Labour Inspection Convention, 1947 (No. 81) - Poland (RATIFICATION: 1995)

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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.

Articles 3, 6, 10 and 11 of Convention No. 81 and Articles 6, 8, 14 and 15 of Convention No. 129. Additional duties entrusted to labour inspectors. Conditions of service. Resources of the labour inspectorate. Following its previous comments, the Committee notes that, according to the Government’s report, the National Labour Inspectorate (NLI) does not have information on the remuneration of officers in other authorities, other than the Supreme Audit Office, which indeed have higher salaries than labour inspectors. The Committee also takes due note of the Government’s indication that draft budgets were submitted in the period 2020–22 by the NLI to plan for additional posts, with a salary fund for 50 new posts approved in 2022. The Government indicates that due to various circumstances, including the difficult socio-economic situation in the country, salary rises have been approved at a lower rate than initially proposed in 2020 (from 8 to 7 per cent), 2022 (from 5 to 4.4 per cent) and 2023 (from 15.8 to 7.8 per cent). The Committee also notes the information provided by the Government concerning the current functions of labour inspectors that fall outside the scope of Conventions Nos 81 and 129, including the control of the application of legislation on energy and on employee capital plans. According to the statistics of the Government, the share of time spent by labour inspectors in performing at least one of those duties, between 2018–22 is around 5.65 per cent. Finally, the Committee notes the Government’s indication that, in light of the level of salaries paid to labour inspectors, as well as the pursuit of professional and personal development outside the NLI, labour inspectors are encouraged to take up additional employment, but that such employment must be approved by the Chief Labour Inspector to avoid conflicts of interest. The Government states that such permissions were granted to around 25 per cent of labour inspectors between 2020–23. The Committee requests the Government to continue to provide information on measures taken to increase the number and the remuneration of labour inspectors in the NLI. The Committee requests the Government to provide further information on the measures taken to ensure that additional employment undertaken by labour inspectors does not interfere with their primary duties, including in terms of time spent on such employment. Taking note that the NLI itself does not currently have information on the remuneration of inspectors carrying out similar functions, the Committee nevertheless requests the Government to collect and provide further information on the compensation and conditions of service of public servants exercising similar functions as labour inspectors, such as tax inspectors or the police.

Article 3(1)(a) and (b) of Convention No. 81 and Articles 6(1)(a) and (b) and 17 of Convention No. 129. Control of illegal job placement and matching by employment agencies. In relation to its previous comments, the Committee notes the information provided by the Government regarding the functions of the NLI in relation to employment agencies and workers employed through them. The Government indicates that such functions include verifying compliance by employment agencies with obligations such as the conclusion of a written contract, respecting the maximum duration of temporary work and the prohibition against delegating temporary workers to particularly hazardous work, and verifying that the employer complies with timely payment of wages, working time and occupational safety and health (OSH) rules. According to the Annual Report of the NLI 2022, the elimination of illegal or fraudulent employment agencies remained a priority of the NLI and inspections of the NLI have revealed violations of the rights of workers such as the non-payment of due remuneration to workers and the collection of unauthorized fees. The Committee requeststhe Government to indicate the proportion of time spent by labour inspectors on controlling the registration of employment agencies. The Committee also requests the Government to continue providing statistics on the enforcement by labour inspectors of legal provisions relating to conditions of work and the protection of workers engaged through employment agencies.

Articles 6 and 7(1) of Convention No. 81 and Articles 8 and 9(1) of Convention No. 129. Recruitment and qualifications of labour inspectors. Following its previous comments, the Committee notes the information on the recruitment process of labour inspectors, as provided by the Government, including its indication that, pursuant to section 41 of the State Labour Inspection Act, employment relationships with workers on inspector positions are established by nomination after a contract of employment for a specific period not longer than three years. The Government indicates that this period enables the official to acquire experience as a labour inspector, while nomination ensures job security and independence. Regarding district labour inspectors, the Committee notes the Government’s indication that, under section 5(1) of the State Labour Inspection Act, the Labour Protection Council is consulted to ensure that there is discussion on the advisability of appointing or dismissing a person as district labour inspector. Concerning workers recruited by appointment who may be dismissed at any time pursuant to section 70 of the same Act, the Committee notes the Government’s statement that, pursuant to section 40(2) of the State Labour Inspection Act, a NLI worker who is dismissed prior to appointment has the right to establish an employment relationship on a position equivalent to the one held prior to the appointment. According to the Government, the existing procedures ensure that workers who will perform the duties of the NLI in the best possible manner will be selected, while also giving job stability and security to workers who are suitable for a long-term professional career at the NLI. The Government states that between 1 July 2020 and 31 May 2023, 161 workers on inspector posts have been nominated as labour inspectors following a contract of employment and that all dismissed workers who were NLI employees have been able to establish employment relationships after dismissal. The Committee requests the Government to continue to provide information on the number of workers on inspection posts who have been dismissed prior to their appointment as labour inspector and have established an employment relationship with the NLI, including the average duration of time between dismissals and subsequent establishment of employment relationships.

Issues specific to labour inspection in agriculture

Articles 3, 4 and 6 of Convention No. 129. Scope of the labour inspection system in agriculture. The Committee notes the observations of Solidarność, according to which there is currently no inspection body authorized to carry out OSH inspections of individual farmers employing harvest helpers, and no inspection in practice of those entities when it comes to the employment of harvest helpers. In its response, the Government indicates that the Committee of the Chief Labour Inspector for Health and Safety at Work in Agriculture, a consultative and advisory body of the Chief Labour Inspector, initiates measures for OSH in agriculture, especially measures of a preventive and promotional nature, including for individual farmers. The Committee requests the Government to provide further information on the measures initiated for OSH in agriculture by the Committee of the Chief Labour Inspector, as well as additional information on how the labour inspection system in agriculture applies to individual farmers who employ harvest helpers, particularly in relation to the function of labour inspection to secure the enforcement of legal provisions relating to conditions of work and the protection of workers while engaged in their work.

[The Government is asked to reply in full to the present comments in 2024.]

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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 takes note of the extensive observations from the Independent and Self-Governing Trade Union “Solidarność” (Solidarność) on Conventions Nos 81 and 129, received on 7 September 2023. The Committee also notes the response of the Government to those observations, received on 16 November 2023.

Articles 2(1), 5(a), 6, 12(1) and 16 of Convention No. 81 and Articles 4, 6, 12, 16(1) and 21 of Convention No. 129. Coverage of workplaces by labour inspection. Restrictions on collaboration between labour inspection officials and other public institutions and on inspectors entering workplaces freely. Following its previous comments regarding the restrictions on the powers of labour inspectors set out in the Entrepreneurs Law, the Committee notes the indication in the Government’s report that, in accordance with the Constitution, ILO Conventions and leges speciales such as the Act on the State Labour Inspection, take precedence over the Entrepreneurs Law. As regards joint inspections with other control authorities, including the State Sanitary Inspection and Road Transport Inspectorate, the Committee notes the Government’s indication that such inspections are not prohibited under the Entrepreneurs Law, and notes the statistics provided on such joint inspections with the National Labour Inspectorate (NLI). The Committee also notes section 45(1) of the Entrepreneurs Law, which provides that the economic activity of entrepreneurs is controlled in accordance with the principles specified in this Law, unless the principles and procedure for controls result from ratified international agreements.

The Committee nevertheless notes the observations of Solidarność, indicating that the lex specialis argument has not been accepted in national courts. In response, the Government reiterates its position that section 24 of the Act on the State Labour Inspection allows labour inspectors to carry out, without notice and at any time of day or night, inspections of compliance with the provisions of labour law. The Government further states that the court decision at issue simply limits the labour inspectorate’s ability to conduct a second inspection on the same matter in a given period of time, which, in the Government’s view, helps to strike a balance between the effectiveness of inspection authorities and ensuring minimum procedural guarantees for controlled entities. The Committee also notes the Government’s indication that it has issued a negative opinion on the NLI’s proposals to amend the Entrepreneurs Law and that it does not recognize an exclusion of NLI inspections from the regime of chapter 5 of the Entrepreneurs Law as justified. While taking due note of the Government’s indications, the Committee observes that provisions in national legislation that contradict the requirements of ratified Conventions may pose difficulties for legal certainty, from the standpoint of specific entrepreneurs as well as workers seeking protection through fully authoritative labour inspection. Therefore, the Committee once again requests the Government to take the necessary measures to amend sections 48 and 51 of the Entrepreneurs Law, to provide without qualification that 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.

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 comments on this issue, the Committee notes the Government’s indication that all the district regional labour inspectorates have specialised sections in charge of performing duties related to the control of employment legality. The Government nevertheless indicates that the NLI is required to cooperate with other competent authorities when controlling the legality of employment, including with the Border Guard and the police. In particular, the Committee notes with concern the Government’s statement that, when a migrant worker is unable to show their work permit, the NLI is obligated to report it immediately to the Border Guard, and that further control activities may be conducted together with Border Guard officers. In this respect, the Committee notes the Government’s indication that such controls also focus on enforcing the migrant workers’ rights, including in the field of wages and social security. The Committee nevertheless recalls that, as emphasized in its 2006 General Survey on labour inspection, paragraph 78, any 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, and that 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 protection of workers. Therefore, the Committee urges 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. The Committee requests the Government to provide detailed statistics on cases in which migrant workers in an irregular situation have been granted their due rights (including the payment of outstanding wages and social security benefits and orders for establishing an employment contract) or have had their situation regularized following an inspection visit.

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. In response to its previous comments, the Committee notes the statistics provided by the Government regarding notifications to the prosecutor’s office for suspected offences. The Government indicates that between 2020–22, the number of notifications increased from 507 in 2020 to 665 in 2022, the number of investigations opened rose from 133 in 2020 to 150 in 2022 and the number of indictments sent to courts also increased from 45 in 2020 to 88 in 2022. However, the statistics also indicate that the number of investigations refused rose from 47 in 2020 to 67 in 2022 and those discontinued rose from 124 in 2020 to 189 in 2022. The Committee notes the Government’s indication that the most frequent causes for refusing an investigation remain the lack of statutory grounds and insufficient data or evidence. The Government further indicates that some situations where law enforcement agencies consider evidence to be insufficient, such as instances where it cannot be proven that the controlled entity received the labour inspectorate’s summons, pose problems for labour inspectors in the performance of their duties. The Government also indicates that while 76 indictments were sent to court in 2021 and 88 indictments in 2022, there were a total of 3 custodial sentences imposed in those two years. Further, the Government reports that the amount of fines imposed in 2021 totalled 16,500 Polish zloty (US$4,099) and in 2022 totalled 20,300 zloty (US$5,043). The Committee also notes the observations of Solidarność, which take the view that legal measures and sanctions applied by labour inspectors are insufficient to ensure a lasting improvement in OSH in the construction and manufacturing sectors. The Committee requests that the Government indicate the measures taken to further improve collaboration between the prosecutor’s office and the NLI. In this regard, 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. In addition, the Committee requests that the Government provide information on the apparently very 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.

