Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

Labour Inspection Convention, 1947 (No. 81) - Poland (Ratification: 1995)

The Committee notes the observations made by the Independent and Self-governing Trade Union “Solidarnosc” dated 30 August 2012 and transmitted to the Government on 14 September 2012, and the reports of the Government with the replies to the observations of Solidarnosc attached, respectively received on 28 August 2012 and 29 August 2013.

Article 3(2) of the Convention. Additional functions entrusted to labour inspectors. The Committee previously noted that since 2007 the National Labour Inspectorate (NLI) has been entrusted with controlling the legality of employment of Polish citizens, as well as foreign nationals and that specialized divisions on legality of employment (DLE) have been set up in all district labour inspectorates. It notes from the information provided by the Government that, in addition to the inspectors working in the DLE, all 1,573 labour inspectors working at the NLI are authorized to carry out tasks in the area of legality of employment. In addition, the Committee had noted in its previous observation that labour inspectors are required to notify border guards immediately of cases of infringements of legal provisions concerning foreign nationals. In reply to the Committee’s previous request to specify the nature of the cooperation between the NLI and the border guards, the Government indicates that cooperation between these two entities includes joint inspections, the exchange of information on non compliance with legal provisions, joint training and the exchange of experience, in particular regarding the improvement of control methods, etc. According to the Government, while both the NLI and the border guards are entrusted with controls in the area of legality of employment, there are some differences in the functions of both entities, as labour inspectors are entrusted with inspections for the protection of labour rights and occupational safety and health (OSH) and, in contrast with the border guards, are not empowered to use direct coercion and retain foreign nationals, oblige them to leave the country or initiate deportation proceedings.

According to the information provided by the Government, in 2011, 26,000 of the 90,600 inspections carried out by the NLI related to legality of employment (23,800 of these inspections related to nationals and 2,200 to foreign nationals). The most common irregularities in the area of legality of employment of foreign nationals concerned the absence of a required work permit, the granting of less favourable conditions than those indicated in work permits (including lower salaries) and the non-declaration of foreign workers to the social security authorities. The Committee notes the Government’s indications that the Act on the effects of employing foreign nationals who are illegally resident in the territory of the Republic of Poland of 6 July 2012, aimed at transposing Directive No. 2009/52/EC of June 2009 of the European Parliament and of the Council, introduces new regulations which, de facto, protect the rights of foreign workers, but does not contain regulations – beyond the procedures already established – relating to claims by workers illegally in the country asserting their rights, including in procedures for their expulsion. The Committee notes from information in the mass media that the Government has launched three campaigns in recent years to regularize workers who are illegally in the country. It further notes that the Government has not provided any information on cases, in which workers in an illegal situation have been regularized or granted their rights arising out of their past employment. The Committee also notes that, as it appears from information available on the website of the NLI, a foreign national working in violation of the legal provisions may incur a financial penalty ranging from 1,000 to 5,000 Polish zloty (PLN).

The Committee notes the Government’s indications that, in light of the current legislation, and due to the anticipated entry into force of regulations for the implementation of Directive No. 2009/52/EC, there is no possibility for the separate treatment of issues related to immigration law, and rights of foreign workers and the legality of their employment in Poland.

However, the Committee recalls once again, with reference to paragraph 78 of its 2006 General Survey on labour inspection, that the primary duty of labour inspectors is to protect workers and not to enforce immigration law. Given the potentially large proportion of inspection activities spent on verifying the legality of immigration status, the Committee has emphasized that additional duties that are not aimed at securing the enforcement of the legal provisions relating to conditions of work and the protection of workers, should be assigned to labour inspectors only in so far as they do not interfere with their primary duties and do not prejudice in any way the authority and impartiality which are necessary to inspectors in their relations with employers and workers. The Committee has also emphasized that the association of the police and border guards in labour inspection is not conducive to the relationship of trust that is essential to enlisting the cooperation of employers and workers with labour inspectors. It must be possible for inspectors to be respected for their authority to report offences, and at the same time to be approachable as preventers and advisers. The Committee has therefore emphasized that the function of verifying the legality of employment should have as its corollary the reinstatement of the statutory rights of all the workers if it is to be compatible with the objective of labour inspection. This objective can only be met if the workers covered are convinced that the primary task of the inspectorate is to enforce the legal provisions relating to conditions of work and the protection of workers. The Committee had also observed in its 2006 General Survey that, with the exception of a few countries, only the employer was held accountable for illegal employment as such, with the workers involved in principle being seen as victims. The Committee therefore requests the Government to indicate the measures taken or envisaged to ensure that the functions of verifying the legality of employment does not interfere with the effective discharge of the primary duties of the labour inspectors relating to the control of the observance of workers’ rights, and does not prejudice the relationship of trust with employers and workers necessary to inspectors.

