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Previous comments: C.19 direct request; C.42 direct request and C.102 direct request

In order to provide an overview of issues relating to the application of ratified social security Conventions, the Committee considers it appropriate to examine Conventions Nos 12, 17, 19, 24, 25, 42 and 102 together.
The Committee takes note of the observations of the Independent and Self-Governing Trade Union “Solidarnosc”, received on 7 September 2023, and of the Government’s reply in this respect.
Article 1. Convention 12. Coverage of agricultural workers. The Committee takes note of the observations of “Solidarnosc”, which indicate that farmers, farmers aids, and farmers’ families are only covered by the “one-off” compensation in case of a permanent or long-term damage to their health as a result of an accident at work but are not afforded the other benefits provided by section 6 of the Act on Social Insurance, such as disability and survivors’ pension. The Committee recalls that Article 1 of the Convention affords to all agricultural wage-earners the same compensation for personal injury as a result of an accident at work. The Committee requests the Government to provide its comments in this respect and to indicate whether agricultural wage-earners are afforded the same benefits in case of an accident at work as those provided by section 6 of the Act on Social Insurance.
Article 1. Convention 17. Coverage of workers engaged in civil law contracts. The Committee takes note of the observations of “Solidarnosc”, which indicate that 1,448,000 workers were not covered by accident insurance in 2022, of which nearly 100,000 (the equivalent of 6.5 per cent of the civil contracts audited by the Labour Inspectorate) were engaged in irregular contracts for a specific task to disguise employment relationships. The Committee notes the Government’s reply in this respect, indicating that pursuant to section 8(2) of the Act on the Social Insurance, workers engaged in agency contracts, contracts of mandate or other contracts for the provision of services in accordance with the Civil Code, are also subject to mandatory disability pension insurance and accident insurance. The Committee requests the Government to provide information on whether the employers who were reported for concluding irregular civil contracts were ordered to pay overdue social security contributions with regard to accident compensation in respect to the workers concerned.
Application of Convention No. 19 in practice. The Committee takes note of the observations of the “Solidarnosc”, which indicate that fines imposed on employers who violate the labour rights of foreign workers are often too low. The Committee also notes the observation that a large share of foreign workers is working informally, engaged in the platform economy and does not have access to social security benefits. The Committee notes the information provided by the Government in its report regarding the provision of compensation for industrial accidents in the form of pensions or disability benefits to 632,307 workers from over 160 nationalities, through the Social Insurance Institution (ZUS) in 2022. The Committee also takes note of the indication that the Government, despite a few caveats, is positively aligned with the draft Directive of the European Parliament and of the Council on improving working conditions on platforms, which includes access to social protection rights. In this context, the Committee requests the Government to provide information concerning the penalties imposed on employers for not reporting foreign workers to the Social Insurance Institution (ZUS) and to indicate cases in which foreign workers’ rights to the payment of compensation for accidents at work have been established as a result of inspections undertaken.
Article 2 of Convention No. 42. Schedule. List of occupational diseases. The Committee notes the information provided by the Government that all diseases indicated in the Schedule to Article 2 of the Convention can be considered occupational diseases under section 235 of the Labour Code, provided that their work-related nature has been confirmed with a high degree of probability. The Committee would like to recall that the Schedule appended to Article 2 of the Convention establishes a legal presumption of the occupational origin of the diseases listed therein whenever the workers in question are employed in the corresponding trades, industries and processes. In light of this, the Committee requests that the Government provide detailed information on the procedures adopted for the diagnosis of an occupational disease listed in the Schedule appended to the Article 2 of the Convention and the average duration of these procedures in relation to the confirmation of its work-related nature.
Part XIII (Common provisions) of Convention No. 102. Article 71(3). General responsibility of a Member State for the due provision of medical care benefits. The Committee notes with interest the information provided by the Government on the various measures taken to improve the standard and quality of health services. With regard to waiting times for different medical treatments, the Committee also notes two measures aimed at reducing waiting times for healthcare services: (i) the significant increase in financial spending on public health in recent years, that will reach 170 billion zlotys in 2023, and (ii) the gradual removal of the National Health Fund’s funding limits for certain types of procedures (such as cataract and endoprosthesis surgery, endocrinology, cardiology, neurology and outpatient orthopaedic treatments and highly specialised services). The Committee further observes that the Government, in its 2021 report in response to the conclusions of the European Committee of Social Rights, also indicated significant reductions in waiting times for various types of medical procedures, by an average of 115 per cent for urgent treatments and 70 per cent for other treatments. The Committee takes due note of the measures taken to ensure the provision of medical care benefits in this regard.
Finally, the Committee has been informed that, based on the recommendations of the Standards Review Mechanism Tripartite Working Group (SRM Tripartite Working Group), the Governing Body has decided that member States for which Conventions Nos 17 and 18 are in force should be encouraged to ratify the more recent Employment Injury Benefits Convention, 1964 [Schedule I amended in 1980] (No. 121), or the Social Security (Minimum Standards) Convention, 1952 (No. 102), accepting its Part VI (see GB.328/LILS/2/1). The Committee therefore encourages the Government to follow up the Governing Body’s decision at its 328th Session (October–November 2016) approving the recommendations of the SRM Tripartite Working Group and to consider ratifying Convention No. 121 or Convention No. 102 (Part VI) as the most up-to-date instruments in this subject area.

