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

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Poland (Ratification: 1961)

Other comments on C111

Observation

Direct Request

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The Committee notes the observations of the trade union NSZZ “Solidarnosc,” received on 3 September 2014, and the Government’s reply thereto, received on 1 October 2014.

Articles 1 and 2 of the Convention. Legislative developments. The Committee notes with interest the adoption of the Act of 3 December 2010 on the implementation of some regulations of the European Union regarding equal treatment (Equal Treatment Act (ETA)) which applies to civil contracts, self employment and independent professions, as well as vocational training and education. The Act defines and prohibits direct and indirect discrimination on the grounds of sex, race, ethnic origin, nationality, religion, denomination, beliefs, disability, age and sexual orientation. The Act also defines and prohibits harassment and sexual harassment, prohibits the instruction to discriminate and introduces the prohibition of victimization and the duty to provide reasonable accommodation to persons with disabilities. With respect to employment, the Committee notes, however, that the definition of indirect discrimination in the Labour Code refers to a particular disadvantage “for all or a significant number of employees belonging to a group” which is different from the definition in section 3(2) of the ETA which refers to a “person” rather than a “group”. The Committee notes the Government’s indication that, in determining whether indirect discrimination has occurred, the Supreme Court considers which community the regulation may affect and what impact the regulation has on that group. The Committee asks the Government to clarify the difference between the two definitions of indirect discrimination in the ETA and the Labour Code, and if there is a conflict, to harmonize the definitions in accordance with the Convention, to ensure comprehensive protection. Please provide information, including any judicial decisions, indicating how the prohibition of indirect discrimination in employment and occupation in the ETA and the Labour Code has been applied in practice. The Committee also requests the Government to indicate how protection is ensured against discrimination on the grounds of colour and social origin set out in Article 1(1)(a) of the Convention, but omitted from the list of prohibited grounds in the ETA and the Labour Code. Noting the Government’s indication that the unified text of the Labour Code is being finalized, the Committee hopes that the Government will soon be in a position to provide a consolidated version of the relevant provisions of the Labour Code, as amended.

Sexual harassment. The Committee notes that 51 complaints of sexual harassment were addressed to the national labour inspectorate between 2011 and the first quarter of 2014, 18 of which turned out to be unjustified; for 26 complaints, it was impossible to establish whether they were grounded or ungrounded (due to lack of objective verifiable circumstances). The Committee notes the difficulties faced by the labour inspectorate in examining complaints due to a lack of material evidence and an unwillingness of colleagues to act as witnesses. The Committee notes from the statistical data provided that several cases of sexual harassment were decided by the labour and district courts between 2010 and 2014. The Committee requests the Government to indicate any measures taken or envisaged to improve the handling of sexual harassment complaints by labour inspectors, and to continue to provide information on the outcome of such complaints, including sanctions imposed and remedies provided. Please continue to provide information on court decisions and on the effective measures taken to promote awareness of the issue of sexual harassment at work, and any cooperation with workers’ and employers’ organizations in this regard.

Equality of opportunity of men and women. The Committee notes from the recent Labour Force Survey that, in the first quarter of 2014, women’s activity rate was 48.7 per cent compared to 64.2 per cent for men’s. Unemployment rates for men and women were 10.3 and 11 per cent, respectively. The Committee notes the Act of 28 May 2013 (No. 675) amending the Labour Code and other Acts, and the Act 26 July 2013 (No. 1028) amending the Labour Code, extending maternity benefits to both parents, making available a parental leave period of 26 weeks, and introducing the non-transferability of some part of parental leave. The Government also indicates that legislative measures have been adopted to allow more flexible organization of working time. The Committee further notes from the information submitted by the Government to the United Nations Committee on the Elimination of Discrimination Against Women (CEDAW) the measures taken and envisaged under the National Programme on Activities for Equal Treatment 2013–16 to promote equal opportunities for men and women, including measures to facilitate women returning to work after maternity or parental leave, to promote a positive image of female leadership and to overcome stereotypes concerning women (CEDAW/C/POL/Q/7-8/Add.1, 20 June 2014, pages 10, 14, 18–19). The Committee asks the Government to provide information, disaggregated by sex, on the take-up rates of male and female workers of the parental leave and flexible work-time entitlements and their impact on improving women’s access to employment. The Committee requests the Government to continue to provide information, including in the context of the National Programme of Activities for Equal Treatment 2013–16, on measures taken to improve women’s economic activity rates and promote their access to a wide range of jobs, including higher level and decision-making positions, and results achieved in this regard.

Equality of opportunity and treatment irrespective of race, colour and national extraction. The Committee notes the Government’s indications that the Roma remain the most marginalized group in the labour market; only 11 per cent of Roma have a secondary and post-secondary education, and only 29 per cent are economically active. The Committee notes that the Government has taken measures to increase opportunities for the Roma in the labour market and that access to education has been a priority this regard; assistance has been provided through education grants, professional courses and internships directed at the Roma community funded by the European Social Fund. The Committee also notes the use of social campaigns to eliminate stereotypes regarding the Roma, and the Government’s participation in activities supporting diversity in the workplace including cooperation with the Responsible Business Forum. Lastly, the Committee notes from information submitted by the Government to CEDAW, the measures taken to implement programmes for the Roma community, including Roma women, and that the National Programme of Activities for Equal Treatment 2013–16 also provides for the preparation of the Roma Community Integration Programme for 2014–20 (CEDAW/C/POL/Q/7-8/Add.1, pages 6–7). The Committee requests the Government to continue to provide information on measures taken, and results achieved, to raise the level of education and vocational training of the Roma community, to ensure their access to a wide range of occupations, and to combat negative stereotypes and anti-Roma sentiments. Please include statistical information on the participation of Roma men and women, as well as persons belonging to other ethnic minorities, in education and the labour market. The Committee also requests the Government to indicate the concrete measures taken to prevent and address discrimination based on race, colour or national extraction in employment and occupation within the framework of the National Programme of Activities on Equal Treatment (2013–16) and the Roma Community Integration Programme, including activities carried out in cooperation with the social partners.

Enforcement. The Committee notes the detailed information provided by the Government on the enforcement of non-discrimination provisions by the labour inspectorate. It notes in particular that 20 employment agencies were found to have engaged in gender-based discrimination from 2010 to 2012. It also notes that most cases of non-compliance during this period continued to relate to discriminatory job offers and refusal of employment; in 2013, labour inspectors detected ten offences regarding gender-based discrimination related to employment. Noting the difficulties encountered by the labour inspectors in handling sex discrimination cases due to the inability to disclose complaints and conclusively decide on the case, the Committee requests the Government to indicate any measures taken or envisaged to strengthen the capacity of the labour inspectors to address cases of gender discrimination in an effective manner. Please continue to provide information on the enforcement activities of the labour inspectorate, including with regard to the grounds of discrimination on which reported violations are based, and the outcome of the cases, as well as on the number and nature of cases concerning discrimination addressed by the courts.