Individual Case (CAS) - Discussion: 2004, Publication: 92nd ILC session (2004)

A Government representative recalled that in January 2003, the All-Poland's Trade Union of Nurses and Midwives notified the Office of the fact that employees in health-care had not been paid their wages or that their wages had been cut, and that the statutory increases in salaries had been denied. In its reply to these allegations, the Government had referred to legislation regarding the protection of remuneration for work, the extent of the problem and had indicated measures proposed to resolve it. She indicated that the information presented to the Committee would also be provided in the Government's next report due in 2004. It would include other detailed information, including statistical data. The speaker stated that according to the Polish Labour Code, timely payment of wages was one of the basic duties of the employer. Failure to fulfil such a duty constituted an infringement of the employee's rights. Claims connected with non-payment of wages were pursued in free-of-charge, non-formal proceedings before the labour courts. An employee who suffered damages due to the employer's failure to pay his salary could also claim compensation. According to the provisions of the Penal Code, malicious or notorious infringement of the employee's right to remuneration constituted an offence subject to punishment. The Penal Proceedings Code applied in such a case. Infringements of legal provisions on payment of wages and other employees' benefits had been examined during recent years. The reasons for these infringements had not been legal ones. They had resulted from financial difficulties of enterprises facing economic crisis and the challenge of increased competition on both domestic and international markets. In 75 per cent of cases the lack of sufficient funds had been the reason for failing to pay remuneration in due time.

Over the past two years, different bodies had duly studied the problem. The causes for as well as feasibility and usefulness of adopting new legal provisions had been considered. The speaker recalled that the Council of Ministers had dealt with this issue twice, in September 2002 and in July 2003. Upon detailed consideration of the causes of non-payment of remuneration, it had come to the conclusion that the legal provisions in force sufficiently secured employees' interests. However, the Council of Ministers had stated that it was necessary to undertake decisive steps to improve law enforcement and application of sanctions for violation of substantial provisions. In addition, the Council of Ministers had charged its members to undertake appropriate measures. The Minister of Justice, who also discharged the function of Attorney-General, had adopted a rule according to which each notified case of an employer's failure to pay remuneration should be considered in detail by the prosecutors. New obligations had been assigned to ministers who were founding bodies of state enterprises, as well as to the Minister of the State Treasury. They now had to terminate employment relationships with persons serving managerial functions in state enterprises or companies with the participation of the State Treasury, in each case of non-payment of wages, if a given establishment had sufficient funds. Finally, the Labour Code had been amended on 14 November 2003. The amount of a fine imposed for infringement of employees' rights had been doubled; this applied in any proceedings in which the labour inspector served as the public prosecutor. The speaker also reported that upon the initiative of the Minister of Economy, Labour and Social Policy in December 2003, the Chief Labour Inspector and the Minister of Justice had concluded an agreement regarding cooperation in fighting infringements of the employees' right to remuneration. On that basis a number of immediate measures had been taken allowing more detailed consideration of cases of workers' rights infringements.

Detailed documentation of each case of offence against an employee's rights was established by the State Labour Inspection and submitted to the prosecutor at his request. Prosecutors' offices ensured participation of labour inspectors in any proceedings concerning an offence against an employee's rights. They notified the regional labour inspector of closing of the preliminary proceedings in such cases. Cooperation and better exchange of information was also facilitated through the nomination, in each Provincial Prosecutor's Office, of a prosecutor responsible for the supervision of proceedings in matters related to the rights of workers. In respect of the activities of the Tripartite Commission for Social and Economic Affairs, it was stated that the Tripartite Commission had expressed an opinion according to which it was necessary for all parties to undertake immediate steps aiming at giving effective protection to the employee's right to remuneration. The violation of this right had given rise to serious social conflicts and social dialogue was necessary to solve the problem. Detailed information on the dialogue on these issues had been submitted to the Committee of Experts in October 2003. As regards the situation in the health-care sector, the Government was well aware of the fact that the non-payment of remuneration constitutes a very serious problem. According to figures of 31 March 2003 (Ministry of Health research), 70 per cent of the public health-care establishments were in debt for different reasons. As a consequence, they could not fulfil their obligations regarding wage increases. The indebtedness of the health-care sector enterprises resulted from the long and difficult process of restructuring of the sector.

The speaker informed the Committee that between 2001 and 2003 the State Labour Inspection had carried out regular inspections in the health-care sector. A number of additional inspections had been conducted on the basis of a special request by the Minister of Economy, Labour and Social Policy. In addition, special inspections had been conducted on the basis of requests made by health-care personnel, especially in 2002. These inspections concerning payment of wages and other employee's benefits had well identified the phenomenon of the non-enforcement of the relevant legislation. The inspections had indicated violations of the rights of employees in the health-care sector including failure to pay remuneration, delayed payment, pay cuts, reduction or non-payment of overtime pay, and failure to pay additional annual bonuses. The violations resulted from the employers' failure to implement the Act amending the Act regarding the system of determining by negotiation the growth of average remuneration payable by certain employers (known as the "203 Act"). This Act guaranteed an increase in wages of nursing personnel. In particular, it stated that the increase in wages in the health-care sector would not be lower than 203 zlotys per month in 2001 and that it would further increase in 2002. As a result of the State Labour Inspection activities, it had been found that, in 2001, 65 per cent of the controlled health-care establishments had not introduced the envisaged pay increase. In 2002, this figure was 49 per cent and, in 2003, 29 per cent. However, on the basis of the numbers given, it was not possible to assess the extent of the problem. Available data concerned only a part of the health-care establishments. In addition, a number of inspections had been conducted in the establishments which had already been known to demonstrate such inequalities. Therefore, the results of the inspections were not representative for the whole sector. In 2003, the State Labour Inspection had conducted a second set of inspections. It had been found that 69 per cent of the employers had complied with notices issued by the labour inspectors concerning the calculation and payment of wages. As a result thereof, the amount of over 27 million zlotys (approximately US$6 million) had been paid to over 41,000 employees. Due to the inspections conducted between 2001 and 2003, the enforcement of legislation concerning payment of wages had significantly improved. In most cases, employers recognized employees' claims and undertook to pay the amounts due. A certain degree of reluctance was caused by the lack of financial resources.

