Minimum Wage Fixing Machinery (Agriculture) Convention, 1951 (No. 99) - Poland (Ratification: 1977)

Direct Request (CEACR) - adopted 2023, published 112nd ILC session (2024)

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In order to provide a comprehensive view of the issues relating to the application of the ratified Conventions on wages, the Committee considers it appropriate to examine Convention No. 99 (minimum wage) and Convention No. 95 (protection of wages) together.

The Committee notes the observations of the Independent and Self-Governing Trade Union “Solidarność” on the application of Conventions Nos 95 and 99, received on 7 September 2023. The Committee also notes the response of the Government to those observations, received on 16 November 2023.

Minimum wage

Article 1 of Convention No. 99. Scope of application. The Committee notes the indication of the Government in its report that a new type of contract, called the harvest assistance contract, has been introduced into the Polish legal regime through an amendment of the Act on Agricultural Social Insurance 1990. According to section 91a of this Act, harvest assistance contracts do not constitute employment under the Labour Code, and the Government indicates that remuneration under such contracts is not subject to the provisions of the Minimum Wage Act 2002. According to the Government, most of such helpers are migrant workers, whose residence permits depend on being paid a legal minimum wage, thereby guaranteeing the payment of minimum wage rates under such contracts. The Government further states that, for Polish workers, help provided under a harvest assistance contract is mostly an additional job supplementing their income from other sources. The Committee nevertheless notes that, according to the observations of Solidarność, harvest assistance is a form of seasonal work which can be intense, and many workers need to earn a living not only for the duration of the season, but also for the period after it. The Government, in its response, considers that migrant workers being paid more than Polish workers under harvest assistance contracts is justified by economic calculations. Taking into account the scope of the Convention, which applies to all workers employed in agricultural undertakings and related occupation, the Committee requests the Government to provide further information on the manner in which it is ensured that there is an adequate machinery fixing minimum rates of wages for workers under harvest assistance contracts, including by indicating the legislative provisions ensuring the protection of such workers under the Convention.

Protection of wages

Article 8(1) of Convention No. 95. Deductions from wages. Following its previous comments relating to deduction of wages under civil law contracts, the Committee notes the observations of Solidarność, which take the view that wages under civil law contracts should receive the same protection as wages falling under the Labour Code. In this regard, the Committee notes the Government’s indication that in accordance with section 833(21) of the Code of Civil Procedure, sections 87 and 871 of the Labour Code apply to all recurrent payments which are meant to secure a livelihood or to represent the sole source of income. According to the Government, the requirements under section 871 of the Labour Code concerning the upper limit of deductions and the amount cleared of deductions would therefore apply to such civil law contracts. The Committee also notes the Government’s indication that a small number of inspections in 2022 identified infringements related to deduction of wages, among other violations. The Committee requests the Government to provide further information on the application of section 833(21) of the Code of Civil Procedure in practice, including on the number of labour inspection visits undertaken, the infringements detected in relation to deduction of wages under civil law contracts, and measures taken as a result.

In addition, the Committee notes the Government’s indication that, regarding deductions permissible under section 82 of the Labour Code, a prerequisite for refusal to pay or for reductions of remuneration is the establishment of the worker’s fault, involving the failure on the part of the worker to meet their due diligence obligation, both in cases of wilful misconduct and unintentional fault. The Government further indicates that there must be a causal relationship between the faulty execution of the work and the worker’s conduct, with the burden of proof resting on the employer. With reference to paragraph 248 of its 2003 General Survey on the Protection of Wages, the Committee requests the Government to indicate the procedural safeguards in place and upper limits prescribed by national laws or regulations or fixed by collective agreement or arbitration award, that are applicable to the deductions permitted under section 82 of the Labour Code.

Article 12(1). Regular payment of wages. Following its previous comments on the issues relating to wage arrears in several sectors, the Committee notes the statistics provided by the Government relating to the results of inspection visits and the number of infringements detected during the reporting period. In particular, the Government indicates that, in the period 2019–21, the most frequently identified violations concerned timeliness of wage payments (identified in 47.7 percent of inspections in 2019, 49.4 percent in 2020 and 49.5 percent in 2021). The Government further indicates that, in 2022, one out of two inspections that identified violations of the wage-related provisions of the Labour Code was conducted at an entity that employed nine people or less. Noting the persistent issues related to regular payment of wages found during labour inspection visits, the Committee urges the Government to indicate the measures taken to improve compliance with Article 12(1) of the Convention in practice, with a focus on the sectors where irregularities are most often detectedandon small enterprises.

