Forced Labour Convention, 1930 (No. 29) - Poland (Ratification: 1958)
Protocol of 2014 to the Forced Labour Convention, 1930 - Poland (Ratification: 2017)

Individual Case (CAS) - Discussion: 2017, Publication: 106th ILC session (2017)



A Government representative stated that ensuring conditions for decent and safe work for all employees in Poland was particularly important and that the national policy in that respect corresponded to the policy of the European Union (EU) and of the whole democratic international community. She considered that migrant workers should be particularly protected and believed that regulations in Poland allowed for preventing and combating forced labour, including as a specific form of trafficking in persons. Many institutions were involved in fighting the phenomenon, including the Ministry responsible for internal affairs, the police, the border guard, the Prosecution Office and the National Labour Inspection, and their activities were coordinated by the Inter-Ministerial Team for Combating and Preventing Human Trafficking (Inter-Ministerial Team). Furthermore, the National Action Plan against Human Trafficking was regularly updated, especially its part on the forced labour of migrants. In August 2016, the Council of Ministers had adopted the Plan for 2016–18 providing for the implementation of many activities aimed at securing the needs of Polish and foreign victims of trafficking in persons. Those activities included information campaigns aimed at raising awareness of the phenomenon of trafficking in persons for forced labour and of the associated risks, cooperation with employers’ organizations and temporary job placement agencies in terms of combating forced labour, developing the National Intervention and Consultation Centre for victims of trafficking in persons, as well as providing training and handbooks for employees of institutions dealing with the issue of trafficking in persons and forced labour. In 2017, as a result of the work of a group of experts for victim support of the Inter-Ministerial Team, the document “Practices of a labour inspector of the National Labour Inspection in case of suspected forced labour” had been updated and used for the training of labour inspectors. In 2016, in cooperation with the public television, the Ministry of the Interior and Administration had broadcast a prevention advertisement 72 times, and between October and December 2016, it had organized an outdoor information campaign in three cities on trafficking in persons for forced labour. A mobile exhibition entitled “Faces of trafficking in human beings” provided general information about the phenomenon of trafficking in persons, where to seek help, as well as about the forms of exploitation, including forced labour. Its content had been prepared in three language versions – Polish, English and Russian – and the exhibition had been presented in the majority of regions, particularly in regional government offices, schools, universities, bus and train stations and airports. The National Action Plan also provided for the preparation of an analysis of the feasibility of detailing the national provisions to facilitate swifter and more efficient identification of cases of forced labour, a task that had also been included in the National Action Plan for the implementation of the UN Guiding Principles on Business and Human Rights for 2017–20. Apart from that, Poland had also adopted and implemented provisions ensuring equal treatment of foreigners in terms of employment. The number of controls of the legality of employment and working conditions of foreign nationals carried out by the competent authorities increased every year. For example, the National Labour Inspection had conducted 4,257 such controls in 2016, which was 44 per cent more than in 2015 and 90 per cent more than in 2014. She considered that any cases of serious infringements of migrant workers’ rights, such as infringements related to forced labour, could only be of a purely incidental nature and under no circumstances could such incidents be considered to occur systematically. However, she explained that Poland was becoming the country of destination for a steadily growing number of labour migrants, especially for short-term employment, and the Government was aware of the fact that the situation presented numerous challenges, including the need to adjust the existing provisions and to teach institutions which had not had frequent contacts with foreign nationals the practical methods of solving the emerging problems.

Recently, there had been some indications pointing to the employment of workers from the Democratic People’s Republic of Korea (DPRK) in Poland, which could have contained elements of forced labour. However, the Government had treated such signals with the utmost seriousness – steps had been taken to verify such allegations and carefully analyse the conditions of employment of DPRK citizens in Poland. Poland was not a party to any bilateral agreement with the DPRK, which would provide for any kind of cooperation in the field of the exchange of workers, and the Polish authorities, including the Embassy in Pyongyang, neither participated in any way in employing DPRK citizens nor carried out any promotional activities in that regard. Employment of DPRK citizens took place only as an activity of individual entities and their numbers in recent years had amounted to a dozen or several dozen a year. Foreign employees were, in principle, subject to the same labour law as Polish citizens and work by DPRK citizens in Poland was thus governed by the current Polish regulations. For a work permit to be issued to a foreign national staying in Poland, the worker must be offered a salary comparable to the salary of other employees in a similar position and the terms included in the agreement must be compatible with those specified in the work permit. The law provided for statutory sanctions for entities which had committed infringements in relation to employing foreigners and the relevant institutions were in charge of controlling, on a regular basis, the legality of the stay and employment of DPRK citizens and other foreign nationals in Poland. The border guard constantly monitored the activities of DPRK citizens and kept the national border guard headquarters informed of the appearance of entities employing DPRK citizens in the region under their jurisdiction and the control measures taken against entities employing DPRK citizens and against those citizens. Given the signals revealed in 2016, controls conducted by the National Labour Inspection and the border guard had in practice covered all entities employing DPRK citizens in Poland. The verifications had not confirmed infringements against DPRK employees related to forced labour and there had been no violations concerning non-payment of wages for DPRK citizens, involving both non-payment or payment of wages lower than those indicated in work permits. Nevertheless, the control authorities had paid attention to the fact that a lack of cooperation between them and the potentially affected DPRK citizens could be observed and could hamper control activities by preventing an objective assessment. She considered such a situation to be challenging and sensitive, especially if actions taken by the host country could pose a threat to the worker or his or her family residing in the country of origin, and expressed an interest in hearing the experience of other countries and the social partners on how to cope with such challenges. She further indicated that control authorities and institutions involved in the issuance of work permits to foreigners had increased their vigilance to worrying signals which could indicate suspected exploitation of DPRK nationals. She also underlined that each entity employing a DPRK national in Poland should be aware of the fact that it would receive attention of the competent institutions and each abuse observed would be punished in accordance with the applicable law. In conclusion, she emphasized that in 2016 and 2017 the Embassy of the Republic of Poland in Pyongyang had not issued any visa for DPRK citizens to seek employment and the only persons currently working in Poland would be those who had been in the country earlier. Therefore, the level of presence of DPRK employees on the Polish labour market, which had already been marginal – below 0.1 per cent of all foreign nationals working in Poland – was gradually decreasing. On 1 January 2017, there had been 400 DPRK citizens in Poland with valid residence permits other than visas, including 368 temporary residence permits and 31 long-term EU residence permits, but not all of them worked in Poland. A general prohibition of arrival and taking up a job would have no basis in the applicable law, either at the national or EU levels. It would constitute discrimination on grounds of nationality and would also raise questions as to the best means of action in the case of countries known to disrespect fundamental civil rights. She questioned whether a total isolation of those countries, including a total prohibition of taking up a job, would be the best solution. Apart from the fact that probably not all the countries would agree to implement such a measure, the question remained as to whether such isolation would have any positive effects from the perspective of civil freedoms in such countries. She concluded by stating that the employment of DPRK citizens was a specific case that should not be generalized in the overall picture of the employment of foreign nationals in Poland, but that such cases should, due to their nature, be considered with particular care, on the basis of well-documented data, while maintaining a certain proportion to the scale of detected abuse.

The Employer members emphasized that Poland had ratified this fundamental ILO Convention nearly 60 years ago, thereby formally undertaking to suppress the use of all forms of forced or compulsory labour immediately and definitively throughout its territory. The national authorities therefore needed to remain proactive and ensure not only that the legislation was in conformity with the Convention, but also that it was enforced effectively throughout the national territory. The authorities needed to show special vigilance in identifying the changing and unknown forms that could be taken by forced labour. The necessary human and financial resources therefore needed to be allocated to the inspection services in order to guarantee the development of the professional competence and legal and ethical independence of the respective officials. It was also necessary to ensure that victims had easy access to justice to denounce any exaction, and that the perpetrators and their accomplices were systematically prosecuted and severely punished. The report of the United Nations Special Rapporteur on the situation of human rights in the DPRK referred to the situation of around 50,000 North Korean workers sent by their Government to work in several countries under conditions that amounted to forced labour. The Special Rapporteur referred to 18 countries, including Poland, which were reported to be implicated in this system of forced labour, without providing indications of the number of victims in each country. However, it appeared that the great majority of such workers were not engaged in Poland. The Special Rapporteur referred to the independent study conducted in 2014 by Shin Chang-Hoon and Go Myong-Hyun, according to which around 500 workers from the DPRK were victims of forced labour in Poland. While this figure had been corroborated by the Independent and Self-Governing Trade Union “Solidarnosc”, which reported several hundred North Korean workers in Poland, it had however been contested by the Government of Poland and the Organization of Polish Employers. The Government indicated that the labour inspectorate had not identified any form of forced labour by migrant workers from the DPRK. No evidence of specific irregularities had been found in the calculation or payment of wages or in the working conditions of DPRK workers in Poland. It was necessary to give credit to the investigations and findings of the labour inspectorate. In this regard, the Committee of Experts had welcomed several positive initiatives adopted by Poland to improve the quality and effectiveness of the labour inspection services, particularly in relation to the detection of situations of the trafficking of persons for forced labour. The Organization of Polish Employers also considered that the Polish legislation protected migrant workers through the specific obligations placed on employers. In practice, the labour inspectorate was focusing its efforts on the working conditions of Ukrainian migrant workers, who numbered around 1 million in Poland, and several thousand inspections were carried out each year. With regard to forced labour, according to a 2016 inspection report, only ten DPRK workers had been found in an irregular situation in Poland.

The Employer members also considered that the data provided by “Solidarnosc” relating to DPRK workers discovered in a plantation some ten years earlier did not offer serious grounds for the discussion in the Committee. In view of the lack of clarity in the allegations against Poland, it was rather surprising that such a situation had immediately been given a “double footnote” by the Committee of Experts. Under no pretext should forced labour be organized at the initiative of any government, public authority or enterprise. Nevertheless, in view of the contradictions between, on the one hand, the report of the United Nations Special Rapporteur, corroborated by “Solidarnosc” and, on the other, the point of view of the Government and Employers of Poland, the Government should be strongly encouraged to continue its investigations and to use all the necessary means to gain a better understanding of the situation experienced by DPRK nationals working in Poland. It was essential to assess fully and objectively whether the living and working conditions of these workers were in accordance with fundamental labour standards. If forced labour practices were detected, the victims would need to be identified and protected. Moreover, beneficiaries of such illegal practices would need to be identified and, following a fair trial, punishments would be imposed that were commensurate with the gravity of the offences. The Employer members finally considered that, if situations of forced labour organized by the Government of the DPRK were found in Poland, one of those principally responsible for such abuses would be the Government of the DPRK itself which, due to the fact that it was not a Member of the ILO, was voluntarily removing itself from international society, including the ILO supervisory machinery.

The Worker members welcomed the ratification by Poland of the Protocol of 2014 to Convention No. 29, which adapted that instrument to modern forms of forced labour. Poland was therefore joining the action taken to combat all forms of forced labour, including trafficking in persons, which was one of the most urgent problems of the twenty-first century. What was necessary in the present case was to assess the application of the Convention in practice and, in particular, the serious difficulties identified by the Committee of Experts relating to the vulnerability of migrant workers to the exaction of forced labour. These difficulties had led the Committee of Experts to insert a “double footnote” in its observation. The case also showed that forced labour was a phenomenon that affected all countries and which therefore required constant and generalized vigilance. In a context of significant migration flows, migrant workers were particularly vulnerable and were at greater risk of forced labour. Poland appeared to be a country of destination for those who exploited labour migrants, and particularly workers sent to Poland by the DPRK. However, migrant workers from other countries were also vulnerable to such practices. Although the Polish State was not directly imposing forced labour on these workers, it nevertheless had the duty and responsibility to prevent, bring an end to, and punish such practices. Inspections targeting establishments employing DPRK nationals had not identified situations of forced labour. That might seem surprising in light of the comments made by “Solidarnosc” and the United Nations Special Rapporteur concerning a system under which they were sent by their Government to work abroad, including in Poland. The pay of these workers was then largely sent back to the Government of the DPRK. The Polish Government should take measures to reinforce the capacities of the authorities responsible for the enforcement of the law and the labour inspection services, and to ensure that the penalties imposed were really effective and strictly enforced. For many years, the issue of the effectiveness of the resources allocated to combating forced labour had been the subject of repeated comments by the Committee of Experts. The efforts made by the Government up to now were insufficient and needed to be strengthened. It would also be desirable to explicitly criminalize forced labour in the legislation and no longer address the matter solely through the legislation on trafficking in persons. The latter concept did not necessarily cover all forms of forced labour. The Government also needed to continue taking measures to protect the victims of forced labour and to enable them to denounce their situation.