The speaker pointed out that a solution to the problem of the non-payment of wages in the health-care sector was not possible without social dialogue. Therefore the Public Services Team of the Tripartite Commission had dealt with the issue in detail in 2003. On 29 September 2003, a plenary session of the Tripartite Commission had been devoted to a comprehensive regulation of the health-care sector. As a result, trade unions had submitted a motion for the establishment of an ad hoc team of the Tripartite Commission to deal with health-care problems, including the issue of payments resulting from the "203 Act". That team completed its work on 14 November 2003. It had focused on questions concerning employees' wages and transformation of public health-care establishments into public utility companies. Representatives of the employers had accepted proposals submitted. Due to the complex nature of those issues, a decision had been taken to appoint a permanent team for health-care. On the basis of the agreement that had been reached by the ad hoc team and extended consultation, a draft act regarding public aid and restructuring of public health-care establishments had been adopted by the Council of Ministers on 28 November 2003 and submitted to Parliament. The draft aimed at the organizational and financial restructuring of public health-care establishments. It would allow for a comprehensive solution to the problems of the health-care sector. Discussions in Parliament were presently at their final stage and the Act was expected to come into force on 1 October 2004. She stated that the premise for the opening of the restructuring process was the change in the legal basis on which the health care establishments operated. The health-care establishments would be transformed into commercial law companies with the status of public utility companies. Therefore they would have the possibility of taking advantage of regulations regarding limited liability or joint-stock companies particularly in respect of financial operations. The transformation would also provide for the implementation of an effective system of supervision of their financial management. The draft clearly specified the sources of financing the restructuring process, including paying back debts. In order to raise funds, the health-care establishments would be allowed to issue bonds and to contract bank loans. Both of these would be guaranteed by the territorial self-government and by the National Economy Bank. The draft act also introduced special measures for alleviating the repayment of the health-care debt. Representatives of all professional bodies would participate in the development of restructuring programmes. The financial restructuring process would allow satisfying employees' claims under the "203 Act". It was also pointed out that the Act provided a guarantee according to which employees' claims would be treated as privileged. In addition, there would be a provision providing that employees' claims were to be satisfied within two years of the Act's entry into force.

All the measures presented would provide for a proper functioning of public health-care establishments in the medical services market, allowing them to continue to offer jobs. The danger of getting further into debt would be significantly reduced. In addition, the Government had recently taken further steps to solve the problems. On 1 June 2004, the Council of Ministers had adopted an act amending the act regarding public aid and restructuring of public health-care establishments. Taking into account the fact that implementation of the restructuring process would take time, that act introduced additional measures aiming at satisfying the employees' claims originating in the "203 Act" through "bridging loans" guaranteed by the National Economy Bank. The loans would be paid in instalments within one year from the signing of an agreement with the bank. Employees of entities contracting the bridging loans would be repaid their wages within the same period. In conclusion, the speaker stated that the Government was well aware of the seriousness of the situation regarding the non-payment of remuneration in the health-care sector. The Government and the Parliament were taking firm steps to solve the problem including through tripartite dialogue. She expressed her conviction that the ILO would soon be informed of the positive results achieved. By making the issue of the payment of wages a part of the whole restructuring process of the sector, the Government strived to achieve a structural change, thus avoiding the emergence of the same financial problems in the future.

The Employer members thanked the Government representative for the detailed information which would have to be examined by the Committee of Experts. They underlined the significance of this case, as no sector was more important in terms of the well-being of the people than the health sector. They expressed great concern at the fact that an essential group of workers in this sector, i.e. the nurses, were not paid. They expressed the view that, beyond the issue of enforcement of the right of workers to be paid regularly as provided for in Convention No. 95, a fundamental problem in this case might be that the economic structure of the industry was not viable. The Employer members noted that the Government had discussed the restructuring of the health-care industry. They urged the Government to take all necessary actions to pay these important health-care providers their wages.

The Worker members thanked the Government representative for the new elements presented to the Committee, which could not be adequately evaluated in the discussion. They expressed the hope that the new measures would be helpful in overcoming the serious problem at hand. They recalled that, according to the Committee of Experts, the financial straits of a private enterprise or a public administration might be addressed in many ways, but that was not an excuse for deferred payment or non-payment of the outstanding wages due to workers. The responsibility for implementation of the Convention rested with the Government and should be carried out through legislation and the implementation of the law so that the full wage could be paid in a full and timely manner. They took note of the list of mainly legislative and administrative measures taken by the Government but they did not note any concrete measures to eliminate the problem in practice. For instance, they had not heard anything about a special action plan with fixed deadlines for payment to workers who suffered from the delay. They urged the Committee to call for actions and not only legislative measures. They also called on the Government to take such measures urgently so as to protect workers, and eliminate this tragic problem which was affecting their lives. They also noted that it was important to address the economic side of health-care policy and fiscal administration. In their view, the problem required more than just bank credits. A reform of the fiscal and economic policy on health care was necessary on the part of the Government with the participation of the social partners. They emphasized that, while they appreciated the Government's efforts, they urged it to take real and effective action for the elimination of the problem and to set up fiscal and economic policies which would prevent such financial problems in the future. The Government's statement had focused on short-term solutions while the biggest problem in this area was the accumulation of arrears which risked spilling over into other sectors of the economy. They concluded by emphasizing the two aspects of this case which needed urgent answers, i.e. the issue of remedies to the workers and the need to address the Government's fiscal policy.

The Worker member of Poland stated that, during the last two years the non-payment of salaries rapidly gained importance as it affected the construction sector, enterprises producing for export and health-care establishments. In the majority of cases, this violation was being justified by the shrinking market, payment jams and - in the case of health care - the absence of financial means in the health insurance system. The Tripartite Commission, which was supposed to lead to the increase of salaries had reached a compromise as a result. However, over 60 per cent of employees of the health-care system had still not received the promised increase in salary, although their claims had been recognized by the Constitutional Court. He urged the Government to find a quick legal solution to the problem so as to allow for the increase of wages in the health sector.