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

In order to provide a comprehensive view of the issues relating to the application of the ratified Conventions on wages, the Committee considers it appropriate to examine Convention No. 99 (minimum wage) and Convention No. 95 (protection of wages) together. It notes the observations of the Independent and Self-Governing Trade Union “Solidarność” received in 2017 on the application of Convention No. 95.

Minimum wage

Article 3(2) and (3) of Convention No. 99. Consultations with social partners. In its previous comments, the Committee requested the Government to provide information on how the views of the social partners are taken into consideration when, in the absence of a tripartite agreement, the minimum wage is determined by the Council of Ministers. The Committee notes the Government’s indication in its report that the amount of the minimum wage determined by the Council of Ministers in such cases may not be lower than the amount presented for negotiations within the Social Dialogue Council (the tripartite body established pursuant to the Act of 24 July 2015).

Article 3(4). Prohibition of abatement. The Committee previously noted that section 6(2) of the Minimum Wage Act allowed the remuneration of first-time employees to be up to 20 per cent lower than the statutory minimum wage. It also noted that a parliamentary initiative proposed to amend this provision and requested the Government to provide information on its outcomes. In this regard, the Committee notes that section 6(2) has been abrogated by the Act of 22 July 2016 amending the Minimum Wage Act.

Protection of wages

Article 2 of Convention No. 95. Scope of application. In its previous comments, the Committee noted that the Labour Code, which is the main piece of legislation giving effect to the Convention, only applies to employment relationships under an employment contract. It requested the Government to clarify how it was ensured in law and practice that workers engaged under civil law contracts enjoyed, with respect to their wages, the level of protection prescribed by the Convention. The Committee notes the Government’s indication that the provisions of the Labour Code concerning protection of wages would be enforced in relation to civil law contracts where the circumstances showed that there was an employment relationship.

Article 8(1). Deductions from wages. The Committee notes that Solidarność reports that there have been cases with respect to civil law contracts where, in order to reduce workers’ remuneration, considerable deductions have been applied, for example, deductions of fees paid to rent the necessary equipment to perform work. The Committee requests the Government to provide its comments in this regard.

The Committee also notes that section 82 of the Labour Code allows for possible reductions to remuneration to be made where there is defective performance in work attributed to the fault of the worker. The Committee requests the Government to provide information on the application of section 82 in practice, and on the procedure in place for the determination of workers’ liability in this context.

Article 12(1). Regular payment of wages. In its previous comments, the Committee noted the serious difficulties in several sectors regarding the timely payment of wages. It notes that, according to the statistical information provided by the Government, some difficulties persist. The Committee therefore requests the Government to pay special attention to the specific sectors at risk in its efforts to ensure that wages are paid to workers in full and on time, and to prevent the recurrence of wage arrears and similar practices in the future. It also requests the Government to continue to provide information in this regard.

Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

Article 3(2) and (3) of the Convention. Consultations with social partners. The Committee notes the Government’s indications regarding the evolution of the national minimum wage from 2007 to 2012. It also notes that the minimum wage is currently set at 1,500 zloty (PLN) (approximately €366) per month which represents 42 per cent of the national average wage. The Committee understands that, contrary to the practice followed between 2003 and 2009, when the Tripartite Commission on Socio-Economic Issues increased by consensus the minimum wage each year, in 2010 and 2011 no consensus could be reached and, therefore, the Government unilaterally revised the minimum wage level. The Committee also understands that concerns have been raised about the lack of social dialogue, and also about the current level of the minimum wage and that a civic legislative initiative has been launched seeking to amend the Minimum Wage Act and permanently fix the minimum wage at 50 per cent of the national average wage. Recalling the importance that it attaches to the principle of full consultation and direct participation of social partners in the minimum wage fixing process, the Committee requests the Government to indicate how it ensures that, even in the absence of a tripartite agreement, the views of the social partners are duly taken into consideration thus permitting consultations to have some influence on the final decision concerning the revision of the national minimum wage. It also requests the Government to keep the Office informed of the outcome of the legislative initiative for the amendment of the Minimum Wage Act.

