Observation (CEACR) - adopted 2019, published 109th ILC session (2021)

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.

The Committee takes note of the observations of the Independent and Self-Governing Trade Union “Solidarnosc” received on 19 August 2019, and the Government’s reply to these observations received on 26 September 2019.

Articles 2(1), 5(a), 6, 12(1) and 16 of Convention No. 81 and Articles 4, 6, 12, 16(1) and 21 of Convention No. 129. Coverage of workplaces by labour inspection. Restrictions on collaboration between labour inspection officials and other public institutions and on inspectors entering workplaces freely. The Committee previously noted the limitations on the work of the labour inspectorate in the Act on Freedom of Economic Activity (AFEA) related to prior authorization by the inspection authority, as well as practical difficulties it posed in inspecting workplaces with multiple employers and the conduct of joint inspections. The Committee notes that the Entrepreneurs’ Law, adopted in 2018, replaced the AFEA. It notes that pursuant to sections 48(1) and 54(1) of the Entrepreneurs’ Law, prior notice to the entrepreneur is required and the undertaking of simultaneous controls of an entrepreneur’s activities are not permitted, but that sections 48(11)-(1) and 54(1)-(8) state that these restrictions do not apply if the inspection is carried out on the basis of a ratified international agreement. With respect to authorization, the Committee takes note of the Government’s indication that prior authorization by the inspection authority seeks to ensure transparency, reliability, validity, and legitimacy of public administrative bodies. It notes that pursuant to section 49(1) and (2) of the Entrepreneurs’ Law, labour inspectors are empowered to conduct controls without prior presentation of the authorization from the inspection authority only in cases where control activities are necessary to prevent a crime or offence or securing evidence that such an offence has been committed, or when inspections are justified by a direct threat to life and health or environment, so long as such authorization is presented later to the entrepreneur within three days from the date of initiation of a control. Furthermore, the Committee notes that the Entrepreneurs’ Law empowers inspectors to carry out control activities only during working hours (section 51(1)).

The Committee recalls that according to Article 12 of Convention No. 81 and Article 16 of Convention No. 129, labour inspectors provided with proper credentials shall be empowered to enter freely and without previous notice at any hour of the day or night any workplace liable to inspection. The Committee requests the Government to ensure that the Entrepreneurs’ Law is amended to provide without qualification that labour inspectors with proper credentials are empowered to enter freely any workplace liable to inspection, in accordance with Article 12(1) of Convention No. 81 and Article 16(1) of Convention No. 129. Noting the absence of the information, the Committee once again requests the Government to indicate whether the conduct of joint inspections with other public authorities, including the State Sanitary Inspection and the Road Transport Inspectorate, is possible under the Entrepreneurs’ Law.

Article 3(1) and (2) of Convention No. 81 and Article 6(1) and (3) of Convention No. 129. Additional functions entrusted to labour inspectors, and labour inspection activities for the protection of migrant workers in an irregular situation. The Committee takes note of the Government’s indication, in reply to its previous request, that the National Labour Inspectorate (NLI) supervises and controls compliance with legal provisions related to OSH and the legality of employment of both Polish citizens and migrant workers. The NLI’s controls cover visas and other residence permits or work permits, the conclusion of written employment contracts or civil law contracts, and compliance with labour legislation. The NLI predominantly targets entities where migrant workers from outside the EU/EEA and Switzerland are engaged in work due to the high risk of irregularities. Controls are initiated based on the results of past controls, or referrals and complaints lodged by other institutions, including the Border Guard. The Government indicates that the NLI’s controls can also be initiated based on complaints made by migrant workers, predominantly concerning non-payment of wages or the lack of written employment contracts. Moreover, the NLI’s controls focus on temporary employment agencies, as well as employers sending workers to Poland and employers in Poland posting workers to other countries.

The Committee notes the statistics provided by the Government indicating that in 2018, a total of 7,817 controls were undertaken on the legality of employment of migrant workers which detected labour law violations related to the payment of wages and other benefits (related to 1,555 migrant workers), medical examinations (780 migrant workers), OSH trainings (1,370 migrant workers), records of working hours (662 migrant workers), and other working time regulations including rest periods (569 migrant workers). These inspections also detected a lack of work permits (related to 3,101 migrant workers), employers’ non-adherence to the terms and conditions under work permits or residence permits (related to 1,087 migrant workers), and violations related to employers’ obligation to conclude written contracts (916 migrant workers). The Government indicates that labour inspectors issued decisions or oral orders to correct these violations. It further indicates that infringements of labour law provisions result in notifications by the NLI to the social insurance institution, the head of the customs and revenue office, and the police or the Border Guard. The Committee also notes with concern that, according to the 2018 annual labour inspection report, available on the website of the NLI, the NLI performed 176 joint inspections with the Border Guard, and that the NLI sent 711 notifications to the Border Guard of cases regarding the illegal performance of work by migrant workers. The same report also indicates that the Chief Labour Inspector signed a new cooperation agreement with the Chief Border Guard to cope with a dramatic increase in the number of migrant workers from outside the EU.

The Committee notes that the observations of Solidarnosc refer to, among the new tasks undertaken by the inspectors, the increased control activity on the legality of employment of migrant workers The Committee urges the Government to take measures to ensure that the functions assigned to labour inspectors do not interfere with the main objective of labour inspectors, which is to provide for the protection of workers in accordance with Article 3(1) of Convention No. 81 and Article 6(1) of Convention No. 129. In this respect, it requests the Government to provide information on the manner in which it ensures that cooperation with other authorities such as the Border Guard does not prejudice in any way the authority and impartiality which are necessary to inspectors in their relations with employers and workers, in accordance with Article 3(2) of Convention No. 81 and Article 6(3) of Convention No. 129. The Committee also requests the Government to indicate the manner in which the NLI ensures the enforcement of employers’ obligations with regard to the statutory rights of migrant workers, including those in an irregular situation. It also requests the Government to provide information on the orders issued by labour inspectors related to labour law violations (such as orders for establishing an employment contract, payment of overdue wages or other benefits resulting from their work) concerning migrant workers in an irregular situation, and the results obtained from such orders.

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