Another Worker member of Poland stated that the practice of non-payment of wages was widespread, systematic and persistent. The lack of reaction to the growing problem of court delays in cases of non-payment of wages, the poor functioning of the judicial system, the inadequate administration of individual cases and the lack of preferential treatment of wage claims in case of bankruptcy, were indications of serious malfunctioning on the part of the Government. Proceedings that lasted for two years were a daily practice as regards workers' complaints for non-payment of wages. During this time, the workers concerned were usually deprived of both work and remuneration. The enforcement of the judicial decision concerning full payment of the amounts due was usually made impossible in cases of bankruptcy as bank claims took precedence over workers' wage claims. She concluded by saying that putting an end to the accumulation of wage arrears, which made workers net creditors to the employers but also to the Government (as in the case of the Polish nurses), as well as providing effective sanctions for workers in cases of non-payment of wages, called for sustained efforts, an open dialogue with social partners and measures not only at the legislative level but also in practice.

The Government representative reiterated that the Government had undertaken decisive steps towards solving the problems in the health-care sector. The measures proposed were of a comprehensive nature as they covered all issues regarding the functioning of the sector, thus allowing for durable change. Restructuring the health-care system would give a solid basis for its proper functioning in the near future. She indicated that the proposed solutions were realistic and that the health-care establishments were given the means to discharge their obligations. The solutions did not include new obligations without providing for the necessary resources. She underlined that the proposed measures satisfied the claims relating to the non-payment of wages and the denial of statutory salary increases introduced by the "203 Act". The process was to be concluded in two years from the entry into force of the Act regarding public support and restructuring of public health care establishments (expected on 1 October 2004). There would be measures to conclude the process even in one year. The Government requested to be given time to introduce the new provisions and to start the restructuring process which would not be an easy task. The goal was clear and was agreed to by all parties. She hoped that all partners would work hand in hand towards success, without further delay. She stated that her Government would cooperate with the Office in discharging its obligations under the Convention as it highly appreciated technical assistance that had been provided to Poland earlier.

The Employer members stated that the problem with the payment of wages was not limited to the health services sector and was more systemic. The Government should come up with a broader appreciation of the problem and should provide the best data available to the Committee of Experts on the general situation prevailing in the country in this respect. If the Government had difficulties in collecting the data, the ILO should provide assistance so as to clarify the factual situation and come up with viable solutions.

The Worker members considered that the Committee of Experts should study the new information given by the Government representative so as to evaluate its conformity with the requirements of the Convention. They also noted the importance of involving the social partners in the solution to the problem and called for concrete Government measures to end the problem. Finally, they asked the Government to provide information on the non-payment of wages in other sectors in the economy.

The Committee noted the oral explanations provided by the Government representative, and the discussion that followed. The Committee noted the essential importance of the health sector for the national economy and the well-being of the population. The Committee was conscious of the difficult financial situation of the majority of public health-care institutions and the painful structural changes which they went through but reminded the Government that delays in the payment of wages or the accumulation of wage arrears constituted a clear violation of the letter and spirit of the Convention and rendered inapplicable most of its provisions. The Committee expressed the hope that the Government would spare no effort to resolve the wage crisis faced by the professional community of nurses and midwives in a manner compatible with the obligations arising from the Convention. In this respect, the Committee noted with interest that the Government was in the process of adopting new legislation for the restructuring of public health services and that it undertook to eliminate the problem of payment of outstanding wages within two years. The Committee expected the Government to communicate detailed information on the concrete measures which had been adopted to resolve this issue to the Committee of Experts for examination at its next session.

Direct Request (CEACR) - adopted 2023, published 112nd ILC session (2024)

Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

Article 12 of the Convention. The wage arrears situation. The Committee notes the detailed statistical information provided by the Government on labour inspection results for the period 2005–07. During this period, in addition to 57,700 routine inspections, 3,079 thematic inspections were carried out covering 2,971 employers and 381,300 workers employed in manufacturing, trade and repairs, construction, real estate and renting, transport storage, health care and other branches. According to the Government’s report, the controls revealed a considerable decline in the percentage of employers who breach the legislation on wage protection (55.7 per cent in 2005 as compared to 25.7 per cent in 2007), the most frequently observed infringement being the non-payment of holiday pay, overtime or other allowances. The percentage of affected employees (expressed as a ratio to all the employees of controlled companies) also declined from 76 per cent in 2005 to 49.2 per cent in 2007.

The Government further indicates that the total amount of unpaid wages decreased from 199 million zloty (PLN) (approximately 48.5 million euros) in 2005 to 83 million (approximately 20.2 million euros) in 2007 and, accordingly, the number of warnings issued by labour inspectors also decreased from 45,331 warnings in 2005 to 31,426 in 2007. The reason mostly invoked for failure to comply with wage legislation is bad economic circumstances and lack of funds although the Government states that this argument may be overused as it has been observed that workers’ pay is sometimes withheld to fund other activities.

Despite the positive developments described by the Government, the Committee considers that the problem of non-payment or delayed payment of wages persists, affecting according to the latest statistics provided by the Government, as many as half of all the employees of inspected companies. The Committee would therefore appreciate if the Government would continue to provide up to date information on any additional measures taken or envisaged, in order to prevent and punish unlawful practices such as the accumulation of wage arrears, and also to settle in an expeditious manner all outstanding wage debts.

The wage crisis in the health-care sector. Further to its previous comments, the Committee notes the statistical information provided by the Government concerning the progress made in settling accumulated wage debts in the health-care sector for the period 2005–07 (approximately PLN229 million in 2005, PLN133 million in 2006 and PLN102 million in 2007 or 55.5, 32.4 and 24.8 million euros respectively). With respect to the implementation of the Act of 15 April 2005 on public aid and restructuring of public health-care institutions, the Committee notes with interest the Government’s indication that 99.99 per cent of all liabilities arising from the so-called “203 Act” have now been met. It also notes the labour inspection results covering the period 2005–08, according to which 1,109 payment orders were issued and, as a result, PLN25.2 million (approximately 6.1 million euros) were recovered on behalf of 39,486 employees.

