay off their debts.
The Employer members noted that the Government representative had not provided detailed information with regard to these allegations. He further recalled the discussions which had taken place in 1993 and which had brought to light the existence of child labour in Atalaya. However, no information had been supplied on the number of cases in which the competent authorities had intervened. Although the Government representative had reported on inspection programmes, she gave no information as to the results of those inspections which had been carried out.
The Employer members further noted the comments presented by the National Federation of Miners, Metalworkers and Iron and Steel Workers of Peru (FNTMMSP) concerning dishonest hiring practices for the most part in Puno and Cuzco. The contracts offered had been limited to a certain number of days, after which the employers were supposed to cover the costs of workers' return journey. Since the employers had failed to do so, the workers had not been able to return to their place of origin. In this respect, the Employer members had noted the alleged bad working conditions in this sector, such as low wages, long working hours and the absence of medical care. Although the Government had reported in 1996 on progress in court proceedings against a group of contractors for violations of physical liberty in the contracting of labourers, he urged the Government to intensify this type of proceedings. He supported the Worker members' statement according to which some progress had been made in this regard.
With respect to prison labour, the Employer members recalled that this constituted a relatively new issue for the Committee of Experts. There were good reasons to oblige prisoners to work. However, a legal framework and precise provisions were needed in this respect.
With a view to the long-standing problems, the Government should be urged to provide detailed information on the subjects raised by the Committee of Experts. Moreover, the Government should indicate as soon as possible the results of the evaluation and assessment of inspection measures.
The Worker member of Peru declared that the Government recognized the difficulties that it had encountered in the application of the Convention, in particular as regards the Ashaninkas and in the area of Madre de Dios. However, the basic problem that these, as well as other peoples, were confronted with was the centralization of the administrative system which resulted in their total abandonment. It was highly important to carry out the changes requested by the Committee of Experts. In so doing the Government would be able rapidly to provide a solution to this problem. As regards prison labour, several of the difficulties encountered were the result of a significant overcrowding of the prisons affecting the prisoners. As a consequence thereof, work in prisons could not be deemed to be carried out on a voluntary basis.
The Worker member of Romania fully supported the declarations made by the Worker members. He recalled that the Committee of Experts had considered that the measures taken by the Government to halt the practices of forced labour were insufficient. Forced labour, which particularly affected indigenous peoples, existed in areas such as agriculture, cattle-raising and logging and took the form of debt bondage. The speaker declared that, according to certain information received, this problem affected some ten million people, including children. He further referred to the observations by the Committee of Experts concerning inhuman conditions at work for miners and emphasized that the employers of these miners effectively hindered them from returning home by refusing to pay their costs of transportation. He insisted that the Government should be requested to take measures to end these practices of forced labour pursuant to the provisions of the Convention.
The Worker member of Colombia noted his concern with regard to those persons working in conditions of slavery in Peru. He emphasized that, despite the undertakings made by different government administrations in Peru, the situation did not appear to have been resolved. He indicated that the existence of aberrant situations such as those described in the report of the Committee of Experts with regard to indigenous people, children and prisoners working in conditions of slavery was unacceptable. The members of the Committee recalled the situation of those children working in the gold washeries of Madre de Dios in order to pay off debts, as well as the statements made by the different government administrations of Peru disclaiming any knowledge of these problems. Finally, he asked the Government representative to indicate the number of labour inspectors supervising the enforcement of the labour laws, the frequency with which labour inspectors visit the gold washeries of Madre de Dios, and what measures were being taken in order to improve conditions in Peruvian prisons.
