Demande directe (CEACR) - adoptée 2012, publiée 102ème session CIT (2013)

Convention (n° 29) sur le travail forcé, 1930 - Pologne (Ratification: 1958)
Protocole de 2014 relatif à la convention sur le travail forcé, 1930 - Pologne (Ratification: 2017)

The Committee notes a communication from the Independent Self-Governing Trade Union (Solidarność) of 25 August 2011, as well as the Government’s report.

Articles 1(1), 2(1) and 25. 1. Trafficking in persons. The Committee notes the entry into force on 8 September 2010 of the amendment of the Penal Code introducing a definition of trafficking in human beings (section 115(22)), penalties of imprisonment of three to 15 years for this offence (section 198a) and a definition of slavery (section 115(23)). The Committee notes the detailed statistical information provided by the Government concerning the application of the legislative provisions of the Penal Code punishing human trafficking and related crimes for 2009 and 2010. The Government indicates that in 2009–10, a total of 157 persons were accused and the total number of victims was estimated at 934. Compared to 2008, the number of convictions for the crime of human trafficking increased. The Committee requests the Government to continue to provide information on the application in practice of the provisions punishing human trafficking and related crimes, including information on the legal proceedings which have been instituted against perpetrators and the penalties imposed.

2. Forced labour of foreign and national workers. In its communication, Solidarność indicates the absence of a single provision explicitly prohibiting forced labour which, according to the workers’ organization, in practice has had the effect of limiting investigations and preparatory proceedings. In this regard, Solidarność raises concern about the absence of reliable data on forced labour in Poland and the extent of illegal employment of both foreign and national workers which often give rise to excessively long working hours and non-payment of wages. Noting the absence of information on this point in the Government’s report, the Committee hopes that the Government’s comments will be supplied in its next report, so as to enable the Committee to examine them at its next session.

Article 2(2)(c) of the Convention. Work of prisoners for private individuals, companies or associations. In its earlier comments, the Committee referred to certain provisions allowing prisoners to work for private employers. The Committee noted that, under the provisions of Chapter 5 of the Executive Penal Code governing employment of convicts, they can be employed not only on the basis of an employment contract, but also on the basis of an order assigning them to a specific job (“a referral to work”). In the latter case, the convict’s consent to work is not required; the work is compulsory for convicts under the legislation in force and is carried out on the basis of a contract concluded between a penal institution and a private employer. The Committee also previously noted the legal provisions concerning hours of work and occupational safety and health and social security applicable to prison labour. While noting that, under the Executive Penal Code, prisoners’ conditions of work may be considered as approximating those of a free labour relationship, the Committee observed that, under the legislation in force, the formal consent of convicts to work for private enterprises does not appear to be asked for.

The Committee notes the Government’s indication that currently it does not plan to undertake legislative measures to amend the Executive Penal Code concerning the obligation to obtain permission by a convicted person delegated to work for a private entrepreneur. It further notes the Government’s statement that the director of the penal institution represents the interests of a prisoner, enters into an agreement with the private employer concerning the referral to work, supervises the employment and takes the final decision about the prisoner’s withdrawal from employment.

The Committee is therefore bound to recall again that Article 2(2)(c) of the Convention strictly prohibits that prisoners are hired to, or placed at the disposal of, private enterprises. However, the Committee has considered that work for private enterprises can be held compatible with Article 2(2)(c) if prisoners voluntarily enter a normal employment relationship with private employers and perform work in conditions approximating a free employment relationship. This arrangement necessarily requires the free informed, formal consent of the person concerned, as well as further guarantees and safeguards covering the essential elements of a labour relationship, such as wages, social security and occupational safety and health. If all the above conditions are complied with, the work of prisoners will be removed from the scope of Article 2(2)(c) of the Convention, since no compulsion is involved. The Committee therefore urges the Government to take the necessary measures to ensure that the work of prisoners for private employers is carried out only with their voluntary formal and informed consent, such consent being free from the menace of any penalty, including the loss of rights and privileges. The Committee requests the Government to provide, in its next report, information on the progress made in this regard.