2017-2020 NATIONAL ACTION PLAN
Pillar I: The state’s duty to protect human rights
5. Planned changes in national legislation
Amendment to the Trade Union Act section [page 25]:
The Ministry of Family, Labour and Social Policy has drafted a bill amending the Trade Union Act that provides for extending the right of workers to organize onto individuals performing paid work but not mentioned in the provisions of the Act (in particular contractors or self-employed individuals), who have all the characteristics of workers within the meaning of the Constitution. The proposed changes are a consequence of the decision of the Constitutional Tribunal of 2 June 2015, ref. Act K 1/13, which ruled that Article 2(1) of the Trade Union Act, in so far as it restricts the freedom of associating in and joining trade unions by individuals pursuing paid work not referred to in that provision, violates Article 59(1) in conjunction with Article 12 of the Constitution of the Republic of Poland. It is planned to adapt the provisions of the current trade union law to new realities after the extension of workers’ right to organize and the need to ensure that all trade unionists, irrespective of the nature of their legal relationship with their employer, are 26 able to freely exercise the right to organize in trade unions. The bill is currently in legislation. The draft law has been reviewed by social partners, e.g., as part of the proceedings of the Social Dialogue Council.
Right of female workers to protection [page 15]:
In view of the right of employed women to special protection under Article 8 of the European Social Charter, as well as the right of mothers to special protection during the period before and after childbirth under Article 10 of the International Covenant on Economic, Social and Cultural Rights, and under Article 177 LC, the employment relationship with a female employee during her pregnancy or while on maternity leave is subject to particular protection. During this time, an employer may not terminate an employment contract with or without notice unless there are reasons justifying termination without notice through the fault of the employee and an enterprise trade union representing the employee has consented to the termination of the employment contract.
During pregnancy or maternity leave, it is possible to terminate an employment contract solely in the event of the declaration of bankruptcy or the liquidation of the employer. In such cases, however, the employer is obliged to agree with the enterprise trade union representing the female employee on the date of the termination of their employment contract. If it is not possible to ensure other employment within that period of time, the female employee is entitled to the benefits specified in separate provisions on cash benefits from social security in the event of sickness or maternity.
The special protection of the employment relationship does not apply to female employees on a trial period not exceeding one month or to employees hired under an employment contract for a definite period of time concluded to replace an employee during a justified absence from work. These regulations also apply accordingly in the case of employees taking parental leave.
The Labour Code also contains a number of provisions governing specific rights of employees related to parenting, including the provisions on maternity, parental, paternity, and child-care leave, as well as provisions to facilitate the fulfilment of parental responsibilities in relation to child care and education, including regulations that make it possible to combine leave with part-time work or regulations on working time and the use of exemptions from work or breaks from work.
The particular protection of employment relationships during pregnancy and maternity leave is subject to modifications resulting from the provisions of the Act of 13 March 2003 on special rules regarding the termination of an employment relationship for reasons not related to employees (Journal of Laws of 2016, Item 1474). This law, which applies to employers with at least 20 employees, allows for termination of current employment and working conditions with notice, while still prohibiting termination, both in the case of collective redundancies and individual termination of an employment relationship during pregnancy and maternity leave. These regulations also apply accordingly in the case of employees taking parental leave.
According to the Act on the Implementation of Certain Regulations of the European Union Regarding Equal Treatment, in the case of a violation of the principle of equal treatment, laid down in that law, against an individual, including in connection with pregnancy, maternity leave, leave on terms of maternity leave, paternity leave, parental leave, or child-care leave, the person is entitled to compensation.
Pillar II: The corporate responsibility to respect human rights
Implementation of the UN Sustainable Development Goals [page 29]:
The SDGs also have a clear business justification with real opportunities to take concrete action on both investments (including in important sectors, such as infrastructure, energy, and industrial production) and responsible business conduct, such as appropriate labour standards, respect for workers’ rights, rational use of resources, and clean and environmentally friendly technologies and production processes.