In this connection, the Committee notes the “Green Paper” of the Ministry of Health entitled “Financing health in Poland” and published in November 2008, in particular the indications in Chapter V about the increasing debts of public health establishments despite the financial restructuring. In light of this report, the Committee would appreciate if the Government would clarify whether independently from past claims arising out of the “203 Act”, health-care employees in the public sector experience new problems with respect to the regular payment of their wages and, if so, indicate any measures taken to remedy this situation.

Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee notes the information provided by the Government in reply to its previous comments. It also notes the adoption of the new law of 13 July 2006 on protection of employees’ claims in the event of insolvency of their employer (Text 1121, Journal of Laws No. 158) and the recent amendment of section 29 of the Labour Code concerning the employer’s obligation to inform employees about their wage conditions.

The wage arrears situation. With reference to the ongoing problems concerning the regular payment of wages, the Committee notes the Government’s indication that inspection results confirm the consolidation of positive trends as regards the observance of legislation on protection of labour remuneration. The Committee also notes the Government’s reference to the new law of 7 April 2006 amending section 24 of the Public Procurement Act, so that employers who have been condemned by court decision for offences against the rights of gainfully employed persons are henceforth excluded from tendering for public contracts. The Government also refers to the law of 13 April 2007 on the national Labour Inspectorate which raises the fines for offences against workers’ rights, including non-payment of wages, to a maximum of 30,000 zloty (approximately 8,300 euros) for fines imposed by a magistrate and to 2,000 zloty (approximately 550 euros) for fines imposed by a labour inspector.

In particular, the Government refers to the number of employers against whom wage orders have been issued by labour inspectors and which has dropped from 6,200 in 2003 to 3,600 in 2005. Consequently, the overall amount of wage orders has been reduced from 360 million zloty in 2003 (approximately 95 million euros) to almost 200 million zloty (approximately 53 million euros) in 2005 while the total number of workers experiencing delays in the payment of their wages has decreased from 359,000 in 2003 to 221,000 in 2005. In 2006, it was estimated that 75,366 persons were affected by the non-payment of 70 million zloty (approximately 19 million euros). Despite these favourable indications, the Committee notes with concern the high level of wage-related infringements reported by the labour inspection services, notably that in approximately 80 per cent of all controlled work establishments legislation on payment of remuneration was infringed and that 30.7 per cent of all controlled employers in 2006 were found in violation of regulations on labour remuneration including payment of overtime, holiday pay and similar entitlements. According to the Government’s report, the main cause of revealed irregularities remain the absence of funds due to the bad financial situation of enterprises but there is also lack of knowledge of the legislation in force and application of incorrect methods of calculating remuneration and other benefits. The Committee would be grateful if the Government would continue supplying up to date information on the measures taken to ensure that wages are paid regularly and in full, including labour inspection results, sanctions imposed, wage sums recovered, the economic sectors and categories of workers mostly affected by wage arrears, etc.

The wage crisis in the health sector. The Committee notes the Government’s explanations concerning the amendment of 9 June 2006 to the Act on public aid and restructuring of public health-care establishments of 15 April 2005 which gives the possibility for loans from the state budget to establishments other than independent public health-care units, offers possibilities for additional loans and increases the remittance of the main dues in respect of the loan from 50 to 70 per cent. While noting these legislative developments, however, the Committee observes that the Government does not provide any information on the process of restructuring in practice, especially as regards the settlement of the estimated wage debt of 358 million euros owed to the personnel of health-care institutions, including 170 million euros of accumulated liabilities in respect of non-compliance with article 4(a) of the “203 Act”. The Committee recalls, in this respect, that the Government has previously indicated that it would communicate precise data on the number of health-care personnel affected by the problem of delayed payment of wages when health-care establishments would file applications for restructuring proceedings under the new law on public aid and restructuring. The Committee also recalls the Government’s statement before the Conference Committee on the Application of Standards in June 2004 that the problem of outstanding wages in the health-care sector would be eliminated within two years. The Committee accordingly requests the Government to provide detailed information on the present situation relating to the settlement of accumulated wage debts in the health-care sector, including: (i) the number of employees concerned; (ii) the total amount of wages settled and due including liabilities arising out of the “203 Act”; (iii) the time frame for the repayment of all outstanding sums; and (iv) full particulars on any individual agreements concluded with health-care personnel providing for repayment in instalments or containing a waiver on the payment of interest.

[The Government is asked to reply in detail to the present comments in 2008.]

 

Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee notes the Government’s report and the detailed information communicated in response to its previous observation.

1. The evolution of the situation with respect to wage arrears. The Committee notes the Government’s statement that in spite of the dropping trend, the scale of problems in this area of labour protection should be still considered as alarming. According to the results of 1,155 inspection visits carried out in 2004, half of the controlled employers fail to pay holiday and overtime pay. Most revealed irregularities related to small and medium-sized enterprises, mainly in the private sector, while most of the pay decisions issued by the labour inspection services concern enterprises in sectors such as manufacturing, construction as well as trade and repair. The Government adds that the number of employers who fail to comply with labour court decisions gradually declines even though 255 cases of non-compliance were recorded in 2004 as a result of 690 inspections. Most of non-complied-with decisions relate to non-payment of remuneration and other dues in respect of the employment relationship, and the main reason is the bad economic situation of employers. Moreover, the Government indicates that the situation is likely to improve following the forthcoming amendment of public procurement legislation, which provides for the exclusion from public procurement proceedings of those employers condemned by court decision for offences against the rights of gainfully employed persons. The draft law introducing this regulation was adopted by the Council of Ministers on 7 June 2005. The Committee would appreciate receiving a copy of the new legislation once it is formally enacted.

In addition, the Committee notes that according to a recent report published by the Polish National Labour Inspectorate (Polska Inspekcja Pracy - PIP), the number of employers not paying wages at regular intervals decreased from 62 per cent in 2003 to 55.9 per cent in 2004, but the number of employees experiencing delays in the payment of their wages has increased. Moreover, the total amount in unpaid wages during the first half of 2004 came to 71.5 per cent of the previous year’s total. The Committee expresses its concern at the particularly high rate of employers who, according to labour inspection statistics, are in violation of the national legislation on labour remuneration, and asks the Government to continue providing detailed information on all future developments in this regard.