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Part VII (Family benefit). Article 44 of the Convention. Total value of family benefits. The Committee notes the information provided by the Government in reply to its previous request concerning calculations of the total value of family benefits.
Part XI (Standards to be complied with by periodical payments). The Committee notes the information provided by the Government in reply to its previous request concerning calculations of the replacement rate of benefits.
Part XIII (Common provisions). Article 71(3). General responsibility of a Member for the due provision of medical care benefits. The Committee takes note of the information provided by the Government on various measures taken to improve the standard and quality of healthcare services. The Committee however notes that in 2017, the European Committee of Social Rights concluded that the situation in Poland is not in conformity with Article 11(1) of the European Social Charter on the ground that access to healthcare is not ensured because of long waiting times for different medical treatments. Recalling that the Member shall accept general responsibility for the due provision of the benefits provided in compliance with the Convention, and shall take all measures required for this purpose, the Committee requests the Government to provide information on the manner in which effect is given to this Article of the Convention in practice.

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The Committee took note of the Government’s report and reply to its previous direct request of 2006 and would like to receive additional information on the following points.
Part VII (Family benefit). Article 44 of the Convention. In its direct request of 2006, the Committee asked the Government to calculate the total value of the family benefits on the basis of the gross amount of average monthly earnings of a male labourer in manufacturing, which was taken in the Government’s report as the reference wage under Article 66 of the Convention. In reply, the Government has based these calculations on the minimum remuneration for work in 2010 (1,317 Polish zlotys (PLN) per month). Taking into account that, according to the report, the gross average monthly remuneration in the national economy in 2010 amounted to PLN3,488, the Committee considers that the above minimum remuneration is too low to be used as the reference wage of an ordinary adult male labourer which should be taken for the purpose of assessing compliance with Article 44 of the Convention. The Committee therefore, once again, asks the Government to recalculate the total value of family benefits in Poland on the basis of the gross monthly wage of an ordinary adult male labourer determined under Article 66(4) of the Convention.
Part XI. Standards to be complied with by periodical payments. In its previous direct request, the Committee asked the Government to explain taxation rules applied to wages and social security benefits in order to decide whether the replacement level of old-age and survivors’ benefits should be done on the basis of gross or net income, i.e. the amount of wages and benefits before and after deduction of taxes and social security contributions. The Committee understands from the reply of the Government that, in comparison with wages, old-age and disability pensions are exempted from social insurance contributions. The Committee therefore invites the Government in its future report to calculate the replacement level of old-age, invalidity and survivors’ pensions in relation to the net amount of the reference wage, as well as in relation to the gross amount of the reference wage reduced by the amount of the corresponding compulsory social insurance contributions.

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The Committee takes note of the Government’s first and second reports and would be grateful for additional information on the following points.