With regard to the possibility for prisoners to work for private employers, the Worker members recalled that the Convention excluded from the definition of forced labour work exacted from any person as a consequence of a conviction in a court of law. Work imposed in this context had to be carried out under the supervision and control of a public authority and the prisoner must not be hired to, or placed at, the disposal of private individuals, companies or associations. However, the Committee of Experts considered that, where the necessary safeguards existed to ensure that the persons concerned offered themselves voluntarily, without being subjected to pressure or the menace of any penalty, such work did not fall within the scope of the Convention. Nevertheless, the context in which such consent was given, namely imprisonment, made it difficult to assess the truly voluntary nature of the consent. That was why real safeguards were required in the legislation. The Committee of Experts had emphasized that conditions of work approximating those of a free labour relationship were the most reliable indicator of the voluntary nature of work. The free consent of workers therefore needed to be assessed in light of the various conditions of work, including the level of wages, social security and occupational safety and health. Polish legislation required prisoners to consent to work, without however requiring such consent to be noted formally. It was therefore essential to adopt provisions guaranteeing that prisoners gave, formally and beforehand, their free and informed consent to such work.

The Worker member of Poland noted that there could be no doubt that DPRK citizens were working in Poland, as reported by journalists and confirmed by inspection reports by the National Labour Inspectorate. However, inspectors had neither been able to confirm the limitations on the movements of DPRK citizens within Poland, nor the transferral of their remuneration to DPRK accounts, since payment of remuneration had been confirmed by the mention of the employees on the payment list. Similarly, in light of the limited information received, labour inspectors were not in a position to confirm that DPRK citizens were indeed supervised by a “guardian” or a representative of the government of their country of origin. While Poland had no legal definition of forced labour, applicable regulations provided for action against illegal work where work was performed under conditions of imprisonment, physical or psychological violence, deprivation of food or withholding of documents. Provisions in Chapter XXVIII of the Penal Code addressed offences against the rights of persons engaged in gainful employment, and relevant provisions were also contained in the Act of 15 June 2012 concerning the effect of employing foreigners residing illegally on the territory of the Republic of Poland (Text No. 769), and the Act of 10 June 2016 on the posting of workers in the framework of the provision of services (Text No. 868). In extreme cases, the provisions of the Penal Code criminalizing slavery could also apply. Nevertheless, media reports in recent years had pointed to cases of DPRK citizens being subjected to forced labour on Polish territory, including situations in the construction and shipbuilding sectors. The National Labour Inspectorate, while acknowledging possible violations of labour laws in some cases, could not confirm that work had been exacted under the threat of punishment or coercion. Nevertheless, the fate of DPRK workers remained a source of concern that would require continued monitoring. In conclusion, she noted that, while the possibility of the existence of forced labour in Poland could not be denied, the legal confirmation of its existence was difficult. She stated that an international debate on the situation of DPRK workers was needed. At the same time, the Polish Government needed to work on amending the legislation in order to provide for a legal definition of forced labour and, given the scale of DPRK workers’ employment in Poland, to provide a sufficient number of Korean sworn translators. Technical assistance by the ILO could help in the development of more effective national regulations and other instruments to support the formal proof of forced labour. The Polish Government was encouraged to seek ILO technical assistance in this area.

The Worker member of the Netherlands stated that the Dutch Federation of Trade Unions (FNV) had closely followed the case of DPRK workers in the EU and in Poland, in particular. In cooperation with the Leiden Asia Centre of Leiden University, research was being conducted into the DPRK’s practice of dispatching workers to the EU. Based on reports of the National Labour Inspectorate of Poland, in-depth interviews, company information and other relevant data, clear examples had been found of serious abuse of DPRK workers employed in Poland, which allowed the conclusion that there was reason for concern about forced labour. Given the difficulty encountered by the National Labour Inspectorate to prove forced labour, it was important for the National Labour Inspectorate to have full competence to investigate all aspects and indications of forced labour, and for all officials involved to receive proper training. It was also recalled that the National Labour Inspectorate had been able to report in detail on several cases of forced labour, where workers had been misled, illegally employed and taken advantage of, and had not received proper payment, holiday allowances or holiday leave, and that such infringements had been reported in at least 77 cases. The speaker provided details of one particular case – a fatal accident of a DPRK worker, Chon Kyongsu, in August 2014, in a shipyard in Gdynia – and indicated that the Polish Labour Inspectorate had subsequently looked into the case, and found a number of illegal practices.

In light of the Convention, at least a number of indicators for forced labour were met: DPRK workers, who had been sent from a country labelled by the UN as a country with unprecedented infringements of human rights, were likely targets for abuse of their vulnerability; the Labour Inspection had reported several cases of workers who had been misled or taken advantage of; passports were either kept at the embassy or with the managers; and workers did not know when and how much they would be paid. Considering that Dutch companies were buyers of products produced with the possible use of forced labour, both Dutch trade unions and the Dutch Government had a clear interest in the situation of DPRK workers in Poland and were of the view that companies must take responsibility in the supply chain. The Dutch Minister of Foreign Affairs had also expressed his concern and his intention to follow the situation as well as the measures taken in this regard. She welcomed the timely ratification by Poland of the 2014 Protocol to Convention No. 29 and trusted that efforts to implement the Protocol would lead to better instruments to fight such practices. With a clear definition of forced labour, protection for victims and access to remedies, including compensation, deterrent fines for infringements, and the strengthening of the National Labour Inspectorate, the Government would be in a better position to address forced labour.

The Worker member of Italy indicated that over one million Ukrainians lived in Poland. Most of them had decided to migrate to Poland after the 2014 military conflict in eastern Ukraine, when the currency value had sharply declined and prices had risen. While the Committee of Experts only drew attention to Korean workers, the living and working conditions of migrants coming from nearby countries was also important. These issues were included in the direct request addressed by the Committee of Experts to the Government. The issue was of particular concern in light of the 2016 Global Slavery Index, which estimated that 181,100 people or 0.48 per cent of the total population, lived in conditions of modern slavery in Poland. According to those data, forced labour especially affects migrant populations. Data from the Walk Free Foundation indicated that construction, domestic work, other manual labour and manufacturing were the sectors most affected. Regionally organized crime organizations were implicated in forced begging. Roma mothers from poor communities in the Republic of Moldova and the Ukraine were offered jobs in the sales or care sectors in Poland, but had their passports confiscated upon arrival. Along with their children, they were forced to beg on the streets. According to estimates of the National Bank of Poland, 91 per cent of Ukrainian migrants in Poland had secondary or higher education, but as many as 70 per cent performed manual labour. According to information from the Foundation Nasz Wybór, in charge of helping Ukrainian citizens in Poland, selling fictional jobs was a serious issue, which increased undeclared work and left the labour rights of many workers unprotected. According to estimates of the Halina Niec Legal Aid Centre, the number of victims of trafficking in persons in Poland reached several hundred every year and included a growing number of Ukrainians. It was difficult to estimate how many cases of modern-day slavery including trafficking for forced labour remained unreported. A 2015 report by the European Union Agency for Fundamental Rights highlighted Poland as one of the EU countries in which workers in the grey economy were most vulnerable to being exploited. The Agency had looked at severe labour exploitation across the EU with particular emphasis on migrant workers. The Polish agricultural sector had been repeatedly mentioned, as no authority in Poland was permitted to monitor working conditions in private farms. According to the same report, Poland was one of the four European countries where less than 1 per cent of all employers were inspected. Immediate and concrete action was needed from the Government, to establish cross-border cooperation to stop trafficking networks, protect migrant workers from abusive practices, identify the victims of forced labour, and guarantee the prosecution of perpetrators.

The Worker member of Norway, speaking on behalf of the trade unions of the Nordic countries, stated that, according to reports from “Solidarnosc” DPRK workers were being exploited and used for forced labour in Poland. Those observations had been confirmed by reports from various United Nations and EU agencies dealing with human rights, as well as reports by Polish scientists, researchers and the press. A report by academics from the Leiden Asia Centre of Leiden University in the Netherlands claimed that DPRK workers’ salaries were paid to managers and sent back to Pyongyang. According to United Nations estimates, the DPRK earned as much as £1.6 billion a year from workers it sent overseas. Human rights activists further claimed that tens of thousands of DPRK citizens had been sent abroad to work in about 40 countries as “state-sponsored slaves”. According to the Leiden report, the workers in Poland received a “minimal livelihood allowance” while often working more than 12 hours a day, six days a week. She also noted that, according to a report by the European Union Agency for Fundamental Rights, Poland was one of the countries where workers in the grey economy were most vulnerable. Several incidents with migrant workers from many countries had been detected, and Poland was one of four EU countries in which fewer than 1 per cent of employers were inspected. It was thus difficult for labour inspectors to control employers or to force them to meet their obligations, with a resulting increase of the risk of abuses, including trafficking in persons. Limitations in the legal capacities of labour inspection were especially apparent in the case of migrant workers, where the employer was a foreign entity not formally operating in Poland. In such cases, the employer’s representative was responsible solely for documents confirming the legality of stay and the work permit, while inspectors had limited possibilities to communicate with workers because of restricted access to interpreters. As a result, labour exploitation of migrants could easily go unnoticed. Although there were no legal obstacles for the workers to receive salaries in their country of origin, some countries could use internal legal provisions to carry out deductions. This was a common practice used by the DPRK Government, which deducted so-called voluntary fees as contributions for the socialist revolution. In conclusion, she noted that forced labour was prohibited in Poland and that it was not a common phenomenon, although changes in the law needed to be made when such cases were reported, in order to effectively prevent and protect foreign workers from forced labour and labour exploitation. Awareness should be raised among labour inspectors, enforcement agents, prosecutors, judges and among the public, and the Government needed to improve monitoring of recruitment processes, while ensuring law enforcement.

The Government member of the Republic of Korea indicated that the issue of DPRK overseas workers had been a matter of concern for the international community not only from the standpoint of international labour standards, but also from other perspectives, including human rights and international security. Recent resolutions of the United Nations General Assembly and Human Rights Council had expressed serious concern at the violation of DPRK overseas workers’ rights. The United Nations Security Council, through resolution 2321 in 2016, had also voiced serious concern that DPRK nationals were sent to work in other States for the purpose of earning money that the DPRK used for its nuclear and ballistic missile programmes, and had called upon States to exercise vigilance over that practice. While recognizing the measures taken by the Government of Poland regarding the working conditions of DPRK workers, and having full confidence that the recommendations made by the Committee of Experts would be faithfully implemented, it was to be hoped that the Government of Poland and the ILO would continue to make efforts to ensure that the working conditions of DPRK workers in Poland were in accordance with relevant international standards.

The Worker member of Germany noted that the case at hand exemplified the fact that forced labour organized by the DPRK had gained a presence in the EU. There could be no doubt that the DPRK used forced labour to finance its military ambitions and maintain its system of oppression. That type of forced labour was systematically managed through enterprises such as those based in Poland. It should be taken for granted that this system did not only exist in the shipbuilding industry, and that Poland was not the only country in which the DPRK was gaining hard currency through the use of forced labour. She also drew attention to an additional dimension of these human rights violations, noting that the concerned enterprises were certified by NATO and thus eligible to participate in the public procurement of military contracts. At the same time, these enterprises had benefited from public funds, such as the European Regional Development Fund. Client companies of such enterprises that were located in different countries of the EU were also profiting from the particularly inexpensive labour cost.

Given that the prohibition of forced labour was part and parcel of universal human rights norms, and in light of the applicable United Nations, EU and ILO instruments, she noted that the protection of human rights was not only the responsibility of States, but also of companies, which had to ensure that they did not violate human rights in their business operations. In order to ensure that responsibility for the protection of human rights could be properly discharged, it was necessary to guarantee transparency and public access to information. Thus, it was essential for the results of labour inspection to be made accessible and for additional independent investigations to be conducted. Such a process should also be accompanied by the ILO. Furthermore, responsible enterprises and public entities needed to refrain from placing orders with companies associated with the violation of universal and fundamental human rights and should also abstain from participating in state-organized systems of forced labour, such as that established by the DPRK.

The Government member of Norway, also speaking on behalf of the Government member of Iceland, indicated that forced labour was always unacceptable, and that all member States were expected to do their utmost to eliminate forced labour in all its forms. There was concern about the situation of migrant workers from the DPRK, as described in the report of the Committee of Experts, including the information submitted by the Special Rapporteur of the United Nations. Therefore, all receiving countries needed to pay very close attention to the circumstances and conditions under which those workers worked and lived. The monitoring of compliance by the labour inspectorate could often be very difficult. In that context, it was important to promote more transparency in supply chains. Forced labour was a serious violation of fundamental rights. Hence, receiving countries were strongly encouraged to take all the necessary measures in order to prevent its occurrence.

The Worker member of the United States recalled, with regard to the situation of the forced labour of DPRK migrant workers in Poland and other countries, such as Ukraine, the efforts of the United Nations to ensure “safe, regular and orderly” migration. According to documents provided to researchers, such workers were documented and arrived with permits to work in Poland. On the other hand, the process by which the Government of the DPRK mobilized those workers was largely hidden. Independent researchers and the National Labour Inspectorate had documented inconsistencies in the complex chain of employment relationships in production by well-known shipbuilding and maintenance operations, as well as in other sectors at least one of which is certified by NATO and therefore can bid on public contracts using taxpayer money from numerous countries. In Poland, those workers lived and worked in a grey area. While their status as persons authorized to work in Poland was regular, according to Polish and EU rules, the conditions in which they lived and worked there and under which they were paid was less clear. More transparency and accountability all along the supply chains using such workers – from labour recruitment to health and safety issues to wages and conditions – was needed. Regardless of the fact that in their country of origin their rights were not respected, the countries and companies in which they worked had the obligation to protect and respect those rights. The Leiden report referred to the profit made all along these supply chains. The Government of Poland should take measures to improve the situation. The discussion in the Conference on labour migration should address those issues and should ensure that each worker was recognized as a person entitled to rights, not just as labour.