2. The wage crisis in the health sector. The Committee notes the observations of the All-Poland Understanding of Trade Unions (OPZZ) dated 4 October 2004 concerning the ongoing problems of non-payment of wages in the health sector. According to the OPZZ, despite long discussions and promises, no progress has been made and it would therefore be necessary to keep under close scrutiny the situation in the health sector and also to look carefully into similar phenomena affecting other sectors.

In its reply, the Government indicates that the Act on public aid and restructuring of public health-care establishments was adopted on 15 April 2005 (Dz. U. No. 78, Text 684). According to the information provided by the Government, the law determines methods of writing off the debts of health-care establishments, and settling the problems of non-payment of wages and wage increase in health-care establishments. Concretely, the law provides that the restructuring of individual employee claims consists in concluding an agreement with the employee, which may provide that establishments’ liabilities towards the employee will be paid in instalments, determine the schedule of their payment, or contain a provision on resignation of interest for delay.

The Government adds that, as of 31 March 2005, the liabilities of independent public health-care establishments towards employees amounted to 1,400 million PLN (approximately 358 million euros), including 661.9 million PLN (approximately 170 million euros) of liabilities in respect of non-compliance with article 4(a) of the "203 Act". The Government further states that precise data as to the number of health-care personnel affected by the problem of delayed payment of wages are not currently available but will only be known when health-care establishments will file applications for restructuring proceedings under the new law. In a new communication received on 9 November 2005, the Government indicates that the state budget for 2005 provides for a loan reserve of 2.2 billion PLN primarily intended for the repayment of accumulated liabilities to employees under the "203 Act" for the period 2001-04. It also states that some 551 health-care establishments would be prepared to apply to the State Treasury for loans of an aggregate value of 1.7 billion PLN.

While noting the Government’s explanations, the Committee intends to examine the new Act on public aid and restructuring of public health-care establishments in greater detail, as soon as the translation of this text becomes available, in the light of the requirements arising from Article 3 and Article 12 of the Convention, and also in the light of the informal opinion given by the Office in April 2004 on a previous draft. While recalling that, in June 2004, the Government undertook before the Conference Committee on the Application of Standards to eliminate the problem of payment of outstanding wages in the health-care sector within two years, the Committee asks the Government to supply up-to-date information on the current situation prevailing in the country, including, for instance, any negotiated time schedule for the settlement of the wage debt, the amount of wage arrears already settled, detailed particulars on any individual agreements which may have already been concluded with health-care personnel under the new Act on restructuring, etc.

[The Government is asked to reply in detail to the present comments in 2006.]

Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee recalls its previous observation in which it requested the Government to provide, following the comments communicated by the Polish Trade Union of Nurses and Midwives (OZZPiP), detailed information on the wage crisis experienced in the nursing services sector and any other occupational category or branch of economic activity affected by similar problems. The Committee also notes the discussion in the Committee on the Application of Standards at the 92nd Session of the International Labour Conference (June 2004) in which the Conference committee concluded that even though it was conscious of the difficult financial situation of the majority of public health-care institutions and the painful structural changes which they went through, delays in the payment of wages or the accumulation of wage arrears constituted a clear violation of the letter and spirit of the Convention and rendered inapplicable most of its provisions.

1. The deferred payment or non-payment of wages. The Government reports that the Council of Ministers has dealt with the issue of non-payment of wages on two recent occasions, in September 2002 and July 2003, and has decided to undertake decisive law enforcement measures and to apply stricter sanctions for violation of relevant provisions. The Government refers to a series of measures, including: (i) the termination of the employment relationship of persons exercising managerial functions in state enterprises in the case of failure to pay remuneration to employees despite the availability of funds; (ii) the amendment of the Labour Code, dated 14 November 2003, according to which the amount of the fine imposed for infringement of employees’ rights was doubled; (iii) the agreement concluded in December 2003 between the Chief Labour Inspector and the Minister of Justice regarding cooperation in fighting infringement of the employees’ right to remuneration; (iv) the decision of the National Labour Inspectorate to establish detailed documentation of all cases of offences against employees’ rights and to make such documentation available at the request of prosecutors.

2. According to the statistical information provided by the Government, in the period 2001-03, a total number of 2,866 criminal proceedings were registered concerning wage-related offences, 95 per cent of which or 2,735 cases, have already been completed. The Government adds that in 2003 for the first time after many years it noted a drop in percentage of employers reported to have infringed the legislation regarding labour remuneration (62 per cent in 2003 as compared to 68 per cent in 2002). It further states that over the past three years a gradual improvement was observed concerning the payment of overtime pay and various wage supplements; the relevant regulations have been infringed by 41.3 per cent of employers in 2001, 40.3 per cent in 2002, and 36.8 per cent in 2003. A similar improvement was observed with regard to the payment of holiday pay, the respective figures having fallen from 17.5 per cent in 2001 to 15 per cent in 2002 and 13.5 per cent in 2003. Taking into account all kinds of unpaid benefits, the average amount due per employee decreased from 1,360 zloty in 2002 to 1,237 zloty in 2003.

3. While the Government interprets the above statistics as a forecast of long-expected positive changes, they also demonstrate that notwithstanding the measures already taken by the Government, there is still a serious situation prevailing in the country with regard to protection of wages. Even though statistical figures may point at an improvement in absolute numbers, the fact remains that one out of three inspected employers fails to pay overtime pay and wage supplements to his/her employees while more than six out of ten employers are found in breach of the legislation concerning the payment of wages in general. While noting that the Government’s report contains little additional information to that given to the Conference Committee in June 2004, the Committee asks the Government to closely monitor the situation in respect of wage arrears in all sectors of the national economy and in all regions and to continue providing statistics on further developments in this regard.