Pillar III: Access to remedies
Tasks of the National Labour Inspectorate in the field of combating discrimination in access to employment and in relation to the provision of services by employment agencies [pages 48,49]:
By verifying compliance with the law in relation to temporary workers, labour inspectors verify that there is no violation of the prohibition on unequal treatment of temporary workers—with respect to working conditions and other conditions of employment—as compared to workers employed by the employer in the same or a similar position.
6. Planned actions to provide access to remedies [page 50]:
There have been instances of labour-law violations identified among entities conducting the activities of a temporary employment agency. This phenomenon is not widespread, but given its social dimension, it is necessary to monitor it continuously and take actions to improve the standards of temporary work and the protection of temporary workers. (…)There are two mechanisms for dealing with complaints about abusive practices in employment agencies. Any person who becomes aware of non-compliance by an employment agency with the provisions of the Act on Promotion of Employment and Labour Market Institutions, including abuse and fraudulent practices on the part of such an entity, may file a complaint to the marshal of the voivodship competent for the seat of the employment agency or the National Labour Inspectorate. In the case of temporary employment agencies, the complaint may also concern non-compliance with the provisions of the Act on the Employment of Temporary Workers and other labour-law provisions. Employees’ organisations (i.e., trade unions) and employers’ organisations are also entitled to lodge such complaints.
International non-binding mechanisms and international legal framework in force in Poland in relation to business and human rights, the NAP [page 55]:
ILO Tripartite Declaration of Principles on Multinational Enterprises and Social Policy of 1977 (last change in 2006): refers to the obligation of enterprises to respect human rights and workers’ rights in many respects, taking into account the existing ILO acquis.
2021-2024 NATIONAL ACTION PLAN
|4. Ministry of Family and Social Policy
Social Policy for Elderly People 2030. SAFETY – PARTICIPATION – SOLIDARITY
Creating incentives for older persons to remain in the labour market will be implemented by creating a broad offer addressed to those persons, which includes:
o introducing flexible forms of work for older persons (including, inter alia, part-time work, telework, home office, flexible working hours in agreement with the employee) on a large scale;
o providing support for social economy entities employing older persons;
o promoting continuation of work in other forms such as coaching, tutoring, and mentoring.
Tapping the potential of older persons requires creating a wide range of possible forms of providing work, including on a full-time or part-time basis. The social policy for older people should strive to create conditions and highlight the benefits resulting from prolonging the period of employment.
Promoting the principles of corporate social responsibility and age management among employers will be implemented through:
o conducting information campaigns, trainings for employers on the benefits following from employment of an older person;
o creating an image of an economically active older person in the social and media space;
o promoting flexible forms of employment among employers;
o promoting good practices and sharing experiences in this area.
Age management brings tangible benefits to both employees and employers, which are important on a macro-social scale. – page 16
Another priority area of the Strategy is ‘Work’. Within this area, there are measures envisaged to foster greater professional activity of persons with disabilities and enhance possibilities of their employment in an open, inclusive and accessible work environment, pursuant to Article 27 of the Convention on the Rights of Persons with Disabilities. Measures within this area focus on:
· modification and supplementation of the employment support system and professional activation of persons with disabilities, including through development and implementation of the National Programme for Employment of Persons with Disabilities and implementation of supported employment,
· professional activation of persons with disabilities implemented, inter alia, through employment in social and solidarity economy entities (especially in social enterprises),
· creation of work environment friendly for employees with disabilities, inter alia through working out a model of support for persons with disabilities in the work environment,
· creation of environment conducive to effective professional activation of persons with disabilities through, for instance, ensuring specialised advisory in the scope of available instruments of professional activation of persons with disabilities and in the scope of obligations of employers following from their employment for institutions of the labour market,
On the basis of so indicated outcomes for the Work priority area the key indicator was established as follows: Employment rate of working-age persons with disabilities, which in the base year 2018 reached the value of 26.2% and the target value is to be increased to 40% by 2030. – page 18/19
Update of the ‘Family and work’ platform
Over the next two years, a number of further measures are planned in the area related to work-life balance in connection with the implementation of the ‘Good climate for quality jobs’ project with funding provided under the Norwegian Financial Mechanism. The plans involve, among others, an update and further development of the rodzinaipraca.gov.pl platform, as well as large-scale awareness-raising activities among employers, employees and the general public (including awareness-raising campaign, nationwide meeting of fathers, competition for employers creating friendly workplaces for working parents).