The Government representative thanked all participants in the discussion and considered that the comments and suggestions from different perspectives were extremely valuable. Having acknowledged that the increasing inflow of foreigners seeking jobs in Poland presented a great challenge in terms of ensuring safe and decent working conditions and, in particular, protecting them against exceptionally severe forms of abuse, she considered that the views expressed could help Poland to comprehensively approach the issue. Poland had always carefully listened to the voice of the ILO and she expressed full commitment to the implementation of the recommendations formulated by the Committee. Furthermore, updated information and well-documented statistical data would be provided in the 2017 report on the application of the Convention.

The Worker members welcomed the information provided by the Government representative, which demonstrated Poland’s willingness to continue working to improve the application of the Convention. To this end, the Government would have to:

– strengthen the capacities and competencies of the law enforcement authorities and labour inspection services, with a view to identifying and punishing forced labour practices;

– appoint interpreters, including from Korean;

– place particular emphasis on migratory flows that could result in situations of forced labour;

– pay specific attention to recruitment methods that trapped workers in forced labour situations, and establish control mechanisms to detect and punish abusive practices;

– strengthen the prosecution system to ensure that dissuasive criminal penalties were imposed on perpetrators of such practices;

– explicitly criminalize forced labour, to avoid the issue being addressed solely in the context of trafficking in persons;

– continue to strengthen, in accordance with the Forced Labour (Supplementary Measures) Recommendation, 2014 (No. 203), protection measures to enable victims to file a complaint with the authorities without fear; it was also important to provide for effective remedies and compensation mechanisms for victims; and

– establish better guarantees to ensure that prisoners working for private associations were able to formally give their prior, free and informed consent.

The Worker members considered that, in order to achieve these objectives, Poland should avail itself of ILO technical assistance.

The Employer members took due note of the many initiatives taken by the national authorities, particularly since 2016, to prevent all forms of forced labour in Poland and to punish abuses. In this context, it was necessary to recall that it was the collective responsibility of the ILO constituents to guarantee the respect of fundamental labour rights in the 21st century in all member States. Any complaint in that area must be thoroughly investigated by the national authorities, in particular by competent and independent officials and magistrates. In that context, forced labour needed to be immediately and permanently eradicated. Poland had shown its commitment to combating forced labour by ratifying the Protocol of 2014 to Convention No. 29 in March 2017. That engagement must be made a reality for all workers in Poland, regardless of their status or nationality. In this regard, national organizations of employers, including in Poland, undertook to assist enterprises to optimize working conditions, and to prohibit any abuse of workers. The Employer members supported the recommendations made by the researchers Shin Chang-Hoon and Go Myong-Hyun in their independent study which had considered that, to end the forced labour of migrant workers from the DPRK, receiving countries needed to monitor their actual working conditions, terminate the employment contracts of those who were subject to forced labour conditions imposed by the authorities of the DPRK, and tighten the controls on bank transactions linked to the payment of wages. However, taking into account the contradictions and lack of information available, it was deplorable that this case had been included on the list of the most serious violations of fundamental labour rights in 2017. Other countries cited by the United Nations Special Rapporteur had been left aside, which did not seem fair. In conclusion, they recommended that the Polish authorities should: (i) intensify efforts to ensure migrant workers were fully protected against abusive practices and working conditions that constituted forced labour; and (ii) provide information on the measures taken to identify situations of forced labour to which migrant workers might fall victim. Furthermore, where situations of forced labour were detected objectively, the authorities should provide information, including statistics, on the situation of DPRK nationals who were victims of forced labour; take immediate and effective measures to ensure that the perpetrators of these practices were prosecuted and dissuasive penalties were imposed on them; and afford adequate protection to the victims. Lastly, with regard to the issues raised in the direct request to Poland, the Employer members considered that these should not be the subject of specific discussions at the present Committee.

Conclusions

The Committee took note of the oral statements made by the Government representative and the discussion that followed.

Taking into account the discussion, the Committee called upon the Government of Poland to:

- increase its efforts to ensure that migrant workers are fully protected from abusive practices and conditions amounting to forced labour;

- provide information on the measures taken to identify cases of forced labour to the Committee of Experts paying particular attention to the situation of workers from the Democratic Peoples’ Republic of Korea;

- take immediate and efficient measures so that the perpetrators of such practices, if they occur, are prosecuted and that dissuasive penalties are issued;

ensure that identified victims of forced labour have access to adequate protection and remedies.

Individual Case (CAS) - Discussion: 1987, Publication: 73rd ILC session (1987)

The Government has communicated the following information:

The Act of 26 October 1982 respecting the procedure concerning persons evading work did not introduce an obligation to work in the legal sense of compulsory labour.

The Act aims at persuading persons who do not work to take up socially useful employment voluntarily. These persons have to provide explanations concerning their reasons, sources of income and means of livelihood.

The Act provides for the performance of public works in exceptional situations i.e. in the case of force majeure or a disaster constituting a serious danger for the normal existence of the whole or a part of the population; this almost literally reproduces the provisions contained in Article 2 of the Convention.

The Government confirms that 1 January 1986 marked the expiration of the system called for by section 12 of the Act of 21 July 1983, which established special legal provisions for dealing with the social and economic crisis and amended certain laws, allowing for the performance of works in communal services and other services essential for meeting the basic survival needs of the population.

The Government also points out that in accordance with section 19 of the Act of 26 October 1982 a report on the implementation of the Act is submitted each year to the Seym of the Polish People's Republic (Parliament). In accordance with the last report (as at 31 March 1987), while this Act was in force the state administrative organs all over Poland registered in total over 229,000 men evading work. As at 31 March 1987 90,900 persons remained on this register, 70,000 of whom had been assigned work. Establishments confirmed employing 56,300 persons.

The practice shows that two major groups of men registered on the list of persons evading work can be distinguished:

- persons displaying a slight degree of demoralisation, who in the past had permanent employment but left it or did not take up work due to misfortune or awkwardness. They need some help to take up employment;

- persons displaying a high degree of demoralisation who had often run afoul of the law or who even supported themselves by criminal activities. It is difficult to persuade them to take up employment. Job offers interest them little and even if they start work, most often they soon quit.

Since the Act does not provide any means of repression in relation to such persons, implementation of this Act in respect to them requires systematic educational activity and often medical aid, as well as assistance for them and their families.

Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

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 (see articles 1(1), 2(1) and 25 below, on trafficking in persons), as well as on the basis of the information at its disposal in 2019.

The Committee notes that the first report of the Government on the Protocol of 2014 to the Forced Labour Convention, 1930, has not been received. The Committee requests the Government to provide the first report on the Protocol of 2014 along with its next report on Convention No. 29 due in 2022.

Articles 1(1), 2(1) and 25 of the Convention. Trafficking in persons. 1. Law enforcement and penalties. The Committee previously noted that trafficking in persons is criminalized by section 189(a) of the Penal Code. The Committee also noted that the cooperation between the labour inspectorate and other authorities, including border guards, had been reinforced. Moreover, teams for combating human trafficking were established to initiate close regional cooperation. The Committee further noted that in 2016, 50 cases of human trafficking had been recorded, of which 13 were for forced labour, 15 were for prostitution and other forms of sexual abuse and one was for begging. Moreover, preliminary proceedings of 59 cases were concluded, leading to 13 indictments, and 30 persons were accused. The Committee requested the Government to pursue its efforts to strengthen the capacity of the law enforcement authorities, including the labour inspectorate, in combating trafficking in persons and to provide information on the application in practice of section 189(a) of the Penal Code.

The Government indicates in its report that, in 2017, the National Public Prosecutor’s Office recorded 135 cases of trafficking in persons, under section 189(a) of the Penal Code, of which 34 were for forced labour, 46 were for prostitution and other forms of sexual exploitation, six were for begging and 43, were for other types of exploitation. Moreover, 17 cases led to indictments and 47 persons were prosecuted. In 2018, 79 cases of trafficking in persons were recorded. In addition, 23 cases led to indictments, 47 persons were prosecuted and 13 persons were sentenced to imprisonment. The Committee further notes the Government’s indication in its supplementary report that, in 2019, 67 proceedings were initiated for cases of trafficking in persons, including 18 for forced labour, 30 for prostitution, and 19 for other types of exploitation. In addition, out of 55 closed proceedings, 17 cases resulted in indictments.

The Government also states, in its report of 2019, that a new cooperation agreement between the National Labour Inspectorate and the Police is being negotiated, in order, inter alia, to regulate cooperation in combating criminal offences, including trafficking in persons offences. The Government indicates that inspections can be carried out by the National Labour Inspectorate in cooperation with the police or the Border Guard Service. The Committee requests the Government to continue to provide information on the number of investigations, prosecutions and convictions applied for trafficking in persons cases, and to further specify the penalties imposed on perpetrators.

2. Victim protection. The Committee previously noted the observations of the Independent and Self-Governing Trade Union (“Solidarnosc”) stating that although victims can bring a civil action against the perpetrators of crimes related to trafficking in persons, very few victims of this practice ever receive compensation from the perpetrators. The Committee noted that the National Consulting and Intervention Centre for Victims of Trafficking (KCIK) provides two shelters dedicated to female victims of trafficking and medical assistance to the victims who are beneficiaries of the KCIK. The Committee also noted the Government’s information that the Expert Group for Supporting Victims of Human Trafficking, which is operating within the Inter-Ministerial Team for Combating and Preventing Human Trafficking, undertakes activities to improve the work efficiency of state authorities for the identification and protection of potential victims of trafficking. The Government indicated that, in 2016, 78 victims were identified, of which 34 were women and 44 were men. Moreover, the Act of 12 December 2013 on foreigners, implemented important changes in terms of granting residence permits for foreign victims of trafficking. The Committee also noted that, in April 2015, a law which reinforces and consolidates the framework of protection and assistance for victims of crime and witnesses including trafficking victims, came into force. The Committee requested the Government to continue providing detailed information on the measures undertaken and results achieved regarding the identification and protection of victims of trafficking in persons.

The Committee notes the Government’s indication that section 302 of the Act on foreigners exempts from the obligation to return due to irregularities in the performance of work, the foreigner who was made to perform work illegally by being misled or taken advantage of, or when this results from the hierarchical dependence or the inability to comprehend properly the actions taken. The Government also indicates that 453 victims of trafficking were identified in 2017 and 197 were identified in 2018. According to the Government’s supplementary information, in 2019, 208 victims were identified (including 104 foreign victims), of which 101 were exploited for the purpose of forced labour, 62 for prostitution, and 45 for other types of exploitation.

The National Labour Inspectorate is responsible for informing any potential victims of human trafficking about any available forms of support provided by, among many, the KCIK. In this regard, the Government indicates that the KCIK provided support to 187 victims or alleged victims of trafficking in persons in 2017, and to 181 persons in 2018, including 102 women and 79 men. In 2019, 13 victims of trafficking were referred to the KCIK. The Government further indicates that the Border Guard Service observed that victims of trafficking in persons mainly come from Poland, Ukraine, Viet Nam, Belarus and the Philippines.

The Committee further notes the Government’s information in its supplementary report that one of the priority tasks for the years 2020–2021 is to improve the National Referral Mechanism by, inter alia, systematizing its operating principles, strengthening the capacities of law enforcement authorities in identifying victims of trafficking, as well as extending the institutional infrastructure to support victims of trafficking. The Committee requests the Government to provide information on the application in practice of section 302 of the Act on foreigners. It also requests the Government to continue to provide information on the impact of the measures taken by the Government in identifying and assisting victims of trafficking, including through the National Referral Mechanism, and to indicate the manner in which they have been provided with support and assistance. Lastly, the Committee requests the Government to continue to provide information on the number of victims of trafficking who have been identified and who have benefited from protection and assistance.

3. Plan of action to prevent and combat trafficking in persons. The Committee previously noted the Government’s information that the Council of Ministers adopted the National Action Plan against Human Trafficking for 2016–2018, and requested the Government to provide information on the implementation of this Plan.

The Committee notes the Government’s information that it has developed activities to raise awareness of the issue of trafficking in persons, such as the distribution of information materials for young people, the development of a website and the organization of conferences. The Government also organized training courses for employees of the public services that provide help to persons who are particularly exposed to risks, such as labour office employees and social workers. Such courses were also organized for labour inspectors and for prosecutors, as well as for consular officials delegated to diplomatic posts, and for provincial coordinators and heads of provincial offices, whose official duties are related, in particular, to combating trafficking in persons.

The Committee further notes the Government’s supplementary report, according to which a new National Action Plan to combat human trafficking for 2020–2021 was adopted on 10 April 2020. Its specific objectives are to: (i) raise awareness of trafficking in persons; (ii) improve support provided to victims; (iii) improve prosecutions of cases of trafficking; (iv) improve the qualifications of personnel involved in the prevention of trafficking and support for victims; (v) deepen knowledge on trafficking and on the effectiveness of the activities undertaken; and (vi) strengthen international cooperation. The National Action Plan provides for the establishment of, inter alia, a team for combating and preventing human trafficking, led by the Ministry of Interior and Administration, and comprised of representatives of ministries, institutions, non-governmental organizations and the International Organisation for Migration (IOM); and of a working group for monitoring the implementation of the National Action Plan. The Committee requests the Government to indicate the manner in which the desired outcomes of the National Action Plan to combat human trafficking 2020–2021 have been achieved, indicating in particular the activities undertaken, including by the team for combating and preventing human trafficking, and the results achieved in this regard.