The Government representative indicated that Madre de Dios was not an enterprise, but was a remote wilderness area, rough and difficult of access, with very little infrastructure and little security. It had also suffered from the impact of El Niño and La Niña. These factors had impeded the assessment of the problems of forced and child labour, particularly in the mining sector, as well as efforts to promote the application of the Convention. Nonetheless, the Government had requested assistance from the ILO in order to solve these problems with which it was concerned. Meetings and other activities were being conducted, some with the participation of the ILO, to convince mining companies not to employ minors. Another problem faced by the Labour Inspectorate was that many of the incidents of forced labour complained of were occurring in informal enterprises, particularly those engaged in gold washing, that sprang up and disappeared in a very short time. However, other formal enterprises were visited periodically by labour inspectors. With regard to the work of prisoners or convicts, their participation in a work programme and corresponding activities did not involve private employers. On the contrary, the Government gave them the opportunity to be micro-employers. In this sense, this was work that was done voluntarily and was to their own benefit, permitting prisoners to reduce their sentences through work in accordance with the "two for one" system. The Ministry of Labour limited itself to placing prisoners' products on the national or international market. The Ministry of Justice and the National Penitentiary Institute monitored the problem of overcrowded prison conditions, doing what was necessary to make them more humane. With regard to the intervention of the Worker member of Peru, she indicated that the centralized administrative structure did not prevent regional labour departments from having their own inspectors and conciliation officers. Moreover, in the case of Atalaya, following the complaints presented to the ILO, a sub-prefecture of labour had been established that monitored the problems of the gold washers and indigenous workers, and carried out inspections on a permanent basis. She recalled the sweeping and positive reform of the Labour Inspectorate that had taken place beginning in 1996, indicating that there were currently 100 inspectors in Lima and 300 inspectors nationwide and that training seminars on labour inspection were frequently organized with the participation of the ILO.
The Committee noted the written and oral information provided by the Government representative and the discussion that ensued. It recalled that it had examined the case in the past and particularly in 1993. As concerned forced labour in particular by indigenous peoples in agriculture and logging, the Committee noted that the Government had indicated that, although the practices of forced labour through enganche or entitlement existed in the past, these practices had now largely been eliminated through the recognition of land rights for these people and that increased labour inspections were envisaged in the regions where they live. It noted also the statement that child labour, including forced labour, in mining had been reduced by a combination of economic decline, changing labour practices, and the activities of the Labour Inspectorate, as well as the assistance of the ILO. The Committee noted the brief information provided. It called on the Government to provide full particulars to the Committee of Experts on its efforts to eliminate forced labour and prevent its recurrence in future, in particular as concerned labour inspections, violations noted and penalties imposed. As concerned prison labour, the Committee noted the information provided during the discussion but regretted that the Government had not provided all the information requested by the Committee of Experts on the need for prisoners to consent to work for private employers, as well as the need to ensure the voluntary nature of work by persons detained while awaiting trial. It urged the Government to take the necessary steps to ensure that the Convention was respected in this regard, and to inform the Committee of Experts in detail of the steps it had taken.
Convention No. 81: Labour Inspection, 1947 [and Protocol, 1995]
Sri Lanka (ratification: 1956). A Government representative of Sri Lanka first declared that concerning Article 1 of the Convention a system of labour inspection had been maintained in order to give effect to the provisions of the Convention. These labour inspections concerned a wide range of work including inspections relating to wages, safety in health, social security, terms of employment, conditions of labour, etc. He then pointed out that several laws had been introduced before the ratification of the Convention. Concerning the observations of the Committee of Experts made under Article 3, paragraph 1(a), of the Convention, he stated that the Government had implemented the provisions of the Employment of Women, Young Persons and Children Act, No. 47 of 1956, not only in the export processing zones but also in the other areas of the country. He mentioned that there were 31 district offices and 24 sub-offices in addition to the head office of the Commissioner-General of Labour who was stationed in Colombo. There were three export processing zones with a workforce of approximately 100,000 and these areas were covered by four district offices. He stressed that in these export processing zones child labour did not exist. He then stated that in the latter part of 1998, the Department of Labour introduced a special investigation system in collaboration with three departments namely the Department of Labour, the Department of Probation and Child Care and the Police Department. The investigations were carried out jointly and had shown that the offences against children were of a mixed nature, including child labour, cruelty to children and matters relating to unlawful custody. When the above system of inspection began, nationwide publicity was given about child labour and cruelty to children. Moreover, towards the latter part of 1998, children and women's desks were opened throughout police stations in Sri Lanka. On receipt of complaints, action had been initiated for investigation and prosecution wherever necessary. The Government representative then provided several figures showing an increase in the number of complaints and inquiries conducted for the year 1998. He pointed out that fines had been imposed as well as jail sentences. He reiterated that child labour did not exist in export processing zones and that there had been no complaints of such practices to the labour inspection. He assured that if any trade union could provide the exact address of where a case of child labour existed action would be taken immediately. He also drew attention to certain difficulties encountered by the Department of Labour concerning prosecution under the Women and Young Persons and Children Act. For instance the parents of the child concerned were not always cooperative with the magistrate dealing with the case. Therefore the tendency of the Labour Department was to file only the cases which could be proved before the Court.
