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

Protection of Wages Convention, 1949 (No. 95) - Poland (Ratification: 1954)

Other comments on C095

Observation

Direct Request

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Article 2 of the Convention. Scope of application. In its previous comments, the Committee requested the Government to specify how it is ensured that workers employed under civil law contracts enjoy, with respect to their wages, the protection afforded by the various provisions of the Convention. In its reply, the Government specifies that the protective coverage of the Labour Code extends to all employment relationships (that is work performed for an employer under his/her supervision at the time and place specified by the employer) regardless of the name of the contract. The Government adds that the intention is to prevent evasion of the protective provisions of the labour legislation by employing natural persons under civil law contracts, especially mandate contracts or contracts to perform a specified task. The Government further indicates that, with respect to remuneration, employees performing work under civil law contracts enjoy the protection afforded by the provisions of the Civil Code concerning compensation for failure to respect contractual obligations. The Committee understands that the use of civil law contracts is a matter of debate as this flexible form of employment offers a lower level of protection compared to contracts regulated by the Labour Code. In this respect, the Committee notes the comments of the Independent and Self-Governing Trade Union (NSZZ) “Solidarnosc” dated 19 August 2013, according to which the concept of pay under Polish law is limited to earnings received only on the basis of an employment relationship, thus excluding persons engaged on the basis of civil law contracts. The NSZZ “Solidarnosc” refers to the broad definition of “wages” in Article 1 of the Convention and considers that all protective mechanisms provided for in the Convention should not be reserved for employees receiving remuneration within the meaning of labour law but for all employed persons. Recalling that the Convention seeks to ensure that any remuneration, however termed or calculated, which is payable under a written or unwritten contract of employment for work done or to be done, or for services rendered or to be rendered, is fully protected under national laws as regards all the different aspects addressed in Articles 3 to 15 of the Convention, the Committee requests the Government to further clarify how it is ensured in law and practice that employees engaged under civil law contracts enjoy with respect to their wages the level of protection prescribed by the Convention.

Article 12. Regular payment of wages – Wage arrears situation. Further to its previous comments, the Committee notes the updated statistical information provided by the Government on the results of 9,200 inspections carried out in 2012. These inspections covered 8,728 enterprises and 645,000 workers, representing 0.25 per cent of all enterprises and 0.4 per cent of the workforce, respectively. According to the inspection results, every third employer was found not to pay wages in full and every fifth employer failed to pay wages on time. The highest total amount of wages in arrears was found in industrial processing (87.7 million Polish zloty (PLN) or approximately €21 million) and construction (PLN44.7 million or approximately €10.6 million), while the highest average amount per worker was recorded in health care and social assistance (PLN2,913 or approximately €695) and administrative services (PLN2,580 or approximately €616). With respect to the situation in the health-care sector, the Committee notes that, according to the Government’s report, in 2012, 20 per cent of all medical establishments inspected were found to be in contravention of their obligations regarding payment of employee remuneration. The overall amount of enforced claims totalled PLN104.2 million (approximately €24.7 million) for 140.8 thousand workers. In this respect, the Committee notes the Government’s indication that the Act of 13 April 2007 on the national labour inspection (Dziennik Ustaw No. 89, item 589), as amended, raised the amount of fines from the range of PLN20 to PLN5,000 (approximately €5 to €1,190) to the range of PLN1,000 to PLN30,000 (approximately €240 to €7,160). Noting that serious difficulties persist in several sectors regarding the timely payment of wages, the Committee requests the Government to intensify its efforts in order to eliminate accumulated wage arrears and prevent the recurrence of similar practices in the future which clearly run counter to the principles and purpose of this Convention.