[The Government is asked to reply in full to the present comments in 2024.]

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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 takes note of the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th Session (June 2020). The Committee proceeded with the examination of the application of the Convention on the basis of the supplementary information received from the Government this year, including the summary of the annual labour inspection report of 2019 (Articles 3, 6, 10 and 11 of Convention No. 81 and Articles 6, 8, 14, 15 and 17 of Convention No. 129 below), as well as on the basis of the information at its disposal in 2019.

The Committee takes note of the observations of the Independent and Self-Governing Trade Union “Solidarność” received on 19 August 2019, and the Government’s reply to these observations received on 26 September 2019.

Articles 3, 6, 10 and 11 of Convention No. 81 and Articles 6, 8, 14 and 15 of Convention No. 129. Additional duties entrusted to labour inspectors. Conditions of service. Resources of the labour inspectorate. The Committee notes the information provided by the Government in its report that a number of tasks have been newly entrusted to the National Labour Inspectorate (NLI), under the Act on Compliance Assessment and Market Supervision (2016), the Energy Law (2017), the Act on the National Revenue Administration, the Entrepreneurs’ Law (2018), replacing the Act on Freedom of Economic Activity, as well as the amendments in 2019 to the Act on the NLI adding new control tasks for the NLI under the Act on the Employee Capital Plans (2018), the Act on Minimum Wages (2002), and the Act on Trade Restrictions on Sundays and Holidays (2018). The Committee further notes that, according to the supplementary information provided by the Government in 2020, the NLI is also entrusted to supervise the enforcement of certain maintenance benefits, following the 2018 amendment to the Labour Code. The Committee notes the observations of Solidarność that there is a need to increase financial, human and organizational resources for the operation of the NLI, in response to the NLI’s increased tasks, which, according to the union, are too broad and go beyond the functions of the labour inspection system. The Committee notes the Government’s response that many of the newly introduced tasks exceed the framework of Conventions Nos 81 and 129, and that it is necessary to increase expenditures to prepare staff, including through the introduction of training, new organizational and IT solutions. The Government indicates that the Chief Labour Inspector has, over the years, drawn attention to the NLI’s increased workload without an adequate increase in its budget at various occasions including at the proceedings of Sejim Committees and the Labour Protection Board.

Solidarność also indicates the need for ensuring attractive employment conditions for inspectors, as some inspectors seek additional sources of income through training activities. Referring to the NLI’s performance in terms of improved workers’ rights and increased occupational safety demonstrated in the 2017 annual labour inspection report, Solidarność states that it strongly opposed a reduction of the NLI’s budgetary resources that had been proposed as amendments to the draft Budget Act for 2019 by the Public Finance Committee. Solidarność states that this was proposed while foreseeing at the same time an increase in expenses for prison officers, police officers and customs officers. In this respect, the Committee notes that the reduction in the NLI’s budget was not approved in the course of further legislative proceedings and that the 2019 Budget Act endorsed an increase of the NLI’s budget by more than 14 million PLN. The Committee requests the Government to indicate the measures taken or envisaged to align the conditions of service for labour inspectors with other public servants exercising similar functions (e.g. tax inspectors or the police). It also asks the Government to provide information on which of the newly introduced tasks goes beyond the functions of labour inspection as outlined in Article 3(1) of Convention No. 81 and Article 6(1) of Convention No. 129, and to provide information on the proportion of time spent by labour inspectors on such additional tasks in relation to the primary functions of labour inspection. The Committee further asks the Government to provide its comments with respect to the observations that inspectors are seeking additional sources of income, including, if applicable, whether they engage in such income-generating activities within or outside the scope of their official duties.

Article 3(1)(a) and (b) of Convention No. 81 and Articles 6(1)(a) and (b) and 17 of Convention No. 129. 1. Preventive control of new establishments and installations. The Committee notes the Government’s indication, in reply to its previous request regarding cooperation between the NLI and other specialized authorities, that tasks are jointly performed within the compliance assessment system, in order to eliminate goods which pose potentially serious threats to health and life, and to monitor compliance with European Union (EU) requirements. Joint control activities are carried out proportionately to the level of risk and threats to health and safety of employees. The NLI conducts controls based on complaints and referrals from other specialized authorities regarding the existence of goods that may pose a threat to employees and it cooperates with customs authorities to prevent imports from non-EU countries of hazardous goods or goods violating requirements. The Committee notes this information.

2. Control of illegal job placement and matching by employment agencies. The Committee notes the observations by Solidarność that there is a need to strengthen supervision of unauthorized employment agencies, and that measures should be taken to ensure better protection for the rights of temporary workers. The Committee notes the Government’s indication in response that pursuant to section 10(1)–3(d) and (e) of the Act on the NLI, the NLI is empowered to carry out inspections related to compliance with the registration of employment agencies and their operations in accordance with the terms provided under the Act on Employment Promotion and Labour Market Institutions (AEPLMI). The Government states that there is no need to take further measures, since extensive modifications were already made to the AEPLMI with a view to improving the employment conditions of temporary workers and strengthening the effectiveness of inspection measures including through increased penalties. In this regard, the Committee notes that according to the 2018 labour inspection report, 65 employment agencies out of a total of 602 entities inspected were found to be operating illegally, and that irregularities were found in the entities inspected related to principles of cooperation and conditions of temporary work between the agency and user employer (25.3 per cent); payment of wages and other benefits (8.1 per cent); and conclusion of civil law contracts (7.9 per cent). The Committee also notes that, according to the summary of the 2019 labour inspection report, in 2019, 63 employment agencies were found to be operating illegally, of which the majority (49 entities) provide temporary work services, including outsourcing services in particular. With reference to its comments on the Private Employment Agencies Convention, 1997 (No. 181), the Committee requests the Government to provide further information on the role of the NLI with respect to the enforcement of the legal provisions relating to conditions of work and the protection of workers engaged through employment agencies.

Articles 6 and 7(1) of Convention No. 81 and Articles 8 and 9(1) of Convention No. 129. Recruitment and qualifications of labour inspectors. The Committee notes the observations of Solidarność that the practice of filling many positions of the NLI based on appointment raises a serious concern with respect to ensuring the stability of the NLI. According to the Act on the NLI, the Chief Labour Inspector shall appoint and remove managerial positions at the NLI, the district labour inspectorates and the training centre (section 40). District labour inspectors shall be appointed and dismissed by the Chief Labour Inspector (section 5(3)). Pursuant to section 70 of the Labour Code, an employee employed based on an appointment may be dismissed from his post by the body that appointed him at any time, immediately or at a specific time. Solidarność alleges that these regulations destabilize employment relations of persons in managerial or advisory positions at the NLI, contributing to the politicization of the NLI. In addition, Solidarność states that there is a lack of stability in the employment of labour inspectors because they are recruited based on an appointment by the Chief Labour Inspector, following the completion of a fixed-term employment contract (which can be a maximum term of three years), in accordance with section 41(1) and (2) of the Act on the NLI. The Government indicates in response that further employment to an equivalent position shall be guaranteed for the employees of the NLI dismissed under section 5(3), and that in practice the maximum duration of open-ended contracts for employees appointed for performing inspection activities is two years and early termination of contracts is exceptional.

The Committee recalls that, under the terms of Article 6 of Convention No. 81 and Article 8 of Convention No. 129, labour inspection staff shall be composed of public officials whose status and conditions of service are such that they are assured of stability of employment and are independent of improper external influences. Article 7 of Convention No. 81 and Article 9 of Convention No. 129 further require that labour inspectors shall be recruited with sole regard to their qualifications for the performance of their duties, and that the means of ascertaining such qualifications shall be determined by the competent authority. The Committee therefore requests the Government to provide detailed information on the appointment-based recruitment of labour inspectors, and for advisory and managerial positions at NLI, and its impact on the effectiveness of the functioning of the NLI and district labour inspectorates, as well as the measures taken or envisaged to ensure the stability and independence of labour inspectors, as required under Conventions Nos 81 and 129.

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. The Committee previously noted that most cases transmitted to the prosecutor’s office concerning suspected criminal offences by labour inspectors do not result in proceedings. The Committee notes with interest the Government’s indication in response that a cooperation agreement between the NLI and the prosecutor’s office was concluded in 2017, which resulted in the appointment of persons responsible for contacting the prosecutor’s office and executing a specialist supervision over notifications made by labour inspectors concerning suspected criminal offences. Within this cooperation, the NLI took measures to ensure that notifications to the prosecutor’s office contain all data available to the NLI confirming the validity of the notifications as well as the immediate transmission, upon request of the prosecutor’s office, of further detailed documentation of the inspection. The public prosecutor’s office also took measures to familiarize labour inspectors with the evidence collected during preparatory proceedings before a decision is issued to discontinue proceedings, in order to enable inspectors the possibility of filing an additional motion. In addition, the public prosecutor’s office now provides justification immediately in the event that labour inspectors make requests for justification pursuant to section 325(e) of the Code of Criminal Procedure. The most common reasons for discontinuing proceedings concern a lack of statutory grounds, insufficient evidence and a lack of intention to commit a crime. The Committee notes that as a result of meetings and training to improve cooperation, inspectors have been trained to properly draw up notifications transmitted to the prosecutor’s office. The Committee requests the Government to provide information on the impact of the measures taken to enhance cooperation between the labour inspection services and the judicial system, including 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.

Articles 20 and 21 of Convention No. 81 and Articles 26 and 27 of Convention No. 129. Annual labour inspection reports. The Committee notes that detailed annual labour inspection reports are available on the website of the NLI, as well as the summary of the report submitted, in English, to the ILO.

Specific matters relating to labour inspection in agriculture

Articles 5(1)(a) and (c), 6(1)(a) and (b), 12 and 13 of Convention No. 129. Preventive activities by the labour inspectorate in agriculture. The Committee notes the detailed information provided by the Government concerning the NLI’s information and prevention activities related to farming using training, lectures, publications and promotional action via various communication methods. For the years 2016–18, the NLI performed 10,000 inspections focusing on farms, 707 OSH trainings for farmers, and delivered 1,531 lectures for students. The Committee notes that in this area of work, the NLI cooperates with the Agricultural Social Insurance Fund, the Ministry of Agriculture and Rural Development, and the social partners.

