In the previous issue, we considered several lawsuits in which companies that did not allow regulatory authorities to conduct inspections were deprived of licenses to conduct certain types of economic activities.
In this issue, we will focus on those cases where the non-admission to the inspection in the field of industrial safety and labor protection became the basis for revocation of permits for high-hazard works and for operation (use) of machines, mechanisms, high-hazard equipment.
The grounds for revocation of a permit for high-hazard works and for operation (use) of high-hazard machines, mechanisms and equipment are defined in Article 21 of the Law of Ukraine “On Labor Protection”.
Importantly!
One of such grounds is the creation of obstacles during the conduct of officials of the central executive body implementing state policy in the field of labor protection, or its territorial body to verify compliance with labor protection legislation during high-hazard work or operation (use) of high-quality equipment. hazards for which a permit has been issued.
Despite the risk, the company still finds clues and does not allow the supervisory authorities to conduct an inspection, as it may end with the appeal of the supervisory authority to the court with a statement on the termination of the enterprise. The supervisory authorities do not care much about the validity of such appeals. Courts, due to workload and other reasons, do not always properly study such appeals and suspend the operation of enterprises, counting on the validity of the appeal of the supervisory authority. That is why some people dare to take risks and do not allow regulatory authorities to conduct an inspection if they find at least some grounds for it.
One of the most common grounds for non-admission to the scheduled inspection is failure to notify the company about its conduct. The Law of Ukraine "On the Basic Principles of State Supervision (Control) in the Sphere of Economic Activity" establishes the obligation of controlling bodies to notify the enterprise of a scheduled inspection no later than ten days before its implementation.
The notification must contain: start date and end date of the planned event; the name of the legal entity - entrepreneur, in respect of which the event is carried out; name of the state supervision (control) body.
Such a message is sent by registered mail and / or by e-mail or delivered in person against a receipt to the head or authorized person of the enterprise (until 2017, the message could also be sent by telephone).
It happens that the supervisory authorities do not follow the procedure for notification of the inspection.
If the company has not received a properly notified notice of the scheduled inspection, it may legitimately not allow the supervisory authority to conduct it.
Despite the fact that the grounds for non-admission may be quite legal, the regulatory authorities still decide to revoke the permits for high-risk work. After that, the dispute between the company and the controlling body is transferred to court. If the company duly records the violation by the supervisory authority, the chances of renewing the permits in court are quite high.
We have selected several court decisions in cases of appealing the decisions of regulatory authorities on the cancellation of high-risk work and the operation (application) of machines, mechanisms, high-risk equipment.
Case 1:
Audit:
The Territorial Department of Derzhgirpromnahlyad in the Kherson Region (hereinafter referred to as the Territorial Department) sent a notice to a natural person-entrepreneur (hereinafter referred to as a sole proprietorship) to conduct a scheduled inspection of compliance with labor protection and industrial safety requirements. Subsequently, the Territorial Administration was unable to provide confirmation that this letter had been handed over to a private individual.
In addition, the Territorial Administration handed over the same notice of inspection to the employee of the sole proprietorship.
The Inspector of the Territorial Administration arrived to conduct an inspection. However, the representative of the sole proprietor handed the inspector of the Territorial Administration an act of refusal of admission to the inspection in connection with incorrectly executed documents for the inspection.
The Territorial Administration has issued an order to revoke the permits for the operation of high-risk equipment in connection with the creation of obstacles to the official of the Territorial Administration during the inspection.
Court:
FOP appealed to the court to appeal the order of the Territorial Administration to revoke permits.
In the process of considering the case, the courts sided with the private individual and revoked the order to revoke the permits.
The court noted that in the absence of confirmation of delivery by the Territorial Department of the FOP of the notice of the inspection, the entrepreneur had grounds not to allow the inspector to conduct the inspection. An employee of a sole proprietorship is not an authorized person, so the delivery of a notice to him is not proper evidence.
As the non-admission to the inspection was legal, the Territorial Administration had no grounds to revoke the permit.
The decision of the Odessa Administrative Court of Appeal in the case №821 / 1636/14 of 01.03.2016 and the decision of the Supreme Administrative Court of Ukraine in the case №K / 800/49567/14 of 19.02.2015.
Comment on the case:
In this case, the entrepreneur correctly recorded the grounds for refusal of admission to the inspection - independently drew up an act of refusal of admission to the inspection. Instead, the supervisory authority did not properly organize the inspection. The entrepreneur's consistent position helped him to maintain the permit to operate gas equipment.
Case 2:
Audit:
The Department of State Labor in the Nikolaev area (further - State Labor) decided to carry out planned check of the Subsidiary enterprise "Santa-Petrovka" (further - the enterprise) concerning observance of requirements on industrial safety, labor protection.
01.07.2016 The State Labor Service by telephone, fax and e-mail sent to the address of the enterprise a notice of a scheduled inspection in the period from 11.07.2016 to 25.07.2016.
On July 12, 2016, employees of the State Labor Inspectorate left for the location of the enterprise to conduct an inspection, but the enterprise did not allow them. The company explained the refusal by the fact that it was not informed about the inspection.
14.07.2016 the address of the enterprise by registered mail received a message from 01.07.2016 on the scheduled inspection from 11.07.2016 to 25.07.2016.
30.08.2016 The State Labor Service has issued an order to revoke permits to perform high-risk work, in connection with the creation of obstacles during the inspection.
Court:
The company appealed the order to the court.
At the hearing, the company categorically denied receiving 01.07.2016 telephone message with a notice of a scheduled inspection
The court supported the company, but used quite interesting arguments to motivate its decision.