Article 2(2)(c). Work of prisoners for private individuals, companies and associations. The Committee previously noted that, according to the Executive Penal Code and its implementing regulations, prisoners are allowed to work for private employers. It noted the Government’s reiterated statement that convicts work for private entities on a voluntary basis in practice, under conditions comparable to a voluntary employment relationship and that there is a lack of work opportunities. The Government stated that a person who is deprived of liberty and works outside of the prison remains under the supervision of a penal institution. The Committee also noted that, according to section 123(a) of the Executive Penal Code, as amended in 2016, the director of a prison may allow the convict to work for a public institution or an entity of public benefit for free up to 90 hours per month, with the written consent of the convict or upon the written request of the convict. The Committee accordingly encouraged the Government to take the necessary measures to ensure that the protection of the rights of the convicts who work for private entities, on a voluntary basis in practice, are also afforded by law.

The Committee notes the Government’s indication that the Minister of Justice issued the regulation amending the regulation on the detailed rules for employing prisoners, which entered into force on 2 September 2017. The Government also indicates that the Ministry of Justice is currently working on the draft Act amending the Act on the Executive Penal Code. The Committee further notes the Government’s statement that it is implementing a programme entitled “Jobs for Prisoners”, in order to enhance the employment of prisoners. The Government indicates that at the end of 2018, 57 per cent (37,078 prisoners) were employed, compared with 36.07 per cent of the prisoners (24,048 prisoners) in 2015. The employment rate among prisoners capable of working was 84.78 per cent at the end of 2018. The most desired effect of the implementation of the programme is the increased potential for paid employment, which is a priority for the Prison Guard Service. The Government states that prisoners in paid employment rose from 9,843 people in December 2015 to 17,714 at the end of 2018. The Government adds that 11 additional production facilities are being built, which will secure job positions for at least 1,000 prisoners.

The Committee recalls that, to be compatible with the Convention, prisoners’ work for private parties must be performed on a voluntary basis, implying the full and informed written consent of the prisoners and conditions which approximate a free labour relationship, including wages and occupational safety and health (see General Survey on the fundamental Conventions, 2012, paragraphs 279 and 291). The Committee accordingly requests the Government to take the necessary measures to ensure that any work or service performed by prisoners for private entities is carried out voluntarily, which implies the payment of wages. The Committee also requests the Government to indicate the measures taken to ensure that the voluntary nature of prison work for private entities is unequivocally reflected in the legislation. The Committee hopes that the Government will take into consideration the Committee’s comments when drafting the Act amending the Executive Penal Code, to bring its legislation into conformity with Article 2(2)(c) of the Convention.

Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

The Committee notes the supplementary information provided by the Government on matters raised in its previous direct request, and otherwise repeats the content of its observation adopted in 2019 which read as follows.

Articles 1(1), 2(1) and 25 of the Convention. Vulnerable situation of migrant workers with regard to the exaction of forced labour. The Committee previously noted the observations of the Independent and Self-Governing Trade Union (“Solidarnosc”) that there had been exploitation of citizens of the Democratic People’s Republic of Korea (DPRK) for forced labour in Poland. In 2012, there were 509 DPRK workers brought legally to Poland. Reportedly they had to send back to the regime a large part of their legitimate earnings. The Committee also noted that, according to the report of the Special Rapporteur of the United Nations on the situation of human rights in the DPRK, nationals of the DPRK were being sent abroad by their Government to work under conditions that reportedly amount to forced labour, mainly in the mining, logging, textile and construction industries. The workers were forced to work sometimes up to 20 hours per day with only one or two rest days per month and given insufficient daily food rations. They were under constant surveillance by security personnel and their freedom of movement was unduly restricted. Workers’ passports were also confiscated by the same security agents.

The Committee noted the Government’s statement that, in response to the signals revealed in 2016, the National Labour Inspectorate and the Border Guards carried out monitoring activities covering all entities employing the citizens of the DPRK, and no infringements seemed to relate to forced labour. The Government further indicated that, in 2016 and 2017, no new visas had been issued to DPRK citizens. As of 1 January 2017, there were 400 citizens from DPRK in Poland with valid residence permits. The Committee also noted the Government’s information that a number of violations of provisions of the Act on the Promotion of Employment, as well as regulations in the scope of Labour Law were identified, such as the indirect payment of wages and confiscation of identification papers. The Committee requested the Government to strengthen its efforts to ensure that migrant workers, especially those from the DPRK, are fully protected from abusive practices and conditions that amount to the exaction of forced labour.

The Government indicates in its report that it has ceased to issue new temporary residence permits for paid activities to the DPRK nationals. Consequently, section 100, paragraph 1, point 4 of the Act on Foreigners of 2013 and section 88(j), paragraph 2 of the Act on the Promotion of Employment and on Labour Market Institutions have been amended by the Act of 20 July 2017, and have accordingly been supplemented with the provisions providing for an additional reason for refusing temporary residence. The Government further indicates that it is currently implementing the United Nations Security Council Resolution 2397 of 22 December 2017, which allows for the return of the DPRK employees to their own country to be accelerated. The Government has already withdrawn the majority of the temporary residence permits for paid activities issued to the DPRK nationals in Poland. The Government states that, in March 2019, no more than 19 DPRK nationals resided in Poland, so that the number of the DPRK employees in Poland has dropped by approximately 95 per cent.

Furthermore, in recent years, as a result of the alleged infringements of the rights of the DPRK nationals who work in Poland and of the increasing number of foreigners employed in the territory, the frequency of inspections has been increased. The Border Guard Service has applied special monitoring to businesses employing DPRK citizens. The Government indicates that the inspections carried out did not show any indications that the DPRK nationals experienced forced labour. The Government communicates statistical data collected by the Border Guard Service, indicating that in 2018, 12,108 foreigners were found to be working illegally and 155 DPRK nationals were identified during inspections, among which 11 have been illegally employed, namely without valid residence permits or work permits, or without employment contracts or civil law contracts. From 1 January to 31 May 2019, 4,255 foreigners were found to be working illegally and 88 DPRK nationals were identified during inspections, among which 58 have been illegally employed. Additionally, the Committee notes the Government’s information that labour inspectors detected a number of irregularities as a result of the inspections carried out in entities hiring foreigners, such as the failure to provide a foreigner with a contract translated into a language comprehensible to the foreigner before signature, or the failure to provide a foreigner with a copy of the work permit. The Border Guard Service also identified cases of non-payment of wages, or only partial payment thereof.

With regard to prevention measures, the Committee notes the Government’s indication that the National Labour Inspectorate launched education and information campaigns, intended to raise awareness both among employers hiring foreigners regarding their obligations, and among foreigners working in Poland, regarding their rights. A hotline was made available to foreigners at the National Labour Inspectorate Consultancy Centre in February 2018, in order to increase understanding of the legislation on the employment of foreigners in Poland, in the Ukrainian and Russian languages. Over 3,400 foreigners have so far contacted the experts for advice, including Ukrainians, Belarusians, Georgians, Moldovans and Russians.

The Committee notes that, in its concluding observations of August 2019, the United Nations Committee against Torture reported that, despite the fact that a recent case was opened in Poland, involving 107 nationals of the DPRK, investigations appear to be ineffective and to lack impartiality, particularly with regard to interpreting services and formal proceedings for those investigated. While taking note of the measures taken by the Government, the Committee urges the Government to strengthen its efforts to prevent foreign migrants from falling victim to abusive practices and conditions that amount to the exaction of forced labour and to ensure their access to justice and remedies. The Committee also requests the Government to continue to supply information on the number of identified victims of abusive practices among migrant workers, and on the number of investigations, prosecutions and penalties imposed on the perpetrators.

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

Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

The Committee notes that the first report of the Government to the Protocol of 2014 to the Forced Labour Convention, 1930 (P029), has not been received. The Committee requests the Government to provide the first report on P029 along with its next report on Convention No. 29 due in 2022.

Articles 1(1), 2(1) and 25 of the Convention. Trafficking in persons. 1. Law enforcement and penalties. The Committee previously noted that trafficking in persons is criminalized by section 189(a) of the Penal Code. The Committee also noted that the cooperation between the labour inspectorate and other authorities, including border guards, had been reinforced. Moreover, teams for combating human trafficking were established to initiate close regional cooperation. The Committee further noted that in 2016, 50 cases of human trafficking had been recorded, of which 13 were for forced labour, 15 were for prostitution and other forms of sexual abuse and one was for begging. Moreover, preliminary proceedings of 59 cases were concluded, leading to 13 indictments, and 30 persons were accused. The Committee requested the Government to pursue its efforts to strengthen the capacity of the law enforcement authorities, including the labour inspectorate, in combating trafficking in persons and to provide information on the application in practice of section 189(a) of the Penal Code.

The Government indicates in its report that, in 2017, the National Public Prosecutor’s Office recorded 135 cases of trafficking in persons, under section 189(a) of the Penal Code, of which 34 were for forced labour, 46 were for prostitution and other forms of sexual exploitation, six were for begging and 43 were for other types of exploitation. Moreover, 17 cases led to indictments and 47 persons were prosecuted. In 2018, 79 cases of trafficking in persons were recorded. In addition, 23 cases led to indictments, 47 persons were prosecuted and 13 persons were sentenced to imprisonment. The Government also states that a new cooperation agreement between the National Labour Inspectorate and the Police is being negotiated, in order, inter alia, to regulate cooperation in combating criminal offences, including trafficking in persons offences. The Government indicates that inspections can be carried out by the National Labour Inspectorate in cooperation with the police or the Border Guard Service. The Committee requests the Government to continue to provide information on the number of investigations, prosecutions and convictions applied for trafficking in persons cases, and to further specify the penalties imposed on perpetrators.

2. Victim protection. The Committee previously noted the observations of the Independent and Self-Governing Trade Union (“Solidarnosc”) stating that although victims can bring a civil action against the perpetrators of crimes related to trafficking in persons, very few victims of this practice ever receive compensation from the perpetrators. The Committee noted that the National Consulting and Intervention Centre for Victims of Trafficking (KCIK) provides two shelters dedicated to female victims of trafficking and medical assistance to the victims who are beneficiaries of the KCIK. The Committee also noted the Government’s information that the Expert Group for Supporting Victims of Human Trafficking, which is operating within the Inter-Ministerial Team for Combating and Preventing Human Trafficking, undertakes activities to improve the work efficiency of state authorities for the identification and protection of potential victims of trafficking. The Government indicated that, in 2016, 78 victims were identified, of which 34 were women and 44 were men. Moreover, the Act of 12 December 2013 on foreigners, implemented important changes in terms of granting residence permits for foreign victims of trafficking. The Committee also noted that, in April 2015, a law which reinforces and consolidates the framework of protection and assistance for victims of crime and witnesses including trafficking victims, came into force. The Committee requested the Government to continue providing detailed information on the measures undertaken and results achieved regarding the identification and protection of victims of trafficking in persons.

The Committee notes the Government’s indication that section 302 of the Act on foreigners exempts from the obligation to return due to irregularities in the performance of work, the foreigner who was made to perform work illegally by being misled or taken advantage of, or when this results from the hierarchical dependence or the inability to comprehend properly the actions taken. The Government also indicates that 453 victims of trafficking were identified in 2017 and 197 were identified in 2018. The National Labour Inspectorate is responsible for informing any potential victims of human trafficking about any available forms of support provided by, among many, the KCIK. In this regard, the Government indicates that the KCIK provided support to 187 victims or alleged victims of trafficking in persons in 2017, and to 181 persons in 2018, including 102 women and 79 men. The Government further indicates that the Border Guard Service observed that victims of trafficking in persons mainly come from Poland, Ukraine, Viet Nam, Belarus and the Philippines. The Committee notes that, in its concluding observations of August 2019, the UN Committee against Torture expressed concern at the lack of a central mechanism to identify victims of trafficking. The Committee requests the Government to provide information on the application in practice of section 302 of the Act on foreigners. It also requests the Government to continue to provide information on the impact of the measures taken by the Government in identifying and assisting victims of trafficking and to indicate the manner in which they have been provided with support and assistance. Lastly, the Committee requests the Government to continue to provide information on the number of victims of trafficking who have been identified and who have benefited from protection and assistance.

3. Plan of action to prevent and combat trafficking in persons. The Committee previously noted the Government’s information that the Council of Ministers adopted the National Action Plan against Human Trafficking for 2016–18, and requested the Government to provide information on the implementation of this Plan.

The Committee notes the Government’s information that the National Action Plan to Combat Human Trafficking for years 2019–21 was adopted on 13 May 2019. The Interdepartmental Advisory Team for Combating Human Trafficking is in charge of the assessment of the implementation of programmes aimed at preventing and combating trafficking in persons. The Government further states that a permanent working group for monitoring and evaluating the actions taken will also be appointed within the Team, in order to monitor the situation in Poland.