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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 takes note of the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th Session (June 2020). The Committee proceeded with the examination of the application of the Conventions on the basis of the supplementary information received from the Government this year, including the summary of the annual labour inspection report of 2019 (see Article 3(1) and (2) of Convention No. 81 and Article 6(1) and (3) of Convention No. 129 below), as well as on the basis of the information at its disposal in 2019.

The Committee takes note of the observations of the Independent and Self-Governing Trade Union “Solidarnosc” received on 19 August 2019, and the Government’s reply to these observations received on 26 September 2019.

Articles 2(1), 5(a), 6, 12(1) and 16 of Convention No. 81 and Articles 4, 6, 12, 16(1) and 21 of Convention No. 129. Coverage of workplaces by labour inspection. Restrictions on collaboration between labour inspection officials and other public institutions and on inspectors entering workplaces freely. The Committee previously noted the limitations on the work of the labour inspectorate in the Act on Freedom of Economic Activity (AFEA) related to prior authorization by the inspection authority, as well as practical difficulties it posed in inspecting workplaces with multiple employers and the conduct of joint inspections. The Committee notes that the Entrepreneurs’ Law, adopted in 2018, replaced the AFEA. It notes that pursuant to sections 48(1) and 54(1) of the Entrepreneurs’ Law, prior notice to the entrepreneur is required and the undertaking of simultaneous controls of an entrepreneur’s activities are not permitted, but that sections 48(11)-(1) and 54(1)-(8) state that these restrictions do not apply if the inspection is carried out on the basis of a ratified international agreement. With respect to authorization, the Committee takes note of the Government’s indication that prior authorization by the inspection authority seeks to ensure transparency, reliability, validity, and legitimacy of public administrative bodies. It notes that pursuant to section 49(1) and (2) of the Entrepreneurs’ Law, labour inspectors are empowered to conduct controls without prior presentation of the authorization from the inspection authority only in cases where control activities are necessary to prevent a crime or offence or securing evidence that such an offence has been committed, or when inspections are justified by a direct threat to life and health or environment, so long as such authorization is presented later to the entrepreneur within three days from the date of initiation of a control. Furthermore, the Committee notes that the Entrepreneurs’ Law empowers inspectors to carry out control activities only during working hours (section 51(1)).

The Committee recalls that according to Article 12 of Convention No. 81 and Article 16 of Convention No. 129, labour inspectors provided with proper credentials shall be empowered to enter freely and without previous notice at any hour of the day or night any workplace liable to inspection. The Committee requests the Government to ensure that the Entrepreneurs’ Law is amended to provide without qualification that 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. Noting the absence of the information, the Committee once again requests the Government to indicate whether the conduct of joint inspections with other public authorities, including the State Sanitary Inspection and the Road Transport Inspectorate, is possible under the Entrepreneurs’ Law.

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. The Committee takes note of the Government’s indication, in reply to its previous request, that the National Labour Inspectorate (NLI) supervises and controls compliance with legal provisions related to OSH and the legality of employment of both Polish citizens and migrant workers. The NLI’s controls cover visas and other residence permits or work permits, the conclusion of written employment contracts or civil law contracts, and compliance with labour legislation. The NLI predominantly targets entities where migrant workers from outside the EU/EEA and Switzerland are engaged in work due to the high risk of irregularities. Controls are initiated based on the results of past controls, or referrals and complaints lodged by other institutions, including the Border Guard. The Government indicates that the NLI’s controls can also be initiated based on complaints made by migrant workers, predominantly concerning non-payment of wages or the lack of written employment contracts. Moreover, the NLI’s controls focus on temporary employment agencies, as well as employers sending workers to Poland and employers in Poland posting workers to other countries.

The Committee notes the statistics provided by the Government indicating that in 2018, a total of 7,817 controls were undertaken on the legality of employment of migrant workers which detected labour law violations related to the payment of wages and other benefits (related to 1,555 migrant workers), medical examinations (780 migrant workers), OSH trainings (1,370 migrant workers), records of working hours (662 migrant workers), and other working time regulations including rest periods (569 migrant workers). These inspections also detected a lack of work permits (related to 3,101 migrant workers), employers’ non-adherence to the terms and conditions under work permits or residence permits (related to 1,087 migrant workers), and violations related to employers’ obligation to conclude written contracts (916 migrant workers). The Government indicates that labour inspectors issued decisions or oral orders to correct these violations. It further indicates that infringements of labour law provisions result in notifications by the NLI to the social insurance institution, the head of the customs and revenue office, and the police or the Border Guard. The Committee also notes with concern that, according to the 2018 annual labour inspection report, available on the website of the NLI, the NLI performed 176 joint inspections with the Border Guard, and that the NLI sent 711 notifications to the Border Guard of cases regarding the illegal performance of work by migrant workers. The same report also indicates that the Chief Labour Inspector signed a new cooperation agreement with the Chief Border Guard to cope with a dramatic increase in the number of migrant workers from outside the EU. The Committee further notes the Government’s indication in its supplementary report that in 2019, labour inspectors conducted 8,348 controls of the legality of employment and performance of work by migrant workers, which represented a 7 per cent increase from 2018. In addition, according to the summary of the 2019 labour inspection report, the NLI controlled the legality of work performed by 43,400 migrant workers in 2019, among which, 5,947 persons were found engaged in “illegal” work (related to the lack of the required work permit in the majority of cases).

The Committee notes that the observations of Solidarnosc refer to, among the new tasks undertaken by the inspectors, the increased control activity on the legality of employment of migrant workers. The Committee urges the Government to take 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. In this respect, it requests the Government to provide information on the manner in which it ensures that cooperation with other authorities such as the Border Guard does not prejudice in any way the authority and impartiality which are necessary to inspectors in their relations with employers and workers, in accordance with Article 3(2) of Convention No. 81 and Article 6(3) of Convention No. 129. The Committee also requests the Government to indicate the manner in which the NLI ensures the enforcement of employers’ obligations with regard to the statutory rights of migrant workers, including those in an irregular situation. It also requests the Government to provide information on the orders issued by labour inspectors related to labour law violations (such as orders for establishing an employment contract, payment of overdue wages or other benefits resulting from their work) concerning migrant workers in an irregular situation, and the results obtained from such orders.

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

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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 takes note of the observations of the Independent and Self-Governing Trade Union “Solidarność” received on 19 August 2019, and the Government’s reply to these observations received on 26 September 2019.

Articles 3, 6, 10 and 11 of Convention No. 81 and Articles 6, 8, 14 and 15 of Convention No. 129. Additional duties entrusted to labour inspectors. Conditions of service. Resources of the labour inspectorate. The Committee notes the information provided by the Government that a number of tasks have been newly entrusted to the National Labour Inspectorate (NLI), under the Act on Compliance Assessment and Market Supervision (2016), the Energy Law (2017), the Act on the National Revenue Administration, the Entrepreneurs’ Law (2018), replacing the Act on Freedom of Economic Activity, as well as the amendments in 2019 to the Act on the NLI adding new control tasks for the NLI under the Act on the Employee Capital Plans (2018), the Act on Minimum Wages (2002), and the Act on Trade Restrictions on Sundays and Holidays (2018). The Committee notes the observations of Solidarność that there is a need to increase financial, human and organizational resources for the operation of the NLI, in response to the NLI’s increased tasks, which, according to the union, are too broad and go beyond the functions of the labour inspection system. The Committee notes the Government’s response that many of the newly introduced tasks exceed the framework of Conventions Nos 81 and 129, and that it is necessary to increase expenditures to prepare staff, including through the introduction of training, new organizational and IT solutions. The Government indicates that the Chief Labour Inspector has, over the years, drawn attention to the NLI’s increased workload without an adequate increase in its budget at various occasions including at the proceedings of Sejim Committees and the Labour Protection Board.

Solidarność also indicates the need for ensuring attractive employment conditions for inspectors, as some inspectors seek additional sources of income through training activities. Referring to the NLI’s performance in terms of improved workers’ rights and increased occupational safety demonstrated in the 2017 annual labour inspection report, Solidarność states that it strongly opposed a reduction of the NLI’s budgetary resources that had been proposed as amendments to the draft Budget Act for 2019 by the Public Finance Committee. Solidarność states that this was proposed while foreseeing at the same time an increase in expenses for prison officers, police officers and customs officers. In this respect, the Committee notes that the reduction in the NLI’s budget was not approved in the course of further legislative proceedings and that the 2019 Budget Act endorsed an increase of the NLI’s budget by more than 14 million PLN. The Committee requests the Government to indicate the measures taken or envisaged to align the conditions of service for labour inspectors with other public servants exercising similar functions (e.g. tax inspectors or the police). It also asks the Government to provide information on which of the newly introduced tasks goes beyond the functions of labour inspection as outlined in Article 3(1) of Convention No. 81 and Article 6(1) of Convention No. 129, and to provide information on the proportion of time spent by labour inspectors on such additional tasks in relation to the primary functions of labour inspection. The Committee further asks the Government to provide its comments with respect to the observations that inspectors are seeking additional sources of income, including, if applicable, whether they engage in such income-generating activities within or outside the scope of their official duties.

Article 3(1)(a) and (b) of Convention No. 81 and Articles 6(1)(a) and (b) and 17 of Convention No. 129. 1. Preventive control of new establishments and installations. The Committee notes the Government’s indication, in reply to its previous request regarding cooperation between the National Labour Inspectorate (NLI) and other specialized authorities, that tasks are jointly performed within the compliance assessment system, in order to eliminate goods which pose potentially serious threats to health and life, and to monitor compliance with the EU requirements. Joint control activities are carried out proportionally to the level of risk and threats to health and safety of employees. The NLI conducts controls based on complaints and referrals from other specialized authorities regarding the existence of goods that may pose a threat to employees and it cooperates with customs authorities to prevent imports from non-EU countries of hazardous goods or goods violating requirements. The Committee notes this information.

2. Control of illegal job placement and matching by employment agencies. The Committee notes the observations by Solidarność that there is a need to strengthen supervision of unauthorized employment agencies, and that measures should be taken to ensure better protection for the rights of temporary workers. The Committee notes the Government’s indication in response that pursuant to section 10(1)-3(d) and (e) of the Act on the NLI, the NLI is empowered to carry out inspections related to compliance with the registration of employment agencies and their operations in accordance with the terms provided under the Act on Employment Promotion and Labour Market Institutions (AEPLMI). The Government states that there is no need to take further measures, since extensive modifications were already made to the AEPLMI with a view to improving the employment conditions of temporary workers and strengthening the effectiveness of inspection measures including through increased penalties. In this regard, the Committee notes that according to the 2018 labour inspection report, 65 employment agencies out of a total of 602 entities inspected were found to be operating illegally, and that irregularities were found in the entities inspected related to principles of cooperation and conditions of temporary work between the agency and user employer (25.3 per cent); payment of wages and other benefits (8.1 per cent); and conclusion of civil law contracts (7.9 per cent). With reference to its comments on the Private Employment Agencies Convention, 1997 (No. 181), the Committee requests the Government to provide further information on the role of the NLI with respect to the enforcement of the legal provisions relating to conditions of work and the protection of workers engaged through employment agencies.

