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Work in Fishing Convention, 2007 (No. 188) - Poland (RATIFICATION: 2019)

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The Committee notes the Government’s first report on the application of the Work in Fishing Convention, 2007 (No. 188). The Committee notes the efforts undertaken by the Government and the social partners to implement the Convention. Following a first review of the information and documents available, the Committee draws the Government’s attention to the following issues. If considered necessary, the Committee may come back to other matters at a later stage.

Article 1(e) of the Convention. Definitions. The Committee notes that Article 2(9) of the Act on Work on Fishing Vessels defines the term “fisherman” as any member of the crew of a fishing vessel, with the exception of a person who carries out occasional work on board a fishing vessel not connected with the catching of marine organisms. The Committee also notes that apprentices are excluded from the scope of application of many provisions of this act, which are giving effect to the Convention. The Committee recalls that the Convention applies to all “fishers” defined as every person employed or engaged in any capacity or carrying out an occupation on board any fishing vessel, including persons working on board who are paid on the basis of a share of the catch but excluding pilots, naval personnel, other persons in the permanent service of a government, shore-based persons carrying out work aboard a fishing vessel and fisheries observers (Articles 1 (e) and 2). The Committee requests the Government to provide further information on the categories of persons employed or engaged in any capacity or carrying out an occupation on board any fishing vessel, including apprentices, which are excluded from the scope of application of the Act on Work on Fishing Vessels, and on the protections afforded to them.

Article 3. Exclusions. The Committee notes the Government’s indication that, after consultation, inland waterway fishing vessels (rivers, lakes or canals) have been excluded in their entirety from the scope of the Convention, for the following reasons: the construction of inland waterway fishing vessels and the specific characteristics of the work of an inland fisherman are radically different from those at sea. The Government further indicates that Poland has relatively small inland waters, so the requirements laid down in the Convention for long-distance navigation in large bodies of water are inadequate for Polish conditions. However, the Committee notes that the Government’s report does not contain any information on the measures taken or envisaged to ensure an equivalent protection for fishers employed or engaged in any capacity or carrying out an occupation on board inland waterway fishing vessels (Article 3, paragraph 3(a)(iii)). The Committee requests the Government to provide detailed information on the equivalent measures adopted or envisaged in order to ensure an equivalent protection for fishers employed or engaged in any capacity or carrying out an occupation on board any category of fishing vessels excluded from the scope of application of the Convention under Article 3.

Article 9. Minimum age. The Committee notes that section 3(5) of the Act on Work on Fishing Vessels permits apprentices to serve on fishing vessels, and that the definition of “apprentice” in section 1(6) does not prescribe a minimum age. The Committee recalls that the minimum age for work on board a fishing vessel is 16 years, but that the competent authority may authorize a minimum age of 15 for persons who are no longer subject to compulsory schooling as provided by national legislation and who are engaged in vocational training in fishing, or for the performance of light work during school holidays (Article 9(1) and (2)). The Committee requests the Government to indicate how it ensures that persons under the age of 15 are not permitted to work on board fishing vessels. The Committee further notes that pursuant to section 204 of the Labour Code and the Regulation of 24 August 2004 on the works forbidden to young persons and conditions of their employment in some of these works, the list of works prohibited for young persons, includes “fishing” (Annex 1 of the Regulation); and that Annex 2 permits “work for fishermen” for young persons over the age of 16, if it is necessary for vocational training, and special health protection at work is provided. The Committee recalls that Article 9(4) and (5), of the Convention requires the determination, after consultation, of the types of activities on board fishing vessels, which by their nature or the circumstances in which they are carried out are likely to jeopardize the health, safety or morals of young persons, and that those activities may be authorized under certain conditions, which include the completion of basic pre-sea safety training. The Committee requests the Government to indicate the measures adopted or envisaged in order to give full effect to Article 9(4) and (5) of the Convention.

Articles 13 and 14. Manning and Hours of rest. The Committee notes that the Government’s report refers to article 80 of the Maritime Safety Act of 18 August 2011, which concerns the determination of the composition of the ship's crew necessary for maritime safety. Noting that this article refers to international conventions and standards that are mainly applicable to merchant ships, the Committee requests the Government to provide detailed information on the measures adopted or envisaged to give full effect to Articles 13(a) and 14(1)(a) of the Convention. The Committee notes that, under section 19(2) of the Act on Work on Fishing Vessels, if the rules in section 19(1) - daily rest period may be divided into two periods, one of which may not be less than six hours, and the interval between two consecutive periods of rest may not be more than 14 hours - are not respected, the fisher shall be entitled to an equivalent rest without delay. The Committee requests the Government to indicate how it is ensured that any exceptions to the minimum hours of rest set out in the Convention are temporary and only permitted by the competent authority for limited and specified reasons. The Committee also notes that section 20(6) of the Act enumerates the circumstances in which the fisher may be obliged to remain on standby for work. The Committee requests the Government to indicate how it is ensured that, in the event of any exceptions to the minimum hours of rest set out in the Convention, fishers shall receive compensatory periods of rest as soon as practicable.

