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

The Committee notes the observations communicated by the Polish Trade Union of Nurses and Midwives (OZZPiP) on 27 January 2003 concerning the application of the Convention and the Government’s response dated 1 October 2003.

1. According to the OZZPiP, the nursing personnel experience poor working conditions as evidenced by the periodic non-payment of wages, pay cuts and denial of statutory salary increases. The OZZPiP states that this situation persists despite the protests of health care employees and the numerous letters addressed to government authorities. In support of its complaints, the organization has transmitted copies of various communications sent to the Prime Minister, the Minister of Labour and Social Policy, the Minister of Health, the Ombudsman and the Labour Inspector General drawing their attention to increasing problems of non-payment or delayed payment of wages and inviting them to take remedial action. Among the practices denounced by the OZZPiP as gross violations of the labour legislation are the failure of health care institutions to pay wages on a timely basis (the situation seems to be particularly serious in Lower Silecia where the delay in the payment of wages is of several months), the payment of wages in instalments, the non-payment of wage increases, annual bonuses, inflation compensation, compensation for work on Sundays and public holidays and other wage supplements, unjustified deductions from wages and the lowering of the basic wage of nurses and midwifes decided by several independent health-care institutions. The OZZPiP stresses the dramatic situation of the professional community of nurses and midwives and refers to violent incidents of public unrest, and even to the case of the suicide of an unpaid nurse in despair, to denote the long period of deep discontent of health-care employees and the lack of hope for any improvement in their situation.

2. The Committee notes that the non-payment of wages at regular intervals, which is a violation of the principle set out in Article 12, paragraph 1, of the Convention, is confirmed by official statistical information supplied by the National Labour Inspection Service (PIP). In her letter of 6 February 2003, which was annexed to the comments of the OZZPiP, the Labour Inspector General confirmed the reports of failure to pay wages and other benefits in full and on time, and noted that delays range from several days to several months. According to the same communication, the labour inspectors requested the payment of the amount of PLN22.2 million (approximately US$5.6 million) but only PLN3.3 million (approximately US$832,500) had actually been paid. The Labour Inspector General further indicated that the accumulation of wage arrears keeps growing and that the situation is due to rising amounts of unpaid wages, unimplemented wage increases the employees are entitled to since January 2001 and January 2002 under article 4(a) of the Act on the negotiation-based setting of average pay increases by entrepreneurs and on amendments to certain other acts and the Health Care Provider (ZOZ) Act, and the increase of unpaid amounts due to employees by way of annual bonuses. The statistics brought to the knowledge of the Committee show an equally worrying accumulation of arrears in respect of employers’ compulsory contributions to social security institutions. In other cases nurses are not paid termination benefits following their dismissal or the judicial liquidation of the health-care establishment which is in conflict with the requirement of the Convention for prompt settlement of all outstanding payments upon the termination of the employment contract (Article 12, paragraph 2).

3. In its reply, the Government emphasizes that the Ministry of Health does not have the authority to intervene in actions of health-care providers as employers, that it lacks also the authority to order the managers of health-care service providing entities to pay their employees remuneration in the amount or at the time intervals stipulated in the employment contracts, and that consequently the nursing personnel affected by wage arrears should seek to recover any unpaid wages by judicial means.  In this connection, the Committee feels obliged to recall that the Government bears the overall responsibility for ensuring the effective application of the Convention and for preventing and punishing infringements by using the legal means at its disposal in order to compel defaulting employers to comply with the legislation in force.

4. While noting the Government’s indication that law suits alleging violations of the workers’ right to remuneration are examined by the courts in a special non-formalized and cost-free procedure, the Committee asks the Government to specify the amount of wage arrears which have so far been recovered by court action and also to indicate any additional measures to ensure the expeditious settlement of wage-related proceedings. Moreover, the Committee requests the Government to transmit copies of any court decisions involving questions of principle relating to the application of the Convention.

