4.8 The State party concedes that the ILO
Committee of Experts monitoring Chilean legislation
on unemployment benefits considered a loss of
benefits imposed if a person refused to carry out
community relief work to be “equivalent to a penalty
in the sense of the Convention.” It distinguishes the
schemes, however, on the basis that, in Chile,
payment of unemployment benefits was conditional
upon payment of contributions for 52 weeks of the
preceding two years, while in Australia benefits are
not conditional upon any prior contribution. In
addition, Chilean unemployment benefits are timebound, while in Australia they are not. In the State
party’s view, therefore, the Committee of Experts’
comments on Chile are not presently relevant.
“…minor communal services of a kind
which, being performed by the members of
the community in the direct interests of the
said community, can therefore be considered
as normal civic obligations incumbent on
members of the community, provided that the
members of the community or their direct
representatives shall have the right to be
consulted in regard to the need for such
services.”
4.12 It is also relevant that article 11 sets out a
minimum age of 18 and prior medical examinations
for those required to perform compulsory labour,
while article 12 states that the maximum labour
period shall not exceed sixty days per year. Article
13 provides that the working hours in question
should correspond to those of voluntary labour, and
article 14 sets out cash remuneration not less than
prevailing for similar work in the district. Article 15
applies workers’ compensation and incapacitation
legislation to both forms of labour. The State party
argues that the Work for Dole programme generally
satisfies the minimum standards of the Convention.
It is quite proper, as recognized in the abovementioned ILO instruments, to place reasonable
conditions on social security payments. By
participating in the Work for Dole programme, longterm unemployed persons enhance their skills,
employability and thus future self-sufficiency.
Unemployment benefits in Australia are not
dependent on prior contributions, nor are they timebound. Nobody is forced to accept them, but if an
individual does choose to do so, compliance with
participation in a Work for Dole programme is a
reasonable condition.
4.9 Turning to the relatively scarce jurisprudence
arising under the similar terms of article 4 of the
European Convention on Human Rights, the State
party refers to the case of Van der Mussele v.
Belgium.5 The European Court there held that a law
student, voluntarily choosing to enter the legal
profession, could not be held to have been required
to perform forced labour by a requirement to
undertake a certain amount of pro bono work during
his clerking apprenticeship in order to register as
advocates. In the Court’s view, the service did not
impose a burden so excessive or disproportionate to
the advantages attached to future exercise of the
profession that it could be treated as not having been
voluntarily accepted beforehand. Given that the
governing ideas of the exceptions to article 4 were
the general interest, social solidarity and what is in
the ordinary or normal course of affairs, the
requirement of service was not disproportionate or
unreasonable.
4.10 In X v. The Netherlands, 6 the European
Commission of Human Rights found that a
suspension for 26 weeks of a builder’s
unemployment benefit due to the builder’s refusal,
on grounds of alleged overqualification, of a job
offer made to him did not amount to forced or
compulsory labour. The Commission reasoned that
nobody was forced, by penalty, to accept a job offer
made by competent public authorities. Rather,
acceptance of such an offer was simply a condition
to receipt of unemployment benefits, a refusal being
penalized only by temporary loss of those benefits.
4.13 The State party argues that the present
communication raises issues of compulsory rather
than forced labour, given the absence of any physical
or mental constraint. Applying the Van der Mussele
test developed by the European Court, the author’s
participation in the Work for Dole programme does
not even reach the threshold of compulsory labour,
as neither the necessary intensity of penalty or of
involuntariness are involved. The State party points
out that it carefully considered the programme’s
compatibility with its international obligations, as
borne out by statements made during the second
parliamentary reading of the draft Bill:
4.11 The State party observes that the Covenant’s
exception for “any work or service which forms part
of normal civic obligations” is not specifically
defined, but should be interpreted against the
backdrop of the minimum standards contained in
ILO Convention No. 29. That Convention, in article
2, paragraph 2 (e), excludes:
5
6
“The Government is cognizant of its
international obligations. It has taken advice
of the Attorney-General’s Department that a
work for the dole initiative should not
contravene our international obligations,
provided that the work offered under work
for the dole is ‘suitable’ and ‘reasonable’ for
that person. The fact that payment of
unemployment allowance is not based on any
prior mandatory contribution, coupled with
Series A, 70 (1983).
No. 7602/76, 7 DR 161 (1976).
70
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