Observation (CEACR) - adoptée 2019, publiée 109ème session CIT (2021)

Convention (n° 111) concernant la discrimination (emploi et profession), 1958 - Pologne (Ratification: 1961)

Autre commentaire sur C111

Observation

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Article 1(1)(a) of the Convention. Prohibited grounds of discrimination. The Committee previously noted that section 11(3) of the Labour Code and section 3(1) of the Equal Treatment Act of 3 December 2010 (ETA) do not prohibit discrimination on the grounds of colour and social origin, as required by Article 1(1)(a) of the Convention. The Committee notes the Government’s statement in its report that the grounds of discrimination set out in the Labour Code are non-exhaustive and are listed only as examples. Noting that, according to their last annual reports, no case or complaint of discrimination on the grounds of colour or social origin has been dealt with by the labour inspectorate or the Commissioner for Human Rights (RPO), the Committee recalls that, where legislative provisions are adopted to give effect to the Convention, they should include at least all the grounds of discrimination set out in Article 1(1)(a) of the Convention. In that regard, it takes note of the adoption of the Labour Code Amendment Act of 16 May 2019, which entered into force on 7 September 2019, and more particularly of the amendments introduced in new section 11(3) of the Labour Code, but regrets that, despite its recommendations, the Government did not take this opportunity to include the grounds of colour and social origin in the list of the prohibited grounds of discrimination. Noting the Government’s indication concerning the elaboration of a new draft Labour Code in May 2018, the Committee hopes that the Government will take this opportunity to explicitly prohibit discrimination in employment and occupation based on at least all the grounds set out in Article 1(1)(a) of the Convention, while also ensuring that the additional grounds already enumerated in the Labour Code and the Equal Treatment Act currently in force are maintained in any new legislation. The Committee asks the Government to provide information on any progress made in this regard. In the meantime, it asks the Government to provide information on the application in practice of section 11(3) of the Labour Code and section 3(1) of the Equal Treatment Act, including on any relevant judicial decisions concerning discrimination on the grounds of colour and social origin.

Discrimination based on sex. Sexual harassment. The Committee previously noted the difficulties faced by the labour inspectorate in examining sexual harassment complaints due to a lack of material evidence and the unwillingness of work colleagues to act as witnesses. While noting that the Government has not provided information on any measures taken or envisaged to improve the handling of sexual harassment complaints by labour inspectors, the Committee notes that 55 complaints of sexual harassment were dealt with by the labour inspectorate between 2014 and 2016 and observes that the figures have been increasing from 15 complaints in 2014 to 21 complaints in 2016. It further notes, from the statistical data provided by the Government, that 21 cases of sexual harassment were lodged with the courts from 2014–16. The Committee however notes that, in its 2017 annual report, the RPO highlights the lack of adequate tools for responding to sexual harassment and that this contributes to victims’ unwillingness to report abuse. A study carried out by the RPO also shows that many female university students experience some form of sexual harassment during their studies, often by university employees. The Committee observes in this regard that, in December 2018, the United Nations Human Rights Council Independent Expert Group on the issue of discrimination against women in law and in practice expressed concern that the RPO, which has been very active in promoting and protecting women’s rights, faces serious challenges of inadequate resources, as well as insufficient cooperation with some governmental bodies. The Committee further notes the amendments introduced to section 943(4) of the Labour Code, as a result of the Amendment Act of 16 May 2019, which now provides that an employee who has suffered from “bullying”, or has terminated an employment contract as a result of “bullying”, has the right to claim compensation from the employer in an amount not lower than the minimum wage, while previously the right to claim compensation was granted only to an employee who, as a result of “bullying”, terminated his or her employment contract. The Committee asks the Government to: (i) explain what conduct is addressed under the term “bullying”; (ii) provide information on the application in practice, of section 943(4) of the Labour Code, as amended, and more particularly on any measures taken to prevent and address all forms of sexual harassment (both quid pro quo and hostile work environment) in education institutions and at workplaces; and (iii) increase public awareness of the issue of sexual harassment and “bullying”, as well as the legislative amendments introduced to the Labour Code, and procedures and mechanisms available for victims to seek redress, including by improving the handling of sexual harassment complaints by the labour inspectorate. It also asks the Government to continue providing information on the number of complaints concerning cases of sexual harassment and “bullying” in educational institutions and at workplaces dealt with by labour inspectors, the courts or any other competent authorities, specifying the penalties imposed and compensation awarded.