Articles 6 and 7(1) of Convention No. 81 and Articles 8 and 9(1) of Convention No. 129. Recruitment and qualifications of labour inspectors. The Committee notes the observations of Solidarność that the practice of filling many positions of the NLI based on appointment raises a serious concern with respect to ensuring the stability of the NLI. According to the Act on the NLI, the Chief Labour Inspector shall appoint and remove managerial positions at the NLI, the district labour inspectorates and the training centre (section 40). District labour inspectors shall be appointed and dismissed by the Chief Labour Inspector (section 5(3)). Pursuant to section 70 of the Labour Code, an employee employed based on an appointment may be dismissed from his post by the body that appointed him at any time, immediately or at a specific time. Solidarność alleges that these regulations destabilize employment relations of persons in managerial or advisory positions at the NLI, contributing to the politicization of the NLI. In addition, Solidarność states that there is a lack of stability in the employment of labour inspectors because they are recruited based on an appointment by the Chief Labour Inspector, following the completion of a fixed-term employment contract (which can be a maximum term of three years), in accordance with section 41(1) and (2) of the Act on the NLI. The Government indicates in response that further employment to an equivalent position shall be guaranteed for the employees of the NLI dismissed under section 5(3), and that the maximum duration of open-ended contracts for employees appointed for performing inspection activities is two years and early termination of fixed-term contracts prior to appointment is exceptional.

The Committee recalls that, under the terms of Article 6 of Convention No. 81 and Article 8 of Convention No. 129, labour inspection staff shall be composed of public officials whose status and conditions of service are such that they are assured of stability of employment and are independent of improper external influences. Article 7 of Convention No. 81 and Article 9 of Convention No. 129 further require that labour inspectors shall be recruited with sole regard to their qualifications for the performance of their duties, and that the means of ascertaining such qualifications shall be determined by the competent authority. The Committee therefore requests the Government to provide detailed information on the appointment-based recruitment of labour inspectors, and for advisory and managerial positions at NLI, and its impact on the effectiveness of the functioning of the NLI and district labour inspectorates, as well as the measures taken or envisaged to ensure the stability and independence of labour inspectors, as required under Conventions Nos 81 and 129.

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. The Committee previously noted that most cases transmitted to the prosecutor’s office concerning suspected criminal offences by labour inspectors do not result in proceedings. The Committee notes with interest the Government’s indication in response that a cooperation agreement between the NLI and the prosecutor’s office was concluded in 2017, which resulted in the appointment of persons responsible for contacting the prosecutor’s office and executing a specialist supervision over notifications made by labour inspectors concerning suspected criminal offences. Within this cooperation, the NLI took measures to ensure that notifications to the prosecutor’s office contain all data available to the NLI confirming the validity of the notifications as well as the immediate transmission, upon request of the prosecutor’s office, of further detailed documentation of the inspection. The public prosecutor’s office also took measures to familiarize labour inspectors with the evidence collected during preparatory proceedings before a decision is issued to discontinue proceedings, in order to enable inspectors the possibility of filing an additional motion. In addition, the public prosecutor’s office now provides justification immediately in the event that labour inspectors make requests for justification pursuant to section 325(e) of the Code of Criminal Procedure. The most common reasons for discontinuing proceedings concern a lack of statutory grounds, insufficient evidence, and a lack of intention to commit a crime. The Committee notes that as a result of meetings and training to improve cooperation, inspectors have been trained to properly draw up notifications transmitted to the prosecutor’s office. The Committee requests the Government to provide information on the impact of the measures taken to enhance cooperation between the labour inspection services and the judicial system, including 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.

Articles 20 and 21 of Convention No. 81 and Articles 26 and 27 of Convention No. 129. Annual labour inspection reports. The Committee notes that detailed annual labour inspection reports are available on the website of the NLI, as well as the summary of the report submitted, in English, to the ILO.

Specific matters relating to labour inspection in agriculture

Articles 5(1)(a) and (c), 6(1)(a) and (b), 12 and 13 of Convention No. 129. Preventive activities by the labour inspectorate in agriculture. The Committee notes the detailed information provided by the Government concerning the NLI’s information and prevention activities related to farming using training, lectures, publications, and promotional action via various communication methods. For the years 2016–18, the NLI performed 10,000 inspections focusing on farms, 707 OSH trainings for farmers, and delivered 1,531 lectures for students. The Committee notes that in this area of work, the NLI cooperates with the Agricultural Social Insurance Fund, the Ministry of Agriculture and Rural Development, and the social partners.

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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 takes note of the observations of the Independent and Self-Governing Trade Union “Solidarnosc” received on 19 August 2019, and the Government’s reply to these observations received on 26 September 2019.

Articles 2(1), 5(a), 6, 12(1) and 16 of Convention No. 81 and Articles 4, 6, 12, 16(1) and 21 of Convention No. 129. Coverage of workplaces by labour inspection. Restrictions on collaboration between labour inspection officials and other public institutions and on inspectors entering workplaces freely. The Committee previously noted the limitations on the work of the labour inspectorate in the Act on Freedom of Economic Activity (AFEA) related to prior authorization by the inspection authority, as well as practical difficulties it posed in inspecting workplaces with multiple employers and the conduct of joint inspections. The Committee notes that the Entrepreneurs’ Law, adopted in 2018, replaced the AFEA. It notes that pursuant to sections 48(1) and 54(1) of the Entrepreneurs’ Law, prior notice to the entrepreneur is required and the undertaking of simultaneous controls of an entrepreneur’s activities are not permitted, but that sections 48(11)-(1) and 54(1)-(8) state that these restrictions do not apply if the inspection is carried out on the basis of a ratified international agreement. With respect to authorization, the Committee takes note of the Government’s indication that prior authorization by the inspection authority seeks to ensure transparency, reliability, validity, and legitimacy of public administrative bodies. It notes that pursuant to section 49(1) and (2) of the Entrepreneurs’ Law, labour inspectors are empowered to conduct controls without prior presentation of the authorization from the inspection authority only in cases where control activities are necessary to prevent a crime or offence or securing evidence that such an offence has been committed, or when inspections are justified by a direct threat to life and health or environment, so long as such authorization is presented later to the entrepreneur within three days from the date of initiation of a control. Furthermore, the Committee notes that the Entrepreneurs’ Law empowers inspectors to carry out control activities only during working hours (section 51(1)).

The Committee recalls that according to Article 12 of Convention No. 81 and Article 16 of Convention No. 129, labour inspectors provided with proper credentials shall be empowered to enter freely and without previous notice at any hour of the day or night any workplace liable to inspection. The Committee requests the Government to ensure that the Entrepreneurs’ Law is amended to provide without qualification that 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. Noting the absence of the information, the Committee once again requests the Government to indicate whether the conduct of joint inspections with other public authorities, including the State Sanitary Inspection and the Road Transport Inspectorate, is possible under the Entrepreneurs’ Law.

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. The Committee takes note of the Government’s indication, in reply to its previous request, that the National Labour Inspectorate (NLI) supervises and controls compliance with legal provisions related to OSH and the legality of employment of both Polish citizens and migrant workers. The NLI’s controls cover visas and other residence permits or work permits, the conclusion of written employment contracts or civil law contracts, and compliance with labour legislation. The NLI predominantly targets entities where migrant workers from outside the EU/EEA and Switzerland are engaged in work due to the high risk of irregularities. Controls are initiated based on the results of past controls, or referrals and complaints lodged by other institutions, including the Border Guard. The Government indicates that the NLI’s controls can also be initiated based on complaints made by migrant workers, predominantly concerning non-payment of wages or the lack of written employment contracts. Moreover, the NLI’s controls focus on temporary employment agencies, as well as employers sending workers to Poland and employers in Poland posting workers to other countries.

The Committee notes the statistics provided by the Government indicating that in 2018, a total of 7,817 controls were undertaken on the legality of employment of migrant workers which detected labour law violations related to the payment of wages and other benefits (related to 1,555 migrant workers), medical examinations (780 migrant workers), OSH trainings (1,370 migrant workers), records of working hours (662 migrant workers), and other working time regulations including rest periods (569 migrant workers). These inspections also detected a lack of work permits (related to 3,101 migrant workers), employers’ non-adherence to the terms and conditions under work permits or residence permits (related to 1,087 migrant workers), and violations related to employers’ obligation to conclude written contracts (916 migrant workers). The Government indicates that labour inspectors issued decisions or oral orders to correct these violations. It further indicates that infringements of labour law provisions result in notifications by the NLI to the social insurance institution, the head of the customs and revenue office, and the police or the Border Guard. The Committee also notes with concern that, according to the 2018 annual labour inspection report, available on the website of the NLI, the NLI performed 176 joint inspections with the Border Guard, and that the NLI sent 711 notifications to the Border Guard of cases regarding the illegal performance of work by migrant workers. The same report also indicates that the Chief Labour Inspector signed a new cooperation agreement with the Chief Border Guard to cope with a dramatic increase in the number of migrant workers from outside the EU.

The Committee notes that the observations of Solidarnosc refer to, among the new tasks undertaken by the inspectors, the increased control activity on the legality of employment of migrant workers The Committee urges the Government to take measures to ensure that the 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. In this respect, it requests the Government to provide information on the manner in which it ensures that cooperation with other authorities such as the Border Guard does not prejudice in any way the authority and impartiality which are necessary to inspectors in their relations with employers and workers, in accordance with Article 3(2) of Convention No. 81 and Article 6(3) of Convention No. 129. The Committee also requests the Government to indicate the manner in which the NLI ensures the enforcement of employers’ obligations with regard to the statutory rights of migrant workers, including those in an irregular situation. It also requests the Government to provide information on the orders issued by labour inspectors related to labour law violations (such as orders for establishing an employment contract, payment of overdue wages or other benefits resulting from their work) concerning migrant workers in an irregular situation, and the results obtained from such orders.

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

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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.