Article 3(4). The binding force of minimum wages. Further to its previous comment on this point, the Committee notes the Government’s explanations regarding section 6(2) of the Minimum Wage Act which allows the remuneration of first-time employees, regardless of their age, to be up to 20 per cent lower than the statutory minimum wage. The Government indicates that the principal reason for the use of the “seniority” or length of experience criterion is to reduce unemployment in the youngest age group (persons aged from 15 to 24) which remains high. The Committee understands that the question of differentiated minimum wage for those entering the labour market gives rise to considerable political debate with at least one parliamentary initiative aiming at amending the relevant provision of the Minimum Wage Act. The Committee requests the Government to indicate whether any studies have been carried out regarding the impact of that measure on youth unemployment levels and, if so, to transmit copies of any relevant documents. It also requests the Government to keep the Office informed of further developments concerning the outcome of the parliamentary initiative for the repeal of section 6(2) of the Minimum Wage Act.

Article 5 and Part V of the report form. Application in practice. The Committee notes the statistical information provided by the Government concerning inspection visits and penalties imposed for non-payment of the statutory minimum wage in 2008–10. The Committee requests the Government to continue to provide up-to-date information on the practical application of the Convention, including the approximate number of workers remunerated at the minimum wage rate, copies of relevant reports or surveys used as a basis for discussion at the Tripartite Commission on Socio-Economic Issues, and labour inspection results concerning compliance with the minimum wage legislation.

Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

Article 3, paragraphs 2 and 3, of the Convention. Consultations with social partners. The Committee notes the information provided by the Government on the process of the minimum wage determination. The Council of Ministers communicates by 15 June of each year its proposal of the national minimum wage for the subsequent year, which must take into consideration a number of factors, such as the consumer price index, the rate of GDP growth, the household expenditures, the average and the living standard of different social groups. The Council’s proposal is then submitted to the Tripartite Commission for Socio-Economic Issues for its consideration. The Commission is chaired by the Minister of Labour and Social Policy and is composed of representatives of ten different ministries, of the four most representative employers’ organizations, and of the three most representative trade union organizations. Numerous other governmental bodies and NGOs attend the meetings of the Commission in an advisory capacity. If the Tripartite Commission cannot reach an agreement before 15 July, then the Council of Ministers takes a decision on the minimum wage rate, which can in no case be lower than its initial proposal to the Commission. The Committee would be grateful if the Government would provide more detailed information on the functioning of the Tripartite Commission on Socio-Economic Issues including, for example, copies of annual activity reports or any recent surveys relating to minimum wage issues.

Article 3(4). The binding force of minimum wages. The Committee notes that as from 1 January 2006, employers have an option to pay their workers at a sub-minimum wage rate of not less than 80 per cent of the national minimum wage during the first year of employment. The Committee recalls, in this connection, paragraph 176 of its General Survey of 1992 on minimum wages in which it concluded that the reasons that may prompt the adoption of lower minimum wage rates for groups of workers should be regularly re-examined in the light of the fundamental principle of equal remuneration for work of equal value and also that remuneration levels should be determined on the basis of objective factors such as the quantity and quality of work performed. The Committee accordingly requests the Government to indicate whether any studies have been undertaken on the question of sub-minimum pay rates and the advisability of pursuing a policy of minimum wage differentials on account of workers’ characteristics such as age or professional experience and, if so, to provide additional information on the reasons of such wage policy and the results obtained so far.

Article 5 and Part V of the report form. The Committee notes the information provided by the Government that as of October 2004, approximately 280,000 workers, or 4.5 per cent of the total workforce, were paid at the national minimum wage rate, that is 0.5 points higher compared to October 2002. The figure in the agricultural, hunting and forestry industries was 4.6 per cent, or 3,500 workers. While there was no significant disparity identified in terms of the gender balance among the workers paid the minimum wage, it was observed that most of the workers earning the minimum wage were below 29 years of age, had only basic vocational or primary education, and were employed in small enterprises of less than 49 persons. The Committee asks the Government to continue providing information on the practical application of the Convention, including, for instance, the national minimum wage rate in force, labour inspection results showing the number of visits conducted, the number of contraventions on minimum wage legislation identified and sanctions imposed, etc.

