87th Session
Geneva, June 1999
Report of the Committee on the Application of Standards |
PART TWO
OBSERVATIONS AND INFORMATION CONCERNING PARTICULAR COUNTRIES
I. Observations and Information concerning Reports on Ratified Conventions (article 22 of the Constitution)
II. Observations and Information concerning the Application of Conventions in Non-Metropolitan Territories (articles 22 and 35 of the Constitution)
III. Submission
to the Competent Authorities of the Conventions and Recommendations Adopted
by the International Labour
Conference
(article 19 of the Constitution)
IV. Reports on unratified Conventions and on Recommendations (article 19 of the Contitution)
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
Index by Countries to Observations and Information Contained in the Report
I. OBSERVATIONS
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