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

Direct Request (CEACR) - adopted 2016, published 106th ILC session (2017)

The Committee notes the observations presented by the Independent and Self-Governing Trade Union Solidarnosc in August 2016 and the Government’s response thereto, received in October 2016.

Articles 1(2) and 3(2) of the Convention. Conditions governing the legal status and operation of private employment agencies. Application of the Convention in practice . The Committee notes the information provided in the Government’s report regarding relevant legislative developments, particularly changes made or envisaged with respect to the Act on Employment Promotion and Labour Market Institutions (hereinafter the Employment Promotion Act) and the Act on the Employment of Temporary Workers (hereinafter the Temporary Workers Act). The Committee further notes the comprehensive information from the State Labour Inspectorate (SLI) indicating that, in 2015, out of the 479 private employment agencies inspected, 278 private employment agencies were acting as mediators, with 122 of these agencies mediating workers abroad. In addition, 81 agencies provided human resources consulting services, 47 offered career guidance, and six delegated persons to entities in order for them to acquire practical skills. According to the SLI, 12 private employment agencies did not require a license under section 18(c)(2) of the Employment Promotion Act. In this regard, the Committee recalls that Article 3(2) of the Convention calls for the conditions governing the operation of private employment agencies to be determined under a licensing or certification system, except where they are otherwise regulated or determined by national law and practice. The Committee further notes that the 285 temporary work agencies inspected by the SLI employed a total of 141,600 persons, of which 43 per cent were working under civil law contracts that do not provide for certain employment benefits and offer less occupational safety and health protection than employment contracts. In its 2016 observations, Solidarnosc indicates that despite the ongoing changes in the regulatory framework involving the social partners, the simplified procedures for establishing and operating temporary work agencies still fail to ensure adequate protection for workers in regard to working conditions and salaries, making them particularly vulnerable and subject to social exclusion. This is reflected in the high number of irregularities detected by the SLI. In its response to Solidarnosc’s observations, the Government stresses that the legislative amendments to date seek to enhance protection for clients of private employment agencies and partially reverse the deregulation of the private employment agency market that followed the adoption of the Act of 13 June 2013. The Committee requests the Government to provide further information on how the conditions governing the operation of unregistered private employment agencies operating under the Employment Promotion Act is regulated or determined under national law and practice. It further requests the Government to continue to provide updated information on the practical implementation of the Convention and to provide information regarding developments in amending the Employment Promotion Act and the Temporary Workers Act.

Article 5(2). Special services and programmes for disadvantaged jobseekers. In reply to the Committee’s previous comments, the Government indicates that, by the end of 2015, a total of 20,455 long-term unemployed persons and 476 persons in difficult labour market positions benefited from commissioned activation measures under agreements between voivodship marshals with private employment agencies pursuant to the Employment Promotion Act. In this regard, Solidarnosc observed that the outsourcing of activation measures to private employment agencies on the basis of section 61b of the Employment Promotion Act left room for abuse, as agencies were exempt from the obligation to return funds received for conducting activation measures in the event of a disciplinary dismissal of a worker to be activated, or in case of termination of a civil law contract by the worker. In its response, the Government disagreed, pointing out that private employment agencies offering activation measures were selected based on their competence and assume the economic risks related to mediation. Furthermore, since the remuneration that agencies receive is calculated on the basis of the duration of the employment found for their clients, they have an interest in finding them sustainable employment. The Committee requests the Government to continue to provide specific information regarding the special services and programmes designed to assist the most disadvantaged jobseekers in their job seeking activities, including information on the outcomes and the evaluation of the commissioned activation measures, particularly in relation to the time frame for activation agreements and their success rate.

Articles 7 and 8. Fees and adequate protection in a cross-border context. In response to the Committee’s comments, the Government indicates that the number of cases of illegal fee charging has decreased significantly. Steps taken by the SLI to prevent illegal fee charging include an education campaign, media monitoring and improved inspection methods. The SLI indicates, however, that the number of infringements of the requirement that workers receive written information of costs, fees and other charges relating to their mediation abroad has increased from 6 to 9 per cent. The Committee notes the cooperation agreement concluded between the SLI and the Dutch Inspectorate of Social Affairs and Employment to improve the protection of Polish citizens mediated to the Netherlands; moreover, the SLI indicates that foreign workers, particularly Ukrainian citizens, who are frequently mediated to work in Poland under false pretexts, are subject to significant abuse, including through use of civil contracts. In this regard, the SLI indicates that out of the 122 agencies inspected that were engaged in cross-border mediation, 70 had violated one or more requirements of the Employment Promotion Act as amended and concludes that substantive legislative and practical measures are necessary to reduce the number of irregularities. In this regard, the Committee notes that the amendments to the Employment Promotion Act and the Temporary Workers Act aim to improve the protection of workers mediated in a cross-border context, for example by laying down the specifics to be contained in written employment contracts of foreign workers mediated to work in Poland. The Committee asks the Government to continue to provide information in this regard, including information on the measures taken to eliminate unlawful fee charging in both domestic and cross border contexts. It also requests the Government to provide information on the measures adopted and envisaged to provide adequate protection for and prevent abuses of migrant workers recruited or placed in its territory by private employment agencies.