The Government indicates that it has developed activities to raise awareness on the issue of trafficking in persons, such as the distribution of information materials for young people, the development of a website, and the organization of conferences. The Government also organized training courses for employees of the public services that provide help to persons who are particularly exposed to risks, such as labour office employees and social workers. Such courses were also organized for labour inspectors and for prosecutors, as well as for consular officials delegated to diplomatic posts, and for provincial coordinators and heads of provincial offices, whose official duties are related, in particular, to combating trafficking in persons. The Committee requests the Government to indicate the manner in which the desired outcomes of the National Action Plan to Combat Human Trafficking 2019–21 have been achieved, indicating in particular the activities undertaken and the results achieved in preventing and combating trafficking in persons.

Article 2(2)(c). Work of prisoners for private individuals, companies and associations. The Committee previously noted that, according to the Executive Penal Code and its implementing regulations, prisoners are allowed to work for private employers. It noted the Government’s reiterated statement that convicts work for private entities on a voluntary basis in practice, under conditions comparable to a voluntary employment relationship and that there is a lack of work opportunities. The Government stated that a person who is deprived of liberty and works outside of the prison remains under the supervision of a penal institution. The Committee also noted that, according to section 123(a) of the Executive Penal Code, as amended in 2016, the director of a prison may allow the convict to work for a public institution or an entity of public benefit for free up to 90 hours per month, with the written consent of the convict or upon the written request of the convict. The Committee accordingly encouraged the Government to take the necessary measures to ensure that the protection of the rights of the convicts who work for private entities, on a voluntary basis in practice, are also afforded by law.

The Committee notes the Government’s indication that the Minister of Justice issued the regulation amending the regulation on the detailed rules for employing prisoners, which entered into force on 2 September 2017. The Government also indicates that the Ministry of Justice is currently working on the draft Act amending the Act on the Executive Penal Code. The Committee further notes the Government’s statement that it is implementing a programme entitled “Jobs for Prisoners”, in order to enhance the employment of prisoners. The Government indicates that at the end of 2018, 57 per cent (37,078 prisoners) were employed, compared with 36.07 per cent of the prisoners (24,048 prisoners) in 2015. The employment rate among prisoners capable of working was 84.78 per cent at the end of 2018. The most desired effect of the implementation of the programme is the increased potential for paid employment, which is a priority for the Prison Guard Service. The Government states that prisoners in paid employment rose from 9,843 people in December 2015 to 17,714 at the end of 2018. The Government adds that 11 additional production facilities are being built, which will secure job positions for at least 1,000 prisoners.

The Committee wishes to recall that, to be compatible with the Convention, prisoners’ work for private parties must be performed on a voluntary basis, implying the full and informed written consent of the prisoners and conditions which approximate a free labour relationship, including wages and occupational safety and health (see General Survey on fundamental Conventions, 2012, paragraphs 279 and 291). The Committee accordingly requests the Government to take the necessary measures to ensure that any work or service performed by prisoners for private entities is carried out voluntarily, which implies the payment of wages. The Committee also requests the Government to indicate the measures taken to ensure that the voluntary nature of prison work for private entities is unequivocally reflected in the legislation. The Committee hopes that the Government will take into consideration the Committee’s comments when drafting the Act amending the Executive Penal Code, to bring its legislation into conformity with Article 2(2)(c) of the Convention.

Observation (CEACR) - adopted 2019, published 109th ILC session (2021)

Articles 1(1), 2(1) and 25 of the Convention. Vulnerable situation of migrant workers with regard to the exaction of forced labour. The Committee previously noted the observations of the Independent and Self-Governing Trade Union (“Solidarnosc”) that there had been exploitation of citizens of the Democratic People’s Republic of Korea (DPRK) for forced labour in Poland. In 2012, there were 509 DPRK workers brought legally to Poland. Reportedly they had to send back to the regime a large part of their legitimate earnings. The Committee also noted that, according to the report of the Special Rapporteur of the United Nations on the situation of human rights in the DPRK, nationals of the DPRK were being sent abroad by their Government to work under conditions that reportedly amount to forced labour, mainly in the mining, logging, textile and construction industries. The workers were forced to work sometimes up to 20 hours per day with only one or two rest days per month and given insufficient daily food rations. They were under constant surveillance by security personnel and their freedom of movement was unduly restricted. Workers’ passports were also confiscated by the same security agents.

The Committee noted the Government’s statement that, in response to the signals revealed in 2016, the National Labour Inspectorate and the Border Guards carried out monitoring activities covering all entities employing the citizens of the DPRK, and no infringements seemed to relate to forced labour. The Government further indicated that, in 2016 and 2017, no new visas had been issued to DPRK citizens. As of 1 January 2017, there were 400 citizens from DPRK in Poland with valid residence permits. The Committee also noted the Government’s information that a number of violations of provisions of the Act on the Promotion of Employment, as well as regulations in the scope of Labour Law were identified, such as the indirect payment of wages and confiscation of identification papers. The Committee requested the Government to strengthen its efforts to ensure that migrant workers, especially those from the DPRK, are fully protected from abusive practices and conditions that amount to the exaction of forced labour.

The Government indicates in its report that it has ceased to issue new temporary residence permits for paid activities to the DPRK nationals. Consequently, section 100, paragraph 1, point 4 of the Act on Foreigners of 2013 and section 88(j), paragraph 2 of the Act on the Promotion of Employment and on Labour Market Institutions have been amended by the Act of 20 July 2017, and have accordingly been supplemented with the provisions providing for an additional reason for refusing temporary residence. The Government further indicates that it is currently implementing the United Nations Security Council Resolution 2397 of 22 December 2017, which allows for the return of the DPRK employees to their own country to be accelerated. The Government has already withdrawn the majority of the temporary residence permits for paid activities issued to the DPRK nationals in Poland. The Government states that, in March 2019, no more than 19 DPRK nationals resided in Poland, so that the number of the DPRK employees in Poland has dropped by approximately 95 per cent.

Furthermore, in recent years, as a result of the alleged infringements of the rights of the DPRK nationals who work in Poland and of the increasing number of foreigners employed in the territory, the frequency of inspections has been increased. The Border Guard Service has applied special monitoring to businesses employing DPRK citizens. The Government indicates that the inspections carried out did not show any indications that the DPRK nationals experienced forced labour. The Government communicates statistical data collected by the Border Guard Service, indicating that in 2018, 12,108 foreigners were found to be working illegally and 155 DPRK nationals were identified during inspections, among which 11 have been illegally employed, namely without valid residence permits or work permits, or without employment contracts or civil law contracts. From 1 January to 31 May 2019, 4,255 foreigners were found to be working illegally and 88 DPRK nationals were identified during inspections, among which 58 have been illegally employed. Additionally, the Committee notes the Government’s information that labour inspectors detected a number of irregularities as a result of the inspections carried out in entities hiring foreigners, such as the failure to provide a foreigner with a contract translated into a language comprehensible to the foreigner before signature, or the failure to provide a foreigner with a copy of the work permit. The Border Guard Service also identified cases of non-payment of wages, or only partial payment thereof.

With regard to prevention measures, the Committee notes the Government’s indication that the National Labour Inspectorate launched education and information campaigns, intended to raise awareness both among employers hiring foreigners regarding their obligations, and among foreigners working in Poland, regarding their rights. A hotline was made available to foreigners at the National Labour Inspectorate Consultancy Centre in February 2018, in order to increase understanding of the legislation on the employment of foreigners in Poland, in the Ukrainian and Russian languages. Over 3,400 foreigners have so far contacted the experts for advice, including Ukrainians, Belarusians, Georgians, Moldovans and Russians.

The Committee notes that, in its concluding observations of August 2019, the UN Committee against Torture reported that, despite the fact that a recent case was opened in Poland, involving 107 nationals of the DPRK, investigations appear to be ineffective and to lack impartiality, particularly with regard to interpreting services and formal proceedings for those investigated. While taking note of the measures taken by the Government, the Committee urges the Government to strengthen its efforts to prevent foreign migrants from falling victim to abusive practices and conditions that amount to the exaction of forced labour and to ensure their access to justice and remedies. The Committee also requests the Government to continue to supply information on the number of identified victims of abusive practices among migrant workers, and on the number of investigations, prosecutions and penalties imposed on the perpetrators.

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

Direct Request (CEACR) - adopted 2017, published 107th ILC session (2018)

Articles 1(1), 2(1) and 25 of the Convention. Trafficking in persons. 1. Law enforcement and Penalties. The Committee previously noted that trafficking in persons is criminalized by section 189 of the Penal Code. The Committee also noted that, following an agreement in 2015 between the Chief Border Guard Commander and the Chief Labour Inspector, the powers of the labour inspectorate have been reinforced as has the cooperation between border guards and labour inspectors. Moreover, the on-job trainings were offered by the training centre of the National Labour Inspection on human rights issues, in particular on forced labour. The Committee further noted that in 2014, there were nine persons convicted, with nine sentenced to deprivation of liberty and five fines; and in 2015, there were 23 convicted, with 24 sentenced to deprivation of liberty and ten fines.

The Committee notes the Government’s information in its report that it continues to take measures to strengthen the cooperation between the labour inspectorate and other authorities. Teams for combating human trafficking are established to initiate close regional cooperation. In connection with the European campaign “Joint Action Day” intended to combat organized crime, including human trafficking, police officers and labour inspectors jointly conducted several inspections. The Committee also notes that, in 2016, 50 cases of human trafficking have been recorded, of which 13 were for forced labour, 15 were for prostitution and other forms of sexual abuse and one was for begging. Moreover, preliminary proceedings of 59 cases were concluded, leading to 13 indictments. In addition, 30 persons were accused, of which 28 were Polish and two were Bulgarian. The Committee requests the Government to continue its efforts to strengthen the capacity of law enforcement authorities, including the labour inspectorate, in combating human trafficking. It also requests the Government to continue providing information on the application in practice of section 189 of the Penal Code, including the number of investigations, prosecutions, convictions and specific penalties applied.

2. Victim Protection. The Committee previously noted the observations of the Independent and Self-Governing Trade Union “Solidarnosc” stating that although victims can bring a civil action against the perpetrators of crimes related to human trafficking, very few victims of this practice ever receive compensation from the perpetrators. The Committee also noted that in the report submitted by the Polish authorities on measures taken to comply with the Committee of the Parties Recommendation (CP(2013)7) on the implementation of the Council of Europe Convention on Action against Trafficking in Human Beings, the Government mentioned that from 2013, the National Consulting and Intervention Centre for Victims of Trafficking (KCIK) provides two shelters dedicated to female victims of trafficking and medical assistance to the victims who are beneficiaries of the KCIK. Moreover, the Act of 12 December 2013 on foreigners implemented important changes in terms of granting a reflection period and residence permits for foreign victims of trafficking. The Committee also noted that, in April 2015, a law which reinforces and consolidates the framework of protection and assistance of victims of crime and witnesses including trafficking victims, came into force.

The Committee notes the Government’s information that the Expert Group for Supporting Victims of Human Trafficking, which is operating within the Inter Ministerial Team for Combating and Preventing Human Trafficking, undertakes activities to improve the work efficiency of state authorities in this regard. For example, the Expert Group has prepared tools (checklists) for the police and the border guards for the identification of potential victims of trafficking. An algorithm for the identification and protection of minor victims has also been developed. The Government also indicates that, in 2016, 78 victims were identified, of which 34 were women and 44 were men. The Committee therefore requests the Government to continue providing detailed information on the measures undertaken and results achieved regarding the identification and protection of victims of human trafficking, such as the number of victims identified and the type of assistance provided to them.

3. Programme of action. The Committee previously noted that the Inter Ministerial Task Force of Human Trafficking Prevention and Counteraction was established to ensure monitoring of actions and exchange of information between the relevant stakeholders. The Task Force also collaborated with administrative government bodies and units and assesses the implementation of the National Action Plan 2013–15 against Human Trafficking.

The Committee notes the Government’s information that, in August 2016, the Council of Ministers adopted the National Action Plan against Human Trafficking for 2016–18. The Committee therefore requests the Government to provide information on the implementation of the NAP 2016–18, including the activities undertaken and the results achieved.

Article 2(2)(c). Work of prisoners for private individuals, companies and associations. The Committee previously noted that, according to the Executive Penal Code and its implementing regulations, prisoners are allowed to work for private employers. The Government stated that the remuneration for a convicted employee is set in a manner ensuring the minimum wage is obtained provided the monthly period of working time is satisfied. The work of convicts is provided under comparable conditions to voluntary employment and there is a lack of work opportunities. Moreover, a person who is deprived of liberty and works outside of the prison remains under the supervision of a penal institution. The Committee also noted that under the grounds of the Executive Penal Code, a convict can only be employed upon authorization of and on terms and conditions set out by the director of a penal institution, ensuring that the penalty of deprivation of liberty is served properly. The Government therefore considered that even though the formal consent of the convicted person is not required, the employees’ rights are observed and such work is in compliance with the Convention. The Government further indicated that, with regard to the issue of prison labour, two bills concerning the rights of convicted persons who are subjected to deprivation of liberty were being prepared: the Bill amending the Executive Penal Code and the Bill amending the Act on the Employment of Individuals Deprived of Liberty.