Concerning his Government's failure to provide to the ILO an annual report on the work of the inspection services, he wished to obtain a report form in order to fulfil this obligation in the future. Concerning the queries of the Committee of Experts on the enforcement authority of the officers of the Department of Labour, he pointed out that the power of enforcement, namely prosecution, was vested with the Commissioner of Labour. He indicated that the probation officers were entitled to conduct inquiries under the law but could not file cases. However, they could always obtain permission from the Commissioner of Labour for filing cases. He then expressed his Government's concern with the problem of child labour in the domestic sector since child labour was not a regular practice in the organized sector. According to the Regulations established in 1957 under the Act of 1956 referred to above, no child below the age of 12 could be employed in domestic service. That gave rise to employment of children above the age of 12 in the domestic sector. In this regard the Government has initiated action to amend the regulations in order to tackle the problem of children above the age of 12 who were used for domestic purposes. He also underlined that the Government was aware of the importance of Article 10 of the Convention and that the number of labour officers had to be increased, but financial constraints also existed. He then provided figures showing such an increase in 1998, and mentioned that several officers had been recruited.
Concerning labour inspection in terms of Article 21, he provided comprehensive figures showing that the Safety and Health Division of the Labour Department had conducted a significant number of inspections. Furthermore, inspections were also carried out on complaints with respect to fatal accidents. He also provided statistics on the number of inspections relating to factories for the entire country. Several of these inspections had been carried out with respect to hazardous chemical industries. Unfortunately, he could not provide comprehensive data on the number of workers in the factories who had been subjected to inspection in 1998, but promised to provide such information to the ILO in the near future. He also acknowledged that the number of engineers in the Labour Department was inadequate, but again he had to refer to financial constraints faced by the Government. He then mentioned that the Labour Department needed to revise the reporting system concerning fatal accidents and occupational diseases. In addition to inspections, he pointed out that the officers played a preventive role in the prevention of industrial accidents and occupational diseases. They informed or otherwise educated factory managers and supervisors on the preventive measures which could be taken to avoid industrial accidents. The engineering division also conducted training programmes on safety and health for the workers' managers. Concerning Article 6 of the Convention, he indicated that the entire labour inspectorate consisted of government officials who were, with the exception of 200 field officers, permanent staff. Therefore, in the case of a change of government, the Department could rely on a stable labour inspectorate who would continue to perform its duties. Finally, he wished to seek ILO technical assistance concerning his Government's periodic reporting obligations with respect to this Convention.
The Worker members thanked the Government representative for the comprehensive information provided, while regretting that it had not been submitted earlier. They recalled that the case had already been discussed in 1997 and the Committee of Experts had made observations and direct requests since 1959. They noted that the Government had supplied information in its report to the ILO, but that it had not yet submitted its annual report on the activities of the inspection services, as required by the Convention. Regarding the first point mentioned by the Committee of Experts in its observations, namely, the protection of children and young persons, they pointed out that in 1997 the Government representative had declared that no child labour existed in the organized sector, but had recognized that it existed in the informal sector, especially the domestic sector, indicating that 21 cases of employment of children in the domestic sector had been recorded in 1996 and 1997. The Worker members noted that the Government had stated that the Department of Probation and Child Care Services carried out inspections. In this connection, they wondered what resources and capabilities were available for such inspections. They would also like to know whether the Department of Labour's inspectors had inspection powers in areas covered by the Department of Probation and Child Care and how the collaboration between the two services worked. Lastly, they requested the Government to identify the specific measures taken or planned to detect, prevent and eliminate child labour in the informal sector, particularly in the domestic sector.