Implementation of Directive (EU)2019/1158 of the European Parliament and of the Council of 20 June 2019 on work-life balance for parents and carers and repealing Council Directive 2010/18/EU
Following the entry into force of Directive (EU) 2019/1158 of the European Parliament and of the Council of 20 June 2019 on work-life balance for parents and carers and repealing Council Directive 2010/18/EU, it will be necessary to make systemic changes to Chapter 8 of the Labour Code on employees’ rights related to parenthood in the context of the implementation of the provisions of this Directive into Polish labour law. At that point, further solutions will be considered to facilitate achieving work-life balance by employees. The deadline for implementing the Directive into national legal systems has been set for 2 August 2022. – page 21
The right to a fair wage
According to Article 23(3) of the Universal Declaration of Human Rights, ‘everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection’. This right was clarified in Article 7 of the International Covenant on Economic, Social and Cultural Rights. The establishment of a minimum wage and an hourly minimum wage for certain civil-law contracts represents an instrument that furthers this goal. These issues are regulated by the Act of 10 October 2002 on Minimum Remuneration for Work (Journal of Laws of 2020, item 2207). According to the law, the minimum remuneration is, annually, the subject of negotiations in the Social Dialogue Council, consisting of representatives of the government, employees (trade unions), and employers (employers’ organisations). In the event of disagreement in the Social Dialogue Council, the decision on the amount of minimum remuneration is taken by the Council of Ministers. The amount of the minimum remuneration for work is adjusted annually to reflect the increase in the minimum remuneration for persons employed on the basis of an employment contract. From 1 January 2021, the amount of the minimum remuneration for employees (i.e. persons employed on the basis of an employment relationship) is PLN 2,800, and the minimum hourly rate for persons performing work on the basis of particular civil law contracts is PLN 18.30. Remuneration below the minimum wage constitutes a violation of employee rights. Each increase of the minimum wage translates into actual improvement of the situation of the lowest-paid workers. – page 21/22
12. Public Procurement Office
The new Public Procurement Law (Journal of Laws of 2021, items 1129 and 1598)
• Article 95, according to which the contracting body shall specify in the contract notice or procurement documents for service or construction works the contract performance requirements related to employment by the economic operator or subcontractor under an employment contract of persons performing activities within the contract performance, specified by the contracting body, if the performance of these activities involves the performance of the work in a manner specified in Article 22 § 1 of the Act of 26 June 1974 – the Labour Code. The regulation in question is aimed at limiting the avoidance by entrepreneurs of the use of employment contracts in favour of civil law contracts in cases where the use of the former is required by law. – page 33
• Article 104 on the possibility of direct reference by the contracting body to a specific label in the description of the subject-matter of the contract, the description of the contract award criteria or in the contract performance requirements in order to highlight the specific characteristics of the contract (including social ones). Labels by means of which contracting bodies may specify requirements connected with guaranteeing adequate remuneration for work, protecting women’s rights and combating discrimination against them (equal pay, participation in decision-making), prohibition of forced labour and non-use of child labour, freedom of association, health and safety at work, contribution to the development of local communities. – page 34
13. National Labour Inspectorate
During the implementation of its statutory tasks, the National Labour Inspectorate cooperates with specialised authorities for supervision and inspection of working conditions, trade unions, employers’ organisations, workers’ self-government authorities, workers’ councils, social labour inspections, public employment services and state administration authorities, particularly authorities for overseeing and inspecting working conditions, the Police, the Border Guard, customs authorities, revenue offices, and the Social Insurance Institution, as well as local self-government authorities. – page 35
Powers of PIP authorities
In addition to the above-mentioned tasks, the National Labour Inspectorate has an important impact on the working conditions of individuals performing work on a basis other than an employment relationship and on enforcement of the payment of the minimum hourly rate for mandate contracts (Article 734 of the Civil Code) or service contracts to which the provisions on mandate apply (Article 750 of the Civil Code), which are applicable to natural persons who do not conduct an economic activity and to natural persons engaged in an economic activity acting individually and personally while performing contractual tasks. – page 36