The Committee notes the Government’s reiterated statement that the employment of prisoners is fully voluntary and that convicts work under conditions comparable to a voluntary employment relationship. The Government emphasizes that the number of convicts who are willing to work is always higher than the number of jobs available. The Committee also notes that the Act of 15 December 2016 Amending the Executive Penal Code entered into force on 1 April 2017. According to the revised section 123(a), with the written consent of the convict or upon the written request of the convict, the director of a prison may allow them to work for a public institution or an entity of public benefit for free up to 90 hours per month. The Committee further notes the Government’s indication that two draft implementing Acts are under way, in relation to the performance of social work as a form of serving a sentence of restriction of liberty or in exchange for an unpaid fine. While taking due note that convicts work for private entities on a voluntary basis in practice, the Committee encourages the Government to take the necessary measures to ensure that the protection of their rights in this regard are also afforded by law. The Committee also requests the Government to provide information on any progress made regarding the two draft implementing Acts on the performance of social work as a way to serve the sentence or to pay the fine, and to provide a copy once they are adopted.

Observation (CEACR) - adopted 2017, published 107th ILC session (2018)

The Committee notes the observations of the International Organisation of Employers (IOE), received on 30 August 2017.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 106th Session, June 2017)

The Committee notes the detailed discussion which took place in the Conference Committee on the Application of Standards in June 2017 concerning the application by Poland of the Convention.

Articles 1(1), 2(1) and 25 of the Convention. Vulnerable situation of migrant workers with regard to the exaction of forced labour. The Committee previously noted the observations of the Independent and Self-Governing Trade Union (“Solidarnosc”) that there had been exploitation of citizens of the Democratic People’s Republic of Korea (DPRK) for forced labour in Poland. In 2011, there were 239 DPRK workers brought legally to Poland, while the number in 2012 rose to 509. Reportedly they had to send back to the regime a large part of their legitimate earnings. Solidarnosc expressed its concern at the working conditions of those workers, which might be assimilated to forced labour. The Committee also noted the Government’s statement that, in 2016, comprehensive controls in selected entities known to employ DPRK citizens were carried out throughout the country. No cases of illegal employment were detected but a number of infringements of the provisions of the Act on Employment Promotion and provisions of the Labour Law were found. In particular, there were no instances of failure to pay or payment of a lower amount than that stated in the foreigners’ work permits, based on the evidence of payments presented by the employers, such as bank transfers and payrolls with signatures of DPRK citizens.

The Committee also noted that, according to the report of the Special Rapporteur of the United Nations on the situation of human rights in the DPRK, nationals of the DPRK are being sent abroad by their Government to work under conditions that reportedly amount to forced labour. Some 50,000 DPRK workers operate in countries such as Poland and mainly in the mining, logging, textile and construction industries. As examples of working conditions, the workers do not know the details of their employment contract and earn on average between $120 and $150 per month, while employers in fact pay significantly higher amounts to the Government of the DPRK (employers deposit the salaries of the workers in accounts controlled by companies from the DPRK). The workers are forced to work sometimes up to 20 hours per day with only one or two rest days per month and given insufficient daily food rations. They are under constant surveillance by security personnel and their freedom of movement is unduly restricted. Workers’ passports are also confiscated by the same security agents.

The Committee notes that, in its conclusion adopted in June 2017, the Conference Committee called upon the Government to increase its efforts to ensure that migrant workers are fully protected from abusive practices and conditions amounting to forced labour; to provide information on the measures taken to identify cases of forced labour to the Committee of Experts, paying particular attention to the situation of workers from the DPRK; to take immediate and efficient measures so that the perpetrators of such practices, if they occur, are prosecuted and that dissuasive penalties are issued; and to ensure that identified victims of forced labour have access to adequate protection and remedies.

The Committee notes the IOE’s statement that it is essential to assess fully and objectively whether the living and working conditions of these workers are in accordance with fundamental labour standards. If forced labour practices are detected, the victims should be identified and protected. Moreover, beneficiaries of such illegal practices should be identified and following a fair trial, punishments should be imposed that are commensurate with the gravity of the offences.

The Committee notes the Government’s information in its report that the Polish authorities, including the Embassy of Poland in Pyongyang, are not involved in employing citizens from DPRK or carry out any promotional activities in this regard. Their employment takes place only as an activity of individual entities. Foreign employees, including those from the DPRK, are subject to the same labour law as Polish citizens in principle. The Government indicates that, in 2016 and 2017, no new visa has been issued to DPRK citizens. As of 1 January 2017, there were 400 citizens from DPRK in Poland with valid residence permits, including 368 with temporary residence permits and 31 with long-term European Union (EU) residence permits, while not all of them are employed. In response to the signals revealed in 2016, the National Labour Inspectorate and the Border Guards carried out monitoring activities covering all entities employing the citizens of the DPRK, and no infringements seemed to relate to forced labour. However, the Government indicates that, the lack of cooperation between potentially affected people and monitoring authorities can be observed, which may hamper the objective assessment.

The Committee also notes the Government’s information that a number of violations of provisions of the Act on the Promotion of Employment, as well as regulations in the scope of Labour Law were identified. Among the examples of inspections concerning citizens of DPRK, the Committee notes that, 51 persons were found carrying out paid work on a construction site in Warsaw. They were employed by a DPRK company under employment contracts governed by the DPRK law and delegated to work in Poland, and their salaries were paid to their wives in DPRK. On another construction site, 60 workers were found delegated to work there by the same DPRK company. Although no failure to ensure the minimum employment standards in Poland was detected, it was found that the passports of all the workers from DPRK were kept by a representative of that company. They also gave their residence cards to the representative of the company after the completion of the inspection. Moreover, a representative was always present during the inspection as an interpreter. The Committee observes that, the abovementioned practices, such as the indirect payment of wages and confiscation of identification papers, could significantly increase the dependency of workers concerned on the controlling DPRK entity, which in turn contributes to their vulnerability. The Committee recalls the importance of taking effective action to ensure that the system of the employment of migrant works does not place the workers concerned in a situation of increased vulnerability, particularly where they are subjected to abusive employer practices, such as retention of passports, non-payment or indirect payment of wages, and deprivation of liberty. Such practices might cause their employment to be transformed into situations that amount to forced labour. The Committee therefore requests the Government to strengthen its efforts to ensure that migrant workers, especially those from the DPRK, are fully protected from abusive practices and conditions that amount to the exaction of forced labour. The Committee also requests 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. It further requests the Government to provide statistical information on the number of violations of the working conditions of migrant workers that have been recently detected and registered by the labour inspectors, and to indicate the penalties applied for such violations.

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

Direct Request (CEACR) - adopted 2016, published 106th ILC session (2017)

The Committee notes the observations of the Independent and Self Governing Trade Union (“Solidarnosc”) received on 29 August 2016 as well as the Government’s reports.

Articles 1(1), 2(1) and 25 of the Convention. 1. Trafficking in persons. In its previous comments, the Committee requested the Government to pursue its efforts to prevent and combat trafficking in persons through measures to strengthen the capacity of law enforcement and the labour inspectorate. It also requested the Government to continue to provide information on measures taken to provide victims of trafficking with appropriate protection and services. The Committee also requested the Government to provide information on the application in practice of section 189a of the Penal Code including on the investigations and the convictions.

Prevention. The Committee takes note of the Government’s indication in its report that there has been no change in the legal framework and that human trafficking prevention has remained within the competence of the police and Prosecutor’s Office. The Committee notes that at the central level, the representatives of the Chief Labour Inspectorate participate in meetings of the Inter-Ministerial Task Force of Human Trafficking Prevention and Counteraction. This Task Force was established to ensure monitoring of actions and exchange of information between relevant stakeholders engaged as well as to suggest and assess actions aimed at effective prevention of human trafficking. Moreover, the Task Force collaborates with administrative government bodies and units and assesses the implementation of the National Action Plan 2013–15 against Human Trafficking. The Committee also notes the Government’s indication that the National Labour Inspectorate implements components of the National Action Plan and verifies employment legality and the hired foreign labour force in order to establish whether the work can be characterized as forced labour. Also, it uses different indicators such as the work performance circumstances to identify victims of human trafficking. The Committee notes that, following an agreement in 2015 between the Chief Border Guard Commander and the Chief Labour Inspector, the powers of the labour inspectorate have been reinforced as has the cooperation between border guards and labour inspectors. The Committee takes note of the on-job trainings offered by the training centre of the National Labour Inspection and the training on human rights issues in particular on forced labour.

Protection. The Committee notes the observations of “Solidarnosc” stating that although victims can bring a civil action against the perpetrators of crimes related to human trafficking, very few victims of this practice ever receive compensation from the perpetrators. The Committee notes that in the report submitted by the Polish authorities on measures taken to comply with the Committee of the Parties Recommendation CP(2013)7 on the implementation of the Council of Europe Convention on Action against Trafficking in Human Beings, the Government mentions that from 2013, the National Consulting and Intervention Centre for Victims of Trafficking (KCIK) provides two shelters dedicated to female victims of trafficking instead of one and medical assistance to the victims who are beneficiaries of KCIK. Moreover, the Committee notes in this report that the Act of 12 December 2013 on foreigners, has implemented important changes in terms of granting a reflection period and residence permits for foreign victims of trafficking. The Committee notes that, in April 2015, a law which reinforces and consolidates the framework of protection and assistance of victims of crime and witnesses including trafficking victims, came into force.

Application of penalties in practice. With regard to the application in practice of section 189a of the Penal Code which deals with human trafficking, the Committee notes the Government’s indication that in 2013 there were 12 persons convicted, with 12 sentenced to suspensions of liberty; in 2014, there were nine persons convicted, with nine sentenced to deprivation of liberty and five fines; and in 2015, there were 23 convicted under section 189a, with 24 sentenced to deprivation of liberty and ten fines.

The Committee notes with interest the numerous measures taken by the Government to strengthen its law enforcement bodies and labour inspectorate to combat trafficking in persons for labour exploitation. The Committee encourages the Government to pursue its efforts in strengthening coordination between the actors involved in combating trafficking in persons, in order to improve identification of and better protection for victims of trafficking. The Committee also encourages the Government to ensure that the objectives set out in the National Action Plan against Human Trafficking are achieved. The Committee requests the Government to continue to provide information on the action of the labour inspectorate to combat trafficking in persons as well as on the protection and services provided to the victims.

2. Legislative framework for forced labour practices. The Committee requested the Government to provide further information on the application of sections 189 and 191 and Chapter XXVIII of the Penal Code in practice, such as the number of cases related specifically to forced labour practices and of convictions.

The Committee notes the observations of the “Solidarnosc” stating that, in the current legislation, forced labour or compulsory labour does not appear at all, and there is only a definition of human trafficking. “Solidarnosc” raises concerns regarding the legal existence of forced labour linked to human trafficking whereas forced labour does not necessarily have to be the result of trafficking. “Solidarnosc” also raises its doubts regarding the available data, which makes it difficult to estimate the number of people who are victims of forced labour and human trafficking.

The Committee notes the Government’s indication that while the Criminal Code does not contain any regulation providing directly for the punishment of exacting forced or compulsory labour, the definition of forced and compulsory labour comprises features of other criminal offences that are defined in the Criminal Code. The Committee notes the statistics provided by the Government in its report. Thus, in the last three years (2012, 2014 and 2015), the number of prosecutions under section 189 relating to human trafficking remained nearly similar as the penalties. Regarding section 191, subsections (1) and (2) relating to the use of force or illegal threat to compel another person’s conduct, in 2013, 1,077 persons were convicted, in 2014, there were 1,032 persons convicted and in 2015, there were 992 persons convicted. Under this section and within those past three years, convicted persons were mostly punished with a deprivation of liberty and a fine apart from deprivation of liberty, whereas penalties such as restriction of liberty or a solely imposed fine were less applied. Finally, in 2013 under Chapter XXVIII relating to the offences against the rights of the persons pursuing paid work, which comprises sections 218 to 221, 412 persons were convicted; in 2014, there were 306 persons convicted; and in 2015 there were 288 persons convicted. The same penalties of the deprivation of liberty and the solely imposed fines applied to the convicted. The Committee takes due note of this information especially, of the application in practice of section 191 and Chapter XXVIII of the Penal Code regarding the number of convictions and the penalties applied. The Committee encourages the Government to pursue its efforts to strengthen the effectiveness of investigations and ensure that prosecutions are carried out against perpetrators of forced labour. It also requests the Government to continue to provide information on the application in practice of the provisions mentioned above, indicating the number of convictions and specific penalties applied.

Article 2(2)(c). Work of prisoners for private individuals, companies and associations. In its previous comments, the Committee noted that certain provisions of the Executive Penal Code allow prisoners to work for private employers. The Committee noted that according to the Government, the consent of the prisoners to work for private companies is expressed. Thus, the Committee requested the Government to take the necessary measures to ensure that such consent is provided formally, informed and free from the menace of a penalty and authenticated by the conditions of work approximating a free labour relationship.