Regarding the second point, the Worker members noted that the Government had stated that labour legislation applied to all concerns in export processing zones. The Worker members had, however, noted a recent statement to the contrary by the Minister for Labour in which he acknowledged that there were still problems in applying labour legislation in export processing zones, referring in particular to hours of work imposed to fulfil orders and dispatch goods. They noted the paucity of information submitted by the Government in that respect, which had prevented the Committee from undertaking a comprehensive evaluation of the situation. With regard to the section of the General Report of the Committee of Experts on the application of the Conventions in export processing zones and the conclusions and recommendations of the tripartite meeting of countries with export processing zones aimed at improving social and working conditions therein, they strongly urged that an appropriate reference be made in the Committee's conclusions. Moreover, they requested the Government to provide detailed information on the functioning of inspections in export processing zones and on health and safety inspections, particularly in relation to the use of dangerous products or machinery.
Regarding the third point of the observations on the number of labour inspectors and the frequency of inspection visits, the Worker members noted that, according to the Labour Officers' Association, the labour administration system suffered from a lack of inspection staff. The Government had responded that it intended to make a significant increase in the number of labour officials. Accordingly, the Worker members requested the Government to provide information on the actual increase in the number of staff and the frequency of inspection visits.
In conclusion, the Worker members emphasized that the labour inspection system provided in the Convention was a priority for the ILO. The importance of applying standards in practice was recognized by the Committee in its entirety and the ILO deemed the Convention to be one of its priority Conventions. Furthermore, the protection of children and young persons was one of the fundamental objectives and priorities of the ILO, reaffirmed in the 1998 Declaration. Sri Lanka had adopted the relevant legislation, but the absence of data made it impossible to verify what was being done in practice. The application of national and international standards in export processing zones was also a priority for the ILO. If there was no effective system of labour inspection, the ILO's recent action on export processing zones would be affected. They recalled that the Government could also seek technical assistance from the ILO, but it must prepare and transmit to the ILO its annual report on the activities of the inspection services.
The Employer members thanked the Government for the information provided. However, they agreed with the Worker members that the information should have been timely submitted in order to permit the Committee to evaluate the application of the Convention. They noted that the Committee of Experts was primarily concerned with the effectiveness of the labour inspection system in Sri Lanka. The Committee had sought information on the inspections carried out to ensure the application of the labour laws protecting children and young persons and on the activities of the labour inspectorate in export processing zones. The Committee of Experts had also referred to the lack of inspection staff in Sri Lanka. In this regard, they noted the Government representative's statement indicating that approximately 20 per cent of the available positions remained open. It was impossible for the Committee to determine, on the basis of the information provided, whether the Convention was applied to all workplaces in Sri Lanka, as required by Article 2 of the Convention. With regard to Article 5(b), they noted that there was no information indicating the degree of collaboration that existed between the labour inspectorate and officials of workers' and employers' organizations. They also considered that the Government's response with respect to Article 6 was unclear. While the Government had provided information relative to Article 7, the Committee lacked information regarding the qualifications of the inspectors and whether they were trained for the function in which they worked. Referring to the annual reporting requirement contained in Article 20, they pointed out that this was not only useful to the ILO, but was also beneficial to the country itself, and should be generally available. Finally, they noted that the absence of comprehensive statistics, as required under Article 21, did not permit the Committee to assess the Government's efforts to increase the efficiency of the labour inspectorate in the EPZs. They asked the Government to provide the ILO with a copy of its report. Further, it should immediately avail itself of the technical assistance offered by the ILO.
