How did the courts begin to apply the new rules for stopping the operation of premises and equipment, performing work on the example of the case banning the operation of transformer substations?
What changes have taken place in the order of consideration of claims for cessation of operation of enterprises / equipment?
In № 12 of the Journal of the Chief Engineer for December 2017, we analyzed court cases in which the supervisory authorities, based on the results of inspections, filed lawsuits to suspend the operation of premises or equipment of enterprises or to suspend work at enterprises.
Such cases are quite common and can have extremely negative consequences for the company, because quite often the courts have banned the operation of production facilities by disconnecting them from the power supply. At the same time, such decisions were executed immediately after their passing in the court of first instance.
On December 15, new versions of the procedural codes came into force, including the Code of Administrative Procedure of Ukraine. Of course, these codes aroused the greatest interest among lawyers. However, we propose to consider what these changes will bring to business on the example of cases of suspension of operation of premises, equipment and performance of works.
Immediate execution of the court decision. What did this mean for the company?
Let's start from the end, but most importantly and analyze in detail the implementation of court decisions before December 15, 2017 and after
| Until December 15, 2017 | After December 15, 2017 |
| 1. All resolutions were executed immediately courts on the complete or partial suspension of enterprises, individual industries, production sites, operation of buildings, facilities, structures, shops, sites, as well as machinery, machinery, equipment, vehicles, works, production and sale of fire-hazardous products, systems and fire protection equipment, provision of services if it threatens human life and / or health. | 1. Decisions of the courts of first instance to suspend operation are not subject immediate execution. |
| 2. After the inspection the supervisory authority filed a lawsuit against application of measures state supervision (control) in the form of suspension of the enterprise by disconnecting it from the power supply. The court could consider such a claim even without calling representatives of the enterprise. If the court satisfied the claim, the controlling body could execute such a court decision immediately after the ruling - go and disconnect the company from the power supply. | 2. If even court of first instance and decided to ban operation of the premises, then the company can appeal such a decision to the appellate court. |
| 3. Didn't help stop the controllers even the fact that the company appealed the decision to the court of appeal. | 3. If the panel of judges of the Court of Appeal to agree with the court of first instance, then only the decision to ban operation of the premises you can start running. |
IMPORTANTLY! Such an innovation will not only reduce the number of unjustified blockages of enterprises, but also give additional time to eliminate the violations that became the basis for filing a lawsuit to ban the operation of the premises / equipment. |
New norms of shutdown on the example of transformer substations
The courts have already begun to actively apply the new rules of procedural codes. Consider this on the example of the decision of the administrative court in the case of a ban on the operation of transformer substations.
STAGE 1
Audit
In October 2017, the State Labor Inspectorate conducted a scheduled inspection of compliance with the requirements of laws and regulations on labor protection and industrial safety at the enterprise.
STAGE 2
Detected violations
According to the results of the inspection, a violation of compliance with the law was revealed
№ s / n | Violation | The rule of law that has been violated |
| 1. | The power engineer and the electrician are admitted to performance of works in operating electric installations of the enterprise without carrying out periodic medical inspection | Requirements of item 2.1.2. NPAOP 40.1-1.21-98 "Rules for safe operation of electrical installations of consumers" |
| 2. | Measurements and tests of the electrical equipment of the enterprise with a voltage over 1000V, ZTP № 424 are not carried out according to the rules and norms of PTEES; 193; diesel power plant | Requirements of item 1.3.1. NPAOP 40.1-1.21-98 "Rules for safe operation of electrical installations of consumers" |
| 3. | Regular work on safety of electrical equipment with voltage up to and over 1000 V, ZTP № 424 has not been carried out; 193; diesel power plant | Requirements of item 8.1. NPAOP 40.1-1.21-98 "Rules for safe operation of electrical installations of consumers" |
| 4. | The enterprise did not receive the permission in bodies of the State Labor, for performance of works: in operating electric installations with a voltage over 1000 V; storage of cylinders with compressed, liquefied gas; welding works; performance of gas-hazardous works; etc; and operation of ZTP № 424; 193; KL-IOKV; PL-IOKV; pressure vessels (cylinders); etc. | Requirements p.p. 15, 17 of Annex № 3, and p.p. 2; 11; 12; 23 of Annex № 2 "Procedure for issuing permits for high-risk work and operation of machines, mechanisms, high-risk equipment" approved by the Cabinet of Ministers of 26.10.2011 № 1107 |
| 5. | Electrotechnical workers are not provided at the expense of the enterprise according to norms of acquisition by means of protection against action of an electric current, at the time of carrying out check the tested means of protection are absent completely | Requirements of clause 4.2.9. NPAOP 40.1-1.07-01 "Rules of operation of electroprotective means" |
| 6. | Proper maintenance and operation of electrical installations with a voltage of more than 1000 V is not provided, technical documentation is not completed, technical passports of the main electrical equipment of ZTP № 424 are missing; 193, diesel power plant | Requirements of item 8.3, item 8.7.2 NPAOP 40.1.-1.21-98 "Rules of safe operation of electrical installations of consumers" |
| 7. | The power engineer did not provide maintenance of ZTP № 424; 193, live parts and supporting insulation are not cleaned of dust and dirt | Requirements of item 8.7.1; 8.7.2 NPAOP40.1.-1.21-98 "Rules for safe operation of electrical installations of consumers" |
| 8. | The power engineer admitted to performance of works in operating electric installations of the enterprise of the electrician who in accordance with the established procedure didn't pass training and check of knowledge with PBEES | Requirements of item 2.1.4 NPAOP40.1.-1.21-98 "Rules of safe operation of electrical installations of consumers" |
| 9. | Extraordinary training of responsible officials was not carried out at the enterprise and in the production shop of VOS in order to get acquainted with new normative-legal acts on labor protection, namely Safety rules at operation of canals, pipelines, other hydraulic structures in water management systems NPAOP 0.00-1.57-12 | Requirements paragraph 5.7; Section 5 NPAOP 0.00-4.12-05 Standard regulations on the procedure for training and testing of knowledge on labor protection item 1.4.2 NPAOP 0.00-1.57-12 "Safety rules for the operation of canals, pipelines and other hydraulic structures in water management systemsAh" |
STAGE 3
Claim
All the above violations became the basis for the appeal of the State Labor Inspectorate to the court with a claim for the application of response measures in the form of a ban on the operation of equipment ZTP № 424; KL-10 kV, ZTP № 193; 10 kV overhead line, diesel power plant, on the border of balance ownership with the energy supply organization, prohibition of work in the existing electrical installations of the enterprise, power engineer and electrician until the violations are eliminated.