The Committee notes the Government’s indication that its previous position on this issue remains valid. According to the Act of 6 June 1997, work is one of the basic duties of a convict and such work is paid (section 123, paragraph 1, and section 102, paragraph 4, Executive Penal Code). The Committee notes the Government’s indication that following a ruling from the Constitutional Tribunal of 2010 considering that setting the amount of remuneration for the work provided by prisoners at half the minimum wage was incompatible with the Constitution, amendments were made to the Executive Penal Code in March 2011. The Government indicates that current remuneration for a convicted employee is set in a manner ensuring the minimum wage is obtained provided the monthly period of working time is satisfied. The Government states that the regulation on work of persons deprived of liberty respects the full protection of their dignity and satisfies the requirements of the appropriate treatment of those persons. The Committee notes the Government’s indication that the work of convicts is provided under comparable conditions to voluntary employment and that convicts’ complaints are related to the lack of work opportunities. The Committee notes that a person who is deprived of liberty and who works outside of the prison remains under the supervision of a penal institution, which is obliged to check the working conditions.

The Committee also notes that under the grounds of the Executive Penal Code, a convict can only be employed upon consent of and on terms and conditions set out by the director of a penal institution, ensuring that the penalty of deprivation of liberty is served properly. Thus, the Government indicates that even though the formal consent of the convicted person is not required, the employees’ rights are observed and such work is in compliance with the Convention. The Committee notes the Government’s statement, in its more recent report, that with regard to the issue of prison labour, two bills concerning the rights of convicted persons who are subjected to deprivation of liberty are being prepared: the Bill amending the Executive Criminal Code and the Bill amending the Act on the Employment of Individuals Deprived of Liberty. According to the Government’s indication, among the proposed changes to include providing convicted persons with more opportunities to perform paid and unpaid work, and this unpaid work will require the consent of the convicted person.

The Committee takes note of this information and requests once again the Government to formalize the consent of the convicted persons in order to ensure the full protection of their dignity and the respect of the appropriate treatment of prisoners, as well as to ensure that the work of prisoners for private entities can only be carried out with their prior, free, formalized and informed consent. The Committee asks the Government to provide information on the progress made with this regard.

[The Government is asked to supply full particulars to the Conference at its 106th Session and to reply in full to the present comments in 2017.]

Observation (CEACR) - adopted 2016, published 106th ILC session (2017)

The Committee notes the observations of the Independent and Self-Governing Trade Union (“Solidarnosc”) received on 29 August 2016 as well as the Government’s reports.

Articles 1(1), 2(1) and 25 of the Convention. Vulnerable situation of migrant workers with regard to the exaction of forced labour. The Committee notes the observations of Solidarnosc, stating that Poland is a country of destination of people who become victims of forced labour, the majority of whom are migrants. Solidarnosc also states that there has been exploitation of citizens of the Democratic People’s Republic of Korea (DPRK) for forced labour in Poland. The Committee notes Solidarnosc’s indication that there were 239 DPRK workers brought legally to Poland in 2011 and 509 workers brought legally in 2012. According to Solidarnosc’s indication, DPRK workers have to send back to the regime a large part of their legitimate earnings. The Committee notes Solidarnosc’s concern regarding the working conditions of those workers, which might be assimilated to forced labour. Solidarnosc mentions that ten years ago, DPRK workers were discovered in a fruit plantation near Sandomierz on the coastal construction sites. Their salary was only $20 instead of the $850 promised in the contract, their passports were taken away, they were working on average 72 hours per week and they were placed in barracks, from which they were prohibited to leave.

The Committee notes the Government’s statement, in its communication dated 7 October 2016, that in 2016 comprehensive controls of the legality of employment of foreigners in selected entities known to employ DPRK citizens were carried out throughout the country. During those controls, no cases of illegal employment were detected but a number of infringements of the provisions of the Act on Employment Promotion and provisions of the Labour Law were found. In the controlled entities there were no instances of failure to pay or payment of a lower amount than that stated in the foreigners’ work permits. Findings of this respect were made on the basis of evidence of payments presented by the employers (bank transfers and payrolls with signatures of DPRK citizens). The information supplied by the regional labour inspectorates shows the labour inspectors have found no proof that a given employer or entrepreneur would employ a national of the DPRK in conditions giving rise to a suspicion of forced labour.

The Committee also takes notes of the report of the Special Rapporteur of the United Nations on the situation of human rights in the DPRK of 8 September 2015 (A/70/362). In this report, the Committee notes the Special Rapporteur’s indication that nationals of the DPRK are being sent abroad by their Government to work under conditions that reportedly amount to forced labour (paragraph 24). According to the report, 50,000 DPRK workers operate in countries such as Poland and mainly in the mining, logging, textile and construction industries. The Committee notes, as examples of working conditions, that: the workers do not know the details of their employment contract; workers earn on average between $120 and $150 per month, while employers in fact pay significantly higher amounts to the Government of the DPRK (employers deposit the salaries of the workers in accounts controlled by companies from the DPRK); the workers are forced to work sometimes up to 20 hours per day with only one or two rest days per month; health and safety measures are often inadequate; safety accidents are allegedly not reported to local authorities but handled by security agents; they are given insufficient daily food rations; their freedom of movement is unduly restricted; they are under constant surveillance by security personnel and are forbidden to return to the DPRK during their assignment (paragraph 27); workers’ passports are confiscated by the same security agents; workers are threatened with repatriation if they do not perform well enough or commit infractions; and host authorities never monitor the working conditions of overseas workers. The Committee notes the Special Rapporteur’s indication that companies hiring overseas workers from the DPRK become complicit in an unacceptable system of forced labour and that they should report any abuses to the local authorities, which have the obligation to investigate thoroughly and end such partnership (paragraph 32).

The Committee recalls the importance of taking effective action to ensure that the system of the employment of migrant workers does not place the workers concerned in a situation of increased vulnerability, particularly when they are subjected to abusive employer practices such as retention of passports, deprivation of liberty, non-payment of wages, and physical abuse, as such practices might cause their employment to be transformed into situations that could amount to forced labour. The Committee therefore urges the Government to strengthen its efforts to ensure that migrant workers are fully protected from abusive practices and conditions amounting to the exaction of forced labour and to provide information on the measures taken in this regard. The Committee also requests the Government to take concrete action to identify the victims of forced labour among migrant workers and to ensure that these victims are not treated as offenders. Lastly, the Committee requests the Government to take immediate and effective measures to ensure that the perpetrators are prosecuted and that sufficiently effective and dissuasive sanctions are imposed.

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

[The Government is asked to supply full particulars to the Conference at its 106th Session and to reply in full to the present comments in 2017.]

Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

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

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

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

Article 2(2)(c). Work of prisoners for private individuals, companies or associations. The Committee previously noted certain provisions allowing prisoners to work for private employers. Pursuant to Chapter 5 of the Executive Penal Code (governing the employment of convicts), prisoners can be employed not only on the basis of an employment contract, but also on the basis of an order assigning them to a specific job (“a referral to work”). In the latter case, the prisoner’s consent to work is not required; the work is compulsory for prisoners and is carried out on the basis of a contract concluded between a penal institution and a private employer. The Committee also noted the legal provisions concerning hours of work and occupational safety and health and social security applicable to prison labour. It further noted the Government’s statement that the director of the penal institution represents the interests of a prisoner, enters into an agreement with the private employer concerning the referral to work, supervises the employment and takes the final decision about the prisoner’s withdrawal from employment. The Committee observed that while, under the Executive Penal Code, prisoners’ conditions of work may be considered as approximating those of a free labour relationship, the formal consent of prisoners to work for private enterprises was not requested.

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

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

Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

The Committee notes a communication from the Independent Self-Governing Trade Union (Solidarność) of 25 August 2011, as well as the Government’s report.

Articles 1(1), 2(1) and 25. 1. Trafficking in persons. The Committee notes the entry into force on 8 September 2010 of the amendment of the Penal Code introducing a definition of trafficking in human beings (section 115(22)), penalties of imprisonment of three to 15 years for this offence (section 198a) and a definition of slavery (section 115(23)). The Committee notes the detailed statistical information provided by the Government concerning the application of the legislative provisions of the Penal Code punishing human trafficking and related crimes for 2009 and 2010. The Government indicates that in 2009–10, a total of 157 persons were accused and the total number of victims was estimated at 934. Compared to 2008, the number of convictions for the crime of human trafficking increased. The Committee requests the Government to continue to provide information on the application in practice of the provisions punishing human trafficking and related crimes, including information on the legal proceedings which have been instituted against perpetrators and the penalties imposed.

2. Forced labour of foreign and national workers. In its communication, Solidarność indicates the absence of a single provision explicitly prohibiting forced labour which, according to the workers’ organization, in practice has had the effect of limiting investigations and preparatory proceedings. In this regard, Solidarność raises concern about the absence of reliable data on forced labour in Poland and the extent of illegal employment of both foreign and national workers which often give rise to excessively long working hours and non-payment of wages. Noting the absence of information on this point in the Government’s report, the Committee hopes that the Government’s comments will be supplied in its next report, so as to enable the Committee to examine them at its next session.

Article 2(2)(c) of the Convention. Work of prisoners for private individuals, companies or associations. In its earlier comments, the Committee referred to certain provisions allowing prisoners to work for private employers. The Committee noted that, under the provisions of Chapter 5 of the Executive Penal Code governing employment of convicts, they can be employed not only on the basis of an employment contract, but also on the basis of an order assigning them to a specific job (“a referral to work”). In the latter case, the convict’s consent to work is not required; the work is compulsory for convicts under the legislation in force and is carried out on the basis of a contract concluded between a penal institution and a private employer. The Committee also previously noted the legal provisions concerning hours of work and occupational safety and health and social security applicable to prison labour. While noting that, under the Executive Penal Code, prisoners’ conditions of work may be considered as approximating those of a free labour relationship, the Committee observed that, under the legislation in force, the formal consent of convicts to work for private enterprises does not appear to be asked for.

The Committee notes the Government’s indication that currently it does not plan to undertake legislative measures to amend the Executive Penal Code concerning the obligation to obtain permission by a convicted person delegated to work for a private entrepreneur. It further notes the Government’s statement that the director of the penal institution represents the interests of a prisoner, enters into an agreement with the private employer concerning the referral to work, supervises the employment and takes the final decision about the prisoner’s withdrawal from employment.

The Committee is therefore bound to recall again that Article 2(2)(c) of the Convention strictly prohibits that prisoners are hired to, or placed at the disposal of, private enterprises. However, the Committee has considered that work for private enterprises can be held compatible with Article 2(2)(c) if prisoners voluntarily enter a normal employment relationship with private employers and perform work in conditions approximating a free employment relationship. This arrangement necessarily requires the free informed, formal consent of the person concerned, as well as further guarantees and safeguards covering the essential elements of a labour relationship, such as wages, social security and occupational safety and health. If all the above conditions are complied with, the work of prisoners will be removed from the scope of Article 2(2)(c) of the Convention, since no compulsion is involved. The Committee therefore urges the Government to take the necessary measures to ensure that the work of prisoners for private employers is carried out only with their voluntary formal and informed consent, such consent being free from the menace of any penalty, including the loss of rights and privileges. The Committee requests the Government to provide, in its next report, information on the progress made in this regard.

Direct Request (CEACR) - adopted 2010, published 100th ILC session (2011)

Article 2(2)(c) of the Convention. Work of prisoners for private individuals, companies or associations. In its earlier comments, the Committee referred to certain provisions allowing prisoners to work for private employers. The Committee noted that, under the provisions of Chapter 5 of the Executive Penal Code governing employment of convicts, they can be employed not only on the basis of an employment contract, but also on the basis of an order assigning them to a specific job (“a referral to work”). In the latter case the convict’s consent to work is not required, the work is compulsory for convicts under the legislation in force and is carried out on the basis of a contract concluded between a penal institution and a private employer.

The Committee notes the Ordinance of the Ministry of Justice on specific principles pertaining to the employment of convicts of 9 February 2004. It also notes the Government’s indications concerning the preparation of the draft amendment of the Executive Penal Code, which relates to methods of fixing remuneration for work performed by convicts. As the Committee noted previously, labour law provisions concerning hours of work and occupational safety and health are applicable to prison labour (section 121, paragraphs 1, 2 and 5 of the Executive Penal Code). It also noted the Government’s indications concerning the application to convicts of the social security provisions (section 127(1) of the Executive Penal Code).

The Committee recalls that Article 2(2)(c) of the Convention strictly prohibits that prisoners are hired to, or placed at the disposal of, private enterprises, However, the Committee has considered, as explained in paragraphs 59 and 60 of its General Survey of 2007 on the eradication of forced labour, that work for private enterprises can be held compatible with Article 2(2)(c) if prisoners voluntarily enter a normal employment relationship with private employers and perform work in conditions approximating a free employment relationship. This arrangement necessarily requires the informed, formal consent of the person concerned, as well as further guarantees and safeguards covering the essential elements of a labour relationship, such as wages, social security and occupational safety and health. If the above conditions are complied with, the work of prisoners will be removed from the scope of Article 2(2)(c) of the Convention, since no compulsion is involved.