The court noted that the state supervision (control) body independently chooses the method of sending the notification of the inspection. Although in accordance with Part 4 of Article 5 of the Law all three methods (at that time: registered letter; service in person; by telephone) are appropriate, not all methods have the same probative value.
In this case, the revocation of all permits granted to the company to perform high-risk work, actually leads to the complete cessation of the company, which is a very severe sanction with significant consequences, and therefore not on what grounds it is impossible to agree that such a responsible decision can be made without sufficient evidence of receipt by the enterprise 10 days before the start of the planned event of written notice of its holding.
The court found the record of the sending of the telephone message, made on the reverse side of the notice of sending the telephone message by a representative of the State Labor Service, proper and admissible evidence, but insufficient to prove the fact that the company received notice of the inspection.
According to the court, choosing among the three possible ways to send a message by telephone, the State Labor Office deprived itself of the opportunity to prove with sufficient evidence the fact of receipt of the message, in case of denial of this fact by the company.
Taking into account the conclusions about the lack of proof of receipt by the company of the notice of the inspection on 01.07.16 (ten days before its start), the court decided that the company had the right not to allow officials of the State Labor to conduct the inspection. That is why the court upheld the company's claim and revoked the impugned order to revoke the permits.
Resolution of the Mykolayiv District Administrative Court of 12.12.2016 in case №814 / 2464/16.
Comment on the case:
In this case, the company took a rather risky position. If the State Labor Office did inform the enterprise about the inspection in advance, then the requirements of the law were formally complied with. Therefore, the court with the same probability could have sided with the State Labor. Then the company would be left without permits and would not be able to work.
It is important that now, instead of a telephone message, regulatory authorities have the right to send a notification of the inspection by e-mail. That is why we recommend that you regularly check the e-mail box that you have specified in the Unified State Register of Legal Entities, Individual Entrepreneurs and Public Associations.
Case 3:
In addition to sending a notice of the inspection, inspectors must present service certificates before the start of the inspection (Part 5 of Article 7 of the Law of Ukraine "On Basic Principles of State Supervision (Control) in the Sphere of Economic Activity").
In court practice, there are cases when the company does not allow inspectors to inspect because they do not have ID cards or they do not present them.
Audit:
It was because the inspectors of the State Labor Inspectorate did not present the service certificates of the Danube Repair Enterprise LLC "Dunaysudnoservis" that did not allow them to check compliance with the requirements for labor protection and industrial safety.
Moreover, the director of the enterprise together with the inspector together with the inspector on labor protection and the secretary have made acts on: (1) refusal of labor inspectors to make record in the book of the account of checks; (2) refusal of inspectors to issue an order for a scheduled inspection; (3) refusal of inspectors to present service certificates; (4) refusal to provide a referral for inspection; (5) failure to draw up by inspectors on 10.06.2017 on the territory of the enterprise an act of non-admission to the inspection; (6) failure of the inspectors to draw up a report on an administrative offense in accordance with Article 188-6 of the Code of Administrative Offenses.
On the same day, the inspectors of the State Labor Service drew up an act of non-admission to the object of inspection. The act states that the ground for non-admission was that the company was appealing in court against the order appointing an inspection.
However, the inspectors offered to sign the act of non-admission to the director of the enterprise only 3 days after its drawing up. The company recorded this in its act "On arrival at the company of an unknown person", according to which on 13.06.2016 an unknown person arrived at the company, introduced himself as an inspector of the State Labor, brought with him a Certificate of Non-admission dated 10.06.2016, which was drawn up and signed inspectors of the State Labor Inspectorate, as well as referrals for inspection. The inspector refused to conduct the inspection, citing the fact that an act of non-admission had been drawn up and that was sufficient.
After that, the State Labor Service issued an order to revoke the permit for high-risk work and operation (use) of high-risk machines, mechanisms and equipment.
Court:
The company appealed the order to the court.
In court, the State Labor inspectors were unable to confirm that they had sent the company a notice of the inspection, made an entry in the inspection book, handed over the order appointing the inspection or presented an identity card. Moreover, the court added a security guard and a driver of the company's excavator, who confirmed the inspectors' refusal to present service certificates.
The court also noted that the admissible evidence that can confirm the fact of creating obstacles during the State Labor Inspectorate to verify compliance with labor protection legislation is the decision to impose an administrative penalty under Article 188-6 of the Code of Administrative Offenses, which entered into force, not the act inadmissibility. In this case, the inspectors of the State Labor Inspectorate did not draw up a report on the commission of such an administrative offense.
All these circumstances in a heap became the basis for cancellation by the court of the order on cancellation of the permission for performance of works of the increased danger and operation (application) of cars, mechanisms, the equipment of the increased danger.
Resolution of the Odessa District Administrative Court of 12.07.2016 in case №815 / 3039/16.
Comment on the case:
In this case, the company took care in advance of the evidence base for further trial: drew up acts on the recording of violations by inspectors, prepared witnesses. Instead, the inspectors of the State Labor Inspectorate did not properly record the fact of non-admission to the inspection. All this led to the cancellation of the order to revoke permits.
Final comment:
All the above cases once again confirm that there is no universal prescription by which it is possible to decide whether to allow inspectors to conduct an inspection. It is necessary to record all even the smallest violations by the controlling body. At the beginning of the inspection, no one still knows how events will develop in the future and whether the company will defend its rights in court. Therefore, the correct organization of the inspection process from the moment of receipt of notification of its conduct can save the company all the necessary permits.
The article was published in the periodical "Journal of the Chief Engineer" «11 November 2017.
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