Article 3(1)(a) and (b) of Convention No. 81 and Articles 6(1)(a) and (b) and 17 of Convention No. 129. Preventive control of new establishments and installations. The Committee notes the Government’s indication, in reply to its previous comments, that although the amendments to the Act on the National Labour Inspectorate (ANLI) repealed the duty of the National Labour Inspectorate (NLI) to carry out inspections related to the design of construction, reconstruction and modernization of establishments including machinery and technical equipment, other authorities under the Act of 2002 on the Conformity Assessment System (ACAS) carry out such inspections. The Government states that, pursuant to section 38 of the ANLI, the NLI continues to be entrusted with the supervision of products that are placed on the market, and performs inspections related to buildings, rooms, workstations, machinery and equipment as well as technological and working processes (section 23). Labour inspectors have the right to issue an order to cease the operation of machines and equipment when their operation creates an immediate safety and health hazard in the workplace (section 11). According to the statistics provided by the Government, 412 labour inspections in 2015 focused on 410 newly established entities, employing approximately 6,000 workers. This resulted in a total of 3,247 decisions (orders, improvement notices and instructions, including 936 verbal instructions), 37 fines, 81 educational (disciplinary) measures, 638 penalty motions filed with courts, and one referral of criminal charges to the court. Concerning the Committee’s previous request regarding the application of section 37(a) of the ANLI, under which a labour inspector may refrain from applying legal measures and instead give verbal instructions in the case of violations detected in newly established plants where there are no immediate threats to life or health or wilful misconduct, the Government indicates that labour inspectors received 32 declarations from employers about the date of eliminating those violations. The Committee requests the Government to continue to provide information on the application of section 37(a) of the ANLI, indicating not only the number of declarations received upon the elimination of violations, but also the number of instances where no legal measures were applied following the detection of violations, pursuant to section 37(a). The Committee also requests the Government to provide information on the manner in which the NLI and the specialized authorities under the ACAS coordinate to exchange information and ensure preventive control under the conformity assessment system related to new products and production processes, in order to secure the health and safety of workers.

Articles 20 and 21 of Convention No. 81 and Articles 26 and 27 of Convention No. 129. Content of annual reports on the work of the labour inspection services. The Committee takes due note of the detailed information provided in the annual inspection reports for 2013, 2014, 2015 and 2017, in reply to its previous comments, that include the statistics disaggregated by subjects of inspection.

Issues specifically concerning labour inspection in agriculture

Articles 5(1)(a) and (c), 6(1)(a) and (b), 12 and 13 of Convention No. 129. Preventive activities by the labour inspectorate in agriculture. The Committee notes the detailed information provided by the Government concerning labour inspection and prevention services related to forestry. The Committee also notes with interest the information on the nation-wide three-year campaign, featuring a range of communication channels, aimed at disseminating information on the ways to reduce occupational accidents and improving the safety and health of farmers and their family members. In this regard, the Committee notes with interest the evaluation conducted on the impact of the various activities carried out within the campaign indicating that it had contributed to changing farmers’ attitudes towards safety on farms, improving their awareness and knowledge of occupational safety and health (OSH) principles, and encouraging them to participate in OSH training.

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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.

Article 3(1) and (2) of Convention No. 81 and Article 6(1) and (3) of Convention No. 129. Labour inspection activities for the protection of foreign workers in an irregular situation and additional functions entrusted to labour inspectors. The Committee notes the Government’s indication, in reply to its previous request, that the Border Guard (BG) is gradually taking over the controls in the area of legality regarding employment of foreigners. The Government indicates that after the adoption of the Polish Migration Policy in 2014, the focus of cooperation between the National Labour Inspectorate (NLI) and the BG is moving from jointly monitoring illegal employment to exchanging experiences, good practices and the interpretation of regulations. The Government states that this shall enable the NLI to focus more on issues directly concerning the protection of workers’ rights. According to the statistics contained in the Government’s report and the 2015 annual inspection report submitted in 2016, this shift resulted in labour inspections focusing more on controlling the legality of employment of Polish citizens: around 23,000 out of a total of 90,000 inspections performed by the NLI in 2015 focused on the legality of employment and other paid work of Polish citizens. This resulted in the detection of illegal employment of around 21,000 workers, including over 13,000 purported independent contractors. The Committee welcomes the indication that more than 8,000 of those workers obtained employment contracts through the labour inspectorate’s interventions.

The Committee notes the Government’s indication, nonetheless, that labour inspection controls are carried out in relation to foreign nationals illegally residing in the territory in cooperation with the BG, or that results of the inspections are notified to the BG, which then imposes sanctions. The Government indicates that the NLI focuses on the enforcement of employers’ obligations with regard to the statutory rights of only Polish workers who are found to be in an irregular situation with little control over foreign workers in a similar situation, as a consequence of the new distribution of duties between the BG and the NLI. The 2015 annual labour inspection report indicates that in 2015, 3,000 labour inspections focused on the legality of employment related to foreigners, one third of which detected violations. The Government states that the NLI detected a relatively small number of cases that concern foreign workers illegally residing in Poland: only 30 foreigners in nine entities were detected in 2015. For the years 2013–15, the detection of foreigners without work permits resulted in two referrals of motions for punishment to the court, four criminal fines and eleven educational measures. The Government indicates that the NLI is not aware of cases in which foreign workers illegally residing in Poland were granted statutory employment rights, such as wages and social security benefits. The Committee recalls that in its 2006 General Survey, Labour inspection, paragraph 77, it indicated that neither Convention No. 81 nor Convention No. 129 contain any provision suggesting that any worker be excluded from the protection afforded by labour inspection on account of their irregular employment status. The Committee further recalls its observation on the application of the Forced Labour Convention, 1930 (No. 29) in which it requested the Government to take the necessary measures to enable migrant workers to approach the competent authorities and seek redress in the event of a violation of their rights or abuses, without fear of retaliation. Noting the Government’s efforts to relieve the inspectorate of the task of monitoring illegal employment of foreign workers by transferring it to the BG, the Committee requests the Government to provide information on the manner in which the labour inspection services ensure the enforcement of employers’ obligations with regard to the statutory rights of foreign workers, including those in an irregular situation, resulting from their existing and past work (such as wages and social security benefits).

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. The Committee takes note of the information provided by the Government in reply to its previous comments, on the number of notifications of a suspected crime made by labour inspectors to the Office of the Public Prosecutor (PO). However, it notes that nearly 75 per cent of notifications to the PO concerning suspicions of criminal offenses did not result in proceedings. The Government indicates that labour inspectors can file complaints or make requests for justification of the PO’s refusal to initiate proceedings, and that inspectors submitted 131 such complaints in 2015. Noting that most cases transmitted to the PO do not result in proceedings, the Committee requests the Government to provide information on the measures taken or envisaged to enhance effective cooperation between the labour inspection services and the judicial system. The Committee further requests the Government to provide information on the reasons why the PO declined to proceed, suspended, or discontinued cases, and whether the PO communicates these concerns, or seeks additional information from inspectors, prior to its final decision not to proceed. It also requests the Government to provide information on the measures taken to ensure that labour inspectors receive appropriate training on the preparation of notifications to the PO and are systematically informed about the outcome of the cases notified.

Articles 2(1), 5(a), 12(1), and 16 of Convention No. 81 and Articles 4, 12, 16(1) and 21 of Convention No. 129. Coverage of workplaces by labour inspections. Restrictions on collaboration between labour inspection officials and other public institutions and on inspectors entering workplaces freely. The Committee previously noted the Government’s indications concerning the restrictions set forth in Chapter 5 of the Act on Freedom of Economic Activity (AFEA) providing that inspections require an authorization indicating the subject of the control, and that the scope of the control cannot be exceeded during inspections. The Committee takes due note that the AFEA was amended in 2015 to provide that certain restrictions would not apply if ratified international agreements provide otherwise. However, it notes with concern the Government’s indication that the application of the provisions of the AFEA to the NLI poses various difficulties in practice.

The Committee takes due note that the requirement in section 79-2(1) of the AFEA of prior notification to carry out inspections does not apply to labour inspection, in light of the obligations under Conventions Nos 81 and 129. It however notes that section 79(a) requires labour inspectors to obtain and present authorization from the labour inspectorate to the entrepreneur or his/her representative, except for serious cases where authorization can be presented within three days after initiating the inspection. The Government states that obtaining this authorization can increase the time-consuming nature of activities before the start of an inspection and limits the mobility of labour inspectors. It poses practical difficulties in inspecting an entire workplace with more than two entrepreneurs or subcontractors, and often makes it difficult to conduct controls without an agreement from the entrepreneur. The Government also indicates that the AFEA prevents labour inspectors from carrying out joint inspections with other public authorities charged with supervising working conditions (such as the State Sanitary Inspectorate and the Road Transport Inspectorate). The Government further indicates that the AFEA requires carrying out inspections at the headquarters of the entrepreneur or place of business, which severely limits the possibility of monitoring entrepreneurs engaged in economic activities using their home address. The Committee also notes the detailed information provided by the Government on the various administrative court decisions on the application of the AFEA to the NLI and takes note of the Government’s indication that there is a risk that evidence collected as a result of inspections may be regarded in violation of the AFEA. The Committee urges the Government to take measures to address the limitations on the work of the labour inspectorate related to prior authorization, inspecting workplaces with multiple employers and the conduct of joint inspections, in accordance with Articles 12 and 16 of the Convention No. 81 and Articles 16 and 21 of the Convention No. 129. It requests the Government to provide information on the measures taken in this respect, and to continue to provide information on the impact of the AFEA on labour inspection activities.

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

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With reference to its observation, the Committee would like to raise the following additional points.

Articles 3(1)(a) and (b), 17 and 18 of the Convention Preventive control of new establishments and installations. Balance between preventive and enforcement activities of the labour inspectorate. The Committee notes that, following the amendments to the National Labour Code, the obligation of employers to obtain approval from a licensed occupational safety and health (OSH) expert for plans to construct or modify establishments has been abolished. It further notes the explanations provided by the Government, that following amendments to the 2007 Act of the national labour inspectorate (NLIA), labour inspectors are no longer entrusted with inspections concerning compliance with OSH laws and regulations in plans for the construction and modification of establishments (including their machinery or other technical equipment and technologies). However, the Committee understands that labour inspectors at the National Labour Inspectorate are still entrusted, as a specialized body for the control of machinery and equipment at workplaces in the process of controlling products that are put on the market or into operation.

The Committee notes the comments made by the Independent and Self-governing Trade Union “Solidarnosc” in their communication of 30 August 2012 expressing opposition to the above amendments and indicating that relevant inspections are still required. In this regard, the Committee notes that Solidarnosc refers to a large number of cases of non-compliance with OSH requirements, detected during inspections between January and August 2011 prior to the entry into force of the above provisions, which were carried out to ascertain the OSH situation was in compliance with plans to construct or reconstruct establishments, as approved by OSH experts.