The Committee asks the Government to continue to indicate the proportion of inspections devoted to verifying the legality of employment in relation to the observance of legal provisions relating to conditions of work and the protection of workers. The Committee would be grateful if the Government would disaggregate the information on inspections and their results by providing specific information relating to undeclared work, that is statistics on the violations found following inspections and the legal provisions to which they relate, the legal proceedings instituted and sanctions imposed.

The Committee once again asks the Government to indicate the manner in which the labour inspection services ensure the enforcement of employers’ obligations with regard to the statutory rights of undocumented foreign workers for the period of their effective employment relationship, especially in cases where such workers are expelled from the country. Please explain in detail the applicable procedures and indicate the relevant provisions in national law, if possible, in one of the working languages of the ILO. Please also indicate whether any foreign workers in an irregular situation have been sanctioned for the violation of legal provisions relating to the legality of their employment and provide information on the number of cases in which foreign nationals in an illegal situation have been granted their rights resulting from their past employment relationship (wages, social security benefits, etc.).

Articles 5(a), 17 and 18. Sanctions and effective enforcement. Cooperation between the inspection services and the judiciary. The Committee notes with interest the information provided in the Government’s report that, following the recent amendments to section 325(e) of the 1997 Code of Criminal Procedure, public prosecutors have the obligation – at the request of labour inspectors – to justify their decision not to initiate an investigation or to discontinue investigations in cases submitted by the NLI. According to the Government, these amendments should contribute to the effectiveness of labour inspection, since labour inspectors are now informed of the specific reasons for these decisions. The Committee further notes that, following amendments to the Act of the National Labour Inspectorate, labour inspectors now have free access to the national court register and the national penal registers. The Committee also notes the information in the annual reports on the number and nature of violations and sanctions imposed, although it observes that no information has been provided on the legal provisions to which they relate. The Committee asks the Government to provide information on the impact of the above changes, such as the number of cases reported to the Office of the Public Prosecutor and the initiation of the respective criminal proceedings, as well as their outcome (fines, prison sentences or acquittals).

Articles 5(b) and 12(1). Collaboration between labour inspection officials and the social partners and restrictions on inspectors entering workplaces freely. Following the previous observations made by the Independent and Self-governing Trade Union “Solidarnosc” on the lack of collaboration between the labour inspection services and representatives of trade unions in the course of inspections, the Committee notes the Government’s general explanations on the forms of such collaboration, for example, the requirement for labour inspectors to inform representatives of trade unions and social inspectors (where they exist) of inspections. It also notes the information on the number of inspections conducted in 2011 as a result of complaints submitted by social inspectors.

However, the Government indicates that problems in collaboration with the social partners (including social inspectors) may result from the restrictions set forth in Chapter 5 of the Act on Freedom of Economic Activity (AFEA), since inspections require an authorization indicating the subject of the control, and that the scope of the control cannot be exceeded during inspections. Moreover, there is an obligation not to violate any provisions of the Act on the Protection of Personal Data (APD), which requires professional secrecy concerning specific information relating to business activities and the persons guilty of or punished for labour law violations.

The Committee notes that the AFEA, which the Government has submitted to the Office in its amended version, appears to still require prior authorization for labour inspectors to carry out inspections. The Committee noted previously that administrative courts have issued contradictory decisions on whether labour inspection has to be considered as a supervisory body of economic activities falling within the scope of the AFEA. The Committee asks the Government to indicate the relevant provisions in the AFEA and the APD, if possible, in one of the working languages of the ILO, establishing restrictions on the conduct of any examination or inquiry which labour inspectors consider necessary in order to satisfy themselves that legal provisions are being strictly observed, and to provide further explanations on the scope and nature of the restrictions that labour inspectors face in practice.

The Committee also once again asks the Government to indicate the measures taken or envisaged to remove any requirement of labour inspectors to obtain prior authorization in order to exercise their right of entry into workplaces liable to inspection to carry out inspections.

Articles 20 and 21. Content of annual reports on the work of the labour inspection services. The Committee notes the detailed information provided in the annual reports on the work of the labour inspection services for 2009, 2010, 2011 and 2012. However, the Committee also notes the observations made by Solidarnosc that these reports do not contain complete information on inspections with regard to the legal provisions to which they relate, that is provisions on working time, wages, OSH, child labour and related issues. The Committee would be grateful if the Government would publish annual reports containing information on the activities of the labour inspection services, disaggregated by the various subjects of inspection (such as OSH, working hours, wages, child labour and legality of employment), including particulars on the classification of the infringements detected according to the legal provisions to which they relate.

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