Article 15. Crew list. The Committee notes that, according to section 55(5) of the Act on Work on Fishing Vessels, the requirement of a crew list (foreseen in section 16) does not apply to fishing vessels under 12 m in length. The Committee recalls that Article 15 provides that every fishing vessel shall carry a crew list, regardless of size. The Committee requests the Government to indicate the measures adopted or envisaged to ensure that all fishing vessels carry a crew list.

Articles 16 to 20. Fisher’s work agreement. The Committee notes that: (i) the provisions on fishers’ work agreements (sections 8 to 13) in Chapter 3 of the Act on Work on Fishing Vessels do not apply to fishing vessels of less than 24 m in length (section 55(1)(ii)); and (ii) to the extent not regulated by the Act, the provisions of the Labour Code shall apply to employment relationships on fishing vessels (section 1(4)). Accordingly, the Committee notes that, as regards fishing vessels of 24 m or over, section 9 of the Act on Work on Fishing Vessels does not stipulate the particulars (d), (e) and (i) listed in Annex II of the Convention, to be contained in the fisher’s work agreement . It also notes that, as regards fishing vessels under 24 m, the applicable sections 2529 and 32-36 of the Labour Code allow for oral contracts and do not stipulate the particulars (e), (h), (i), (m) and (n) listed in Annex II. The Committee requests the Government to indicate how it is ensured: (i) that fishers’ work agreements as regards fishing vessels of 24 m or over, contain particulars concerning the name of the employer (if it is not the fishing vessel owner); the voyage(s) to be undertaken; and the method of calculating the share of the catch; (ii) that, as regards fishing vessels under 24 m, fishers’ work agreements are in writing, signed by both the fisher and the fishing vessel owner or by an authorized representative, and contain the particulars listed in Annex II on the voyage(s) to be undertaken, provisions, method of calculating the share of the catch, health care and social security coverage and benefits, and repatriation; and (iii) that fishers can review and seek advice on the terms of the agreement and receive a copy, which is also carried on board. The Committee also requests the Government to indicate whether the fishing vessel owner is required to have evidence of contractual or similar arrangements when fishers are not employed or engaged by the fishing vessel owner.

Article 21. Repatriation. The Committee notes that, under section 23, paragraph 1, subparagraph (5)(a) of the Work on Fishing Vessels Act, the fisherman is entitled to free repatriation when the fishing contract has been terminated by the shipowner for reasons other than those referred to in section 24(3), which provides that the fisherman shall bear the costs of repatriation in the event of serious breach of his or her employment obligations. The Committee requests the Government to indicate how it is ensured that, when the fisher’s work agreement has been terminated by the fishing vessel owner in the event of serious breach of his or her employment obligations, fishers are entitled to repatriation without prejudice to the right of the fishing vessel owner to recover the cost from the fisher. The Committee also requests the Government to provide detailed information on the measures adopted or envisaged setting out the maximum duration of service periods on board following which a fisher is entitled to repatriation. The Committee notes that under section 8(2) the fisher may be employed by a recruitment agency. Noting the Government’s indication that the polish law does not regulate this issue, the Committee requests the Government to provide detailed information on how it ensures that national laws and regulations do not prejudice any right of the fishing vessel owner to recover the cost of repatriation under third party contractual agreements.

Article 22. Recruitment and placement. The Committee notes that, under section 28(2) of the Act on Work on Fishing Vessels, no fees shall be charged directly or indirectly to jobseekers for placement activities. The Committee observes however that the term “employment agency” is defined in the Act on Work on Fishing Vessels as an employment agency within the meaning of the Act of 2004 on employment promotion and labour market institutions, and that, under section 85(2) of that Act, employment agencies placing Polish citizens with foreign employers may charge fees for medical examination, translation of documents, issuance of visa, travel and other undefined parties’ obligations. The Committee requests the Government to clarify whether the fees and charges listed in section 85(2) of the 2004 Act are paid by the fisher and, if so, to take the necessary measures to ensure that no fees or other charges for recruitment and placement are borne directly or indirectly, in whole or in part, by the fisher for their recruitment or placement, as required under Article 22 paragraph 3(b) of the Convention. The Committee also requests the Government to provide particulars of the national laws, regulations or other measures prohibiting recruitment and placement services, whether public or private, from using means, mechanisms or lists intended to prevent or deter fishers from engaging for work. The Committee notes that Poland ratified the Private Employment Agencies Convention, 1997 (No. 181) on 15th September 2008 and that the Act of 9 July 2003 on the employment of temporary workers provides the responsibilities of temporary work agencies and fishing vessel owners, as required under Article 22(4) of the Convention. The Committee requests the Government to indicate how it ensures that: (i) nothing precludes the fisher from asserting a right to a lien arising against the fishing vessel; and (ii) the fishing vessel owner remains liable in the event that the private employment agency defaults on its obligations to a fisher.