4. Wage arrears in the health-care sector. The phenomenon of deferred payment or non-payment of wages appears particularly serious in the health sector. According to the Government’s report, as of March 2003, 70 per cent of public health-care establishments were in debt, and could not fulfil their obligations concerning the statutory increase of wages. Regular controls conducted in health-care establishments by the National Labour Inspection in 2001-03 have demonstrated that among the main difficulties encountered by these institutions was the implementation of the so-called "203 Act". However, whereas in 2001, 65 per cent of the inspected health-care establishments failed to introduce the pay increase, in 2002 this irregularity concerned 49 per cent of the inspected establishments, and in 2003 only 29 per cent. The Government states that in 2003, in 69 per cent of cases in which notices were issued by labour inspectors concerning miscalculation or non-payment of wages, the employers concerned complied, and as a result the amount of 27 million zloty (approximately US$6 million) was paid to over 41,000 employees.

5. Moreover, the Government reports that following a plenary session of the Tripartite Commission in September 2003 and the completion of the work of an ad hoc team of the Tripartite Commission in November 2003 which focused on public health-care reforms and the issue of settlement of wage debts, a draft Law on public aid and restructuring of public health-care establishments was adopted by the Council of Ministers, examined by the Parliament and was expected to enter into force in October 2004.

6. According to the information supplied by the Government, the draft law provides for the transformation of the legal status of public health-care establishments into commercial law companies and the reimbursement of all outstanding wage debts deriving from the "203 Act" within a period of two years. It also provides that the health-care establishments will be allowed to issue bonds while under another law amending the law on public aid and restructuring of public health-care establishments, the Government proposes to introduce different measures for paying off the health-care establishments debt, such as the payment in instalments or the deferred payment upon the agreement of the establishment and the creditor. The Committee would be particularly interested in receiving detailed information on the draft laws, especially concerning the issue of bonds and the partial or delayed payment, as these measures might raise certain difficulties having regard to the requirements of Articles 3, paragraph 1, and 12, paragraph 1, of the Convention.

7. In the same connection, the Committee stresses that any method of payment of overdue wages other than cash, for instance securities (such as bonds or any other form of acknowledgment of indebtedness offered in lieu of money in full or partial settlement of outstanding payments) would fall within the scope of the prohibition of Article 3, paragraph 1, of the Convention against money substitutes. It also recalls that in situations of deferred payment of wages or accumulated wage debts, the means to redress the injury caused should include not only the full payment of the amounts due but also fair compensation for the losses incurred by the delayed payment. A similar view has been expressed by the Office in response to the Government’s specific request for an informal opinion on the legal implications of Article 3 of the Convention on certain provisions of the draft law on public aid and restructuring of the public health-care establishments.

8. Moreover, while noting the Government’s reference to extended consultations with the social partners, the acceptance by the employers’ representatives of the proposed method for solving the problem of unpaid wages in the health-care sector, and the ongoing discussions with different trade unions representing nursing personnel, the Committee would be grateful to the Government for providing more ample information on the extent to which representatives of nursing personnel have been associated with recent decisions in light of Article 5, paragraphs 1 and 2, of ratified Convention No. 149, requiring measures to promote the participation of nursing personnel in the planning of nursing services and also calling for negotiated solutions to disputes concerning the determination of conditions of employment and work.

9. The Committee requests therefore the Government to: (i) transmit copies of all draft or enacted laws concerning the settlement of the wage crisis in the nursing services sector; (ii) provide up-to-date information concerning the total amount of wage arrears in the health-care sector and its evolution in recent years; (iii) supply detailed statistics concerning the number of employees concerned, including the number of employees whose employment relationship has been terminated, or is expected to be terminated, as a result of the public health-care restructuring. The Committee would also appreciate receiving the Government’s explanations (i) as to whether the informal opinion given by the International Labour Office in April 2004 was duly considered in drafting the law on public aid and restructuring of health-care establishments, and (ii) as to the amount and method of calculation of the compensation it envisages to offer to the employees concerned for the losses incurred by the failure to ensure the regular payment of wages.

[The Government is asked to reply in detail to the present comments in 2005.]

Observation (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee notes the observations communicated by the Polish Trade Union of Nurses and Midwives (OZZPiP) on 27 January 2003 concerning the application of the Convention and the Government’s response dated 1 October 2003.

1. According to the OZZPiP, the nursing personnel experience poor working conditions as evidenced by the periodic non-payment of wages, pay cuts and denial of statutory salary increases. The OZZPiP states that this situation persists despite the protests of health care employees and the numerous letters addressed to government authorities. In support of its complaints, the organization has transmitted copies of various communications sent to the Prime Minister, the Minister of Labour and Social Policy, the Minister of Health, the Ombudsman and the Labour Inspector General drawing their attention to increasing problems of non-payment or delayed payment of wages and inviting them to take remedial action. Among the practices denounced by the OZZPiP as gross violations of the labour legislation are the failure of health care institutions to pay wages on a timely basis (the situation seems to be particularly serious in Lower Silecia where the delay in the payment of wages is of several months), the payment of wages in instalments, the non-payment of wage increases, annual bonuses, inflation compensation, compensation for work on Sundays and public holidays and other wage supplements, unjustified deductions from wages and the lowering of the basic wage of nurses and midwifes decided by several independent health-care institutions. The OZZPiP stresses the dramatic situation of the professional community of nurses and midwives and refers to violent incidents of public unrest, and even to the case of the suicide of an unpaid nurse in despair, to denote the long period of deep discontent of health-care employees and the lack of hope for any improvement in their situation.

2. The Committee notes that the non-payment of wages at regular intervals, which is a violation of the principle set out in Article 12, paragraph 1, of the Convention, is confirmed by official statistical information supplied by the National Labour Inspection Service (PIP). In her letter of 6 February 2003, which was annexed to the comments of the OZZPiP, the Labour Inspector General confirmed the reports of failure to pay wages and other benefits in full and on time, and noted that delays range from several days to several months. According to the same communication, the labour inspectors requested the payment of the amount of PLN22.2 million (approximately US$5.6 million) but only PLN3.3 million (approximately US$832,500) had actually been paid. The Labour Inspector General further indicated that the accumulation of wage arrears keeps growing and that the situation is due to rising amounts of unpaid wages, unimplemented wage increases the employees are entitled to since January 2001 and January 2002 under article 4(a) of the Act on the negotiation-based setting of average pay increases by entrepreneurs and on amendments to certain other acts and the Health Care Provider (ZOZ) Act, and the increase of unpaid amounts due to employees by way of annual bonuses. The statistics brought to the knowledge of the Committee show an equally worrying accumulation of arrears in respect of employers’ compulsory contributions to social security institutions. In other cases nurses are not paid termination benefits following their dismissal or the judicial liquidation of the health-care establishment which is in conflict with the requirement of the Convention for prompt settlement of all outstanding payments upon the termination of the employment contract (Article 12, paragraph 2).