STAGE 4
Judgment
The court agreed with the arguments of the State Labor Inspectorate and banned the operation of equipment and work.
CONCLUSION IN THE CASE
The court refused to appeal the court's decision for immediate execution. In support of this decision, the court referred to the fact that on December 15, 2017, a new version of the Code of Administrative Procedure of Ukraine came into force, which does not provide for immediate execution of court decisions in such categories of court cases.
Procedure for reviewing the case and appealing the decision - changes in the suspension of operation of enterprises / equipment
Some changes have taken place in the order of consideration of claims for cessation of operation of enterprises / equipment
Comparative characteristics of changes in shutdown
| How was it? | How did it happen? |
The controlling body filed a lawsuit to suspend the operation of the enterprise. This claim was to be considered in a simplified manner. Here it is necessary to write an abbreviated instead of a simplified procedure. This meant that the court gave the company time to file written objections to the claim. If the company did not have time to prepare an objection in the allotted time, the court decided the case on the basis of the claim. In the case of objections to the claim, the court could consider the case on the available materials. Also, the court could decide to summon the representatives of the parties to court and consider the case in the general order, not in summary. could be appealed only to the appellate court. | Now, from the moment of opening the proceedings on the statement of claim, the court decides how to consider the case either in the general order or in the simplified one (modified analogue of the abbreviated proceedings). Cases of insignificant complexity can be considered in a simplified manner. The court on the basis of the materials of the claim decides whether the case belongs to this category of cases and in what proceedings to consider it |
Court practice. Which means simplified proceedings for the enterprise?
The courts have not yet had time to formulate the same practice of applying innovations. Judges' decisions on how to deal with such categories of cases vary. The above-mentioned case on the claim of the State Labor Service to the enterprise was considered by the Kyiv District Administrative Court in a simplified procedure. Instead, the Sumy District Administrative Court assigned a similar case on the claim of the State Labor Service to a private enterprise for consideration in the general proceedings.
Both in summary proceedings and in summary proceedings, the terms of consideration of the case and the terms of submission of documents are much shorter. The defendant has fifteen days from the date of receipt of the decision to initiate proceedings to prepare and file a response to the statement of claim.
IMPORTANTLY! It is necessary to prepare and provide the court with as much evidence as possible to refute the violations that became the basis for filing a lawsuit to suspend the operation of the enterprise. |
When considering a case in summary proceedings, the court may also decide to summon the parties to a court hearing for clarification. However, this does not mean that the case is automatically transferred from the simplified to the general proceedings.
IMPORTANTLY! Even if the court referred the case to cases of insignificant complexity and considered it in a simplified procedure, it does not deprive the company of the right to appeal the court decision in cassation, in contrast to the shortened proceedings where everything ended with a decision of the appellate court. However, the legislation limits the grounds for filing a cassation appeal in cases considered in a simplified manner (for details, see paragraph 2, part 5 of Article 328 of the Code of Administrative Procedure of Ukraine). |
LAWYER'S CONCLUSION
The new version of the Code of Administrative Procedure of Ukraine contains a number of positive innovations that will help reduce pressure from regulators on businesses. It became more difficult to stop the activity of the enterprise on the basis of imaginary violations. However, business leaders should not lose vigilance. If there are grounds not to allow the inspector to inspect, be sure to use this opportunity. If the inspection is still carried out, you need to quickly eliminate all violations and record everything. This will help protect the company from losses associated with the shutdown of premises or equipment.
The article was published in the periodical "Journal of the Chief Engineer" №2 in February 2018. Information about the magazine can be found on the website:
https://techmedia.com.ua/product/golovnogo-inzenera
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