1. Part V (Old-age benefit) of the Convention. The Committee notes that Poland undergoes a transition from the former pension system, which remains in force for those born before 1 January 1949, to the new system consisting of a defined contributions scheme plus a second pillar of mandatory individual accounts in the open pension funds, which covers persons born after 31 December 1968. Those born in between may choose to join the new system. Thus, theoretically, the first pensions under the new system will be paid starting from
1 January 2009 to women born after 31 December 1948 who have reached the statutory retirement age of 60 years. The Committee further notes that, according to section 50 of the Social Insurance System Act of 13 October 1998, since 2006 the Social Insurance Institution shall be obliged to present the insured born after 31 December 1948 with information on the contributions accumulated in the insured person’s individual account, the amount of indexed initial capital and the amount of a hypothetical retirement pension. The Committee would like the Government to provide in its next report examples of calculation of such a hypothetical retirement pension for beneficiaries earning the reference wage who will retire starting from 1 January 2009 after 30 years of contributions or employment.

2. The Committee notes that section 85(2) of the Act on retirement pensions and disability pensions from the Social Security Fund provides for the minimum pension for retirement, total disability and loss of the breadwinner and that, according to section 23(1), the lowest retirement or disability pension is paid, in particular, in case the assessment basis for the pension cannot be determined. Pensions of the persons who have joined an open retirement pension fund (section 87(8)) or who have completed a reduced qualifying period (section 28) of 15 years for women and 20 years for men shall not be increased to the level of the lowest retirement pension (section 54). Increases up to the lowest pension take into account the life annuity from a retirement pension company (section 87(1)) and do not apply to persons earning an income exceeding the amount of an increase (section 87(5)). The Committee further notes from the Government’s report that each retirement pension contains a “social part” equal to 24 per cent of the base amount (439.02 PLN in 2004) aimed at protection of persons with lower income and shorter employment period. The Committee would like the Government to explain the relationship between the social part of the pension and the minimum pension and to specify cases in which an insured person would have the right to the minimum pension only.

Part VII (Family benefit). In relation with Article 69. (a) Under section 23(5) of the Family Benefits Act, the Minister for social security matters shall issue a regulation to determine the procedure for granting, withholding or suspending family benefits. Please indicate whether such regulation has been issued and, if so, explain its provisions authorizing withholding or suspending family benefits.

(b) The Committee notes that Chapter 9 of the Family Benefits Act contains a number of transitory provisions, which require the establishment of appropriate bodies for granting and paying out family benefits, as well as the supervising body. It would like the Government to indicate in its next report what bodies were established and how the family benefit branch is organized and managed in Poland.

3. According to section 19(3) of the Family Benefits Act, since 1 September 2009, the amount of family allowance cannot be smaller than 40 per cent of the value of the food basket for a given age group determined by research on survival minimum. Please indicate whether such research has already been carried out for the age groups concerned and what percentage of the value of the food basket is compensated by the family allowance in the reporting period.

4. Article 44. The Committee notes that calculation of the total value of the family benefits made in the reports is done on the basis of an estimated amount of average monthly earnings of a male labourer in manufacturing, taken as the reference wage of an ordinary adult male labourer under Article 66 of the Convention, after deduction of compulsory social insurance contributions. The Committee would be glad if in its future reports the Government would use, for the purpose of assessing compliance with Article 44, the reference wage taken in gross figures, which is before deduction of any social security contributions or taxes. The Committee observes that recalculated on the basis of the gross reference wage of the ordinary adult male labourer, the total value of family benefits in Poland still largely exceeds the minimum level prescribed by this Article of the Convention.