3. In its reply, the Government emphasizes that the Ministry of Health does not have the authority to intervene in actions of health-care providers as employers, that it lacks also the authority to order the managers of health-care service providing entities to pay their employees remuneration in the amount or at the time intervals stipulated in the employment contracts, and that consequently the nursing personnel affected by wage arrears should seek to recover any unpaid wages by judicial means.  In this connection, the Committee feels obliged to recall that the Government bears the overall responsibility for ensuring the effective application of the Convention and for preventing and punishing infringements by using the legal means at its disposal in order to compel defaulting employers to comply with the legislation in force.

4. While noting the Government’s indication that law suits alleging violations of the workers’ right to remuneration are examined by the courts in a special non-formalized and cost-free procedure, the Committee asks the Government to specify the amount of wage arrears which have so far been recovered by court action and also to indicate any additional measures to ensure the expeditious settlement of wage-related proceedings. Moreover, the Committee requests the Government to transmit copies of any court decisions involving questions of principle relating to the application of the Convention.

5. The Committee notes that, as regards the payment of annual wage increases to employees of health-care establishments under the provisions of the Act on the negotiation-based setting of average pay increases, the Government refers to the ruling of the Constitutional Court of 18 December 2002, by which these increases were found to be in conformity with the Constitution and must therefore be implemented. The Government adds, however, that the application of article 4(a) of the Act on the negotiation-based setting of average pay increases by independent public-owned health-care providers gives rise to great difficulties and that an ad hoc team established through the good offices of the Minister of Health is currently examining possible solutions to the problem of implementation of the statutory pay increases for nursing personnel. The Committee hopes that rapid progress could be made in this regard since any delay may render the repayment of the amounts due for past years even more difficult. It therefore asks the Government to provide information on all future developments.

6. The Committee notes that the Government refers at length to initiatives such as the programme of restructuring and protective measures in health care launched in 1999, the inter-ministerial drafting team for the rehabilitation and settlement procedure for the independent public-owned health-care providers appointed by the Prime Minister in December 2002 or the round table programming conference called in April 2003 by the Minister of Health, but provides little information on specific measures taken for the elimination of  wage debts in the health-care sector. The Committee is mindful of the dire economic situation of most health-care establishments and the drastic reforms and restructuring pursued in the health-care system but insists on the need to undertake priority action for the reimbursement of mounting wage arrears to nursing employees. The Committee considers it appropriate to refer in this connection to paragraph 412 of its General Survey of 2003 on the protection of wages in which it stressed that none of the reasons normally advanced by way of excuse, such as the implementation of structural adjustments or "rationalization" plans, falling profit margins or the adverse economic situation, can be accepted as valid pretexts for the failure to ensure the timely and full payment to workers of the wages due for work already performed or services already rendered, as required under the Convention. The financial straits of a private enterprise or a public administration may be addressed in many ways, but that is not an excuse for deferred payment or non-payment of the outstanding wages due to workers. The Committee asks therefore the Government to indicate the specific measures, legislative, administrative or others, designed to stop the further aggravation of the situation and accelerate the payment of wage debts to health-care employees. 

7. The Committee observes that the Government does not refer to the wage crisis in the nursing services sector in concrete terms and does not provide any statistics showing the nature and scale of the problem, or its evolution in the last few years. The Committee considers that the absence of any up-to-date statistics is all the more regrettable as the Government transmitted its response some ten months after the filing of the comments of the OZZPiP. As the Committee has been pointing out on numerous occasions, a proper assessment of the problem is only possible through the systematic collection of statistical data emanating from credible sources. It therefore asks the Government to supply in its next report detailed information on the number of workers affected, the number of health-care establishments experiencing difficulties in the payment of wages, the average amount of delay in the payment of wages, the amount of arrears settled and the outstanding amount of arrears, the number of inspections made and the penalties imposed, and any negotiated time schedule for the payment of the sums remaining due. The Committee would also appreciate receiving detailed information on any other occupational category or branch of economic activity which may experience similar problems on a large scale.

8. The Committee recalls that for the past six years it has been commenting extensively on problems related to the deferred payment of wages mostly in transition economies drawing attention to three essential elements in so far as the application of the Convention is concerned: (i) efficient control and supervision basically implying the strengthening of labour inspection services; (ii) truly dissuasive and strictly enforced sanctions against those who take advantage of the economic situation to commit abuses; and (iii) the means to redress the injury caused, including not only the full repayment of the amounts due but also fair compensation for the losses incurred by the delayed payment. In this respect, the Committee wishes to refer to paragraphs 356 to 374 of the abovementioned General Survey in which it reviews the recent record of the Organization’s supervisory organs with regard to the obligations arising out of Article 12, paragraph 1, of the Convention.

9. Finally, the Committee emphasizes that the phenomenon of wage arrears is self-propagating and that unless urgent action is taken to contain it before it reaches significant proportions, it may spill over to other sectors of the national economy turning into a vicious circle with disastrous social and financial consequences. The Committee accordingly requests the Government to intensify its efforts and exhaust all available means in order to comply with the requirements of the Convention.

[The Government is asked to report in detail in 2004.]

Direct Request (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee notes the detailed information supplied by the Government in its reports in reply to the Committee’s previous comments as well as the attached documentation.

Article 6 of the Convention. The Committee notes that the Labour Code contains no provision explicitly prohibiting employers from limiting in any manner the freedom of workers to dispose of their wages. The Committee hopes that the necessary action will be taken in the very near future to ensure that this provision of the Convention is fully applied.