While Solidarnosc indicates that, following the coming into force of the above provisions (i.e. August 2011), no relevant inspections have been carried out, the Government states that in 2013 inspections and follow-up inspections were conducted in relation to compliance with OSH in new establishments (in particular, facilities and work rooms, health and sanitary equipment, ventilation, heating and lighting, work posts and processes, machines and technical equipment, facilities and electrical installations). The Government further indicates that, despite the fact that employers are no longer required to obtain approval from a licensed OSH expert for plans to construct or modify establishments, where a positive opinion has been issued by an OSH expert, the relevant issues covered by this opinion are liable to inspection.

The Committee further notes the explanations of the Government that, following the amendments to sections 10(1)(7) and 37(a) in conjunction with section 33 of the NLIA, the preventive function of labour inspectors through the provision of advice and support has been strengthened, complementing their supervisory and enforcement functions. Under section 37(a) of the NLIA, a labour inspector may refrain from applying the legal measures contained in section 33 (that is improvement notices, prohibition orders, initiation of legal proceedings, etc.) and give verbal instructions on how to comply with the legal provisions in the case that an employer has just started an economic activity, and if the inspector has not identified an immediate threat to the health and safety of workers or a deliberate offence. Noting the statement made by the Government in its report that, in the above situation, labour inspectors are limited to providing oral instructions, the Committee recalls that Article 17(2) of the Convention provides that it hall be left to the discretion of labour inspectors to give warning and advice instead of instituting or recommending proceedings.

The Committee asks the Government to provide information on whether labour inspectors are still entrusted with controlling the execution of plans for new establishments, plant and processes of production for the purpose of securing the health and safety of the workers, and to describe how the duty of employers to comply with OSH laws and regulations therein is supervised by the labour inspectorate.

Please provide statistical information on the number of relevant inspection visits, violations detected and legal provisions to which they relate, as well as any relevant decisions taken (written or oral orders to remedy the violations detected, prohibition notices, etc.) and the penalties imposed. Please also provide information on the impact of the above changes on the number of industrial accidents and cases of occupational diseases.

The Committee also requests the Government to indicate the manner in which labour inspectors in practice exercise the discretion provided for under Article 17 of the Convention to give warning and advice instead of instituting or recommending proceedings, and to indicate the manner in which it is ensured that labour inspectors adopt the appropriate measures to achieve compliance with labour legislation and strike a reasonable balance between their educational and enforcement functions. Please also provide a copy of any relevant internal instructions in this regard.

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The Committee notes the observations made by the Independent and Self-governing Trade Union “Solidarnosc” dated 30 August 2012 and transmitted to the Government on 14 September 2012, and the reports of the Government with the replies to the observations of Solidarnosc attached, respectively received on 28 August 2012 and 29 August 2013.

Article 3(2) of the Convention. Additional functions entrusted to labour inspectors. The Committee previously noted that since 2007 the National Labour Inspectorate (NLI) has been entrusted with controlling the legality of employment of Polish citizens, as well as foreign nationals and that specialized divisions on legality of employment (DLE) have been set up in all district labour inspectorates. It notes from the information provided by the Government that, in addition to the inspectors working in the DLE, all 1,573 labour inspectors working at the NLI are authorized to carry out tasks in the area of legality of employment. In addition, the Committee had noted in its previous observation that labour inspectors are required to notify border guards immediately of cases of infringements of legal provisions concerning foreign nationals. In reply to the Committee’s previous request to specify the nature of the cooperation between the NLI and the border guards, the Government indicates that cooperation between these two entities includes joint inspections, the exchange of information on non compliance with legal provisions, joint training and the exchange of experience, in particular regarding the improvement of control methods, etc. According to the Government, while both the NLI and the border guards are entrusted with controls in the area of legality of employment, there are some differences in the functions of both entities, as labour inspectors are entrusted with inspections for the protection of labour rights and occupational safety and health (OSH) and, in contrast with the border guards, are not empowered to use direct coercion and retain foreign nationals, oblige them to leave the country or initiate deportation proceedings.

According to the information provided by the Government, in 2011, 26,000 of the 90,600 inspections carried out by the NLI related to legality of employment (23,800 of these inspections related to nationals and 2,200 to foreign nationals). The most common irregularities in the area of legality of employment of foreign nationals concerned the absence of a required work permit, the granting of less favourable conditions than those indicated in work permits (including lower salaries) and the non-declaration of foreign workers to the social security authorities. The Committee notes the Government’s indications that the Act on the effects of employing foreign nationals who are illegally resident in the territory of the Republic of Poland of 6 July 2012, aimed at transposing Directive No. 2009/52/EC of June 2009 of the European Parliament and of the Council, introduces new regulations which, de facto, protect the rights of foreign workers, but does not contain regulations – beyond the procedures already established – relating to claims by workers illegally in the country asserting their rights, including in procedures for their expulsion. The Committee notes from information in the mass media that the Government has launched three campaigns in recent years to regularize workers who are illegally in the country. It further notes that the Government has not provided any information on cases, in which workers in an illegal situation have been regularized or granted their rights arising out of their past employment. The Committee also notes that, as it appears from information available on the website of the NLI, a foreign national working in violation of the legal provisions may incur a financial penalty ranging from 1,000 to 5,000 Polish zloty (PLN).

The Committee notes the Government’s indications that, in light of the current legislation, and due to the anticipated entry into force of regulations for the implementation of Directive No. 2009/52/EC, there is no possibility for the separate treatment of issues related to immigration law, and rights of foreign workers and the legality of their employment in Poland.

However, the Committee recalls once again, with reference to paragraph 78 of its 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 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. The Committee had also observed in its 2006 General Survey that, with the exception of a few countries, only the employer was held accountable for illegal employment as such, with the workers involved in principle being seen as victims. The Committee therefore requests the Government to indicate the measures taken or envisaged to ensure that the functions of verifying the legality of employment does not interfere with the effective discharge of the primary duties of the labour inspectors relating to the control of the observance of workers’ rights, and does not prejudice the relationship of trust with employers and workers necessary to inspectors.

The Committee asks the Government to continue to indicate the proportion of inspections devoted to verifying the legality of employment in relation to the observance of legal provisions relating to conditions of work and the protection of workers. The Committee would be grateful if the Government would disaggregate the information on inspections and their results by providing specific information relating to undeclared work, that is statistics on the violations found following inspections and the legal provisions to which they relate, the legal proceedings instituted and sanctions imposed.

The Committee once again asks the Government to indicate the manner in which the labour inspection services ensure 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. Please explain in detail the applicable procedures and indicate the relevant provisions in national law, if possible, in one of the working languages of the ILO. Please also indicate whether any foreign workers in an irregular situation have been sanctioned for the violation of legal provisions relating to the legality of their employment and provide information on the number of cases in which foreign nationals in an illegal situation have been granted their rights resulting from their past employment relationship (wages, social security benefits, etc.).

Articles 5(a), 17 and 18. Sanctions and effective enforcement. Cooperation between the inspection services and the judiciary. The Committee notes with interest the information provided in the Government’s report that, following the recent amendments to section 325(e) of the 1997 Code of Criminal Procedure, public prosecutors have the obligation – at the request of labour inspectors – to justify their decision not to initiate an investigation or to discontinue investigations in cases submitted by the NLI. According to the Government, these amendments should contribute to the effectiveness of labour inspection, since labour inspectors are now informed of the specific reasons for these decisions. The Committee further notes that, following amendments to the Act of the National Labour Inspectorate, labour inspectors now have free access to the national court register and the national penal registers. The Committee also notes the information in the annual reports on the number and nature of violations and sanctions imposed, although it observes that no information has been provided on the legal provisions to which they relate. The Committee asks the Government to provide information on the impact of the above changes, 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).

Articles 5(b) and 12(1). Collaboration between labour inspection officials and the social partners and restrictions on inspectors entering workplaces freely. Following the previous observations made by the Independent and Self-governing Trade Union “Solidarnosc” on the lack of collaboration between the labour inspection services and representatives of trade unions in the course of inspections, the Committee notes the Government’s general explanations on the forms of such collaboration, for example, the requirement for labour inspectors to inform representatives of trade unions and social inspectors (where they exist) of inspections. It also notes the information on the number of inspections conducted in 2011 as a result of complaints submitted by social inspectors.

However, the Government indicates that problems in collaboration with the social partners (including social inspectors) may result from the restrictions set forth in Chapter 5 of the Act on Freedom of Economic Activity (AFEA), since inspections require an authorization indicating the subject of the control, and that the scope of the control cannot be exceeded during inspections. Moreover, there is an obligation not to violate any provisions of the Act on the Protection of Personal Data (APD), which requires professional secrecy concerning specific information relating to business activities and the persons guilty of or punished for labour law violations.

The Committee notes that the AFEA, which the Government has submitted to the Office in its amended version, appears to still require prior authorization for labour inspectors to carry out inspections. The Committee noted previously that administrative courts have issued contradictory decisions on whether labour inspection has to be considered as a supervisory body of economic activities falling within the scope of the AFEA. The Committee asks the Government to indicate the relevant provisions in the AFEA and the APD, if possible, in one of the working languages of the ILO, establishing restrictions on the conduct of any examination or inquiry which labour inspectors consider necessary in order to satisfy themselves that legal provisions are being strictly observed, and to provide further explanations on the scope and nature of the restrictions that labour inspectors face in practice.

The Committee also once again asks the Government to indicate the measures taken or envisaged to remove any requirement of labour inspectors to obtain prior authorization in order to exercise their right of entry into workplaces liable to inspection to carry out inspections.

Articles 20 and 21. Content of annual reports on the work of the labour inspection services. The Committee notes the detailed information provided in the annual reports on the work of the labour inspection services for 2009, 2010, 2011 and 2012. However, the Committee also notes the observations made by Solidarnosc that these reports do not contain complete information on inspections with regard to the legal provisions to which they relate, that is provisions on working time, wages, OSH, child labour and related issues. The Committee would be grateful if the Government would publish annual reports containing information on the activities of the labour inspection services, disaggregated by the various subjects of inspection (such as OSH, working hours, wages, child labour and legality of employment), including particulars on the classification of the infringements detected according to the legal provisions to which they relate.

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

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The Committee notes the Government’s detailed report received by the ILO on 28 August 2012, as well as the annual reports of the National Labour Inspectorate for 2009, 2010 and 2011. It also notes the Act on the effects of employing foreigners who are illegally resident in the territory of the Republic of Poland of 6 July 2012, attached to the Government’s report. According to the Government, the Act implements Directive 2009/52/EC and provides for minimum standards on sanctions and measures against employers of illegally staying third-country nationals and introduces new Regulations that de facto serve to protect the rights of foreign nationals. The Committee will examine the Government’s report as soon as a translation of this Act is available in one of the working languages of the ILO.