Articles 2 and 3. Equality of opportunity and treatment of men and women. The Committee previously noted the measures taken and envisaged under the National Programme on Activities for Equal Treatment 2013–16 (KPDRT) to promote equal opportunities for men and women. It notes the Government’s indication that, in the framework of the KPDRT, a set of recommendations to enhance women careers in the science, technology, engineering and mathematics (STEM) area has been developed and several additional measures have been implemented to promote women’s representation in decision-making positions, in particular on the supervisory boards of state-owned companies and in large companies, such as the development of a guide for human resources departments in order to improve equality of opportunity for men and women at the workplace level. The Government adds that a similar project was implemented from 2016 to 2019 targeting 400 medium-sized companies, including individual business advice, training for employers and workers on equal treatment at work and relevant regulations, sharing of good practice and provision of free tools. The Committee also notes the measures developed in the framework of the KPDRT to facilitate the reconciliation of work and family responsibilities, such as the awareness-raising programme “Family and Work: It Pays!” (2016–17). It notes in that regard the amendments introduced to the Labour Code by the Act of 24 July 2015 allowing working parents to fully share part of maternity and parental leave (sections 180 and 186 of the Labour Code). The Committee however notes, that a team to evaluate the implementation of the KPDRT was established in April 2015 but that, as highlighted by the UN Human Rights Council Independent Expert Group on the issue of discrimination against women in law and in practice, the evaluation report had still not been published in December 2018. It further notes that, according to Eurostat, the employment rate of women increased slightly from 58.5 per cent in 2016 to 60.3 per cent in 2018, but remained substantially lower than the employment rate of men (74.3 per cent in 2018). The Committee observes that the gap between the employment rates of men and women has widened from 10.3 percentage points in 2016 to 14 percentage points in 2018. The Committee notes that, in their 2016 concluding observations, the UN Human Rights Committee and the UN Committee on Economic, Social and Cultural Rights (CESCR) both expressed concern at: (i) the prevalence of gender biases and stereotypes; (ii) the concentration of women in lower-paid sectors; and (iii) the under-representation of women in decision-making positions in the public and private sectors, and that they recommended that the Government combat gender stereotypes and segregation in the labour market (CCPR/C/POL/CO/7, 23 November 2016, paragraph 21, and E/C.12/POL/CO/6, 26 October 2016, paragraphs 14 and 15). It also notes that in its 2017 annual report, the RPO highlighted the need to enhance women’s education in the fields of technical sciences and engineering, as well as new technologies, and requested the Government to take this issue into consideration in the framework of the reform of vocational training and the counselling system in schools. The Committee notes from the data provided by the Government that the labour inspectorate dealt with 48 complaints alleging discrimination on the ground of sex when establishing or terminating the employment relationship and 46 complaints alleging discrimination on the ground of sex when setting remuneration for work or other conditions of employment, but observes that no information has been provided on the outcome of these complaints. The Committee asks the Government to provide information on the measures taken to address effectively both horizontal and vertical segregation between men and women in the labour market, as well as gender stereotypes, including by improving the economic activity rate of women and enhancing their access to decision-making positions and their participation in non-traditional fields of study and occupations. Noting that the National Programme on Activities for Equal Treatment ended in 2016, it asks the Government to provide information on the development and implementation of any new national programme or action plan on equal treatment or gender equality, as well as statistical information on the distribution of men and women in employment, disaggregated by economic sector and occupation.