Supervisory and inspection activities
The National Labour Inspectorate actively supports employers’ involvement in issues concerning safety and working conditions, as well as employee participation, both in its oversight and inspection capacity and in its preventive and promotional activities. These include seminars, conferences, and training meetings with employers involved in permanent workplace safety improvement programmes (enhanced oversight in industrial establishments, regular inspections in construction, rail infrastructure, forestry, and mining sectors). – page 37
Tasks of the National Labour Inspectorate in the field of combating trafficking in human beings, in particular, for forced labour
Within the framework of the supervisory and inspection tasks, in particular when inspecting the legality of employment and the assignation and performance of work by foreign nationals, labour inspectors verify whether there are indications of forced labour at an inspected establishment, a phenomenon which is characterised by taking control over an employee and results in a violation of human rights. In order to evaluate and identify potential victims of trafficking, especially for forced labour, a number of indicators are used (developed by both ILO and the Ministry of the Interior and Administration), such as the circumstances of taking up and performing work, which may indicate that the employee is a victim of this type of crime. – page 37
The signing of an agreement between the Border Guard Chief Commander and the Chief Labour Inspector in 2008 and then in 2015 and 2018 served as an instrument to strengthen the capacity of labour inspectors to respond to the illegal employment of foreign nationals and to the phenomenon of trafficking in human beings. The agreement offers a basis for cooperation primarily in undertaking joint inspections by Border Guard officers and labour inspectors, and for exchanging information on violations of the law concerning foreign nationals, including cases of their illegal employment. Effective combating of crimes of trafficking in human beings for forced labour is also possible thanks to mechanisms of cooperation and exchange of information between National Labour Inspectorate units and prosecutors’ offices, at both the central and local levels, also on the basis of an agreement concluded in 2014 and 2017. Training courses are conducted at the National Labour Inspectorate Training Centre in Wrocław to help improve the qualifications of the inspectorial staff involved in the activities related to the issues in question. – page 38
Tasks of the National Labour Inspectorate in the field of combating discrimination in access to employment and in relation to the provision of services by employment agencies
Respecting the dignity and other personal interests of employees is a fundamental duty of employers. (…)
Inspections of employment agencies always include audits of the implementation of the prohibition of discrimination on grounds of sex, age, disability, race, religion, ethnic origin, nationality, sexual orientation, political beliefs, and religious denomination or trade union affiliation of individuals for whom the agency sought employment or other paid work.
By verifying compliance with the law in relation to temporary workers, labour inspectors make sure that there has been no violation of the prohibition on unequal treatment of temporary workers – with respect to working conditions and other conditions of employment – as compared to workers employed by the employer in the same or a similar position.
As part of inspections concerning the legality of employment, labour inspectors examine issues related to respecting the principle of equal treatment and non-discrimination in access to employment. These activities are aimed at disclosing offences with regard to a refusal to employ a candidate for a vacant position or place of vocational training on the basis of their sex, age, disability, race, religion, nationality, political beliefs, ethnic origin, religious denomination, or sexual orientation. Most often, they involve the examination of job advertisements in which employers post illegal criteria for people who apply for employment, where the nature of the work does not justify their use (e.g., relating to sex or age).
Labour inspectors also check compliance with the principle of equal treatment of foreign nationals in terms of working conditions and other conditions of employment, compared to Polish citizens employed in corresponding or similar positions. – page 39
Appendix 2 (information of the Ministry of Foreign Affairs)
GOOD PRACTICE CATALOGUE FOR FOREIGN MISSIONS IN THE FIELD OF BUSINESS AND HUMAN RIGHTS2
Point relating to consular activities:
– counteract the phenomenon of trafficking in human beings for forced labour through the implementation of an appropriate information policy, the application of regulations and guidelines relevant to consular services in this regard and ongoing cooperation with services and NGOs dealing with this issue. – page 48