Direct Request (CEACR) - adopted 2006, published 96th ILC session (2007)

Social Security (Minimum Standards) Convention, 1952 (No. 102) - Poland (Ratification: 2003)

The Committee takes note of the Government’s first and second reports and would be grateful for additional information on the following points.

1. Part V (Old-age benefit) of the Convention. The Committee notes that Poland undergoes a transition from the former pension system, which remains in force for those born before 1 January 1949, to the new system consisting of a defined contributions scheme plus a second pillar of mandatory individual accounts in the open pension funds, which covers persons born after 31 December 1968. Those born in between may choose to join the new system. Thus, theoretically, the first pensions under the new system will be paid starting from
1 January 2009 to women born after 31 December 1948 who have reached the statutory retirement age of 60 years. The Committee further notes that, according to section 50 of the Social Insurance System Act of 13 October 1998, since 2006 the Social Insurance Institution shall be obliged to present the insured born after 31 December 1948 with information on the contributions accumulated in the insured person’s individual account, the amount of indexed initial capital and the amount of a hypothetical retirement pension. The Committee would like the Government to provide in its next report examples of calculation of such a hypothetical retirement pension for beneficiaries earning the reference wage who will retire starting from 1 January 2009 after 30 years of contributions or employment.

2. The Committee notes that section 85(2) of the Act on retirement pensions and disability pensions from the Social Security Fund provides for the minimum pension for retirement, total disability and loss of the breadwinner and that, according to section 23(1), the lowest retirement or disability pension is paid, in particular, in case the assessment basis for the pension cannot be determined. Pensions of the persons who have joined an open retirement pension fund (section 87(8)) or who have completed a reduced qualifying period (section 28) of 15 years for women and 20 years for men shall not be increased to the level of the lowest retirement pension (section 54). Increases up to the lowest pension take into account the life annuity from a retirement pension company (section 87(1)) and do not apply to persons earning an income exceeding the amount of an increase (section 87(5)). The Committee further notes from the Government’s report that each retirement pension contains a “social part” equal to 24 per cent of the base amount (439.02 PLN in 2004) aimed at protection of persons with lower income and shorter employment period. The Committee would like the Government to explain the relationship between the social part of the pension and the minimum pension and to specify cases in which an insured person would have the right to the minimum pension only.

Part VII (Family benefit). In relation with Article 69. (a) Under section 23(5) of the Family Benefits Act, the Minister for social security matters shall issue a regulation to determine the procedure for granting, withholding or suspending family benefits. Please indicate whether such regulation has been issued and, if so, explain its provisions authorizing withholding or suspending family benefits.

(b) The Committee notes that Chapter 9 of the Family Benefits Act contains a number of transitory provisions, which require the establishment of appropriate bodies for granting and paying out family benefits, as well as the supervising body. It would like the Government to indicate in its next report what bodies were established and how the family benefit branch is organized and managed in Poland.

3. According to section 19(3) of the Family Benefits Act, since 1 September 2009, the amount of family allowance cannot be smaller than 40 per cent of the value of the food basket for a given age group determined by research on survival minimum. Please indicate whether such research has already been carried out for the age groups concerned and what percentage of the value of the food basket is compensated by the family allowance in the reporting period.

4. Article 44. The Committee notes that calculation of the total value of the family benefits made in the reports is done on the basis of an estimated amount of average monthly earnings of a male labourer in manufacturing, taken as the reference wage of an ordinary adult male labourer under Article 66 of the Convention, after deduction of compulsory social insurance contributions. The Committee would be glad if in its future reports the Government would use, for the purpose of assessing compliance with Article 44, the reference wage taken in gross figures, which is before deduction of any social security contributions or taxes. The Committee observes that recalculated on the basis of the gross reference wage of the ordinary adult male labourer, the total value of family benefits in Poland still largely exceeds the minimum level prescribed by this Article of the Convention.

