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Disputes with regulatory authorities. News and case law. Issue 2


FOP can be simultaneously prosecuted for violations of the Labor Code and the Code of Administrative Offenses

State Labor inspectors fined the entrepreneur UAH 111,690 for an undocumented employee who sold goods on the market. At the same time, inspectors drew up an administrative report for violating labor legislation. 

The businessman filed a lawsuit to the court to cancel the fine and argued the inadmissibility of double prosecution under Part 3 of Art. 41 of the Code of Administrative Offenses of Ukraine and para. 2 h. 2 st. 265 of the Labor Code of Ukraine. 

However, the Supreme Court in its decision of 31.07.2019 in case №340 / 4337/18 sided with the State Labor Office. The court noted that in case of such violations by a legal entity, liability under Art. 265 of the Labor Code of Ukraine is a legal entity as an employer, and under Art. 41 КУпАП - the official of this legal entity. 

At the same time, in the case of bringing to justice a natural person-entrepreneur, the subject of liability and the type of violation completely coincide (admission of an employee to work without an employment contract). Therefore, the Supreme Court concluded that it is possible to prosecute a private individual under the articles of the Labor Code of Ukraine and the Administrative Code. 

You can read more about appealing against fines of the State Labor Service in our country articles.

Proof of elimination of violations identified by the SES is a re-inspection. 

SES (firefighters) conducted an unscheduled inspection at the enterprise, as a result of which they appealed to the court with a claim for partial suspension of operation of technical premises and attic floors, until the complete elimination of violations specified in the inspection report.

The company's position was that at the time of the case in court all violations were eliminated, and the relevant evidence was submitted to the court. The SES objected because they considered that the only appropriate evidence for the elimination of the violations was a re-inspection, which would allow the elimination of the violations to be recorded.

In its ruling of 27 November 2019 in case 40640/4508/19, the Supreme Court upheld the position of the SES and concluded that the company's arguments about the absence of violations were not substantiated by appropriate evidence, as the case file did not contain the SES opinion on elimination of violations recorded in the inspection report.

You can read more about the case law in disputes over claims of the SES to stop the operation of buildings at link.

What can business expect from the State Labor Service, the State Emergency Service and the State Food and Consumer Service in 2020?

As we already are wrote regulatory authorities approved inspection plans for 2020. Among them, the bodies that will most often disturb business are the State Labor Service, the State Emergency Service and the State Food and Consumer Service. Schedule plans can be viewed at the following links: Action plan for state supervision (control) of the State Labor Service for 2020, Annual plan for the implementation of measures of state supervision (control) of the SES for 2020, and Annual plans for state control measures by the State Food and Consumer Service for hereby and hereby links.

As for the State Labor Inspectorate, the list of objects of inspection includes almost 17,000 enterprises. Main areas of supervision: employment, employment and employment of persons with disabilities; Industrial safety, labor protection, handling of explosives for industrial purposes, occupational health; geological study of subsoil, their use and protection, as well as the use and processing of mineral resources (state mining supervision).

The SES went even further - about 45,000 enterprises were included in the plan. The following will be inspected: compliance with the requirements of the license conditions for conducting business activities for the provision of services and performance of fire-fighting works; compliance with legislation in the field of man-made and fire safety.

Derzhprodspozhivsluzhba will check business in 2 directions. The first is compliance with legislation in the field of plant protection and quarantine, sanitary legislation, legislation on consumer protection, legislation in the field of metrology and metrological activities, legislation on grain storage, etc. The service will conduct 22,000 inspections in this direction.

The second area is inspections in the areas of safety and certain indicators of food quality, veterinary medicine and audit of the HACCP system. More than 28,000 inspections are planned in this direction.

Inspections will begin in early January 2020. Therefore, it is worth checking whether your company is included in the 2020 inspection plan.

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