Системні ознаки нормативно-правового регулювання охорони праці у Республіці Польща

In Poland, during the propagation of state socialism and the so-called communist ideology, any principles of civilised development and the organisation of social and labour relations were destroyed. Thus, national policy at that time was to guarantee people full employment and well-being. Strikes and other collective actions, although not prohibited by law, were not perceived as a legitimate element of trade union activity (in fact, trade unions were to play the role of a "mediator" between the ruling party and the workforce). According to present-day estimates, formulated by M. Sewerynski and D. Skupien, "the general reform of Polish labour legislation after the Revolution of Solidarity has not been completed to this day, and many of its fundamental issues have yet to be resolved" [9, p. 122].

According to L. Balcerowicz, who is fairly considered the organiser and ideological inspirer of Polish economic reforms, "the economic consequences of socialism were extremely bad" [10, p. 6]. At the initial stage of reform, as emphasised by M. Lahiga and S. Yegorycheva, "workers' market" was transformed into "employers' market", who were guided primarily by economic calculations and efficiency criteria, which led to a substantial increase in unemployment (from 6% to over 20%) and lower social standards" [11, p. 151].

The undoubted economic success inherent in modern-day Poland has yet to be ensured by an adequate level of occupational health and safety. Admittedly, the process of improving the legal framework of the corresponding scope of social and labour relations should consider the general trend towards changing the structure of employment, which L. Arendt and A. Gajdos even described as "increasing tension in some segments of the labour market" [12, p. 13]. Most importantly, such changes include the growing number of employees with higher education and, at the same time, the demand for professions requiring low and medium qualifications, as well as the imbalance of the labour market due to strong labour migration processes. In fact, L. Arendt even considers it necessary to discuss the growing trend of increasing polarisation in employment, which will continue in the near future [13]. All this once again testifies to the numerous issues and the complexity of reforming and developing labour policy in Poland.

The management system of occupational health and safety in Poland clearly distinguishes two components: purely legal and organisational. The first combines legal norms that establish criteria for occupational health and safety requirements for workers. The second is the actual organisation of occupational health and safety at all levels of social and labour relations.

The legal framework for occupational health and safety in Poland comprises the following regulations:

- Constitution of the Republic of Poland;

- Labour Code and sub-legislative acts adopted in accordance with the provisions of this Code;

- other laws with a related scope of regulation (e.g., the Law "On the State Sanitary Inspection" and the Law "On the State Technical Inspection");

- national and sectoral labour standards;

- regulatory documents that define working conditions in various spheres of activity (in mining, construction industries, etc.);

- employment agreements;

- local (corporate) statutes and rules.

The fundamental regulatory act establishing the right to safe and healthy working conditions is the Constitution of the Republic of Poland of April 2, 1997. Article 5 of the Constitution states as follows: The Republic of Poland guards the independence and inviolability of its territory, ensures the freedoms and rights of man and citizen, security of citizens, guards the national heritage, and ensures the protection of the environment, guided by the principle of balanced development. In accordance with the provisions of Paragraph 1, Article 66, everyone has the right to safe and healthy working conditions. The procedure for exercising this right, as well as the responsibilities of the employer, are determined by law. The content of Article 24 is also important for the subject of the present study: The labour is protected by the Republic of Poland. The state supervises the observance of working conditions [14].

A separate chapter (Chapter 10) of the 1974 Labour Code (Kodekspracy) covers occupational health and safety. Thus, in accordance with the provisions of Article 207 of this Code, the employer is responsible for occupational safety at work and is obliged to protect the health and lives of workers, ensuring safe and hygienic working conditions with proper use of scientific and technical achievements. In particular, the employer is obliged to: 1) organise work in such a way as to ensure safe and hygienic working conditions; 2) ensure compliance with the provisions and rules of occupational health and safety in the workplace, issue orders to eliminate deficiencies in this regard and monitor the implementation of these instructions; 3) respond to the needs in terms of occupational safety and adapt measures taken to improve the existing level of health and life of workers, considering fluctuating working conditions; 4) ensure the development of a consistent policy for the prevention of accidents at work and occupational diseases, considering technical issues, work organisation, working conditions, social relations and the impact of factors of the working environment; 5) consider the health of adolescents, workers who are pregnant or breastfeeding, and workers with disabilities as part of the preventive measures taken; 6) ensure the implementation of orders, statements, decisions, and directives issued by regulatory authorities on working conditions; 7) ensure the implementation of the recommendations of the inspector of social work [15].

Attention should also be paid to the articles of this chapter prescribing the rules of occupational health and safety of women, as well as establishing the basics of occupational health and safety of minors. The Labour Code also refers to other sources of labour law, namely the regulatory agreements concluded between the social partners (i.e., collective agreements) and other agreements, such as corporate acts, rules, and charters. Notably, in accordance with the provisions of this regulation, risk assessment is consolidated as one of the main responsibilities of the employer. Thus, in accordance with the provisions of Article 226, the employer has the following responsibilities: 1) to assess and document the occupational risks associated with the work performed, and to apply the necessary precautions to reduce the risk; 2) to inform employees about the occupational risk associated with the work performed, as well as about the measures to be taken to reduce these risks.

