Observation (CEACR) - adopted 2024, published 113rd ILC session (2025)

Poland

Labour Inspection Convention, 1947 (No. 81) (Ratification: 1995)
Labour Inspection (Agriculture) Convention, 1969 (No. 129) (Ratification: 1995)

Previous comment

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 notes the observations from the Independent and Self-Governing Trade Union “Solidarność” (Solidarność) on Conventions Nos 81 and 129, received on 6 September 2024, and the Government’s reply thereto.

Articles 12(1) and (2) of Convention No. 81 and Articles 16(1) and (3) of Convention No. 129.Right of inspectors to enter freely and without prior notice at any hour of the day or night any workplace liable to inspection. Following its previous comment, the Committee notes that the Government reiterates in its report that section 24 of the Law of 13 April 2007 on the State Labour Inspection constitutes lex specialis that takes precedence over the provisions of Chapter 5 of the Entrepreneurs Law. Therefore, according to the Government: (i) the provisions of the Entrepreneurs Law restricting the possibility to conduct inspections without prior notice (section 48) and providing for inspections to be carried out only during working hours (section 51) do not apply to labour inspections; and (ii) by virtue of section 24 of the Law on the State Labour Inspection, labour inspectors are empowered to carry out inspections of compliance with the provisions of the labour law without prior notice and at any time of the day or night. The Committee also notes the Government’s indication that a proposed amendment to the Entrepreneurs Law foresees the exclusion of the obligation to apply Chapter 5 of this Law with regard to inspections conducted on the basis of the Law on the State Labour Inspectorate. In addition, the Government indicates that the proposed amendment would also concern the Law on the State Labour Inspectorate and would repeal section 24, paragraphs 3–7 which provide for the obligation of labour inspectors to present the authorization for inspection to the entrepreneur on the occasion of the inspection visit. In its observations, Solidarność indicates that the adoption by the Sejm (lower chamber of the Parliament) of the bill including these two amendments was supported in a joint position by all representative trade union organizations. The adoption of the bill would put an end to doubts concerning the scope of restrictions on inspections carried out by the Labour Inspectorate at entrepreneurs. The bill was submitted to the Sejm on 16 May 2024 and, according to the trade union, at a meeting of the Parliamentary Committee for Petitions on 9 May 2024, a representative of the Ministry of Development and Technology presented a negative position on the draft. While noting these developments and in the interest of legal certainty, the Committee urges the Government to pursue every effort in the amendment of the Entrepreneurs Law and the Law on State Labour Inspectorate in order to ensure that: (i) labour inspectors with proper credentials are empowered to enter freely any workplace liable to inspection, in accordance with Article 12(1) of Convention No. 81 and Article 16(1) of Convention No. 129; and (ii) on the occasion of an inspection visit, inspectors can decide not to notify the employer or his representative of their presence, if they consider that such a notification may be prejudicial to the performance of their duties in accordance with Article 12(2) of Convention No. 81 and Article 16(3) of Convention No. 129. The Committee requests the Government to provide information on the progress achieved in this regard.

Article 3(1) and (2) of Convention No. 81 and Article 6(1) and (3) of Convention No. 129. Additional functions entrusted to labour inspectors, and labour inspection activities for the protection of migrant workers in an irregular situation. Following its previous comment, the Committee notes with concern the Government’s indication that if in the course of the control the labour inspector discovers that a foreign worker is staying illegally in the country, it becomes necessary to notify the Border Guard. The Government also indicates that labour inspectors mostly conduct control activities independently in situations where the illegal entrustment of work to a foreigner results from the lack of a proper work permit, when a foreigner worker performs work under conditions other than those specified in the work permit, or when a contract with the foreigner has not been concluded in writing. The Government further indicates that in 2023, labour inspectors carried out 9,138 controls on the legality of employment and performance of work by foreigners and that in 9 cases they found foreigners staying illegally on the territory of the Republic of Poland. The Committee notes the Government’s indication that, in the course of these controls, legal measures concerning the payment of remuneration for work and other work-related benefits were not issued in relation to these foreign workers and the legitimacy of concluding a civil law contract was questioned. The Committee recalls that the primary duty of labour inspectors is to secure the enforcement of legal provisions relating to conditions of work and the protection of workers and not to enforce immigration law. Workers in a vulnerable situation may not be willing to cooperate with the labour inspection services if they fear negative consequences as a result of inspection activities, such as the loss of their job or expulsion from the country (2017 General Survey on occupational safety and health, paragraph 452). Therefore, the Committee urges once again the Government to take the necessary measures to ensure that the additional functions assigned to labour inspectors do not interfere with the main objective of labour inspectors, which is to provide for the protection of workers in accordance with Article 3(1) of Convention No. 81 and Article 6(1) of Convention No. 129. With reference to its comment under the Forced Labour Convention, 1930 (No. 29) and the Protocol of 2014 to the Forced Labour Convention, the Committee requests the Government to adopt the necessary measures to ensure that migrant workers in an irregular situation are granted their due rights (including the payment of outstanding wages and social security benefits and orders for establishing an employment contract) or have their situation regularized following the inspection visit. The Committee requests the Government to continue to provide information on the number of migrant workers found in an irregular situation during inspections and on the actions adopted by labour inspectors, including the number of cases notified to the Border Guard.

