Direct Request (CEACR) - adopted 2020, 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 supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th Session (June 2020). The Committee proceeded with the examination of the application of the Convention on the basis of the supplementary information received from the Government this year, including the summary of the annual labour inspection report of 2019 (Articles 3, 6, 10 and 11 of Convention No. 81 and Articles 6, 8, 14, 15 and 17 of Convention No. 129 below), as well as on the basis of the information at its disposal in 2019.

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

Articles 3, 6, 10 and 11 of Convention No. 81 and Articles 6, 8, 14 and 15 of Convention No. 129. Additional duties entrusted to labour inspectors. Conditions of service. Resources of the labour inspectorate. The Committee notes the information provided by the Government in its report that a number of tasks have been newly entrusted to the National Labour Inspectorate (NLI), under the Act on Compliance Assessment and Market Supervision (2016), the Energy Law (2017), the Act on the National Revenue Administration, the Entrepreneurs’ Law (2018), replacing the Act on Freedom of Economic Activity, as well as the amendments in 2019 to the Act on the NLI adding new control tasks for the NLI under the Act on the Employee Capital Plans (2018), the Act on Minimum Wages (2002), and the Act on Trade Restrictions on Sundays and Holidays (2018). The Committee further notes that, according to the supplementary information provided by the Government in 2020, the NLI is also entrusted to supervise the enforcement of certain maintenance benefits, following the 2018 amendment to the Labour Code. The Committee notes the observations of Solidarność that there is a need to increase financial, human and organizational resources for the operation of the NLI, in response to the NLI’s increased tasks, which, according to the union, are too broad and go beyond the functions of the labour inspection system. The Committee notes the Government’s response that many of the newly introduced tasks exceed the framework of Conventions Nos 81 and 129, and that it is necessary to increase expenditures to prepare staff, including through the introduction of training, new organizational and IT solutions. The Government indicates that the Chief Labour Inspector has, over the years, drawn attention to the NLI’s increased workload without an adequate increase in its budget at various occasions including at the proceedings of Sejim Committees and the Labour Protection Board.

Solidarność also indicates the need for ensuring attractive employment conditions for inspectors, as some inspectors seek additional sources of income through training activities. Referring to the NLI’s performance in terms of improved workers’ rights and increased occupational safety demonstrated in the 2017 annual labour inspection report, Solidarność states that it strongly opposed a reduction of the NLI’s budgetary resources that had been proposed as amendments to the draft Budget Act for 2019 by the Public Finance Committee. Solidarność states that this was proposed while foreseeing at the same time an increase in expenses for prison officers, police officers and customs officers. In this respect, the Committee notes that the reduction in the NLI’s budget was not approved in the course of further legislative proceedings and that the 2019 Budget Act endorsed an increase of the NLI’s budget by more than 14 million PLN. The Committee requests the Government to indicate the measures taken or envisaged to align the conditions of service for labour inspectors with other public servants exercising similar functions (e.g. tax inspectors or the police). It also asks the Government to provide information on which of the newly introduced tasks goes beyond the functions of labour inspection as outlined in Article 3(1) of Convention No. 81 and Article 6(1) of Convention No. 129, and to provide information on the proportion of time spent by labour inspectors on such additional tasks in relation to the primary functions of labour inspection. The Committee further asks the Government to provide its comments with respect to the observations that inspectors are seeking additional sources of income, including, if applicable, whether they engage in such income-generating activities within or outside the scope of their official duties.

Article 3(1)(a) and (b) of Convention No. 81 and Articles 6(1)(a) and (b) and 17 of Convention No. 129. 1. Preventive control of new establishments and installations. The Committee notes the Government’s indication, in reply to its previous request regarding cooperation between the NLI and other specialized authorities, that tasks are jointly performed within the compliance assessment system, in order to eliminate goods which pose potentially serious threats to health and life, and to monitor compliance with European Union (EU) requirements. Joint control activities are carried out proportionately to the level of risk and threats to health and safety of employees. The NLI conducts controls based on complaints and referrals from other specialized authorities regarding the existence of goods that may pose a threat to employees and it cooperates with customs authorities to prevent imports from non-EU countries of hazardous goods or goods violating requirements. The Committee notes this information.

2. Control of illegal job placement and matching by employment agencies. The Committee notes the observations by Solidarność that there is a need to strengthen supervision of unauthorized employment agencies, and that measures should be taken to ensure better protection for the rights of temporary workers. The Committee notes the Government’s indication in response that pursuant to section 10(1)–3(d) and (e) of the Act on the NLI, the NLI is empowered to carry out inspections related to compliance with the registration of employment agencies and their operations in accordance with the terms provided under the Act on Employment Promotion and Labour Market Institutions (AEPLMI). The Government states that there is no need to take further measures, since extensive modifications were already made to the AEPLMI with a view to improving the employment conditions of temporary workers and strengthening the effectiveness of inspection measures including through increased penalties. In this regard, the Committee notes that according to the 2018 labour inspection report, 65 employment agencies out of a total of 602 entities inspected were found to be operating illegally, and that irregularities were found in the entities inspected related to principles of cooperation and conditions of temporary work between the agency and user employer (25.3 per cent); payment of wages and other benefits (8.1 per cent); and conclusion of civil law contracts (7.9 per cent). The Committee also notes that, according to the summary of the 2019 labour inspection report, in 2019, 63 employment agencies were found to be operating illegally, of which the majority (49 entities) provide temporary work services, including outsourcing services in particular. With reference to its comments on the Private Employment Agencies Convention, 1997 (No. 181), the Committee requests the Government to provide further information on the role of the NLI with respect to the enforcement of the legal provisions relating to conditions of work and the protection of workers engaged through employment agencies.