Equality of opportunity and treatment irrespective of race, colour and national extraction. Roma. The Committee previously noted that, despite several measures aimed at improving access to education and increasing opportunities in the labour market, the Roma remained the most marginalized group in the labour market. The Committee notes with interest the adoption of the Programme for the Integration of the Roma Community for 2014–20, which explicitly recognizes education and employment promotion as priority areas. It notes the Government’s statement that 93 per cent of Roma children met the compulsory schooling obligation (compared to 84 per cent in 2013) and that several educational programmes for Roma parents and children were implemented in community and integration centres. The Government adds that several measures were undertaken to enhance the participation of Roma in the labour market and that, as a result, in 2016, 263 members of the Roma community were employed and 105 persons benefited from courses, internships and work placements to enhance their professional qualifications. The Committee notes the detailed statistical information provided by the Government on the situation of national and ethnic minorities in the labour market in 2015. While welcoming the measures taken, it notes with concern from the Government’s report that the unemployment rate of the Roma is still three times higher than the average unemployment rate of other minorities (15.5 per cent and 5.4 per cent, respectively), while the employment rate of Roma was only 13.4 per cent (compared with 46.5 per cent on average for all other minorities). The Committee further notes that, in its 2016 concluding observations, the CESCR expressed concern at persistent societal discrimination against the Roma, as well as the fact that, despite the decrease in their unemployment rate, the Roma continue to be disproportionately affected by unemployment. The CESCR also expressed concern at the low attendance rates of Roma children in primary school, their drop-out rates from high school, their over-representation in “special” schools and their under-representation in secondary and post-secondary education (E/C.12/POL/CO/6, 26 October 2016, paragraphs 12, 16, 17 and 55). The Committee also notes that, in the context of the Universal Periodic Review (UPR), the Committee of Ministers of the Council of Europe highlighted the persistent discrimination and difficulties faced by the Roma in different sectors, in particular, in employment and education, and indicated that the unemployment figures demonstrated that the various initiatives and schemes had not yielded tangible results and that a significant proportion of the Roma remained excluded from the labour market (A/HRC/WG.6/27/POL/3, 21 February 2017, paragraphs 74 and 75). The Committee asks the Government to continue adopting measures to prevent and address stereotypes and discrimination based on race, colour or national extraction, and effectively ensure equality of opportunity and treatment of the Roma in employment and occupation, including by improving their employment rate and enhancing their access to a wide range of occupations in the labour market, as well as their participation in education and vocational training. It asks the Government to provide information on any measures adopted to that end, particularly in the framework of the Programme for the Integration of the Roma Community for 2014–20, as well as the results achieved, by providing a copy of any reports evaluating their impact. The Committee also asks the Government to continue providing information on the participation of the Roma and persons belonging to other ethnic minorities in education and the labour market, disaggregated by sex.

General observation of 2018. With regard to the above issues, and in more general terms, the Committee would like to draw the Government’s attention to its general observation on discrimination based on race, colour and national extraction adopted in 2018. In the general observation, the Committee notes with concern that discriminatory attitudes and stereotypes based on the race, colour or national extraction of men and women workers continue to hinder their participation in education, vocational training programmes and access to a wider range of employment opportunities, resulting in persisting occupational segregation and lower remuneration received for work of equal value. Furthermore, the Committee considers that it is necessary to adopt a comprehensive and coordinated approach to tackling the obstacles and barriers faced by persons in employment and occupation because of their race, colour or national extraction, and to promote equality of opportunity and treatment for all. Such an approach should include the adoption of interlocking measures aimed at addressing gaps in education, training and skills, providing unbiased vocational guidance, recognizing and validating the qualifications obtained abroad, and valuing and recognizing traditional knowledge and skills that may be relevant both to accessing and advancing in employment and to engaging in an occupation. The Committee also recalls that, in order to be effective, these measures must include concrete steps, such as laws, policies, programmes, mechanisms and participatory processes, remedies designed to address prejudices and stereotypes and to promote mutual understanding and tolerance among all sections of the population. The Committee draws the Government’s attention to its general observation of 2018 and requests the Government to provide information in response to the questions raised in that observation.

The Committee is raising other matters in a request directly addressed to the Government.