The Worker member of Pakistan noted the statements made by the Government representative of Sri Lanka regarding the state of labour inspections and measures taken in that country. Noting that the Government representative had admitted that the labour inspectorate had found cases of children working in Sri Lanka, he recalled that it was the obligation of every country to develop an effective system to protect worker rights, especially the rights of children. He underscored the significance of the Convention in enabling countries to detect violations of the rights of children and women workers. He noted the low rate of convictions resulting from the inspections referenced by the Government representative. He noted that it was the responsibility of the Government to develop an effective labour inspection system and urged it to eliminate delays in enforcement procedures. He indicated that the Government should avail itself of the technical assistance provided by the ILO, supply the ILO with its annual report and improve its enforcement machinery. Additionally, as noted by the Committee of Experts, the Government should increase the number of labour inspectors in the country. Inspectors should enjoy increased job security so that they would carry out their function more effectively. In conclusion, he urged the Government to improve the labour inspection situation in Sri Lanka.
The Government representative thanked all the speakers for their comments. Concerning child labour, he emphasized that this problem was found mainly in the informal sector and that it was extremely rare in the formal sector. Concerning the training of officers in the Police Department, and Probation and Child-Care Services on child labour, he indicated that they were trained by the Department of Labour. He mentioned that for the period 1998-99, 150 officers had already been trained and that another 150 would undergo training. He also stated that special training programmes for engineers were being conducted. In this regard, he expressed his wish for ILO technical assistance concerning the training of engineers. He reiterated that labour laws were fully applied in the export processing zones, just as they were applied in the rest of the country. He also indicated that tripartite consultations had taken place in the export processing zones. He strongly reiterated the fact that child labour did not exist in export processing zones and, if it had been the case, special investigation teams would have taken immediate action. He once again insisted on the fact that all inspection officers, except for 200 field officers, had permanent posts. Regarding the annual reporting obligation, he stated that all the data could be found in the report of the Labour Commissioner and that this report would be sent to the ILO. The report he had presented today, including all the comprehensive statistics, would also be provided to the ILO, but he nevertheless sought ILO technical assistance with respect to his Government's reporting obligations concerning the application of the Convention. Finally, with respect to filing actions in court, he indicated that senior officers were handling the prosecutions, but he admitted that there existed a lot of technicalities which could complicate the legal proceedings.
The Committee noted the detailed oral information supplied by the Government representative and the discussions which took place thereafter. The Committee noted that no copy of the annual report on the activities of the labour inspection services was sent to the ILO. The Committee considered that an efficient operation of the system of labour inspection is crucial to the practical application of the Convention and national legislation of Sri Lanka relevant in particular to child labour, primarily the Employment of Women, Young Persons and Children Act. It urged the Government to ensure that labour inspection be carried out efficiently and effectively so as to detect child labour in the unorganized sector, particularly in domestic service. The Committee also stressed the importance of the association of duly qualified technical experts and specialists in the work of inspection for the effective operation of the system of labour inspection in the export processing zones in the context of increasingly sophisticated equipment and hazardous chemicals. The Committee further recalled that sufficient numerous inspection staff was one of the principal factors which enable inspection visits to be made as frequently and as effectively as necessary to ensure the protection of workers is a reality. The Committee stressed the importance of the collaboration between inspectors and workers and employers in their organizations. The Committee stressed the essential importance of the Convention and recalled that an effective system and organization of labour inspection was the best guarantee of respect in practice of labour standards. In this regard, the Committee encouraged the Government to have recourse to technical assistance from the ILO. The Committee expressed the hope that the Government would supply a detailed report for the next session of the Committee of Experts on the concrete measures taken to ensure full conformity with the Convention in practice.
1. The list of the reports received is to be found in part I C of the Report.
Updated by HK. Approved by RH. Last update: 26 January 2000.