Observation (CEACR) - adoptée 1995, publiée 82ème session CIT (1995)

The Committee notes the Government's report and the appended documents.

1. Further to its previous comments concerning the draft amendment of the Labour Code, the Committee notes that, according to the Government, this reform is a long term one since the national labour legislation has to be adjusted to a market economy and international obligations concerning the regulation of industrial relations. According to the report, the reform prohibits all discrimination in industrial relations based on sex, age, race, nationality, religious and political opinion, and trade union membership. The Committee notes that the draft amendment has been before Parliament since May 1994 and asks the Government to provide a copy of the text as soon as it has been adopted.

2. With regard to the draft Constitutional Acts submitted to the Constitutional Commission, the Committee notes that they have been discussed in the framework of the said Commission. The Committee asks the Government to keep it informed of any developments in this respect.

3. The Committee takes note of the report of the activities undertaken in 1992 by the Commissioner for Civil Rights. It notes in particular that the cases submitted to the Commissioner refer to discrimination based on sex in employment and occupation, at the time of recruitment and during employment. The Committee also notes two communications addressed by the Commissioner to the Minister of Labour in 1993 reporting discrimination against women in employment, particularly massive layoffs by enterprises undergoing restructuring, which first and foremost affect working mothers (who accounted, in September 1993, for 53 per cent of the unemployed), and discrimination by employment agencies based on age and sex particularly with regard to posts in the public administration. The Commissioner suggests that an anti-discrimination clause should be included in the Labour Code and that two days' parental leave per year should be granted to male workers to put them on an equal footing with women workers who already have this entitlement. The Committee notes that in its replies, the Government recalls the fundamental principle of a free labour market, but considers it necessary for the draft amendments to the Labour Code to be adopted since they would enable equality in employment to be promoted in many respects. It also indicates that job offers must be drafted in accordance with section 11(2) of the Employment and Unemployment Act of 16 October 1991 which ensures equal treatment for jobseekers by employment agencies. The Government states that this provision will be examined in the forthcoming legislative reform but that, given the present state of the labour market, more protective regulations would not necessarily guarantee the application of these principles in practice.

With regard to termination of employment, the Committee notes with interest that, in its report, the Government recalls that under section 177(1) of the Labour Code it is not permissible to terminate a woman worker's contract of employment without notice while she is pregnant or on maternity leave, irrespective of the grounds for such termination. The only exception is where termination is necessary due to the liquidation or bankruptcy of the enterprise. In such cases the enterprise must reach agreement with the trade union on the termination procedure. With regard to child-care leave, the Committee notes that the Government refers to section 41 of the Labour Code under which contracts of employment may not be terminated while a worker is on leave, including child-care leave, except in the event of liquidation or bankruptcy, or for other reasons in the event of massive layoffs or individual terminations, if the trade union does not oppose such termination. The Committee would be grateful if the Government would provide a copy of the report of labour inspections concerning the situation created by the restructuring of the Polish economy.

Since the revision of the Labour Code is still pending, the Committee draws the Government's attention to the importance of ensuring by law the principles of non-discrimination contained in the Convention. It also recalls that under Article 2 of the Convention the Government must declare and pursue a national policy to promote equality with a view to eliminating all discrimination based on sex, race, colour, religion, political opinion, national extraction or social origin. The Committee urges the Government in its next report to provide detailed information on the measures taken or envisaged in this respect (other than section 11 of the Act of 16 October 1991 on equal treatment in job placement) particularly for women's access to employment and vocational training and guidance, at the time of recruitment and during the employment relationship.

4. In its previous comments, the Committee asked the Government to provide copies of the decisions of the High Administrative Court which concerned direct or indirect discrimination in employment. The Committee has learned of the decisions handed down in 1990 and 1991 in favour of people who had taken legal action for discriminatory dismissal in the public sector. The Committee notes, in the arguments of the High Court in judgement No. 759/90 of 20 November 1990, that the supplementary provision enabling a public employee to be dismissed on "other significant grounds" (section 1(1) of the special regulations of 13 July 1990 concerning government employees, which were in force from 1 August 1990 to 31 January 1991), must be interpreted in accordance with the national Constitution and, more particularly, with the civil rights and freedoms which, in the view of the High Court, must be strengthened and developed. It should be noted that the administrative authorities' interpretation of this provision was deemed by the High Court to be arbitrary and ultra vires.

The Committee recalls that under Article 3(d) of the Convention, the Government must pursue the national policy to promote equality, referred to in Article 2, in respect of "employment under the direct control of a national authority". The Committee would therefore be grateful if the Government would state in its next report how it applies this policy in respect of employment under its control, particularly in the light of the judgements of the High Administrative Court.

5. With regard to the vacant post of Government Plenipotentiary for Women and Family Affairs, and the functions attributed to its Office, the Committee notes from the report that no decision has been taken on this matter and that the Office's main attributions concerned international cooperation with regard to the family, young people and women. The Committee asks the Government to keep it informed of developments in this situation which is of major importance, particularly as, according to the statements made by the National Commission of NSZZ Solidarnosc which the Committee commented on previously, female workers especially those with family responsibilities or who take child-care leave, have become a group which is vulnerable to dismissals (see point 3 above).

6. The Committee is addressing a request directly to the Government on a number of other points.