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. Following its previous comment, the Committee notes the Government’s indication that in 2023 there were 711 cases referred to the prosecutors, of which 195 cases were opened for investigation, 56 cases were refused initiation of proceedings, 133 proceedings were discontinued and 18 proceedings were suspended. The Government further indicates that there were 63 indictments sent to court, 3 cases in which a custodial sentence was ordered and 17 fines issued, for a total amount of 56,200 Polish zloty (approximately US$14,000). The Government also indicates that one of the main difficulties encountered by labour inspectors in their cooperation with the prosecutor’s office was the refusal to initiate proceedings and discontinuation of proceedings. The main reason for this was the statement that the act does not contain the features of a prohibited offence (section 17(1), item 2 of the Code of Criminal Procedure) or that there is no data sufficiently justifying the suspicion that a prohibited offence has been committed (section 17(1), item 1 of the Code of Criminal Procedure). The Government further indicates that the largest number of notifications to the public prosecutor’s office on suspicion of an offence concerned thwarting or obstructing inspectors in the performance of their duties. Notices to the public prosecutor’s office shall be sent in those cases in which labour inspectors are not able to carry out inspections and therefore issue legal measures due to the inspected entities not receiving summonses and demands, not providing documents for inspection, not appointing persons representing the inspected entity, not answering telephones, or avoiding contact with the labour inspector in any other possible way. The Government indicates that one of the main problems is the registration of conducted activity at the address of virtual offices, which in practice constitutes a significant obstacle for the labour inspector to prove that the summoned person received the demand or summons, and consequently for the prosecution to assume that the summoned person intentionally and consciously obstructed the control by not appearing at the inspector’s summons and not presenting the requested documents. Concerning the measures to improve the cooperation between authorities, the Government indicates that joint meetings and trainings of labour inspectors serve for mutual exchange of experiences. The Committee also notes that Solidarność reiterates the view that the penalties for violations are too low. Given the significant increase in prices in the last few years, for most employers the fine (also at the upper limit of the maximum amount) can be hardly considered severe and is inadequate to the scale of the offences committed. According to the trade union, this makes it a good bargain for some employers to pay the fine and continue with the infringements. In its reply, the Government concurs with the trade union’s view that penalties are inadequate to ensure a deterrent effect, particularly with regard to violations related to the employment of foreign workers. In this regard, the Government refers to: (i) the planned amendment of the Act on the conditions of access of foreigners to the Polish labour market, which provides for the increase of the upper limit of fines; and (ii) the creation of a team consisting of representatives of the Ministry of Family, Labour and Social Policy, the Chief Labour Inspectorate and the Chancellery of the Sejm, which will review the labour inspection system, including the system of fines. The Committee requests the Government to take the necessary measures to further improve collaboration between the prosecutor’s office and the labour inspectorate, in particular with regard to the issues flagged by the Government in relation to cases of alleged obstruction to labour inspectors. The Committee requests the Government to continue to provide statistics on 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. The Committee requests the Government to take the necessary measures in order to ensure that national legislation provides for adequate penalties for violations, and that these penalties are sufficiently dissuasive. In this respect, the Committee requests the Government to provide information on the reform of the Act on the conditions of access of foreigners to the Polish labour market and on the progress achieved in the reform of the labour inspection system. Noting the absence of information in this regard, the Committee requests that the Government provide information on the low number of sentences and the small amount of fines imposed, and on measures taken or envisaged to increase sanctions for OSH violations.

The Committee is raising other matters in a request addressed directly to the Government.