Solicitud directa (CEACR) - Adopción: 2019, Publicación: 109ª reunión CIT (2021)

Convenio sobre la discriminación (empleo y ocupación), 1958 (núm. 111) - Polonia (Ratificación : 1961)

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Observación

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Article 1 of the Convention. Indirect discrimination. The Committee previously pointed out that while section 3(2) of the Equal Treatment Act defines indirect discrimination as a situation that would expose a “natural person” to unfavourable difference or particular disadvantage, section 18(3)(a), paragraph 4, of the Labour Code refers to a situation that would expose “all or a considerable number of employees belonging to a particular group” to unfavourable difference or particular disadvantage. The Committee notes the Government’s statement, in its report, that courts are entitled to interpret the differences between the two definitions, but that the Supreme Court decided that in order to demonstrate indirect discrimination, it is firstly necessary to demonstrate that there was a specific group of workers the majority of whom, or all of them, can be described as having a particular feature. The Committee asks the Government to continue to provide information on the manner in which the prohibition of indirect discrimination in employment and occupation provided for in section 3(2) of the Equal Treatment Act and section 18(3)(a), paragraph 4, of the Labour Code is applied in practice. The Government is asked to provide a copy of any relevant judicial decision handed down in that regard, while specifying how courts have interpreted the differences between the two definitions in order to ensure comprehensive protection against indirect discrimination in employment and occupation, pursuant to Article 1(1)(a) of the Convention. Referring to the Government’s statement that it is currently working on a new draft Labour Code, the Committee hopes that the Government will seize this opportunity to harmonize the definitions of indirect discrimination and asks the Government to provide information on any progress made in that regard.

Article 1(1)(b). Additional ground of discrimination. Disability. The Committee notes the Government’s indication that the national Operational Programme Knowledge Education Development 2014–20 indicates that the employment rate of persons with a disability is very low (20.9 per cent in 2013). It also notes the Government’s indication that several instruments are being developed to support the employment of persons with disabilities, in particular concerning their access to employment and entrepreneurship. It notes in particular that, according to the 2017 annual report of the Commissioner for Human Rights, a Strategy for Persons with Disabilities for 2018–30 is currently being developed. The Committee notes from the data forwarded by the Government, that 35 complaints alleging discrimination on the ground of disability when establishing or terminating employment relationship and 30 complaints alleging discrimination on the ground of disability when setting remuneration for work or other conditions of employment were dealt with by the labour inspectorate between 2014 and 2016. It observes, however, that no information is provided nor available on the nature and outcome of those complaints. The Committee notes that in its concluding observations, the United Nations (UN) Committee on the Rights of Persons with Disabilities expressed concern at: (i) the low rate of employment of persons with disability and the barriers that women with disabilities face when they seek to enter the open labour market and, as a consequence, their lower income as compared to others, particularly in rural areas; (ii) the promotion of sheltered workshops and the offer of low-status jobs for persons with disabilities which hinders their access to the open labour market; and (iii) the failure to reach the employment quota of 6 per cent for persons with disabilities, especially in the public administration sector (CRPD/C/POL/CO/1, 29 October 2018, paragraph 47). The Committee asks the Government to provide information on: (i) the measures taken to promote vocational training and employment of persons with disabilities and improve their access to the open labour market, in particular under the national Operational Programme Knowledge Education Development for 2014–20 and the draft Strategy for persons with disabilities 2018–30, and to provide a copy of such strategy once adopted; (ii) the employment rate of persons with disabilities, both in the public and private sectors, disaggregated by sex and work environment (segregated work environment or open labour market); and (iii) the number, nature and outcome of complaints regarding cases of discrimination on the ground of disability in employment and occupation dealt with by the labour inspectors, the courts or any other competent authorities, specifying the penalties imposed and compensation awarded.

Enforcement. The Committee notes that according to the detailed information provided by the Government on the enforcement of equal treatment and non-discrimination provisions by the labour inspectorate, for the period January 2014 to December 2016 violations were found in 28 out of 424 employment agencies and entities inspected; in 27 out of 402 temporary employment agencies inspected, and in 34 out of 450 employers having recourse to temporary workers. Discriminatory criteria in job offers were found in 16 inspected establishments. It further notes that complaints made before the labour inspectorate mainly referred to cases of discrimination in employment on the ground of sex, race, ethnic origin and national extraction, and disability. With respect to cases of discrimination in employment lodged before district courts, the Committee notes from the data forwarded by the Government that 40 cases were lodged in 2015 and 28 cases were lodged in 2016, and that among the 41 cases of discrimination in employment heard by district courts in 2016, six actions were approved in whole or in part, and 21 were dismissed. The Government has stated that a decision of the Supreme Court ruled that differentiating the employee’s situation as result of citizenship was a breach of the principle of non discrimination in employment (judgment of 7 November 2016, Ref. No. Ill PK 11/16). From the data provided by the Government, the Committee notes that 2,500 labour inspections covering approximately 6,000 foreign workers took place between July 2014 and December 2016, revealing 106 cases of unequal treatment of foreign workers, such as lower pay rates for the same work and less favourable conditions of work. In that regard, it notes that the Human Rights Council, in the context of UPR, recommended that the Government continues to make efforts to protect migrant workers from all forms of exploitation and abuse (A/HRC/36/14, 18 July 2017, paragraph 120), while the United Nations Committee on Economic, Social and Cultural Rights expressed concern about the working conditions of migrant workers and recommended that they be protected from all forms of exploitation and abuse (E/C.12/POL/CO/6, 26 October 2016, paragraphs 21 and 22). The Committee asks the Government to continue to provide information on any violations of the prohibition of discrimination in employment and occupation detected by the labour inspectors or other competent authorities, and on the sanctions imposed and the remedies granted.