Part VIII (Maternity benefit), Article 52. 1. Section 29(3) of the Law on cash social security benefits in respect of sickness and maternity of 25 June 1999 provides that, where the right to maternity benefit arose during parental leave, the benefit shall be due only for the period of maternity leave which continues after childbirth. Section 29(5) of the Law exempts this limitation from the general rule, according to which maternity benefit shall be provided during the whole period of maternity leave prescribed by the Labour Code (section 184 of the Code). The Committee would like the Government to explain how the suppression under section 29(3) of the Law of the maternity benefit for the period of maternity leave prior to the confinement accords with section 180(3) and (4) of the Labour Code, according to which a woman has to take at least two weeks of maternity leave before confinement and conserves her right to maternity leave not taken prior to the birth, after confinement. The Committee notes in this respect that section 184 of the Labour Code establishes, as does Article 52 of the Convention, the principle of maintaining parity between the prescribed periods of maternity leave and the payment of maternity benefit. From that point of view, the limitation contained in section 29(3) of the said Law would be contrary to Article 52 of the Convention, which requires maternity benefit to be paid throughout the contingency, including during the period of pregnancy before childbirth, and expressly forbids a Member to limit the benefit period to a period less than the period of maternity leave authorized by national law, which in Poland attains at least 16 weeks. The Committee further notes from section 10(2) of the Family Benefits Act that the parental leave allowance paid to the woman concerned before the confinement would be much lower than the amount of the maternity benefit to which she would otherwise be entitled under Polish law (100 per cent of previous earnings) and would not attain even the minimum level prescribed by Article 50 of the Convention (45 per cent of the reference wage). It therefore asks the Government to indicate in its next report the measures taken to ensure that a woman on parental leave will receive in case of maternity for the protected period prior to the confinement a cash benefit of the amount and the duration at least equal to those prescribed by the Convention.

2. The Committee notes that, according to the Government’s report, if another child is born during paternity leave or after cessation of employment, the maternity allowance is payable for the period shortened by two weeks. It would like the Government to provide the text of the corresponding provisions of the legislation and to assess their compatibility with Article 52 of the Convention in the light of the Committee’s comments made above under point 1.

Part XI (Standards to be complied with by periodical payments). The Committee notes that calculation of the replacement level of old-age and survivors’ benefits is done in the reports by reference to the average gross monthly wage in the national economy after deduction of compulsory social insurance contributions by the person insured. It points out that, while to facilitate international comparison, governments, as a rule, are requested to take the gross wage as the reference wage for the calculation of periodical benefits, in countries where wages and benefits are being taxed differently, it may be more appropriate to use the net wage, i.e. the amount of wage after deduction of taxes and social security contributions. This would be the case in particular in countries where the benefits in question are exempted from taxes and social security contributions. In such case, however, both taxes and social security contributions should be deducted from the gross wage and not only social security contributions alone, as was done in the Polish reports. In view of these explanations, the Committee would like the Government in its next report to explain taxation rules applied to wages and social security benefits and to calculate the replacement level of old-age and survivors’ benefits using statistical data on both gross and net income, i.e. the amount of wages and benefits before and after deduction of taxes and social security contributions.

Part XIII (Common provisions), Article 69. 1. The Committee notes that, by virtue of section 103(3) of the Act, eligibility for a retirement, disability and survivors’ pension may be withheld “on application of the retiree or pensioner himself”. Please explain the purpose of this provision and its application in practice.

2. The Committee notes that section 139(1), clauses 3-5, of the Act authorize deduction from cash benefits amounts exacted on the basis of “executory” decisions to cover alimony and amounts due other than alimony. Section 140(1) and (6) sets certain limits for the deductions of alimony and other receivables and section 141(1), clause 1, fixes the portion of the retirement benefit exempt from these deductions at 50 per cent of the lowest retirement pension. According to section 142, all other deductions from cash benefits not covered in sections 139-141 are regulated by the provisions of the Civil Code or administrative executive proceedings. With respect to the abovementioned deductions from cash benefits, the Committee would like the Government to clarify in its next report the following questions:

–           what types of receivables are deductible by virtue of section 139(1) of the Act, clauses 3, 4 and, in particular, 5;

–         what type of deductions from cash benefits could be made on the basis of provisions of the Civil Code or administrative executive proceedings;

–         whether deductions can be made only on the basis of the decisions made by the courts of law or whether they can be made on the basis of the decisions of the administrative bodies as well;

–         whether the protected part of the pension amounting to 50 per cent of the lowest retirement pension would be sufficient to ensure the survival minimum of the pensioner concerned and, if not, how he/she is supposed to survive if the pension provides his only source of income.