Articles 6 and 7(1) of Convention No. 81 and Articles 8 and 9(1) of Convention No. 129. Recruitment and qualifications of labour inspectors. The Committee notes the observations of Solidarność that the practice of filling many positions of the NLI based on appointment raises a serious concern with respect to ensuring the stability of the NLI. According to the Act on the NLI, the Chief Labour Inspector shall appoint and remove managerial positions at the NLI, the district labour inspectorates and the training centre (section 40). District labour inspectors shall be appointed and dismissed by the Chief Labour Inspector (section 5(3)). Pursuant to section 70 of the Labour Code, an employee employed based on an appointment may be dismissed from his post by the body that appointed him at any time, immediately or at a specific time. Solidarność alleges that these regulations destabilize employment relations of persons in managerial or advisory positions at the NLI, contributing to the politicization of the NLI. In addition, Solidarność states that there is a lack of stability in the employment of labour inspectors because they are recruited based on an appointment by the Chief Labour Inspector, following the completion of a fixed-term employment contract (which can be a maximum term of three years), in accordance with section 41(1) and (2) of the Act on the NLI. The Government indicates in response that further employment to an equivalent position shall be guaranteed for the employees of the NLI dismissed under section 5(3), and that in practice the maximum duration of open-ended contracts for employees appointed for performing inspection activities is two years and early termination of contracts is exceptional.

The Committee recalls that, under the terms of Article 6 of Convention No. 81 and Article 8 of Convention No. 129, labour inspection staff shall be composed of public officials whose status and conditions of service are such that they are assured of stability of employment and are independent of improper external influences. Article 7 of Convention No. 81 and Article 9 of Convention No. 129 further require that labour inspectors shall be recruited with sole regard to their qualifications for the performance of their duties, and that the means of ascertaining such qualifications shall be determined by the competent authority. The Committee therefore requests the Government to provide detailed information on the appointment-based recruitment of labour inspectors, and for advisory and managerial positions at NLI, and its impact on the effectiveness of the functioning of the NLI and district labour inspectorates, as well as the measures taken or envisaged to ensure the stability and independence of labour inspectors, as required under Conventions Nos 81 and 129.

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 previously noted that most cases transmitted to the prosecutor’s office concerning suspected criminal offences by labour inspectors do not result in proceedings. The Committee notes with interest the Government’s indication in response that a cooperation agreement between the NLI and the prosecutor’s office was concluded in 2017, which resulted in the appointment of persons responsible for contacting the prosecutor’s office and executing a specialist supervision over notifications made by labour inspectors concerning suspected criminal offences. Within this cooperation, the NLI took measures to ensure that notifications to the prosecutor’s office contain all data available to the NLI confirming the validity of the notifications as well as the immediate transmission, upon request of the prosecutor’s office, of further detailed documentation of the inspection. The public prosecutor’s office also took measures to familiarize labour inspectors with the evidence collected during preparatory proceedings before a decision is issued to discontinue proceedings, in order to enable inspectors the possibility of filing an additional motion. In addition, the public prosecutor’s office now provides justification immediately in the event that labour inspectors make requests for justification pursuant to section 325(e) of the Code of Criminal Procedure. The most common reasons for discontinuing proceedings concern a lack of statutory grounds, insufficient evidence and a lack of intention to commit a crime. The Committee notes that as a result of meetings and training to improve cooperation, inspectors have been trained to properly draw up notifications transmitted to the prosecutor’s office. The Committee requests the Government to provide information on the impact of the measures taken to enhance cooperation between the labour inspection services and the judicial system, including the number of notifications made to the public prosecutor’s office, the number of such notifications which resulted in proceedings, and the results of such proceedings.

Articles 20 and 21 of Convention No. 81 and Articles 26 and 27 of Convention No. 129. Annual labour inspection reports. The Committee notes that detailed annual labour inspection reports are available on the website of the NLI, as well as the summary of the report submitted, in English, to the ILO.

Specific matters relating to labour inspection in agriculture

Articles 5(1)(a) and (c), 6(1)(a) and (b), 12 and 13 of Convention No. 129. Preventive activities by the labour inspectorate in agriculture. The Committee notes the detailed information provided by the Government concerning the NLI’s information and prevention activities related to farming using training, lectures, publications and promotional action via various communication methods. For the years 2016–18, the NLI performed 10,000 inspections focusing on farms, 707 OSH trainings for farmers, and delivered 1,531 lectures for students. The Committee notes that in this area of work, the NLI cooperates with the Agricultural Social Insurance Fund, the Ministry of Agriculture and Rural Development, and the social partners.