Finally, the Committee wishes to draw the Government’s attention to the conclusions of the ILO Governing Body on the continued relevance of the Convention based on the recommendations of the Working Party on Policy regarding the Revision of Standards (GB.283/LILS/WP/PRS/1/2, paragraphs 19 and 40). In fact, the Governing Body has decided that Convention No. 99 is among those instruments which may no longer be fully up to date but remain relevant in certain respects. The Committee therefore suggests that the Government should consider the possibility of ratifying the Minimum Wage Fixing Convention, 1970 (No. 131), which marks certain advances compared to older instruments on minimum wage fixing, for instance, as regards its broader scope of application, the requirement for a comprehensive minimum wage system, and the enumeration of the criteria for the determination of minimum wage levels. The Committee requests the Government to keep the Office informed of any decision taken or envisaged in this regard.

Direct Request (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee notes the Government’s report and the information supplied in reply to its previous comments.

Article 3, paragraphs 2 and 3, of the Convention. The Committee notes the Government’s indication that a new draft law on minimum remuneration is presently before Parliament providing for minimum wage levels to be negotiated within the Tripartite Commission for Socio-Economic Issues which was set up in 2001. The Committee requests the Government to furnish a copy of the statutory instrument establishing the said Commission and to supply additional information on the mandate and composition of the Commission, especially in respect of the participation on a basis of complete equality of employers’ and workers’ representatives in the operation of the minimum wage fixing system. The Committee also asks the Government to provide a copy of the new legislation on minimum remuneration as soon as it is adopted.

Article 5, in conjunction with Part V of the report form. The Committee notes that the amount of the national minimum wage was last revised by Ministerial Ordinance of 22 December 2000 (Dziennik Ustaw No. 121, Text 1308) and is now fixed at 760 zlotys per month. It also notes that, according to 2001 statistics, some 225,000 persons among those employed in enterprises with more than nine employees were remunerated at the minimum wage rate. Furthermore, the Committee notes the statistical data provided by the Government regarding the number of inspections carried out in agricultural enterprises in 2001, the number of infringements reported and the amount of fines imposed. The Committee requests the Government to continue supplying all available information concerning the application of the Convention in practice, in particular the evolution of minimum wage rates and the criteria taken into consideration in determining minimum wage levels, the number of agricultural workers, as a proportion of the total workforce in this sector, affected by minimum wage decisions, and the scope and results of enforcement measures relating to minimum wage laws and regulations.

Direct Request (CEACR) - adopted 1998, published 87th ILC session (1999)

The Committee notes the information provided in the Government's report. It notes the Government's indication that minimum wage in Poland is fixed at the central level in one amount for the national economy as a whole. It has a character of the national minimum wage and refers to all categories of workers. The minimum wage was determined for half-year periods in the course of consultation carried out by the Government with the participation of national trade union representatives and employers. All employers are obliged to respect its level.

Article 3, paragraphs 2 and 3, of the Convention. The Committee again requests the Government to indicate whether employers' and workers' organizations in the agricultural sector are consulted on a basis of complete equality before the adoption of the national minimum wage.

Article 5, in conjunction with point V of the report form. The Committee notes the information and data supplied by the Government concerning the application of the Convention. It requests the Government to continue to provide general information on the manner in which the Convention is applied in the country, including: (i) the minimum wage rate in force; (ii) the approximate numbers of workers covered by the minimum wage provisions; and (iii) the results of inspections carried out (e.g. the number of violations of minimum wage provisions, the penalties imposed, etc.).

Direct Request (CEACR) - adopted 1995, published 82nd ILC session (1995)

The Committee notes the Government's report.

Article 3, paragraphs 2, 3 and 4 of the Convention. The Committee asks the Government to describe briefly the minimum wage fixing machinery currently applying in the agricultural sector and to indicate whether, before it was adopted, employers' and workers' organizations were consulted in accordance with paragraph 2. Please also indicate how the employers and workers concerned take part in the operation of this machinery, in accordance with paragraph 3. Please indicate the measures taken, in accordance with paragraph 4, to ensure that the minimum wage rates fixed in the agricultural sector are at least respected.

Article 5, in conjunction with point V of the report form. The Committee asks the Government to provide general information on the manner in which the Convention is applied in the country, particularly the methods for operating the minimum wage-fixing machinery in the agricultural sector and their results: for example, the approximate numbers of workers covered, the minimum rates of wages fixed and, if any, the more important of the other conditions relevant to the minimum rates, and extracts from reports of the activities of the labour inspectorate.