Articles 10 and 14. Investigation of complaints and adequate remedies. The information provided by the SLI reflects an increase in the scale of violations of the Employment Promotion Act, as 49 private employment agencies were found to be operating illegally and general irregularities were found in 60 per cent of the inspected entities (compared to 53 per cent in 2014). The most common violations involved irregularities involving mediation of persons to work abroad, including agencies’ failure to maintain lists of foreign entities to which persons were mediated, failure to maintain lists of persons mediated to work abroad, and failure to conclude written contracts with foreign employers and persons mediated to work abroad. The SLI indicates that during 2012–15, due to its activities, 147 entities were removed from the register of employment agencies. In response to Solidarnosc’s previous observations, the SLI indicates that use of civil law contracts instead of the appropriate employment contracts has increased from 19 per cent in 2014 to 29 per cent in 2015. In addition, the number of temporary workers performing work outside the scope of the definition of temporary work has been on the rise: from 7 per cent in 2013 to 15 per cent in 2015. The Committee notes the Government’s statement that violations of the Temporary Workers Act are not criminal offences and that possible fines are capped at 5,000 Polish zloty (PLN). In 2015, in addition to warnings and improvement notices, temporary employment agencies and user enterprises received fines totalling PLN120,010 and 50 cases were referred to court. The SLI expresses the view that this framework provides insufficient deterrents to prevent violations. The Committee notes Solidarnosc’s observation that the user enterprises have increasingly complied with the requirement that they inform trade union organizations about their intention to hire temporary workers. It also notes Solidarnosc’s concerns regarding the practice of circumventing the time limits set by the Temporary Workers Act where workers remain in the same user enterprise, but are made available in turn by different temporary work agencies. In order to effectively prevent this practice, the Government refers to envisaged legislative changes that will set time limits and strengthen the supervisory and penal framework. The Committee asks the Government to provide information on any measures taken or envisaged to ensure that adequate remedies are provided for and effectively applied in case of violations of the Convention.

Articles 11 and 12. Adequate protection and allocation of responsibilities. The SLI indicates that difficulties exist in the cooperation between temporary work agencies and user enterprises and that every third document allocating responsibilities showed irregularities. Furthermore, it indicates that in 88 temporary work agencies, salary payments and payments of benefits were delayed, while 27 per cent did not pay their workers at all. The Government concurs with Solidarnosc’s observations that workers of temporary work agencies are only allowed to form and join trade unions in the agency and not in the user enterprise. However, the Government observes that collective-bargaining agreements applicable to the user enterprise may require temporary work agencies to employ workers on the same terms as those enjoyed by workers employed directly by the user enterprise. The Government further indicates that pregnant temporary employees are afforded the same protections as other employees. The Committee asks the Government to specify how it is ensured that workers enjoy adequate protection and how such is determined and allocated between the temporary work agency and the user enterprise in regard to all areas described in Articles 11 and 12.

Article 13. Cooperation. In reply to the Committee’s previous request, the Government states that it was currently evaluating the implementation of the 2014 amendments to the Employment Promotion Act in regard to the cooperation between public and private actors, including official statistics on the implementation of activation measures. The Committee requests the Government to provide concrete examples, including statistics, on the cooperation between the public employment service and private employment agencies.

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

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.]

Direct Request (CEACR) - adopted 2011, published 101st ILC session (2012)

The Committee notes the Government’s first report on the application of the Convention received in September 2010. The Government refers to the legislative provisions of the Act on Employment Promotion and Labour Market Institutions and the Act on the Employment of Temporary Workers. It reports that pursuant to the Act on Employment Promotion and Labour Market Institutions, private employment agencies are obliged to cooperate with public employment services in the implementation of the labour market policy. The Committee notes that explicit exceptions to the prohibition of charging fees to workers are provided for by section 85(2)(7) of the Act on Employment Promotion and Labour Market Institutions to cover costs associated with sending a person to work abroad. The Committee invites the Government to provide information in its next report on the practical application of this provision and in particular, on whether there is any control over the quantum of the fees charged (Article 7 of the Convention). It invites the Government to include further information on the manner in which efficient cooperation between the public employment service and private employment agencies is promoted and reviewed periodically (Article 13). Please also supply examples of the remedies provided in cases of violations of the Convention including extracts of inspection reports and information on the number of workers covered by the measures giving effect to the Convention (Article 14 and Part V of the report form).

Article 5(2). Special services and programmes for disadvantaged jobseekers. The Government reports that, under the applicable legislation, employment agencies are not forbidden to supply special services and programmes to disadvantaged jobseekers. The Committee invites the Government to indicate if special services or targeted programmes designed to assist the most disadvantaged jobseekers in their job seeking activities have been envisaged or implemented and if so, to provide information in its next report on the results achieved.

Article 11. Rights of workers employed by a private employment agency. The Government indicates in its report that the relationship between the private employment agencies and the employee is regulated by the Act on the Employment of Temporary Workers as well as generally applicable labour law provisions. It further indicates that, under the said Act, a temporary employee may not, during the working period for the user enterprise, be treated less favourably in terms of working and employment conditions than other employees employed for the same or similar job. The Committee requests the Government to specify in its next report the provisions guaranteeing adequate protection for the workers employed by a private employment agency in the fields of social security (Article 11(e)), access to training (Article 11(f)), compensation in the case of occupational accidents and protection (Article 11(h)) and compensation in case of insolvency and the protection of workers claims (Article 11(i)).

Article 12. Allocation of responsibilities between private employment agencies and user enterprises. The Government reports that the allocation of responsibilities between private employment agencies and user enterprises is governed in some areas by the Act on Employment of Temporary Workers. The Committee requests the Government to specify the manner in which the applicable legislation have allocated the respective responsibilities of private employment agencies and user enterprises in each of the areas of collective bargaining (Article 12(a)), social security (Article 12(d)), access to training (Article 12(e)), compensation in the case of occupational accidents and protection (Article 12(g)), compensation in case of insolvency and the protection of workers claims (Article 12(h)) and maternity and parental protection/benefits (Article 12(i)).