While noting that, under the Executive Penal Code, prisoners’ conditions of work may be considered as approximating those of a free labour relationship, the Committee observes that, under the legislation in force, the formal consent of convicts to work for private enterprises does not appear to be asked for. Moreover, the Government states in its report that, though convicts can submit a request to be assigned to work for an outside entity, the convicts’ assignment to work for an outside contractor (private entrepreneur) does not depend on their consent. A provision of the Ordinance of the Ministry of Justice of 9 February 2004 referred to above, according to which conditions of employment should be accepted by convicts in writing, does not appear to be sufficient to satisfy the above requirements of the Convention.

The Committee therefore hopes that, in the context of the amendment of the Executive Penal Code, the necessary measures will be taken with a view to ensuring compliance with the Convention, for example by introducing a provision requiring an informed, freely given consent of the convicts concerned (including those working in accordance with an order assigning them to a specific job (or “referral to work”) to perform labour for private employers. The Committee requests the Government to provide, in its next report, information on the progress made in this regard.

Articles 1(1), 2(1) and 25. Trafficking in persons. The Committee notes the information provided by the Government in its report concerning measures taken to implement the National Action Plan Against Trafficking in Human Beings for 2009–10. It also notes the Government’s indication concerning the elaboration of a draft act to amend the Penal Code with a view to introducing a definition of trafficking in human beings. The Committee requests the Government to supply a copy of the amendments, as soon as they are adopted, as well as information on the application in practice of the provisions punishing human trafficking and related crimes, including information on the legal proceedings which have been instituted against perpetrators and on the penalties imposed.

Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

Article 2(2)(c) of the Convention. Work of prisoners for private individuals, companies or associations. In its earlier comments, the Committee referred to certain provisions of the Act on the employment of persons deprived of liberty, of 28 August 1997, and Order No. 727 of 26 August 1998 on specific principles of employment of convicts, allowing prisoners to be employed by private employers (enterprises and natural persons). The Committee also noted from the provisions of Chapter 5 of the Penal Executory Code, of 6 June 1997, which governs the employment of prisoners, that inmates are employed not only on the basis of an employment contract, but also on the basis of an order assigning them to a specific job (“a referral to work”), which apparently does not require the convicted person’s consent, since it is based on a contract concluded between a penal institution and an employer and the legislation provides for an obligation of prisoners to perform labour.

The Committee has noted with interest the Government’s indication in its 2005 report that no cases of prisoners’ employment by private entrepreneurs without prisoners’ consent were noted during the reporting period. It has also noted the information concerning the amendment of Chapter 5 of the Penal Executory Code which relates to the employment of prisoners, and methods of fixing remuneration for their work as well as the application of new standards of occupational safety and health (sections 122(a) and 123). The Committee notes the Government’s indications concerning the application to prisoners of the social security provisions (section 127(1)). As the Committee noted previously, labour law provisions concerning hours of work and occupational safety and health are applicable to prison labour (section 121, paragraphs 1, 2 and 5). The Government states that the employment of prisoners outside prison premises is similar to voluntary employment relationship.

While noting this information, the Committee requests the Government to indicate, in its next report, how the freely given consent of convicts to work for private employers is ensured, particularly in a situation where prisoners are not employed on the basis of a contract, but work in accordance with an order assigning them to a specific job (“a referral to work”). Please also communicate a copy of the Ordinance on the detailed principles of prisoners’ employment, issued by the Ministry of Justice on 9 February 2004, to which reference is made in the report.

Articles 1(1), 2(1) and 25. Trafficking in persons for the purpose of exploitation. The Committee has noted with interest comprehensive information provided by the Government in its 2005 and 2007 reports concerning measures taken to prevent, suppress and punish trafficking in persons for the purpose of exploitation. It has noted, in particular, the information concerning the adoption and implementation of the National Programmes to Prevent and Combat Trafficking in Persons for 2003–04, 2005–06 and 2007–08, as well as the creation in 2004 of an anti-trafficking task force chaired by the Undersecretary of State in the Ministry of Internal Affairs and Administration. The Committee would appreciate it if the Government would continue to provide, in its future reports, information on the implementation in practice of the National Programme to Prevent and Combat Trafficking in Persons, supplying statistical information and copies of the relevant reports (such as, for example, a report on trafficking in human beings for the period of 2003–06), as well as information on the legal proceedings which might have been instituted against perpetrators and on the penalties imposed. Please also continue to provide information on measures taken or envisaged to amend legislation concerning trafficking and to improve law enforcement.

Direct Request (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee has noted the Government’s reply to its earlier comments. It requests the Government to provide, in its next report, information in response to the Committee’s general observation of 2000 concerning measures taken or contemplated to prevent, suppress and punish trafficking in persons for the purpose of exploitation.

Article 2(2)(c), of the Convention. In its earlier comments, the Committee noted certain provisions of the Act on the Employment of Persons Deprived of Liberty, of 28 August 1997, and Order No. 727 of 26 August 1998 on specific principles of employment of convicts, allowing prisoners to be employed by private employers (enterprises and natural persons). The Committee also noted from the provisions of Chapter 5 of the Punishment Execution Code, of 6 June 1997, which governs the employment of prisoners, that inmates are employed not only on the basis of an employment contract, but also on the basis of an order assigning them to a specific job ("a referral to work"); and that labour law provisions concerning hours of work and occupational safety and health are applicable to prison labour (section 121, paragraphs 1, 2 and 5).

The Government indicates in its latest report that employment of convicts on a basis of "referral to work" is similar to voluntary employment relationship, because most often it is connected with prior consent of the convict for implementation of a programme of rehabilitation. However, in its previous report received in August 2000, the Government indicated that employment of convicted persons on the basis of "referral to work" requires only the conclusion of a contract between a penal institution and an employer; the convicted person’s consent is not required, since the legislation provides for an obligation of prisoners to perform labour.

The Committee points out once again that, in order to be compatible with the explicit prohibition Article 2(2)(c), of the Convention, work of prisoners for private employers must be performed in conditions approximating a free employment relationship; this necessarily requires the freely given consent of the persons concerned, as well as further guarantees and safeguards covering the essential elements of a free labour relationship, such as wages and social security, etc. (see paragraph 10 of the Committee’s general observation of 2001 and paragraphs 103-143 of its General Report to the 89th Session of the International Labour Conference, 2001).

The Committee therefore reiterates its hope that the necessary measures will be taken in order to ensure compliance with the Convention on this point, e.g. by introducing a provision clearly requiring a freely given consent of the convicted persons concerned (including those employed on a basis of "referral to work") to perform labour for private employers, and that the Government will soon be able to report the progress made in this regard.

Direct Request (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee has noted the information provided by the Government in reply to its earlier comments.

Article 2, paragraph 2(c), of the Convention. The Committee previously noted that the Act on the Employment of Persons Deprived of Liberty, of 28 August 1997, which aims at increasing the employment opportunities of inmates, provides for the creation of enterprises attached to penitentiary institutions (section 3), which, inter alia, may take the form of a company in which the State holds more than 50 per cent of shares. The Committee also noted that under section 7 of the Order on specific principles of employing convicts, of 26 August 1998 (Journal of Laws, 1998, No. 113, item 727), they may be employed, inter alia, by enterprises operating in prisons and by other enterprises and natural persons, including in home employment production carried out within custodial premises and penal institutions.

The Committee also noted from the provisions of Chapter 5 of the Penal Executory Code, of 6 June 1997, which governs the employment of prisoners, that inmates are employed on the basis of an order assigning them to a specific job, on the basis of an employment contract or other legal ground; that their employment under an employment contract can take place with the consent of the director of a penitentiary institution who defines the conditions of employment; and that labour law provisions concerning hours of work and occupational safety and health are applicable to prison labour (section 121, paragraphs 1, 2 and 5). An inmate can be discharged from the obligation to work if he or she is undergoing training or if it is justified by other reasons (section 121, paragraph 4).

The Government indicates in its latest report that the employment of convicted persons takes place primarily on the basis of an order assigning them to a specific job ("a referral to work"), which requires the conclusion of a contract between a penal institution and an employer; the convicted person’s consent is not required, since the legislation provides for an obligation of prisoners to perform labour. The Government further states that the penal institutions’ administration has a permanent opportunity of supervising the conditions of work of convicted persons.

While noting this information, the Committee recalls that, under Article 2, paragraph 2(c), of the Convention, work or service exacted from any person as a consequence of a conviction in a court of law is excluded from the scope of the Convention if two conditions are met, namely: (i) that the said work or service is carried out under the supervision and control of a public authority; and (ii) that the said person is not hired to or placed at the disposal of private individuals, companies or associations.

The Committee has always made it clear that the two conditions are cumulative and apply independently; i.e. the fact that the prisoner remains at all times under the supervision and control of a public authority does not in itself dispense the Government from fulfilling the second condition, namely that the person is not hired to or placed at the disposal of private individuals, companies or associations (see paragraph 119 of the Committee’s General Report to the 89th Session of the International Labour Conference, 2001). As the Committee repeatedly pointed out, it is only when work or service is performed in conditions approximating a free employment relationship that work by prisoners for private companies can be held compatible with the explicit prohibition of the Convention; this necessarily requires the formal consent of the person concerned, as well as further guarantees and safeguards covering the essential elements of a free labour relationship, such as wages and social security, etc. (see e.g. paragraphs 112-125 of its General Report to the 86th Session of the International Labour Conference, 1998).

The Committee therefore hopes that the Government will take the necessary measures in order to ensure the observance of the Convention on this point, and that it will supply, in its next report, information on the progress made in this regard.

Direct Request (CEACR) - adopted 1999, published 88th ILC session (2000)

The Committee notes the information provided by the Government in its report.

It notes that the Act on the Employment of Persons Deprived of Liberty, of 28 August 1998, which aims at increasing the employment opportunities of inmates, provides for the creation of enterprises attached to penitentiary institutions (section 3), which may take the form of a state enterprise, or a company limited by shares in which the State has more than 50 per cent of shares, or an agricultural enterprise. The Committee notes that under paragraph 3.1 of Order No. 727 of 26 August 1998, at the request of any convict, the director of the penal institution shall determine conditions of employment, and also notes that under paragraph 4.1 of the said Order, a written acceptance by the convict of employment conditions is required. The Committee further notes that under section 7 of Order No. 727 of 26 August 1998 on specific principles of employing convicts, they may be employed, besides production workshops operated by organizational units of prison services, also in enterprises operating in prisons and in other enterprises, natural persons, including home employment production carried out within custody premises and penal institutions.

The Committee also notes the provisions of Chapter 5 of the Penal Executory Code, of 6 June 1997, which governs the employment of prisoners. It notes, in particular, that inmates are employed on the basis of an order assigning them to a specific job, on the basis of employment contract or other legal ground; that their employment under an employment contract can take place with the consent of the director of a penitentiary institution who defines the conditions of employment; and that labour law provisions concerning hours of work and occupational safety and health are applicable to prison labour (section 121, paragraphs 1, 2 and 5). An inmate can be discharged of the obligation to work if he or she is undergoing training or if it is justified by other reason (section 121, paragraph 4). The Committee further notes that prison labour is remunerated in accordance with a contract concluded by a director of a penitentiary institution or by the inmate, and that the remuneration shall not be less than the statutory minimum wage (section 123 (1)), but that the inmate is entitled, as a general rule, only to 50 per cent of wages remaining after a 10 per cent deduction has been made, the rest being transferred to the State (section 125).

The Committee recalls that, under Article 2, paragraph 2 (c), of the Convention, prisoners must not be hired to or placed at the disposal of private individuals, companies or associations. As the Committee has pointed out in paragraphs 112 to 125 of its general report to the 86th Session of the International Labour Conference (1998), only when performed in conditions approximating a free employment relationship can work by prisoners for private companies be held compatible with the explicit prohibition of this Article, this necessarily requires the voluntary consent of the person concerned, as well as further guarantees and safeguards covering the essential elements of a free labour relationship, such as the payment of normal wages and social security, etc.

The Committee therefore asks the Government to indicate, in its next report, how it is ensured that the prisoner in the process of engaging in employment is giving such voluntary consent, especially in the situation when the inmate is employed on the basis of an order assigning him or her to a specific job or on a legal basis other than an employment contract, and to give further details on the guarantees and safeguards established in law and practice (e.g. by supplying copies of rules or regulations or other documentation concerning employment of prisoners, including provisions on conditions of work, social security, etc.).

The Committee also requests that, in providing this information, the Government addresses the issues set out in its general observation on the Convention made in its report to the 87th Session of the International Labour Conference (1999).

Direct Request (CEACR) - adopted 1992, published 79th ILC session (1992)

The Committee notes that under section 154(a) of the Act of 21 November 1967 respecting the general obligation to defend the Republic of Poland, as amended by the Act of 23 May 1991 respecting trade unions, members of the youth brigades serve in the civil defence service.

The Committee asks the Government to provide information, including the relevant texts, on the youth brigades and the service they perform, stating in particular the length and the nature of the service, whether it is voluntary or compulsory, and whether it is performed in place of or as well as military service.

Observation (CEACR) - adopted 1990, published 77th ILC session (1990)

Further to its previous comments the Committee notes with satisfaction that section 45 of the Act of 29 December 1989 on Employment has repealed the Act of 26 October 1982 on the procedure concerning persons evading work which provided administrative authorities with extensive policing powers in respect of persons whom they considered to be inactive for socially unjustified reasons.