Direct Request (CEACR) - adopted 2023, published 112nd ILC session (2024)

Poland

Protection of Wages Convention, 1949 (No. 95) (Ratification: 1954)
Minimum Wage Fixing Machinery (Agriculture) Convention, 1951 (No. 99) (Ratification: 1977)

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In order to provide a comprehensive view of the issues relating to the application of the ratified Conventions on wages, the Committee considers it appropriate to examine Convention No. 99 (minimum wage) and Convention No. 95 (protection of wages) together.

The Committee notes the observations of the Independent and Self-Governing Trade Union “Solidarność” on the application of Conventions Nos 95 and 99, received on 7 September 2023. The Committee also notes the response of the Government to those observations, received on 16 November 2023.

Minimum wage

Article 1 of Convention No. 99. Scope of application. The Committee notes the indication of the Government in its report that a new type of contract, called the harvest assistance contract, has been introduced into the Polish legal regime through an amendment of the Act on Agricultural Social Insurance 1990. According to section 91a of this Act, harvest assistance contracts do not constitute employment under the Labour Code, and the Government indicates that remuneration under such contracts is not subject to the provisions of the Minimum Wage Act 2002. According to the Government, most of such helpers are migrant workers, whose residence permits depend on being paid a legal minimum wage, thereby guaranteeing the payment of minimum wage rates under such contracts. The Government further states that, for Polish workers, help provided under a harvest assistance contract is mostly an additional job supplementing their income from other sources. The Committee nevertheless notes that, according to the observations of Solidarność, harvest assistance is a form of seasonal work which can be intense, and many workers need to earn a living not only for the duration of the season, but also for the period after it. The Government, in its response, considers that migrant workers being paid more than Polish workers under harvest assistance contracts is justified by economic calculations. Taking into account the scope of the Convention, which applies to all workers employed in agricultural undertakings and related occupation, the Committee requests the Government to provide further information on the manner in which it is ensured that there is an adequate machinery fixing minimum rates of wages for workers under harvest assistance contracts, including by indicating the legislative provisions ensuring the protection of such workers under the Convention.

Protection of wages

Article 8(1) of Convention No. 95. Deductions from wages. Following its previous comments relating to deduction of wages under civil law contracts, the Committee notes the observations of Solidarność, which take the view that wages under civil law contracts should receive the same protection as wages falling under the Labour Code. In this regard, the Committee notes the Government’s indication that in accordance with section 833(21) of the Code of Civil Procedure, sections 87 and 871 of the Labour Code apply to all recurrent payments which are meant to secure a livelihood or to represent the sole source of income. According to the Government, the requirements under section 871 of the Labour Code concerning the upper limit of deductions and the amount cleared of deductions would therefore apply to such civil law contracts. The Committee also notes the Government’s indication that a small number of inspections in 2022 identified infringements related to deduction of wages, among other violations. The Committee requests the Government to provide further information on the application of section 833(21) of the Code of Civil Procedure in practice, including on the number of labour inspection visits undertaken, the infringements detected in relation to deduction of wages under civil law contracts, and measures taken as a result.

In addition, the Committee notes the Government’s indication that, regarding deductions permissible under section 82 of the Labour Code, a prerequisite for refusal to pay or for reductions of remuneration is the establishment of the worker’s fault, involving the failure on the part of the worker to meet their due diligence obligation, both in cases of wilful misconduct and unintentional fault. The Government further indicates that there must be a causal relationship between the faulty execution of the work and the worker’s conduct, with the burden of proof resting on the employer. With reference to paragraph 248 of its 2003 General Survey on the Protection of Wages, the Committee requests the Government to indicate the procedural safeguards in place and upper limits prescribed by national laws or regulations or fixed by collective agreement or arbitration award, that are applicable to the deductions permitted under section 82 of the Labour Code.

Article 12(1). Regular payment of wages. Following its previous comments on the issues relating to wage arrears in several sectors, the Committee notes the statistics provided by the Government relating to the results of inspection visits and the number of infringements detected during the reporting period. In particular, the Government indicates that, in the period 2019–21, the most frequently identified violations concerned timeliness of wage payments (identified in 47.7 percent of inspections in 2019, 49.4 percent in 2020 and 49.5 percent in 2021). The Government further indicates that, in 2022, one out of two inspections that identified violations of the wage-related provisions of the Labour Code was conducted at an entity that employed nine people or less. Noting the persistent issues related to regular payment of wages found during labour inspection visits, the Committee urges the Government to indicate the measures taken to improve compliance with Article 12(1) of the Convention in practice, with a focus on the sectors where irregularities are most often detectedandon small enterprises.