Direct Request (CEACR) - adopted 2014, published 104th ILC session (2015)

Private Employment Agencies Convention, 1997 (No. 181) - Poland (Ratification: 2008)

In reply to previous comments, the Government provided detailed information on the changes made to the Act on Employment Promotion and Labour Market Institutions since May 2014. The Committee notes the observations made by the Independent and Self-Governing Trade Union “Solidarnosc” and the Government’s reply to these observations.

Article 5(2) of the Convention. Special services and programmes for disadvantaged jobseekers. The Government indicates that legislation enables the establishment of cooperation between public employment services and private employment agencies as regards the conclusion of contracts to provide employment to jobseekers who find themselves in an unfavourable labour market situation, such as the long-term unemployed. The Committee invites the Government to provide information on the outcome of the special services or targeted programmes designed to assist the most disadvantaged jobseekers in their job seeking activities.

Article 7. Fees. The Government refers to section 85(2)(7) of the Act on Employment Promotion and Labour Market Institutions which provides that fees can be charged only to cover costs associated with sending a person to work abroad. The Government adds that these are in fact the costs that a person would incur in the event of going to work abroad. The Committee notes that the National Labour Inspectorate found 299 cases of violation in 2012 concerning unlawful fee charging, up from 119 cases in 2011. During the reporting year, the inspecting authorities found only two employment agencies that had charged prohibited fees on 31 occasions. The Committee invites the Government to continue to provide information in this regard, including information on the measures taken to eliminate unlawful fee charging.

Articles 10 and 14. Investigation of complaints and adequate remedies. In its observations, Solidarnosc indicates that temporary employment agencies widely use civil law contracts, stating that some 55 per cent of the contracts used in labour agencies are civil ones. Civil law contracts are generally used when the employed persons are delegated to work for third party companies and such contracts fall outside the scope of labour law. Solidarnosc adds that the Supreme Court has issued a ruling showing that civil law contracts cannot be used to avoid the application of labour legislation. The Government indicates that legislation prohibits replacing employment contracts with civil law contracts if work would be performed in circumstances characteristic of an employment relationship. The Government also referred to the Supreme Court ruling of 9 July 2008 which states that “the intention to enter into a civil law contract, as well as signing such a contract intentionally, may not impart civil law nature on employment initiated by such a contract, if it exhibits dominant characteristics of an employment relationship”. Moreover, the Government adds that the National Labour Inspection has the power to commence an action to establish whether there exists an employment relationship. A person who performs temporary work may also claim the existence of an employment relationship in the labour courts. The Committee invites the Government to provide further information in this regard, including extracts from inspection reports, information on the number of workers covered by the measures giving effect to the Convention and the number and nature of infringements reported.

Articles 11 and 12. Rights of workers employed by a private employment agency. Allocation of responsibilities between private employment agencies and user enterprises. The Committee notes the information provided by the Government on the provisions guaranteeing adequate protection for workers employed by a private employment agency in the area of social security (Article 11(e)), access to training (Article 11(f)) and compensation in the case of occupational accidents and diseases (Article 11(h)). Moreover, the Committee notes the information provided by the Government on the division of responsibilities between private employment agencies and user enterprises. It notes that employment agencies are responsible for matters related to social security (Article 12(d)) and compensation in the case of occupational accidents and diseases (Article 12(g)). In its observations, Solidarnosc indicates that in the area of collective bargaining, the temporary agency is considered as the responsible party. It adds that, however, Polish legislation does not guarantee any mechanisms influencing the employment conditions of temporary employees as the provisions of the Act on the Employment of Temporary Workers does not allow for the ability to join trade unions in the workplace. Moreover, legislation does not promote collective bargaining in the temporary labour sector. It also adds that legislation does not offer proper protection to pregnant temporary employees. Taking into account the observations of Solidarnosc, the Committee invites again the Government to specify the provisions guaranteeing adequate protection for the workers employed by a private employment agency in the fields of freedom of association (Article 11(a)), collective bargaining (Article 11(b)), compensation in case of insolvency and the protection of workers claims (Article 11(i)), and maternity protection and benefits, and parental protection and benefits (Article 11(j)). Please also specify the manner in which the applicable legislation has allocated the respective responsibilities of private employment agencies and user enterprises in each of the areas previously mentioned.

Article 13. Cooperation. The Government indicates that in May 2014 legislative changes made to the Act on Employment Promotion and Labour Market Institutions introduced a new manner in which public employment offices and private employment agencies cooperate with regard to the implementation of labour market policy. In its observations, Solidarnosc indicates that it would appear that cooperation between public employment offices and private employment agencies is not going well. It adds that employment agencies are profit-oriented and are not interested in cooperating with public employment services in the area of improving the situation of the most vulnerable groups of unemployed persons. Current regulations lack the necessary solutions to make employment agencies take into consideration the most vulnerable groups of the unemployed. The Government provides information on a range of opportunities for cooperation between labour offices and employment agencies. It adds that some of the solutions are novel and it is thus difficult to decide on their effectiveness at this time. The Committee requests the Government to provide information on the manner in which efficient cooperation between public employment offices and private employment agencies is promoted and reviewed periodically.

[The Government is asked to reply in detail to the present comments in 2016.]