Labor law checks 2017. A new order. 31/07/2018

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On April 26, 2017, a resolution of the Cabinet of Ministers of Ukraine No. 295 “Some issues of the implementation of Article 259 of the Labor Code of Ukraine and Article 34 of the Law of Ukraine” On Local Self-Government in Ukraine “was adopted. This Decree approved 2 orders-the Procedure for the State Control over Compliance with Labor Legislation and the Procedure implementation of state supervision over observance of labour legislation.

Bodies exercising state control over the observance of labour legislation are specified in paragraph 2 of the state control over the observance of labour legislation:

State control over observance of labour legislation is carried out in the form of inspection visits and non-visiting inspections by labour inspectors:
State Labor Organization and its territorial bodies;

executive bodies of city councils of cities of oblast significance and village, township, city councils of united territorial communities (on timely and full pay, observance of minimum guarantees in the payment of wages, registration of labour relations) (hereinafter referred to as the executive bodies of the councils).

Section 5 provides the grounds for conducting:

5. Inspection visits are carried out:

  1. at the employee’s request for violation of his labour legislation;
  2. at the request of an individual in respect of which the rules of employment relations have been violated;
  3. upon the decision of the head of the inspection body on the conduct of inspection visits on the identification of unregistered labor relations, adopted on the basis of the analysis of information obtained from the media, other sources, access to which is not restricted by law, and the sources specified in sub-paragraphs 1, 2 , 4-7 of this paragraph;
  4. by court order, by law enforcement agencies’ report on labour law violations;
  5. According to officials of state supervision (control) bodies, signs of violation of labour legislation revealed during the exercise of their control powers;
  6. For information: Gosstat and its territorial bodies on the existence of arrears of wages;
    DFS and its territorial bodies on:

    • the inconsistency of the number of employer employees with the volume of production (performed works, services rendered) to the average indicators for the corresponding type of economic activity;
    • facts of labour law violations found during the exercise of control powers;
    • facts of the conduct of economic activity without state registration in accordance with the procedure established by law;
    • employers who have arrears to pay a single contribution to compulsory state social insurance at a rate in excess of the minimum insurance contribution per employee
  • The Pension Fund of Ukraine and its territorial bodies on:
    • Employers with lower wages
    • employers who do not have a hiring report for their employees
    • employers who have increased their number of part-time workers by 20% or more during the month;
    • employees performing work (providing services) under civil contracts with one employer for more than a year;
    • employers who do not have payroll taxes in the reporting month for employees (leave without salary waiving without complying with the Labor Code of Ukraine and the Law of Ukraine on Holidays);
    • employers who did not have wage indexation during the year, or the amount of wage increase is less than the amount of accrued indexation;
    • employers in which 30 or more per cent of employees work under civil contracts
    • employers with a size of 20 or more employees, which had a reduction of 10% or more workers during the month;

According to the information of the trade unions on violations of the rights of workers who are members of the union, revealed during the exercise of public control over the observance of labour legislation.

Appeals of individuals in respect of which the rules for the employment of employees, employees and employers are violated may be filed through an authorized representative.

The decision on the appropriateness of carrying out the appropriate measures on the grounds determined by subparagraphs 5-7 of this paragraph and paragraph 31 of this Procedure shall be taken by the head of the control body, his deputy.

The inspection visit or the decision of the labour inspector to visit the employer, as provided for in paragraph 33 of this Procedure, is subject to the notification of the State Labor Organization or its territorial authority prior to its launch.

The duration of the inspection visit, the non-visiting inspection cannot exceed 10 business days, for micro-enterprises and small businesses – two business days.

It should be noted that the labour inspector is not permitted to disclose the source of any complaint brought to their notice to the disadvantages or violation and to inform the object of the visitor his representative that the visit was made in connection with the receipt of such a complaint.

According to the new Order, the inspector must also inform the site of the visit or an official authorized by him about the inspection visit. However, when carrying out an inspection visit to identify unregistered labour relations, the labour inspector informs the site of the visit or authorized officer if he does not consider that such notification may harm the inspection visit.