Part VIII (Maternity benefit), Article 52. 1. Section 29(3) of the Law on cash social security benefits in respect of sickness and maternity of 25 June 1999 provides that, where the right to maternity benefit arose during parental leave, the benefit shall be due only for the period of maternity leave which continues after childbirth. Section 29(5) of the Law exempts this limitation from the general rule, according to which maternity benefit shall be provided during the whole period of maternity leave prescribed by the Labour Code (section 184 of the Code). The Committee would like the Government to explain how the suppression under section 29(3) of the Law of the maternity benefit for the period of maternity leave prior to the confinement accords with section 180(3) and (4) of the Labour Code, according to which a woman has to take at least two weeks of maternity leave before confinement and conserves her right to maternity leave not taken prior to the birth, after confinement. The Committee notes in this respect that section 184 of the Labour Code establishes, as does Article 52 of the Convention, the principle of maintaining parity between the prescribed periods of maternity leave and the payment of maternity benefit. From that point of view, the limitation contained in section 29(3) of the said Law would be contrary to Article 52 of the Convention, which requires maternity benefit to be paid throughout the contingency, including during the period of pregnancy before childbirth, and expressly forbids a Member to limit the benefit period to a period less than the period of maternity leave authorized by national law, which in Poland attains at least 16 weeks. The Committee further notes from section 10(2) of the Family Benefits Act that the parental leave allowance paid to the woman concerned before the confinement would be much lower than the amount of the maternity benefit to which she would otherwise be entitled under Polish law (100 per cent of previous earnings) and would not attain even the minimum level prescribed by Article 50 of the Convention (45 per cent of the reference wage). It therefore asks the Government to indicate in its next report the measures taken to ensure that a woman on parental leave will receive in case of maternity for the protected period prior to the confinement a cash benefit of the amount and the duration at least equal to those prescribed by the Convention.

2. The Committee notes that, according to the Government’s report, if another child is born during paternity leave or after cessation of employment, the maternity allowance is payable for the period shortened by two weeks. It would like the Government to provide the text of the corresponding provisions of the legislation and to assess their compatibility with Article 52 of the Convention in the light of the Committee’s comments made above under point 1.

Part XI (Standards to be complied with by periodical payments). The Committee notes that calculation of the replacement level of old-age and survivors’ benefits is done in the reports by reference to the average gross monthly wage in the national economy after deduction of compulsory social insurance contributions by the person insured. It points out that, while to facilitate international comparison, governments, as a rule, are requested to take the gross wage as the reference wage for the calculation of periodical benefits, in countries where wages and benefits are being taxed differently, it may be more appropriate to use the net wage, i.e. the amount of wage after deduction of taxes and social security contributions. This would be the case in particular in countries where the benefits in question are exempted from taxes and social security contributions. In such case, however, both taxes and social security contributions should be deducted from the gross wage and not only social security contributions alone, as was done in the Polish reports. In view of these explanations, the Committee would like the Government in its next report to explain taxation rules applied to wages and social security benefits and to calculate the replacement level of old-age and survivors’ benefits using statistical data on both gross and net income, i.e. the amount of wages and benefits before and after deduction of taxes and social security contributions.

Part XIII (Common provisions), Article 69. 1. The Committee notes that, by virtue of section 103(3) of the Act, eligibility for a retirement, disability and survivors’ pension may be withheld “on application of the retiree or pensioner himself”. Please explain the purpose of this provision and its application in practice.

2. The Committee notes that section 139(1), clauses 3-5, of the Act authorize deduction from cash benefits amounts exacted on the basis of “executory” decisions to cover alimony and amounts due other than alimony. Section 140(1) and (6) sets certain limits for the deductions of alimony and other receivables and section 141(1), clause 1, fixes the portion of the retirement benefit exempt from these deductions at 50 per cent of the lowest retirement pension. According to section 142, all other deductions from cash benefits not covered in sections 139-141 are regulated by the provisions of the Civil Code or administrative executive proceedings. With respect to the abovementioned deductions from cash benefits, the Committee would like the Government to clarify in its next report the following questions:

–           what types of receivables are deductible by virtue of section 139(1) of the Act, clauses 3, 4 and, in particular, 5;

–         what type of deductions from cash benefits could be made on the basis of provisions of the Civil Code or administrative executive proceedings;

–         whether deductions can be made only on the basis of the decisions made by the courts of law or whether they can be made on the basis of the decisions of the administrative bodies as well;

–         whether the protected part of the pension amounting to 50 per cent of the lowest retirement pension would be sufficient to ensure the survival minimum of the pensioner concerned and, if not, how he/she is supposed to survive if the pension provides his only source of income.

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