Last month, everyone was talking about large-scale inspections of the State Labor Service, which will begin on October 5. And this is not surprising, because on September 5 the Cabinet of Ministers accepted Order № 649-r "On measures aimed at de-shadowing relations in the field of employment". According to this order, the supervisory authorities will conduct inspections and identify undocumented employees. Entrepreneurs will be fined UAH 112,000 for each undocumented employee.
The order stipulates that the inspections will be comprehensive - with the participation of the State Labor, Tax, Pension Fund, National Police and local governments.
What will change the Government's order for entrepreneurs?
At the legislative level, nothing will change. The fact is that the Order of the Cabinet of Ministers cannot be a basis for conducting inspections by either the State Labor or the Tax Service. Each body has its own regulations governing the conduct of inspections.
State Labor is guided by the Procedure for state control over compliance with labor legislation, approved by the Cabinet of Ministers of 26.04.2017 № 295. In this order, the grounds for inspections (inspection visits) are given. This may be, in particular, an employee's complaint, media information or information from other regulatory bodies or law enforcement agencies. There is no such ground for inspection as an order of the Cabinet of Ministers. For other controlling bodies, the Government's order cannot be a basis for an inspection either.
That is, inspections have been conducted and will be conducted. The order of the Cabinet of Ministers can be regarded only as an instruction to the controlling bodies to conduct more inspections and work more intensively to replenish the budget.
Is it necessary to let everyone who comes to "visit"?
The Government states that inspections should be comprehensive. This means that both the State Labor and the Tax and the Police and the Pension Fund can come to check undocumented workers at the same time.
However, as I have already said, each body has its own procedure for conducting inspections and to come with an inspection "for the company" because no one can say so by the Cabinet of Ministers.
State labor and local governments
When conducting inspections, labor inspectors (including inspectors at local councils) are guided by Procedure № 295. Clause 5 of this Procedure clearly excludes the list of grounds for conducting inspection visits. The inspector must present to the board and service certificate, the form of which approved by the Ministry of Social Policy. You can check the validity of the inspector's certificate at site of the State Labor.
The tax office can come to check registration of labor relations, in particular with actual check. The entrepreneur is not informed about the inspection in advance. Prior to the inspection, the tax inspector must present an identity card and provide a copy of the order for such an inspection.
The pension fund can also come to the entrepreneur in particular to check the accrual and payment of contributions to the mandatory state pension insurance. An employee of the Pension Fund may be admitted to an unscheduled inspection if he / she has an official certificate and a referral to conduct an inspection.
Police officers do not have the authority to inspect compliance with labor laws or to identify undocumented employees. However, Procedure № 295 stipulates that a labor inspector may involve law enforcement officers in the presence of signs of a criminal offense and / or a threat to the safety of a labor inspector. That is, it can be concluded that a police officer can only accompany a labor inspector if he or she considers that his or her safety is endangered. However, police officers cannot independently check documents, interview employees or otherwise conduct inspections. In any case, the police officer who arrived with the labor inspector must clarify the reason for the visit and check the identity card.
Therefore, each of the above-mentioned controlling bodies still has the right to conduct its own inspections. Inspectors can come individually. At the same time, all checks may "accidentally" coincide in time. But this does not preclude the fact that everyone must have their own independent grounds and documents for verification.
Andriy Gevko, lawyer
partner of the law firm Bargen
The article is published on League. Blogs