Among other things, the analytical material prepared by the International Labour Organisation (hereinafter referred to as "the ILO"), which is presented as a guideline for the implementation of ILO Recommendation No. 198 on labour relations, analyses and promotes the Polish practices of regulating the employer's responsibilities in the field of risk. It is stated, in particular, that all types of risk shall be borne by the employer: technical risk (e.g., the obligation to pay remuneration during periods when work cannot be performed for technical reasons), personal risk (e.g.,, employer's liability for employee actions), economic risk (e.g., the losses of the employer should not affect the right of employees to receive remuneration), and social risk (e.g., certain benefits paid to the employee in case of temporary incapacity for work or absence from work for personal reasons). The transfer of risk to an employee would not, in principle, qualify such person as an employee [16].

As an example of the continuous improvement of the legal framework for occupational health and safety in Poland, it is worth noting the attempt to consider the latest trends in the world of labour, namely the growing demand for remote and temporary work. Thus, the so-called "telework" or "telecommuting" was legislatively regulated in 2007 - remote work or distance work, or work at home - work performed in a place remote from the places of use of its results (i.e., offices, warehouses, shops, etc.)In accordance with the provisions of the Labour Code, the conditions of use of telework are determined by an agreement between the employer and the trade union organisation (or several trade union organisations operating at the enterprise) (Article 67/5). Article 67/11 of the same regulation obliges the employer to import the necessary equipment for the teleworker, to compensate the funds relating to the installation, service, development, and maintenance of the equipment, to provide the teleworker with technical assistance, etc. and the necessary training in equipment maintenance, unless the employer and the teleworker decide otherwise in a special agreement [17, p. 279-280].

In this regard, the content of the European Framework Agreement on Telework of 16 July 2002, signed by the European Trade Union Confederation, the United Confederation of Employers of Europe, the European Small and Medium Business Association and the European Business Association, deserve particular attention. The said Agreement is based on the principle that telecommuting employees shall enjoy the same protection as employees working for employers [18].

At present, in connection with measures to counter the spread of the COVID-19 pandemic, the issue of remote work or "telecommuting" is of paramount importance. Thus, the law of March 2, 2020 introduced the possibility of instructing an employee to work remotely at the official order of the employer. However,

K. Naumowicz draws the attention to the fact that the concept of remote work is not defined by the legislator. The corresponding provisions of labour legislation also do not define it, which causes difficulties in distinguishing remote work from distance work, which is referred to in Article 67/5 of the Code. According to Naumowicz, the question of the scope and form of permissible control over the employee also remains controversial. Remote work within the meaning of the COVID-19 Law means work performed outside the place of its permanent execution. This includes, but is not limited to, the ability to work from the employee's home, i.e., the home office. According to Naumowicz, it is especially problematic then to determine the limits of permitted control of the employer, considering the employee's right to respect for their private life and privacy of their household members, as well as the employer's need to apply personal data protection rules [19, p. 28].

One of the innovations of labour legislation was also a clearer regulation of the terms of a fixed -term agreement (a fundamental change in accordance with Article 25¹ of the Code was the legislative limit on the time for which this agreement can be concluded, which is 33 months). Moreover, in this case, both the legislator and experts appeal to Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP (the European Trade Union Confederation, the Union of Industrial and Employers' Confederations of Europe, and the European Centre of Employers and Enterprises providing Public Services). This particularly refers to the part of the introduction stating that "agreements of indefinite duration are and will be the main form of employment relations between employers and employees. They also recognise that fixed-term employment agreements meet, in certain circumstances, the needs of both employers and employees [20]."

For example, L. Florek, noting the tendency to increase the demand for temporary work, points to the fact that the fixed-term agreement does not provide the employee with full social protection. The author also makes suggestions for clearer regulation of the termination of such agreements, as well as the number of fixed- term agreements with the same employee [21, p. 6]. Furthermore, A. Pysiak, interpreting the corresponding amendments to the Labour Code, argues that some innovations raise doubts about their compliance with European legislation (namely in the part where there is a possibility of abuse of employers in the field of concluding employment agreements) [22, p. 406]. As generalising conclusions concerning practice of current issues of realisation of contractual legal relations in the field of labour it is expedient to use developments of

L. Pisarchyk, which are set out in a recently published article with the eloquent title "The Crisis of the Collective Bargaining System in Poland". Pisarchyk, citing the fact that the Po lish market with almost 17 million workers is one of the largest in Europe, notes that only 15% of workers are covered by the provisions of collective agreements (according to him, the most impressive feature of the system of guaranteeing social and labour rights employees is a lack of collective agreements with several employers, including sectoral agreements) [23, p. 58-59, 61].

It is here that the study by B. Surdykowska and her colleagues becomes especially relevant, as these authors aimed at improving the regulation of trade unions in the field of industrial relations and additional protection of workers' rights (it is noted, in particular, that such platform of common interests of trade unions in Central and Eastern Europe, allows achieving the so-called "convergence from below") [24, p. 321].