5. The Committee notes that, as regards the payment of annual wage increases to employees of health-care establishments under the provisions of the Act on the negotiation-based setting of average pay increases, the Government refers to the ruling of the Constitutional Court of 18 December 2002, by which these increases were found to be in conformity with the Constitution and must therefore be implemented. The Government adds, however, that the application of article 4(a) of the Act on the negotiation-based setting of average pay increases by independent public-owned health-care providers gives rise to great difficulties and that an ad hoc team established through the good offices of the Minister of Health is currently examining possible solutions to the problem of implementation of the statutory pay increases for nursing personnel. The Committee hopes that rapid progress could be made in this regard since any delay may render the repayment of the amounts due for past years even more difficult. It therefore asks the Government to provide information on all future developments.

6. The Committee notes that the Government refers at length to initiatives such as the programme of restructuring and protective measures in health care launched in 1999, the inter-ministerial drafting team for the rehabilitation and settlement procedure for the independent public-owned health-care providers appointed by the Prime Minister in December 2002 or the round table programming conference called in April 2003 by the Minister of Health, but provides little information on specific measures taken for the elimination of  wage debts in the health-care sector. The Committee is mindful of the dire economic situation of most health-care establishments and the drastic reforms and restructuring pursued in the health-care system but insists on the need to undertake priority action for the reimbursement of mounting wage arrears to nursing employees. The Committee considers it appropriate to refer in this connection to paragraph 412 of its General Survey of 2003 on the protection of wages in which it stressed that none of the reasons normally advanced by way of excuse, such as the implementation of structural adjustments or "rationalization" plans, falling profit margins or the adverse economic situation, can be accepted as valid pretexts for the failure to ensure the timely and full payment to workers of the wages due for work already performed or services already rendered, as required under the Convention. The financial straits of a private enterprise or a public administration may be addressed in many ways, but that is not an excuse for deferred payment or non-payment of the outstanding wages due to workers. The Committee asks therefore the Government to indicate the specific measures, legislative, administrative or others, designed to stop the further aggravation of the situation and accelerate the payment of wage debts to health-care employees. 

7. The Committee observes that the Government does not refer to the wage crisis in the nursing services sector in concrete terms and does not provide any statistics showing the nature and scale of the problem, or its evolution in the last few years. The Committee considers that the absence of any up-to-date statistics is all the more regrettable as the Government transmitted its response some ten months after the filing of the comments of the OZZPiP. As the Committee has been pointing out on numerous occasions, a proper assessment of the problem is only possible through the systematic collection of statistical data emanating from credible sources. It therefore asks the Government to supply in its next report detailed information on the number of workers affected, the number of health-care establishments experiencing difficulties in the payment of wages, the average amount of delay in the payment of wages, the amount of arrears settled and the outstanding amount of arrears, the number of inspections made and the penalties imposed, and any negotiated time schedule for the payment of the sums remaining due. The Committee would also appreciate receiving detailed information on any other occupational category or branch of economic activity which may experience similar problems on a large scale.

8. The Committee recalls that for the past six years it has been commenting extensively on problems related to the deferred payment of wages mostly in transition economies drawing attention to three essential elements in so far as the application of the Convention is concerned: (i) efficient control and supervision basically implying the strengthening of labour inspection services; (ii) truly dissuasive and strictly enforced sanctions against those who take advantage of the economic situation to commit abuses; and (iii) the means to redress the injury caused, including not only the full repayment of the amounts due but also fair compensation for the losses incurred by the delayed payment. In this respect, the Committee wishes to refer to paragraphs 356 to 374 of the abovementioned General Survey in which it reviews the recent record of the Organization’s supervisory organs with regard to the obligations arising out of Article 12, paragraph 1, of the Convention.

9. Finally, the Committee emphasizes that the phenomenon of wage arrears is self-propagating and that unless urgent action is taken to contain it before it reaches significant proportions, it may spill over to other sectors of the national economy turning into a vicious circle with disastrous social and financial consequences. The Committee accordingly requests the Government to intensify its efforts and exhaust all available means in order to comply with the requirements of the Convention.

[The Government is asked to report in detail in 2004.]