Observación (CEACR) - Adopción: 2011, Publicación: 101ª reunión CIT (2012)

Convenio sobre la inspección del trabajo, 1947 (núm. 81) - Polonia (Ratificación : 1995)

The Committee notes the comments made by the Independent and Self Governing Trade Union “Solidarnosc”, in a communication dated 25 August 2011. The Committee requests the Government to make any observation it deems appropriate in relation to these comments.

Article 2 of the Convention. Scope of labour inspection. The Committee notes that Solidarnosc refers to the absence of effective inspection of workers who are not considered to be employees (civil law contracts or self-employed). In its previous comments, the Committee had noted that, under article 13 of the Act on the National Labour Inspectorate, the scope of labour inspection has been extended to cover workers conducting economic activities on their own account, particularly with regard to safety and health. The Committee once again asks the Government to provide information on the inspection activities carried out in industrial and commercial workplaces in relation to these workers (e.g. number of inspections, types of violations detected and penalties imposed), as well as the methods used to this end.

Article 3(2). Additional functions entrusted to labour inspectors. The Committee notes that according to the Government, since 1 July 2007 the National Labour Inspectorate has been entrusted with controlling the legality of employment of Polish citizens as well as foreigners (article 13 of the Act on the National Labour Inspectorate of 13 April 2007). The National Labour Inspectorate has taken over these functions from the employment legality services of the individual administrative regions (voivodes) and specialized divisions on the legality of employment have been set up in all District Labour Inspectorates.

According to the Government, the activities of the specialized divisions include the control of foreign nationals, from the point of view of both the legality of employment (legality of residence, holding of the required work permit, registration with the social security services etc.) and the observance of worker’s rights (such as wages, working time, leave, occupational safety and health, etc.). The Committee recalls from its previous comments that, in this framework, cooperation is envisaged between the labour inspection and the police and border guards (article 14 of the Act) and that labour inspectors are required to notify the police and border guards of infringements of relevant regulations (article 37 of the Act). In 2007, 49 decisions to expel foreign nationals or oblige them to leave the territory had been pronounced by the Governor as a result of this cooperation.

The Committee recalls from paragraph 78 of the 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 needed to create the climate of confidence 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.

In this regard, the Committee also notes with interest that the Government is in the process of transposing into national law the European Union Directive 2009/52/EC. Article 6(1), of the Directive provides that employers, who employ illegally staying third-country nationals shall be liable to pay: (a) any outstanding remuneration which shall be presumed to be at least as high as the wage provided for by the applicable laws on minimum wages, by collective agreements or in accordance with established practice in the relevant occupational branches (unless either the employer or the employee can prove otherwise, while respecting, where appropriate, the mandatory national provisions on wages); (b) an amount equal to any taxes and social security contributions that the employer would have paid had the third-country national been legally employed, including penalty payments for delays and relevant administrative fines; (c) where appropriate, any cost arising from sending back payments to the country to which the third-country national has returned or has been returned. Furthermore, in conformity with article 6(2) of the Directive, effective procedures should be ensured for the implementation of the abovementioned provisions and mechanisms should be enacted to ensure that illegally employed third-country nationals can claim and recover any outstanding remuneration. Pursuant to the same paragraph, illegally employed third-country nationals shall also be systematically and objectively informed about their rights under this paragraph and under article 13 (establishment of effective mechanisms through which third-country nationals in illegal employment may lodge complaints against their employers) before the enforcement of any return decision.

The Committee therefore requests the Government to indicate the measures taken or envisaged, including the amendment of articles 14(1) and 37(2)(3) of the Act on the National Labour Inspectorate, so as to ensure that the functions of enforcing immigration law are dissociated from those of controlling the observance of workers’ rights. Please also specify the nature of the cooperation between the specialized divisions on the legality of employment and the border guards and police.

Noting that the annual labour inspection report for 2009 and 2010 has not been received by the Office, the Committee also asks the Government to indicate the proportion of inspectors and resources allocated to the specialized units for legality of employment, the numbers, scope and nature of controls carried out by these units, violations found, legal proceedings instituted, remedies and sanctions imposed for undeclared work, and the impact of these activities on the enforcement of legal provisions relating to conditions of work and the protection of workers.

The Committee once again asks the Government to indicate the manner in which the labour inspection ensures 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. The Committee asks the Government to provide information on the manner in which effect will be given to EU Directive 2009/52/EC in national law and practice and to provide the ILO with a copy of any relevant legislative text once adopted.

Articles 5(a), 17 and 18. Sanctions and effective enforcement. Cooperation between the inspection services and the judiciary. The Committee notes the Government’s reference to training provided to labour inspectors and public prosecutors including the discussion of practical problems of cooperation and investigation as well as meetings held between the National Labour Inspectorate and the offices of public prosecutors of all instances to resolve problems of cooperation. The Committee once again asks the Government to provide information on the impact of the above cooperation activities, 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).

Noting the comments made by Solidarnosc in relation to the question of sanctions and effective enforcement, the Committee requests the Government to indicate the measures taken or envisaged to ensure the inclusion of statistics of violations and penalties imposed (Articles 17, 18 and 21(e) of the Convention) in the annual labour inspection reports.

Article 5(b). Collaboration between labour inspection officials and the social partners. The Solidarnosc refers to the lack of collaboration between the labour inspection services and representatives of trade unions in the course of inspections. Noting that section 29 of the Act of 2007 on the National Labour Inspectorate provides for collaboration between the labour inspection services and trade unions during inspection activities, the Committee would be grateful if the Government would provide information on the application of this provision in practice. The Committee draws the Government’s attention in this regard to the guidance provided in Part II of Recommendation No. 81.

Article 12(1). Right of inspectors to enter workplaces freely. The Committee notes that the Act on Freedom of Economic Activity (AFEA), which has not been submitted to the Office in its current version, appears to still require prior authorization for labour inspectors to carry out inspections. The Committee nevertheless notes that administrative courts have issued contradictory decisions on whether labour inspection has to be considered as a body of control of economic activities falling within the scope of the AFEA. The Committee once again requests the Government to provide the Office with a copy of the Act of 19 December 2008 amending the Act on freedom of economic activity. It once again asks the Government to indicate the measures taken or envisaged in order to ensure clarity both in law and in practice on this important question and to remove any requirement for labour inspectors to seek authorization from their hierarchical superiors in order to exercise their right of entry into workplaces liable to inspection.

Articles 5(a), 20 and 21 of the Convention. Data collection for the improvement of registers of workplaces in district labour inspectorates. Data exchange between the National Labour Inspectorate (NLI) and the Social Insurance Institution (ZUS). The Committee notes that no national register of undertakings exists and that while the registers of district labour inspectorates contain information on the location, type and scope of activity of undertakings, they do not indicate the size of undertakings, nor the number and category of workers employed therein, as there is no obligation in law to communicate this information to the labour inspectorate. However, the Committee notes with interest the cooperation between the NLI and the ZUS since 2010 so as to make data available to the NLI by electronic mail (e.g. individual data on those responsible for paying social security contributions, as well as on insured persons) and to enable the labour inspection services to have access the ZUS database for their everyday activities. The Committee asks the Government to keep the ILO informed of progress made in relation to data exchange between the NLI and the ZUS and, where applicable, to provide information on the impact of such cooperation on the improvement of the registers of workplaces in district labour inspectorates.

Noting finally that annual reports for 2009 and 2010 on the work of the labour inspection services were not received at the ILO, the Committee asks the Government to communicate the annual labour inspection reports on a regular basis to the ILO.