The Committee further notes the comments made by the independent and self-governing trade union “Solidarnosc” in a communication dated 30 August 2012 and received by the ILO on 3 September 2012. While awaiting the translation of the above Act, the Committee asks the Government to make any comments it deems appropriate in relation to the comments made by the “Solidarnosc”.

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Also referring to its observation, the Committee would like to draw the Government’s attention to the following points:

Article 6 of the Convention. Status and conditions of service of labour inspectors. The Committee notes the Government’s reference to section 41(1) and (2) of the Act on the National Labour Inspectorate (ANLI), which provides that inspectors are nominated by the Chief Labour Inspector after, in principle, having worked under a fixed-term contract not exceeding three years. It further notes that the majority of the 1,604 inspectors at the ANLI are nominated inspectors, while 344 inspectors have not been nominated, but are working under an employment contract (228 under a short-term contract not exceeding three years and 116 under a contract of indefinite duration).

The Committee further notes that in the period from the end of 2006 to the present, 567 employment relationships with the ANLI were terminated, while it understands that only eight of these dismissals concerned labour inspectors (two inspectors working under an employment contract and six nominated inspectors). The Committee asks the Government to provide information on the status and conditions of service (wage levels, allowances, social benefits, etc.) of nominated inspectors and those engaged under employment contracts (both fixed-term and indefinite duration).

Noting that inspectors employed under three-year fixed-term contracts have, in the past, all been nominated, the Committee asks the Government to indicate the duration of employment of the other 116 inspectors working under a contract of indefinite duration and whether it is envisaged to also nominate these inspectors.

Articles 20 and 21 of the Convention. Publication and communication to the ILO of an annual report on the work of the labour inspection services. The Committee notes that annual reports for 2009–10 on the work of the labour inspection services were not received at the Office. The Committee asks the Government to continue to publish annual reports containing the information required by Article 21(a)–(g) of the Convention and to continue to communicate these reports on a regular basis to the ILO.

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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.

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With reference to its observation, the Committee would welcome further information concerning the following points.

Article 2 of the Convention. Scope of labour inspection. The Committee notes with interest 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 requests the Government to provide further information on the activities undertaken in relation to this category of workers and the methods used.

Article 3, paragraphs 1 and 2, Articles 5(a), 6, 12, 15(c) and 17. Additional duties entrusted to labour inspectors. Mobilization of resources. The Committee notes from the annual labour inspection report for 2007 that 49 decisions to expel foreign nationals or oblige them to leave the territory were issued by the Governor, border guards or the police as a result of the cooperation of the National Labour Inspectorate with these institutions. It also notes that, under article 13 of the Act on the National Labour Inspectorate, labour inspectors are responsible for controlling legal employment status, and that cooperation with the police and border guards is envisaged in article 14 of the Act, with article 37 requiring the labour inspectors to notify them of infringements of relevant regulations. The Committee recalls that these activities raise problems of compatibility with the primary functions of labour inspection and make additional calls on the resources available to the labour inspection services. The Committee requests the Government to provide information on the protection afforded to workers who are in an irregular situation (payment of wages, social insurance registration, entitlement to leave, etc.) for the period worked. It draws the Government’s attention in this respect to its comments in paragraphs 75–78 and 160 of the General Survey of 2006 on labour inspection

Article 6. Status and conditions of labour inspectors. The Committee notes that labour inspectors, by virtue of article 41 of the Act on the National Labour Inspectorate, are nominated and dismissed by the Chief Labour Inspector, and that articles 62 and 63 of the Act indicate causes which justify the termination of the employment relationship of labour inspection staff. The Committee requests like the Government to indicate how it is ensured in practice that labour inspectors are assured of stability of employment and are independent of changes of government and improper external influences.

In addition, noting that article 48(3) of the Act requires prior consent by the Chief Labour Inspector for the exercise of work outside the employment relationship, the Committee asks the Government to provide further information on the effect given to this provision in practice.

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The Committee notes the Government’s report received on 8 September 2009 as well as the Executive Summaries of the Chief Labour Inspector’s Annual Reports for 2006, 2007 and 2008 and the Programme of Activities of the National Labour Inspectorate (NLI) for 2007. It also notes the Act of 13 April 2007 on the National Labour Inspectorate.

Article 3, paragraph 1(a) and (b), Articles 5 and 16 of the Convention. National actions and international cooperation in the field of labour inspection. The Committee notes the detailed information in the Programme of Activities of the NLI for 2007 concerning: (a) long-term actions for 2007–09 (definition of priority actions); (b) inspection-supervisory actions in the annual programme for 2007 (targeted inspection areas, assessment of legal acts); (c) training and the building of the IT system of NLI; and (d) cooperation with other bodies and institutions dealing with labour protection issues.

The Committee notes with interest in the annual reports the information on various preventive actions undertaken in 2008 cooperation with the social partners and other authorities and organizations, and particularly by campaigns on asbestos, the manual handling of loads, occupational risk assessment, on safe building and young workers starting their employment; as well as programmes on the observance of labour law in small companies and stress in the workplace and competitions aimed at promoting work safety, such as the all-Poland competition “Employer-organizer of safe work”. The Committee notes in particular with interest the actions and preventive measures addressed at young people in 2008, such as:

–           the actions in summer and winter camps for children in collaboration with Polish scout associations;

–           the informal educational programme “Safety Culture”, implemented in post-gymnasium schools;

–           additional training sessions for a total of 6,528 pupils and students; and

–           numerous events (fairs, career days) during which the NLI distributed specific publications for young people and provided legal advice to young people starting their employment.

The Committee further notes with interest that in 2008 a total of 16,500 persons attended training events organized by the NLI. Relevant information is provided via the mass media (newspapers, radio, TV), as well as through leaflets, brochures, posters and periodical publications prepared by the NLI, on the Government’s web site (www.pip.gov.pl), and through the large amount of advice provided upon request by the labour inspectorate. The Committee notes with interest that the NLI maintains close cooperation with various international institutions, including in the area of the training of labour inspectors and the exchange of information, such as the Senior Labour Inspectors Committee (SLIC), the European Agency for Safety and Health at Work in Bilbao, the International Social Security Association (ISSA), the International Network of Training Institutes for Labour Relations (RIIFT) and other partners at the regional level. It further notes with interest the priority given by the labour inspectorate to activities aimed at protecting persons working in sectors and companies with the highest incidence of occupational hazards, such as in the construction sector.

Articles 8 and 10. Number of labour inspectors. The Committee notes with interest that the labour inspection staff at the NLI increased from 2,423 employees in 2006 to 2,655 in 2007. The Committee would be grateful if the Government would indicate the proportion of women inspectors and specify whether they are entrusted with duties specifically targeting women workers in industrial and commercial workplaces.

Article 5(a) of the Convention. Specific cooperation between the labour inspection services and the judicial system and other public services or institutions. The Committee notes the information in the Government’s report, already contained in its 2007 report that, since 1 July 2007, competent labour inspectors act as public prosecutors in certain cases of minor offences relating to general labour conditions and the legality of employment by lodging complaints with the competent courts (article 37 of the Act on the National Labour Inspectorate). It further notes that in 2008, out of the 1,114 notifications filed with the Office of the Public Prosecutor, 101 indictments were referred to the courts, with 11 persons being fined, two sentenced to suspended prison sentences and one being acquitted. Meetings to exchange information on current proceedings and to explain problems arising in practice are organized between the regional labour inspectorates and the Office of the Public Prosecutor. The Committee especially welcomes the meetings and instructions pertaining to the methodology for prosecuting crimes and securing evidence which are aimed at ensuring that prosecutions are brought to a conclusion. The Committee would be grateful if the Government would keep the ILO informed of any further cooperation activities and their impact, including extracts from relevant judicial decisions.

Article 12, paragraph 1. Right of inspectors to enter workplaces freely. While noting the information provided by the Government on the content of the Act of 19 December 2008 amending the Act on freedom of economic activity and certain other Acts, in the absence of the text of the new Act, the Committee is not in a position to assess whether its provisions give effect to Article 12(1)(a) of the Convention. Some of the explanations provided by the Government on the new Act appear to relate to inspection on issues other than the labour-related matters covered by the Convention. The Committee emphasizes once again that labour inspectors with proper credentials should be entitled to carry out supervisory functions without the need for further authorization. Moreover, it is important that there should be no prior notification of inspection visits to the employer or her or his representative, unless the labour inspector deems such notification necessary for the effectiveness of the control to be performed. The Committee asks the Government to provide the ILO with a copy of the Act of 19 December 2008. It also asks it once again to take the necessary steps to ensure that the legislation fully complies with this important provision of the Convention. It requests the Government to keep the ILO informed of any progress achieved in this regard and to communicate a copy of any relevant legal provisions.

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

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The Committee notes the Government’s report received on 31 August 2007 and the replies to its previous comments. It also notes the adoption of the Law on the National Labour Inspectorate on 13 April 2007. It would be grateful if the Government would send a copy of this Law to allow the Committee to assess all the amendments made to the legislation giving effect to the Convention. However, the Committee already wishes to draw the Government’s attention to the following point.

Article 12, paragraph 1, of the Convention. Right of inspectors to enter workplaces freely. With reference to its previous observation, the Committee notes that, according to the Government’s indications concerning the contents of the new Law, inspections are still subject to previous authorization to be showed to the employer, except in case of emergency when the authorization is to be provided to the employer not later than seven days after the inspection. The Committee notes that despite its 2005 observation, the legislation has not been amended to bring it into conformity with Article 12, paragraph 1, of the Convention. It is therefore bound to reiterate its previous observation on this issue, which read as follows.

The Committee notes the adoption of the Act of 2 July 2004 on freedom of economic activity, which amends the Act of 6 March 1981 on the National Labour Inspectorate. The Committee notes that section 8(3), as amended, of the Act provides that inspections may be carried out only upon presentation of an authorization from the Chief Labour Inspector or her or his deputies, or district labour inspectors or their deputies, except where circumstances warrant immediate inspection, in which case the labour inspector must present the authorization within three days of the commencement of the inspection. The same section requires the authorization to determine the scope of the inspection in terms of its subject and to indicate the date of commencement and the expected date of completion of the inspection. The Committee further notes that section 80 of the Act on freedom of economic activity requires the employer’s presence at inspections (except in the instances cited in the same section); that section 82 forbids more than one inspection of the enterprise at the same time, so that where an inspection is being performed by an authority other than the inspection service, the labour inspector must postpone her or his visit and set a new date in agreement with the employer; and that section 83 sets limits for the duration, frequency and scope of inspections (other than for the exceptions cited in the same section).