Article 24. Payment of fishers. The Committee notes that, pursuant to section 14 of the Act on Work on Fishing Vessels, the owner may pay the fisherman all his wages to a bank account or to an account in a cooperative savings and credit union indicated by the fisherman. Recalling that all fishers working on board fishing vessels shall be given a means to transmit all or part of their payments received, including advances, to their families at no cost (Article 24),the Committee requests the Government to indicate how full effect is given to this provision of the convention for all fishers.

Articles 25, 26 and 28. Accommodation. The Committee notes that, as regards fishing vessels of 12 m or over, the Regulation of 7 January 2020 on the requirements for occupational safety and health and life on fishing vessels and detailed technical requirements for their construction and equipment, issued under section 31(4) of the Act on Work on Fishing Vessels, does not give full effect to the provisions of Annex III of theConvention regarding minimum headroom, air conditioning, and the submission of plans and information of reconstructed or substantially altered vessels. The Committee requests the Government to provide detailed information on the measures envisaged or adopted to give full effect to Articles 26 and 28 depending on the size of the vessel and on whether it is a new fishing vessel or an existing vessel within the meaning of Annex III.

Articles 31 and 33. Occupational safety and health and accident prevention. The Committee notes that: (i) according to section 55(4) of the Act on Work on Fishing Vessels, the provisions of its Chapter 5 concerning occupational safety and health do not apply to fishing vessels of less than 12 m in length; and (ii) to the extent not regulated by the Act, the provisions of the Labour Code shall apply to employment relationships on fishing vessels (section 1(4)). Accordingly, the Committee notes that, as regards fishing vessels under 12 m, the applicable provisions of the Labour Code regarding prevention of accidents (section 209(2)), reporting and investigation of accidents (sections 234 and 237), risk evaluation (sections 209(2), 226 and 227), training and instruction (sections 209(2), 237(2) to 237(4)), are generic provisions applicable to all workers. The Committee requests the Government to indicate how it ensures that, when applying these provisions to fishing vessels under 12 m, the specificities and hazards of the fishing sector are duly taken into account.

Articles 34 to 37. Social Security. The Committee notes the Government’s indication that the social insurance system in Poland is regulated by the Act of 13 October 1998 on the Social Insurance System and that Poland has concluded a number of bilateral social security agreements. The Committee also notes that pursuant to sections 6(1), 7, 11(1) and 12(1) of the Act, all persons who are employees in Poland, shall be subject to mandatory pension, disability pension, sick leave, maternity leave and accident insurance. The Committee has noted in its direct request on the application of the Maritime Labour Convention, 2006, as amended (MLC, 2006) that, in order to be covered by the said Act, seafarers must be in an employment relationship with a Polish entity and perform work in the territory of Poland. Consequently, Polish seafarers employed by foreign shipowners and working on ships flying flags other than Polish or EU, shall not be subject to mandatory social insurance but may be covered by old age and disability insurance at their own request, pursuant to section 7; they shall not be subject to sickness, accident and health insurance; but may take out voluntary health insurance in Poland. The Committee observes that, in light of the above, fishers residing in Poland and employed on board ships flying a foreign flag (other than EU or EFTA) would, contrary to other workers, only be entitled to voluntary affiliation and would need to bear alone the financial burden of both employers’ and employees’ contributions, in breach of the principle established by the Convention, according to which fishers ordinarily resident in the Member’s territory are entitled to benefit from social security protection under conditions no less favourable than those applicable to other workers. While taking note of the bilateral social security agreements already concluded by Poland,the Committee requests the Government to provide further information on the measures adopted or envisaged to give full effect to Articles 34 and 36 with regard to fishers serving on board ships flying a foreign flag (other than EU or EFTA).

Articles 40 to 44. Compliance and enforcement. The Committee notes with interest the specimen of the national certificate contained in the Regulation of 31 December 2019 on the template of the Fisheries Labour Certificate. The Committee requests the Government to: (i) specify the number of qualified inspectorsappointed by the competent authority to fulfil its responsibilities under Article 41; (ii) indicate the intervals of inspections of non-certified vessels; (iii) indicate the public institutions or other organizations which have been authorized to carry out inspections and issue relevant documents; (iv) provide information on the number of complaints filed, investigations carried out and measures taken as a result, as well as extracts of official reports, and information on the number and nature of deficiencies reported and action taken (Article 43).