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

Poland

Labour Inspection Convention, 1947 (No. 81) (Ratification: 1995)
Labour Inspection (Agriculture) Convention, 1969 (No. 129) (Ratification: 1995)

In order to provide a comprehensive view of the issues relating to the application of ratified conventions on labour inspection, the Committee considers it appropriate to examine Conventions Nos 81 (labour inspection) and 129 (labour inspection in agriculture) together.

Article 3(1) and (2) of Convention No. 81 and Article 6(1) and (3) of Convention No. 129. Labour inspection activities for the protection of foreign workers in an irregular situation and additional functions entrusted to labour inspectors. The Committee notes the Government’s indication, in reply to its previous request, that the Border Guard (BG) is gradually taking over the controls in the area of legality regarding employment of foreigners. The Government indicates that after the adoption of the Polish Migration Policy in 2014, the focus of cooperation between the National Labour Inspectorate (NLI) and the BG is moving from jointly monitoring illegal employment to exchanging experiences, good practices and the interpretation of regulations. The Government states that this shall enable the NLI to focus more on issues directly concerning the protection of workers’ rights. According to the statistics contained in the Government’s report and the 2015 annual inspection report submitted in 2016, this shift resulted in labour inspections focusing more on controlling the legality of employment of Polish citizens: around 23,000 out of a total of 90,000 inspections performed by the NLI in 2015 focused on the legality of employment and other paid work of Polish citizens. This resulted in the detection of illegal employment of around 21,000 workers, including over 13,000 purported independent contractors. The Committee welcomes the indication that more than 8,000 of those workers obtained employment contracts through the labour inspectorate’s interventions.

The Committee notes the Government’s indication, nonetheless, that labour inspection controls are carried out in relation to foreign nationals illegally residing in the territory in cooperation with the BG, or that results of the inspections are notified to the BG, which then imposes sanctions. The Government indicates that the NLI focuses on the enforcement of employers’ obligations with regard to the statutory rights of only Polish workers who are found to be in an irregular situation with little control over foreign workers in a similar situation, as a consequence of the new distribution of duties between the BG and the NLI. The 2015 annual labour inspection report indicates that in 2015, 3,000 labour inspections focused on the legality of employment related to foreigners, one third of which detected violations. The Government states that the NLI detected a relatively small number of cases that concern foreign workers illegally residing in Poland: only 30 foreigners in nine entities were detected in 2015. For the years 2013–15, the detection of foreigners without work permits resulted in two referrals of motions for punishment to the court, four criminal fines and eleven educational measures. The Government indicates that the NLI is not aware of cases in which foreign workers illegally residing in Poland were granted statutory employment rights, such as wages and social security benefits. The Committee recalls that in its 2006 General Survey, Labour inspection, paragraph 77, it indicated that neither Convention No. 81 nor Convention No. 129 contain any provision suggesting that any worker be excluded from the protection afforded by labour inspection on account of their irregular employment status. The Committee further recalls its observation on the application of the Forced Labour Convention, 1930 (No. 29) in which it requested the Government to take the necessary measures to enable migrant workers to approach the competent authorities and seek redress in the event of a violation of their rights or abuses, without fear of retaliation. Noting the Government’s efforts to relieve the inspectorate of the task of monitoring illegal employment of foreign workers by transferring it to the BG, the Committee requests the Government to provide information on the manner in which the labour inspection services ensure the enforcement of employers’ obligations with regard to the statutory rights of foreign workers, including those in an irregular situation, resulting from their existing and past work (such as wages and social security benefits).

Articles 5(a), 17 and 18 of Convention No. 81 and Articles 12, 22 and 23 of Convention No. 129. Sanctions and effective enforcement. Cooperation between the inspection services and the judiciary. The Committee takes note of the information provided by the Government in reply to its previous comments, on the number of notifications of a suspected crime made by labour inspectors to the Office of the Public Prosecutor (PO). However, it notes that nearly 75 per cent of notifications to the PO concerning suspicions of criminal offenses did not result in proceedings. The Government indicates that labour inspectors can file complaints or make requests for justification of the PO’s refusal to initiate proceedings, and that inspectors submitted 131 such complaints in 2015. Noting that most cases transmitted to the PO do not result in proceedings, the Committee requests the Government to provide information on the measures taken or envisaged to enhance effective cooperation between the labour inspection services and the judicial system. The Committee further requests the Government to provide information on the reasons why the PO declined to proceed, suspended, or discontinued cases, and whether the PO communicates these concerns, or seeks additional information from inspectors, prior to its final decision not to proceed. It also requests the Government to provide information on the measures taken to ensure that labour inspectors receive appropriate training on the preparation of notifications to the PO and are systematically informed about the outcome of the cases notified.

Articles 2(1), 5(a), 12(1), and 16 of Convention No. 81 and Articles 4, 12, 16(1) and 21 of Convention No. 129. Coverage of workplaces by labour inspections. Restrictions on collaboration between labour inspection officials and other public institutions and on inspectors entering workplaces freely. The Committee previously noted the Government’s indications concerning the restrictions set forth in Chapter 5 of the Act on Freedom of Economic Activity (AFEA) providing that inspections require an authorization indicating the subject of the control, and that the scope of the control cannot be exceeded during inspections. The Committee takes due note that the AFEA was amended in 2015 to provide that certain restrictions would not apply if ratified international agreements provide otherwise. However, it notes with concern the Government’s indication that the application of the provisions of the AFEA to the NLI poses various difficulties in practice.

The Committee takes due note that the requirement in section 79-2(1) of the AFEA of prior notification to carry out inspections does not apply to labour inspection, in light of the obligations under Conventions Nos 81 and 129. It however notes that section 79(a) requires labour inspectors to obtain and present authorization from the labour inspectorate to the entrepreneur or his/her representative, except for serious cases where authorization can be presented within three days after initiating the inspection. The Government states that obtaining this authorization can increase the time-consuming nature of activities before the start of an inspection and limits the mobility of labour inspectors. It poses practical difficulties in inspecting an entire workplace with more than two entrepreneurs or subcontractors, and often makes it difficult to conduct controls without an agreement from the entrepreneur. The Government also indicates that the AFEA prevents labour inspectors from carrying out joint inspections with other public authorities charged with supervising working conditions (such as the State Sanitary Inspectorate and the Road Transport Inspectorate). The Government further indicates that the AFEA requires carrying out inspections at the headquarters of the entrepreneur or place of business, which severely limits the possibility of monitoring entrepreneurs engaged in economic activities using their home address. The Committee also notes the detailed information provided by the Government on the various administrative court decisions on the application of the AFEA to the NLI and takes note of the Government’s indication that there is a risk that evidence collected as a result of inspections may be regarded in violation of the AFEA. The Committee urges the Government to take measures to address the limitations on the work of the labour inspectorate related to prior authorization, inspecting workplaces with multiple employers and the conduct of joint inspections, in accordance with Articles 12 and 16 of the Convention No. 81 and Articles 16 and 21 of the Convention No. 129. It requests the Government to provide information on the measures taken in this respect, and to continue to provide information on the impact of the AFEA on labour inspection activities.

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