Observation (CEACR) - adoptée 2004, publiée 93ème session CIT (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.]