The Committee recalls that, under Article 12 of the Convention, labour inspectors provided with proper credentials shall be empowered to enter freely and without prior notice any workplace liable to inspection and need notify the employer of their presence only if they deem that such notification is unlikely to be prejudicial to the performance of their duties. The Committee also points out that under Article 16, workplaces have to be inspected as often and as thoroughly as is necessary to ensure the effective application of the legal provisions governing working conditions and the protection of workers. In the Committee’s view, the restrictions that the Act on freedom of economic activity imposes on the performance of labour inspection duties are liable to impair freedom of inspectors to inspect workplaces as often as is necessary.

The Committee therefore asks the Government to make sure that the legislation is re-examined in the light of the objectives of the Convention so as to recognize the right of free access of labour inspectors to workplaces, as prescribed by Article 12, paragraph 1, of the Convention. It trusts that the Government will provide in its next report information on significant progress in this regard.

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The Committee refers the Government to its observation and also requests it to provide information on the following points in its next report.

1. Cooperation with inspection services in the European Union. The Committee requests the Government to provide information on the implementation and the results of the cooperation provided for in section 11(d) of the 1981 National Labour Inspectorate Act, as amended by the Act of 16 February 2005.

2. Occupational safety and health and penalties. The Committee notes from the executive summary of the Report of the National Labour Inspectorate on its activity in 2004 that the level of protection of occupational health and safety is still lower than expected and that, despite progress, the equipment used at workplaces, working conditions and the legislation are still below European Union standards. It also notes the information that competition and pressure on costs are the cause of lower spending on occupational safety and health. The above summary also states that urgent reform of the legislation is needed to increase the amounts of fines for breach of labour legislation so as to provide labour inspectors with means enabling them to enforce the law more effectively. The Committee would be grateful if the Government would indicate whether measures have been taken or are envisaged to review the amounts of fines for breach of the labour law to ensure that they are dissuasive. The Government is asked to provide copies of any relevant texts (Article 3, paragraph 1(a), and Article 18 of the Convention).

3. Structure of the inspectorate. The Committee notes the information provided under the Labour Inspection (Agriculture) Convention, 1969 (No. 129), to the effect that there has been structural change in the national labour inspectorate and in the district inspectorates. It would be grateful if the Government would provide detailed information on such change and its effects on the effectiveness of the inspectorate (Article 4).

4. Powers of injunction of labour inspectors. The Committee notes with interest that section 21 of the Act of 6 March 1981 on the National Labour Inspectorate, as amended by the Act of 21 April 2005, authorizes labour inspectors to issue orders mentioned in the same section, regardless of the inspector’s territorial competence. The Committee further notes that under the same provision, inspectors may notify to the director of an establishment a decision ordering elimination of the violation of the occupational safety and health legislation within the prescribed time or a decision to halt work when the violation constitutes a direct danger to the life or health of employees or others working in the establishment, where execution of the decision does not require a decision by the employer and where it would otherwise be impossible to avoid endangering the life or health of the employees. The Committee asks the Government to send in its next report all available information on the effect of these changes in practice (Article 13).

5. Labour inspection and child labour. The Committee notes that since May 2004 labour inspectors have been responsible for issuing and withdrawing permits for the execution of work or other paid tasks by young persons over 16 years of age. The Committee notes the information on the labour inspectorates’ activities in this area for 2004, and requests the Government to continue to provide detailed information on the supervisory and other activities of the inspectorate that pertain to minimum age for admission to employment or work, including data on contraventions reported and the penalties imposed.

6. Occupational risk prevention and inspection methods. The Committee would be grateful if the Government would state whether it has acted on, or intends to act on, the recommendations in the report of the National Labour Inspectorate for 2004 that concern the development of occupational risk prevention programmes that take account of the regions’ specific features and information and education campaigns directed in particular at the identification and prevention of the most common risk factors. It also notes from the same document that inspection methods are to be improved, and requests the Government to describe any developments in this regard, specifying how the effectiveness of inspection has been, or is expected to be, affected.

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Free access of inspectors to workplaces liable to inspection. The Committee notes the Government’s report for the period ending in June 2005 and the attached report of the National Labour Inspectorate on its activities for 2004. The Committee notes the adoption of the Act of 2 July 2004 on freedom of economic activity, which amends the Act of 6 March 1981 on the National Labour Inspectorate. The Committee notes that section 8(3), as amended, of the Act provides that inspections may be carried out only upon presentation of an authorization from the Chief Labour Inspector or her or his deputies, or district labour inspectors or their deputies, except where circumstances warrant immediate inspection, in which case the labour inspector must present the authorization within three days of the commencement of the inspection. The same section requires the authorization to determine the scope of the inspection in terms of its subject and to indicate the date of commencement and the expected date of completion of the inspection. The Committee further notes that section 80 of the Act on freedom of economic activity requires the employer’s presence at inspections (except in the instances cited in the same section); that section 82 forbids more than one inspection of the enterprise at the same time, so that where an inspection is being performed by an authority other than the inspection service, the labour inspector must postpone her or his visit and set a new date in agreement with the employer; and that section 83 sets limits for the duration, frequency and scope of inspections (other than for the exceptions cited in the same section).

The Committee recalls that, under Article 12 of the Convention, labour inspectors provided with proper credentials shall be empowered to enter freely and without prior notice any workplace liable to inspection and need notify the employer of their presence only if they deem that such notification is unlikely to be prejudicial to the performance of their duties. The Committee also points out that under Article 16, workplaces have to be inspected as often and as thoroughly as is necessary to ensure the effective application of the legal provisions governing working conditions and the protection of workers. In the Committee’s view, the restrictions that the Act on freedom of economic activity imposes on the performance of labour inspection duties are liable to impair freedom of inspectors to inspect workplaces as often as is necessary. The Committee accordingly asks the Government to re-examine the provisions of this Act in the light of the provisions and objectives of the Convention.

The Committee is addressing a request concerning other matters directly to the Government.

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Referring to its previous comments by which it noted the observations of the Solidarnosc-80 Union, communicated to the ILO on 5 August 1999, concerning the application of the Convention, the Committee takes note of the Government’s report for the period ending in June 2001 and of the partial information provided in reply to the matters raised by the organization.

According to Solidarnosc-80, the National Labour Inspectorate would have had, on the occasion of an industrial dispute taking place between the management of the Research Centre in Development and its employees, a tendentious and superficial position concerning the decisions taken unilaterally by the director of the Research Centre in Development on questions settled by the company collective agreement. From the union’s point of view, the conclusions of the National Labour Inspectorate would have given a distorted picture of the provisions of the company collective agreement as well as of other legal provisions; its interpretation of the Labour Code provisions would have resulted in them being deprived of their substance in order to favour the management to the detriment of the rights of the workers. The union considers that, acting in that way, the National Labour Inspectorate was failing in its obligation of impartiality between the employers and the trade unions.

In this respect, the Committee notes the information provided by the Government, according to which the question was to find out if the employer, in this case the director of the company, had consulted each of the company’s trade unions with regard to the modifications of the working conditions determined by the collective agreement, such as the labour regulations, the increase in wages, the promotion of certain workers, the distribution of working hours, the allocation of individual allowances and social security benefits. According to the Government, the National Labour Inspectorate has conducted investigations on the spot and, as regards questions of general interest, such as labour regulations, the distribution of working hours and the allocation of individual allowances, it repealed the Centre’s director’s decision on the basis of legal technicality under section 30, paragraph 5, of the Law on Trade Unions. As regards questions of personal interest, such as the increase in wages, the National Labour Inspectorate would have ordered the company director to conform to the provisions of the collective agreement.

The Committee observes that the Government stays silent regarding the allegations of partiality aimed at the National Labour Inspectorate, which stand at the core of the organization’s observation. The Committee would appreciate receiving information in this connection in the Government’s next report, as well as information concerning the manner in which impartiality is ensured from the National Labour Inspectorate in its relations with the employers and the workers, both in private and state-owned companies.

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The Committee notes the Government's reports for the period up to 30 June 1999. It also notes the observations by the Independent Self-Governing Trade Union "Solidarnosc-80" (Enterprise Committee of the Enterprise "Osrodek Badawczo-Rozwojowy Gospodarki Remonotowej Energetyki" -- "OBR-GRE" ("Centre for the Research and Development in the Area of Management and Renewal of Energy")).

1. The Committee notes that in its observations "Solidarnosc-80" alleges that the control exercised by the State Labour Inspection with regard to OBR-GRE is tendentious, superficial and deforms in its conclusions the provisions of the collective labour agreement of the enterprise and other legal texts. The observations further indicate that the interpretation of the material provisions of labour law, given by the labour inspection, are systematically losing their substance and favour the employer by allowing him to act arbitrarily and to exploit his employees. Noting that the Government has not replied to these observations, the Committee hopes that it will provide such information in its next report.

2. Articles 4 and 6. Supervision and control of a central authority; status and conditions of service of the inspection staff. The Committee notes that the State Labour Inspection in Poland is subordinate to the Sejm (Lower Chamber of the Parliament of Poland) and that the supervision over the State Labour Inspection on behalf of the Sejm is exercised by the Labour Protection Council within the scope determined by law. The Committee asks the Government to indicate the measures envisaged to amend the legislation in order to guarantee: (i) the stability of employment to all labour inspectors (including officials employed after 27 January 1995); and (ii) as regards labour inspectors, the independence from external influences of employees performing control activities or exercising supervision, as provided by paragraph 2 of section 24 of the Law on the State Labour Inspection.

3. The Committee further asks the Government to provide detailed information on the application of the following provisions of the Convention:

Article 8. Please indicate the number of women inspectors and whether any special duties are assigned to them.

Article 9. Please indicate whether technical experts and specialists who are not members of the inspection staff are associated in the work of the labour inspection and, if so, what are the forms of such association.

Article 12, paragraph 1(c)(iii). Please indicate whether labour inspectors have the powers provided for in this provision of the Convention, and provide, if so, information on the relevant provisions of the national legislation.

Article 15, paragraphs (b) and (c). Please indicate whether the Act on the State Labour Inspection has been amended to give effect to these provisions.

Article 18. The Committee asks the Government to indicate the specific penalties prescribed by the Code of Petty Offences and the Penal Code for violations of the legal provisions enforceable by labour inspectors and for obstructing labour inspectors in the performance of their duties.

Article 27. Please indicate whether arbitration awards and collective agreements upon which the force of law is conferred are enforceable by labour inspectors.

Parts IV and V of the report form. Please give a general appreciation of the manner in which the Convention is applied.

4. The Committee also asks the Government to provide copies of the following documents:

-- the text of the most recent annual speech of the Chief Labour Inspector to the Sejm;

-- the latest annual report on the activities of the State Labour Inspection;

-- the Act concerning the Social Labour Inspection;

-- Government Resolution No. 123.