Demande directe (CEACR) - adoptée 2013, publiée 103ème session CIT (2014)

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)

Articles 1(1), 2(1) and 25 of the Convention. 1. Trafficking in persons. The Committee previously requested information on the application in practice of the penal provisions relating to trafficking in persons. In this regard, it notes the information provided by the Government from the General Public Prosecutor’s Office indicating that, between 1 July 2011 and 30 June 2013, preparatory proceedings were initiated for 58 cases of human trafficking (section 189a of the Penal Code), resulting in 15 indictments. The Committee also notes the information from the Statistical Management Information Division, submitted with the Government’s report, that 16 persons were convicted of human trafficking in 2012, five of whom received suspended sentences. Additionally, the Government indicates that the national labour inspectorate is involved in combating trafficking in persons. In 2010, the Chief Labour Inspector developed a methodology of conduct for inspectors in cases of suspected forced labour and human trafficking, pursuant to which labour inspectors are required to notify the General Public Prosecutor’s Office if they suspect that an employer is employing persons in conditions of forced labour. Seven such notifications were made between 1 July 2011 and 30 June 2013. The Government indicates that the Chief Labour Inspector has also initiated cooperation on trafficking with inspection services in Germany and Luxembourg. In addition, the national labour inspectorate undertakes awareness-raising activities and inspectors participate once a year in a training relating to human trafficking and forced labour. Taking due note of this information, the Committee requests the Government to pursue its efforts to prevent and combat trafficking in persons, including through measures to further strengthen the capacity of law enforcement and the labour inspectorate in this regard. It asks the Government to continue to provide information on the measures taken, as well as measures taken to provide victims of trafficking with appropriate protection and services. Lastly, the Committee requests the Government to continue to provide information on the application in practice of section 189a of the Penal Code, including the number of investigations, prosecutions, convictions and the specific penalties applied.

2. Legislative framework for forced labour practices. The Committee previously noted the comments of the Independent Self-Governing Trade Union (Solidarność) of 25 August 2011, stating that the absence of a single provision explicitly prohibiting forced labour had the effect of limiting investigations and preparatory proceedings. Solidarność raised 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 gave rise to excessively long working hours and non-payment of wages. The Committee requested the Government’s comments in this regard.

The Committee notes the Government’s statement that although the Penal Code does not explicitly penalize the act of forcing a person to work, these acts do not remain unpunished. The Government indicates that the definition of forced or compulsory labour set forth in the Convention is addressed through the prohibition of various acts, including the legislative provisions prohibiting trafficking in persons (sections 115(22) and 189a of the Penal Code), deprivation of liberty (section 189 of the Penal Code), coercion (section 191 of the Penal Code), and offences against workers’ rights (Chapter XXVIII of the Penal Code). The Government indicates that the General Public Prosecutor’s Office indicated that, between 1 July 2011 and 30 June 2013, preparatory proceedings were initiated for 13 cases for deprivation of liberty (section 189 of the Penal Code), resulting in one indictment, and 18 cases for coercion (section 191 of the Penal Code), resulting in four indictments. There were no preparatory proceedings relating to the offences of slavery. The Government also provides statistical information on the number of convictions under the abovementioned provisions in 2012, but does not indicate how many of these cases relate to forced labour. The Committee requests the Government to provide further information on the application of sections 189 and 191 and Chapter XXVIII of the Penal Code in practice, particularly by indicating the number of cases that relate specifically to forced labour practices. The Committee also requests the Government to provide information on the number of prosecutions, convictions and specific penalties applied, as well as to provide copies of relevant court cases, with its next report.

Article 2(2)(c). Work of prisoners for private individuals, companies or associations. The Committee previously noted certain provisions allowing prisoners to work for private employers. Pursuant to Chapter 5 of the Executive Penal Code (governing the employment of convicts), prisoners 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 prisoner’s consent to work is not required; the work is compulsory for prisoners and is carried out on the basis of a contract concluded between a penal institution and a private employer. The Committee also noted the legal provisions concerning hours of work and occupational safety and health and social security applicable to prison labour. It further noted 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 observed that while, under the Executive Penal Code, prisoners’ conditions of work may be considered as approximating those of a free labour relationship, the formal consent of prisoners to work for private enterprises was not requested.

The Committee notes the Government’s statement that the Executive Penal Code does not explicitly make the delegation of a prisoner to work for a private entrepreneur conditional on the prisoner’s consent, but that such consent is considered to be expressed. Moreover, the Government indicates that the labour market for prisoners is relatively poor and many prisoners wait to enter it. This makes it difficult in practice for prisoners to be employed without their consent and prisoners often request to be delegated to work for an outside contractor. The Government states that before delegating a prisoner to work outside of the prison, a designated person, such as a tutor, will hold a preliminary interview with the prisoner, and that the delegation depends on a positive outcome of this interview, including, for example, upon the convict’s acceptance of the work offer. The Government further reiterates that the head of the prison delegates the prisoner to work on the basis of a contract concluded between the head of the prison and the entrepreneur. The prisoner may appeal against the decision to delegate him/her to work to both the superior of the head of the prison, or to the penitentiary court.

In this regard, the Committee recalls that Article 2(2)(c) of the Convention permits work to be performed by prisoners (as a consequence of a conviction in a court of law) only if this work or service is carried out under the supervision and control of a public authority and that the prisoner is not hired to or placed at the disposal of private individuals, companies or associations. However, with reference to its 2012 General Survey on the fundamental Conventions concerning rights at work, the Committee recalls that work by prisoners for private enterprises can be compatible with the Convention where the necessary safeguards exist to ensure that the prisoners concerned offer themselves voluntarily, without being subjected to pressure or the menace of any penalty, by giving their formal, free and informed consent to work for private enterprises. In such a situation, work of prisoners for private parties would not come under the scope of the Convention, since no compulsion is involved. Moreover, the Committee has considered that, in the prison context, the most reliable indicator of the voluntariness of labour is that the work is performed under conditions which approximate a free labour relationship, including wages, social security and occupational safety and health. Noting the Government’s statement that it considers that the consent of prisoners to work for private enterprises is expressed, the Committee requests the Government to take the necessary measures to ensure that such consent is provided formally, and that such consent is informed, free from the menace of any penalty and authenticated by the conditions of work approximating a free labour relationship. The Committee requests the Government to provide, in its next report, information on the progress made in this regard.