The powers are set forth in clause 11:
11. Labour inspectors with the availability of an official certificate are free, without prior notice, have the right to:

  1. during inspection visits on the issues of identifying unregistered labor relations in the presence of the grounds specified in paragraph 5 of this Procedure, independently and at any time of the day, taking into account the requirements of the legislation on labor protection, go to any production, office, administrative premises site visits using hired labor;
  2. familiarize yourself with any books, registers and documents required by labour legislation containing information/information on matters that are subject to an inspection visit, non-visiting inspection, in order to verify their compliance with the law and to obtain certified information about the ” access to their copies or extracts;
  3. provide, either alone or in the presence of witnesses, an oral and/or written explanation of the questions referred to the supervisor and/or the staff of the visiting institution regarding labour laws;
  4. in the presence of signs of a criminal offence and/or creating a security threat to the labour inspector to engage law enforcement officers;
  5. to provide a workplace with the ability to conduct a confidential interview with employees regarding the subject of an inspection visit;
  6. fix the audio-, photos – and video equipment of the on-line inspection of unregistered employment relationships;
  7. receive from the government authorities the information needed for an inspection visit, non-visiting inspection.Certain safeguards are set out in item 14 for visiting objects:
    14. During an inspection visit, the visit object has the right:

Check the labour inspector for an official certificate;

Prevent an inspection visit:

the absence of a service certificate;

if the State Labor official website does not have the Minsotspolitik decision on the forms of labour inspector’s labour certificate, certificate, certificate, order, requirements, list issues subject to inspection;
if the term of the inspection visit exceeds the time limits specified in paragraph 10 of this Procedure;

  1. submit in writing your own explanations, remarks on the elimination of violations of an act or order;
  2. require the labour inspector to make a record of an inspection visit to the appropriate inspection log of the visiting object (if any) before issuing the signature certificate by the head of the visit object or his authorized representative;
  3. Before signing an act, be aware of your rights and charges ;
  4. require the Labor Inspectorate to comply with legal requirements;
  5. Require non-disclosure of information that constitutes commercial secrets or is confidential information of the visiting object.
  6. To challenge the labour inspector’s wrongful acts in accordance with law.
  7. receive advisory assistance from the Labor Inspectorate to prevent violations during inspection visits, non-visiting inspections.

According to the results of an inspection visit or a non-visiting inspection, an act is drawn up and, in case of detection of violations of labour legislation, in order to eliminate them. Impact:

27. In the event of violations of labor law requirements fixed by an inspection visit or an act of non-visiting inspection, after reviewing the comments on the object of visit (in case of their receipt), the Labor Inspectorate analyzes the materials of the inspection visit or non-visiting inspection, as a result of which the order and/or takes measures to bring the guilty person to the violation of an official in accordance with statutory responsibility.

28. In the event of compliance with the provision in the time period established therein, measures to attract the object of the visit and its officials shall not be liable to liability.

29. Measures to attract the object of visit and its officials to liability for the use of unskilled workers, untimely and not full payment of wages, non-observance of the minimum guarantees of wages are taken simultaneously with the introduction of the order, regardless of the fact of elimination of the revealed violations in the course of inspection visit or non-visiting inspection.

30. An order or requirement of the Labor Inspectorate may be appealed in the 10-day period from the date of receipt thereof to the head or deputy head of the relevant territorial agency State Labor Organization.

In case of disagreement with the decision of the head or deputy head of the relevant territorial agency State Labor, such a decision may be appealed to the head or deputy head of the State Labor.

Filing an application within the established time limit of the complaint temporarily stops the execution of the order or claim.

The complaint is considered within 30 days from the date of its receipt unless otherwise provided by law.
According to the results of the consideration of complaints requirements, the requirements can be cancelled completely or in a separate part.

Public oversight is defined by the government’s supervisory policy
Compliance with labour laws.

The main purpose of state supervision is to identify violations and shortcomings during the implementation by the executive bodies of city councils of cities of oblast significance, of village, settlement, city councils of united territorial communities and central executive authorities (hereinafter – the object of supervision) of the powers determined in accordance with part three Article 34 of the Law of Ukraine “On Local Self-Government in Ukraine” and part two of the 100 article 259 of the Labor Code of Ukraine.

The main tasks of state supervision are:

    • Develop proposals for ways to increase the effectiveness of the exercise of control powers
    • Applying a Checklist for Enforcement
    • taking measures to initiate the prosecution of officials for violating the law while exercising control powers.

State supervision is carried out through the use of inquiries, the collection and analysis of information necessary to prepare opinions on the state of observance of the labour law supervision, or by checking the object of supervision with the departure of its the location. The field inspections are carried out by authorized officials in accordance with an individual schedule approved by the head or deputy head of the State Labor Organization or its territorial office according to the plan of work State Labor And its territorial body for the relevant period.

An on-site officer shall notify the supervisor of the on-site inspection no later than five working days before the start of the visit.

As a result of the state supervision, a conclusion is drawn.

In case of detecting violations of labour legislation and/or deficiencies during the exercise of control powers, a requirement is also drawn up.