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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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List of occupational diseases. Referring to its previous direct request, the Committee notes that while the Government’s report contains information as to the manner in which the prevalence of occupational diseases is followed up in the country, it does not contain the requested detailed comparative analysis demonstrating that the new closed national list of occupational diseases established by Council of Ministers Ordinance No. 105 of 3 June 2009 has the effect of automatically recognizing the occupational origin of all the pathological manifestations produced by the substances set forth in the Schedule included in Article 2 of the Convention whenever these occur in industries and processes listed in that Schedule. Recalling that following a decision of the Constitutional Court of 2008, the Polish legal system on occupational diseases is henceforth constituted of 26 closed items set out by the above Ordinance, the Committee once again requests the Government to provide the abovementioned information with its next report.

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The report indicates that provisions governing the issue of occupational diseases in Poland were amended in 2009 pursuant to the judgment of the Constitutional Tribunal of 19 June 2008, which ruled that the previously binding provisions, i.e. Council of Ministers Ordinance No. 1115 of 30 July 2002 concerning the list of occupational diseases, detailed principles of conduct in cases of suspicion, recognition and diagnosis of occupational diseases and relevant entities in such cases, do not comply with article 92(1) of the Constitution. As a result of the amendment, an updated list of occupational diseases has been included in Council of Ministers Ordinance No. 105 of 3 June 2009 concerning occupational diseases, which entered into force on 3 July 2009. The Polish legal system on occupational diseases is now based upon a closed catalogue of occupational diseases since, as indicated by the Supreme Court in a judgment of 5 April 2005, when “determining occupational diseases, only the influence of substances listed in binding executive laws issued on behalf of the provisions of the Labour Code may be taken into consideration; the list of occupational diseases may not be extended by interference from other binding provisions”.
The Committee would like the Government to clarify, in the light of these decisions of the highest judicial authorities, the legal status of Convention No. 42 in national legislation, and to demonstrate, by means of a detailed comparative analysis, that the new closed national list of occupational diseases covers all pathological manifestations produced by the substances set forth in the Schedule included in Article 2 of the Convention.

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The Committee takes note of the information sent by the Government in its report. It notes that as a result of a recent reform, the list of diseases recognized as being occupational in origin now comes under Council of Ministers
Ordinance No. 1115 of 30 July 2002, and came into force on 3 September 2002. The Government indicates in this connection that the new list falls within the concept of European Commission Recommendation 2003/670/EC, an annex of which sets forth a schedule of diseases to be linked to occupations.

According to information supplied by the Government, the new list in force in Poland is composed of 26 major groups of pathologies. The report does not, however, list exhaustively the various chemical, physical or biological agents that cause these pathologies or link the latter to those in the schedule set out in Article 2 of the Convention. The Committee would therefore be grateful if the Government would provide the necessary information in its next report, indicating in particular the points on which the lists of occupational diseases set in 2002 differs from the former list.

The Committee takes this opportunity to observe that Poland ratified Workmen’s Compensation (Occupational Diseases) Convention (Revised), 1934 (No. 42), in 1948 and that recently – 2003 – it ratified the Social Security (Minimum Standards) Convention, 1952 (No. 102), accepting to be bound by the following branches: medical care, old-age benefit, family benefit, maternity benefit and survivors’ benefit. It would like to draw the Government’s attention to the fact that in the course of the standards revision process, the Governing Body of the International Labour Office invited States parties to Convention No. 42 to consider the possibility of ratifying the Employment Injury Benefits Convention, 1964 [Schedule I amended in 1980] (No. 121), which revises Convention No. 42, and which, together with the List of Occupational Diseases Recommendation, 2002 (No. 194), is the most up to date ILO standard and responds to current needs. The Governing Body likewise invited member States to inform the Office of any obstacles and difficulties encountered that might prevent or delay such ratification. The Committee would accordingly be grateful if, in its next report, the Government would provide all information it deems relevant in this respect.

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