Article 8. Further to its earlier comments, the Committee is bound to observe that section 91 of the Labour Code, as last amended in 1996 (Dziennik Ustaw, No. 24, Text 110), allowing for deductions upon the worker’s prior consent in writing is not consistent with the provisions of this Article. The Committee once again stresses that according to the terms of the Convention the types and extent of permissible deductions from wages may only be prescribed by national laws or regulations or fixed by collective agreements or arbitration awards, and not by individual agreements. It invites therefore the Government to consider the possibility of adopting suitable measures to specify the types and extent of deductions permitted with the worker’s written consent in order to bring the national legislation into closer conformity with the Convention. In this connection, the Committee notes the proposed amendment to the Trade Union Act providing for deduction of trade union fees with the prior consent of the worker concerned, and requests the Government to keep it informed of any developments in this matter. In addition, the Committee requests the Government to provide further clarifications on how workers are informed of the conditions under which and the extent to which deductions from wages may be made in general.

Article 9. The Committee notes that the Labour Code contains no specific provision prohibiting any deduction from wages with a view to ensuring a direct or indirect payment made by a worker to an employer for the purpose of obtaining or retaining employment, as required under this Article. The Committee asks the Government to indicate the measures taken or envisaged to give full effect to the Convention in this regard.

Article 11. The Committee notes with interest the Ministerial Order of 21 February 1994 (Dziennik Ustaw, No. 14, Text 109) concerning the statutes of the Fund Council which was established pursuant to the Act of 29 December 1993 (Dziennik Ustaw, No. 1, Text 1) concerning the protection of workers’ claims in the event of the insolvency of their employer as well as the Ministerial Order of 11 January 1995 (Dziennik Ustaw, No. 7, Text 35) extending the scope of employees’ benefits financed by the Work Benefits Guarantee Fund. It notes in particular that the workers’ claims financed by the Work Benefits Guarantee Fund may also include claims for paid absence relating to a period not exceeding three months prior to the insolvency or prior to the termination of employment as well as claims for holiday pay relating to a period not longer than six months prior to the insolvency or prior to the termination of the employment. The claims so protected are limited to an amount which may not exceed the average monthly remuneration. The Committee asks the Government to continue to provide information on the functioning of the wage guarantee institution in practice and ventures to draw the Government’s attention to the Protection of Workers’ Claims (Employer’s Insolvency) Convention, 1992 (No. 173) which sets out the most recent standards on the subject of the protection of workers’ claims in the event of the employer’s insolvency.

Article 13. The Committee notes that under sections 86 and 104(1) of the Labour Code, the employer is obliged to pay remuneration at a location and time specified in the workplace regulations or in other provisions of labour law. The Committee would be grateful if the Government could supply copies of any such workplace regulations as examples or other texts giving effect to the requirements of this Article.

Part V of the report form. The Committee recalls the very interesting statistical information concerning the violations of the legislation on wage protection reported in 1994. The Committee recalls in particular that infringements were recorded in 5,455 establishments, or 72 per cent of all inspected establishments, relating in most cases to non-payment of wages and obligatory wage supplements. In total, wage benefits were not paid to some 104,326 employees with the amount of unpaid dues reaching nearly 192 billion zlotys as compared to 139.9 billion in 1993. Wages were not paid on time in 56 per cent of the establishments in which wage-related violations were observed while in 26 per cent of those establishments the delay in the payment of wages exceeded two months. According to the information from the inspection services, 18 per cent of the total number of employees whose employment relationship was terminated did not receive redundancy payments, this phenomenon being intensified in recent years. In many enterprises, the difficult financial situation prevents not only the settlement of outstanding workers’ claims but even the initiation of bankruptcy proceedings, and thus the role of the Work Benefits Guarantee Fund becomes of particular importance. Finally, labour inspectors instituted proceedings and imposed fines in 3,505 cases, that is a 27 per cent increase compared to 1993 figures, while supervision and application of enforcement measures resulted in the settlement of more than half of the amounts of wages and benefits due. Taking into account the above figures and also considering that cases of abuse concerning the payment of wages might increase, the Committee requests the Government to continue to provide more recent and detailed information on the practical difficulties encountered in the application of the Convention, especially with regard to the late payment of wages, the reinforcement of the supervisory and inspection machinery and the imposition of dissuasive sanctions to offenders.

Direct Request (CEACR) - adopted 1995, published 82nd ILC session (1995)

1. Article 8 of the Convention. With reference to its previous comments, the Committee notes the Government's indication that the draft amendment of the Labour Code proposes to delete the second sentence of section 91 of the Code, which restricts the cancellation by the worker of his consent to the deduction of sums owing to a worker's mutual assistance and loan fund. The Government considers that the requirement of the worker's written consent guarantees protection of workers' interests. The Committee would, however, point out that under this Article of the Convention, the types and extent of deductions from wages should be prescribed by national laws or regulations or fixed by collective agreements or arbitration award and not by individual agreements. It therefore requests the Government to consider the adoption of suitable measures to specify the types and extent of deductions permitted with the worker's written consent.

2. The Committee notes with interest the information on the Act of 29 December 1993 concerning the protection of workers' claims in the event of employer's insolvency. It would be grateful to the Government for supplying information, in accordance with point V of the report form, on the application of the Convention in practice, with particular reference to this new Act as well as to deductions from wages.

Direct Request (CEACR) - adopted 1991, published 78th ILC session (1991)

Article 8 of the Convention. The Committee recalls that in its earlier comments it drew attention to the need to take suitable measures to specify the types and extent of deductions permitted with the worker's written consent. The Committee notes from the Government's report its intention to bring the national legislation into full conformity with the provisions of the Convention, and that this question will be considered in the framework of the activities of the Committee for the Reform of the Labour Law. The Committee requests the Government to indicate the measures taken in this respect, and to send a copy of the amendment adopted.

Direct Request (CEACR) - adopted 1987, published 74th ILC session (1987)

Article 8 of the Convention. The Committee notes from the Government's report that a Committee has been established for the amendment of the Labour Code. It recalls that in its earlier comments attention has been drawn to the need to take suitable measures to specify the types and extent of deductions permitted with the worker's written consent (such as payment to workers' mutual assistance and loan funds, already stipulated in section 91 of the Labour Code). It hopes accordingly that the Government will consider the adoption of measures in the course of the amendment of the Labour Code to ensure legislative conformity with this Article of the Convention.