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Appeal of Gostrud's fines for not being allowed to visit

Andrei Gevko, lawyer

Read the article in Ukrainian

The largest fines for violating labor laws are for preventing a labor inspector from visiting to identify or obstruct undocumented workers. In 2018, the fine is almost 373 thousand. UAH How to avoid or appeal this fine - we will analyze on the basis of current case law.

Resolution of the Cabinet of Ministers № 295 of April 26, 2017, which regulates the procedure for conducting inspection visits, provides for cases when the inspector may not be allowed to inspect, especially if he does not have an identity card or he has violated the terms of the visit. In addition to the grounds for non-admission, which are determined by the resolution of the Cabinet of Ministers № 295, the provisions should be taken into account Law № 877, which also applies to Gostrud inspections. According to this law, an inspector may not be admitted to an inspection visit if the inspector did not provide a copy of the referral or did not state the reasons for the visit, or did not sign the inspection log.

Kharkiv District Administrative Court in its decision from 18.09.2018 in case № 2040/5285/18 noted that Gostruda had illegally provided FLP with a copy of the referral for the inspection visit, and had not been informed of the grounds for the unscheduled inspection visit.

When you can still get a fine for not being allowed to check the labor inspector, and how to appeal such fines, read on.

Not that fine

Article 265 of the Labor Code of Ukraine provides for 2 types of liability for non-admission to the inspection. This is a non-admission to the inspection for compliance with labor legislation, for which a fine of 11 thousand. UAH, and non-admission to the inspection on the identification of undocumented employees, for which there is a fine of 372 thousand UAH.

However, in most cases, due to non-admission to the inspection, Gostruda fines the business exactly 372 thousand UAH. Courts in such cases take the side of entrepreneurs and pay attention to the fact that these are different violations. That is, if the order and direction for the inspection visit states that the subject of the inspection visit is compliance with labor legislation, then impose a fine of 372 thousand. UAH will be illegal.

This position is set out in many court decisions. For example, the decision of the Odessa district administrative court from 22.10.2018 in case № 815/3024/18, the decision of the Kherson district administrative court from 30.10.2018 in case № 2140/1852/18, the decision of the Odessa appellate administrative court from 12.07.2018 № 815/329/18.

No one is home

In practice, it is not uncommon for the head of the enterprise or employees to be absent from the place of registration of the business entity during the inspection visit, for example, on a business trip.

In such cases, inspectors draw up a report on the impossibility of conducting an inspection visit, after which they are fined 372 thousand. UAH for creating obstacles to the inspection.

At the same time, the courts note that the drawing up by the Gostrud officials of an act of impossibility to carry out an inspection visit due to the absence of company officials at their location without identifying signs of obstruction cannot be considered a sufficient independent ground for prosecution. The courts also take into account whether the business entity knew at all that they would come to him with an inspection visit and could knowingly create obstacles to its conduct.

This position is set out in the decision of the Dnepropetrovsk District Administrative Court from 06.09.2018 in case № 804/4657/18, the decision of the Dnepropetrovsk district administrative court from 11.05.2018 in the case of № 804/2702/18, the decision of the Kirovograd district administrative court from 31.10.2018 in the case № 1140/2499/18.

No documents were provided

Decree № 295 stipulates that the requirement of the labor inspector to provide documents and / or copies thereof for inspection is mandatory for execution. Failure to provide copies of documents is also seen by inspectors as obstructing the inspection and imposing fines.

However, courts note that the inspector may review the original documents, and the entity is not required to provide copies of the documents, especially if significant volumes have to be copied and the inspector sets too short deadlines. Therefore, failure to provide copies of documents, provided that the inspector had the opportunity to inspect the originals, cannot be regarded as creating obstacles to the inspection and be a separate ground for imposing a fine.

This position is set out in the decision of the Kharkiv District Administrative Court on 04.10.2018 in the case of № 2040/5671/18 and the Decision of the Sumy District Administrative Court of 16.10.2018 in the case of № 1840/2620/18.

Procedural violations

It should be noted that violations of the procedure for conducting an inspection or drafting a decision may also be grounds for appealing the fine for non-admission.

For example, the Odessa Administrative Court of Appeal in its decision of 05.07.2018 in the case of № 815/6704/17 sided with the entrepreneur and pointed out that Gostruda illegally issued a decision to impose a fine, as the supervisory authority did not provide any evidence confirming the advance notice of the entrepreneur, the time and place of the case on imposition of a fine.

By its decision of September 18, 2018 in the case of № 820/3604/18 The Kharkiv District Administrative Court overturned the decision to impose a fine, in particular due to inaccuracies in the documents. The resolution states that the inspection visit by the inspector was carried out on the basis of a letter from a state body. At the same time, in the direction as the basis for carrying out inspection visit "the address of the physical person", instead of the letter of the state body is specified.

As we can see, the courts often take the side of business and confirm the legitimacy of the labor inspector's permission to inspect. However, in order to legally prevent it, it is necessary to prepare for the visit and record all violations committed by the inspector. The responsible persons of the enterprise should know what documents of the inspector need to be checked and how to behave during check. The fine for non-admission to the inspection can be appealed in court, but you need to gather convincing evidence of your rightness.

The article is published on DEBIT CREDIT

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