Apart from the Labour Code, the rules of general application in the field of occupational health and safety also include other regulations that specify the provisions of this document, as well as general rules relating to particular industries or types of work. Mandatory rules are established, for example, by the legislation on the establishment of supervision and control over working conditions (the material on this is provided below). Other provisions, which specify the above rules, can be divided into those rules that are established based on an agreement between the social partners (first of all - collective agreements), and internal rules that are set by the employer.

The first group includes provisions on occupational health and safety, which are included in collective agreements. Thus, the part of the Labour Code that was aimed at streamlining collective agreements determines the parties to such agreements, as well as occupational health and safety standards. In accordance with the content of Paragraph 2 § 1, Article 238, a trade union organisation representing employees is a trade union organisation uniting employees with whom an agreement has been concluded. This also applies to an association (federation) of trade unions to which these trade unions belong, as well as to a national inter-union organisation (confederation) that unites such trade union organisations or associations (federations) of trade unions. It is also clearly stated below that the parties to the agreement may not introduce into the agreement the rules for employees less favourable than the provisions contained in the mandatory rules. Thus, collective agreements in the field of occupational health and safety can either establish additional powers of the employee, or clarify the powers arising from the mandatory rules.

Most frequently, collective agreements include the following rules in the field of occupational health and safety:

- providing additional benefits in the field of healthcare;

- providing additional guarantees for social protection;

- providing additional vacation for those categories of employees who work in hazardous or difficult working conditions, as well as financial compensation and reduction of working hours for them.

The analytical material prepared by the ILO, which has already been mentioned in this paper, cites the practices of Poland in terms of trade union involvement in the protection of working people as a positive example (with reference to Article 19 of the Law on Trade Unions). The local acts of the employer in this area are primarily internal rules. Such rules are defined in Article 104 of the Labour Code and include the following provisions:

- organisation of work, conditions of stay in the workplace during and after work, equipping employees with tools and materials, as well as clothing and footwear, personal protective gear and hygiene;

- systems and schedules of working hours, as well as the accepted periods of calculation of working hours;

- night work;

- date, place, time, and frequency of remuneration;

- lists of works prohibited for minors and women;

- types of work and a list of jobs allowed for minors for training purposes;

- a list of light work permitted for minors for purposes other than professional training;

- occupational health and safety obligations, including informing employees of the occupational risk associated with their normal work;

- the method of confirming the arrival of employees to the employer and presence at work, as well as justifying the absence from work.

The rules of procedure are set by the employer in agreement with the trade union organisation of the enterprise when hiring 20 or more people. However, if the employer cannot agree on the content of such Rules with the trade union or where there is no such organisation, they are established by the employer.

The issue of establishing a decent social dialogue to improve social and labour relations also deserves special attention. The right to collective bargaining is stipulated both by the Constitution of Poland and the international conventions ratified by this country. Article 20 of the Constitution proclaims solidarity, dialogue, and cooperation between the social partners, as well as freedom of economic activity and private property as pillars of the economic system in Poland. It is known that the beginnings of the formalisation of such relations date back to the restoration of democratic governance and the establishment of market relations. In general, this circumstance is also due to the creation of the Trilateral Commission (TC) in 2001 with the corresponding scope of regulation.

For example, J. Gardawski notes the fact that the creation of TC has led to a qualitatively new stage of cooperation between workers' and employers' organisations in the field of ensuring safe working conditions.

Therewith, the researcher insists that Polish trade unions still have limited opportunitie s to mobilise workers to protect their interests [25, p. 74-75]. According to L. Pisarczyk and D. Skupien, the practical significance of collective agreements in this country remains quite limited, and the lack of a developed system of collective bargaining distinguishes Polish labour legislation from the legislation of Western European countries. It is also a critical obstacle to social development [26].

The Polish practices of standardisation of various aspects of activity in the field of occupational health and safety is sometimes cited and analysed in the documents of international organisations, as well as in the labour practice of some foreign countries. In this sense, the activities of the ILO, which has been in charge of the protection of workers and the development of international labour standards for more than a century, deserve priority attention. At the same time, in times of transition, due to the instability of national legal systems, the issue of compliance of regulations with international labour standards, as well as the correlation of regulations of the highest legal force and sub-legislative with the corresponding area of regulation, becomes particularly acute [27, p. 105]. Moreover, the subject of such interest is increasingly often the regulation of non-standard forms of employment and the search for answers to questions about additional social protection of workers in challenging modern-day conditions.

In this regard, it is important to investigate and apply the Polish practices. However, what may seem paradoxical at first glance, most modern ILO analytical publications contain only sporadic references to the legal framework and the practice of standardising the share of social and labour relations (as a reverse example, the authors of this study cite the report "Legal Regulation of Labour Relations in Europe and Central Asia" of 2014, which has already been discussed). The organisational system of occupational health and safety management in Poland also covers the structures responsible for supervision and control over compliance with labour legislation and occupational health (State Labour Inspectorate, the Main Sanitary Inspectorate and its field offices). This should be supplemented with the activities of local authorities and management, which to some extent are responsible for maintaining the proper state of occupational health and safety at the local level.

Conclusions