Why is business afraid of inspections by the State Labor Inspectorate? First of all, due to large fines and almost unlimited rights of inspectors. They can come to you at any time without notice and fine you a "round sum". However, very often the fine of the State Labor Service can be revoked in court. Below are the most typical situations and arguments that can be used to appeal the fines of the State Labor.
The legislation stipulates that before the start of the inspection visit (inspection), the labor inspector must present his / her identity card to the manager or another authorized person. If this does not happen, the inspection will be considered illegal. The Supreme Court in its ruling of 23.04.2020 took into account that during the inspection the inspector of the State Labor Service presented an identity card not to the owner, but to an unknown person, which was recorded in a photo and video, and therefore the fine of the State Labor Inspectorate is illegal.
It should be noted that in 2019 the procedure for inspections of the State Labor Service became stricter. For example, earlier, when considering a case of imposition of a fine, the State Labor Office had to notify the company 5 days before the case. Due to improper notification, many decisions of the State Labor Office were annulled (for example, the decision of the Supreme Court from 12.06.2019. However, currently the State Labor Office does not have such an obligation.
At the same time, we must pay attention to the following. After the inspection, the inspector sends an act to his supervisor, who must consider and impose or not impose a fine. The manager must notify the company of the date of receipt of the act within 5 days of its receipt, but this does not always happen. Therefore, if the case file does not contain this notice, the courts also take the side of business (for example, the decision of the Dnipropetrovsk District Administrative Court of 02.06.2020.
We will protect during inspection of controlling body
What about JRS?
Civil law contracts with employees are often a good alternative to labor. It is more profitable and convenient to hire people to perform a specific job with a fixed payment than to register them with the company's staff. However, the State Labor Office usually recognizes such relations as labor and imposes a fine on employers as for undocumented workers.
The position of the courts in this regard is quite clear. The purpose of a civil contract is to obtain a concrete result. Under the civil law contract, the executor is not subject to the rules of internal labor regulations, he organizes his work and performs it at his own risk. This position was expressed by the Supreme Court in its ruling of 26.05.2020.
Taking the side of the enterprise, the Supreme Court in its ruling of 23.10.2019 pointed out that labor inspectors are not empowered to interpret at their own discretion the nature of legal relations between the parties to a civil contract.
That is, if some of your employees work under civil law contracts, you need these contracts to be spelled out correctly. It is also important that employees understand the essence of these contracts and relationships and can confirm to the inspector that they are not employees, but perform work under a civil contract.
To allow or not to allow for inspection?
Article 265 of the Labor Code provides for 2 types of liability for failure to allow the inspector to inspect. These are non-admission to the inspection for compliance with labor legislation, for which a fine of UAH 15,000 is envisaged, and non-admission to the inspection for the detection of undocumented employees, for which a fine of UAH 80,000 is envisaged.
However, in most cases, due to non-admission to the inspection, the State Labor Inspectorate fines businesses exactly UAH 80,000. Courts in such cases take the side of entrepreneurs and draw attention to the fact that these are various violations, the grounds for inspection should be clearly indicated in the direction.
In its decision from 30.07.2020 The Supreme Court agreed with the conclusions of the courts of previous instances, stood in favor of the entrepreneur, noting that the direction should clearly indicate what exactly the inspector will check.
The courts also draw attention to the fact of non-admission to the inspection and to the evidence that can confirm this. For example, the Supreme Court in its ruling of 13.05.2020 sided with the business. The State Labor Office noted that the inspector was not allowed to inspect. However, the court found no evidence that the State Labor Inspectorate had actually inspected, and that the case file did not contain any testimony or explanations from the residents of the residential building located at the address inspected by the inspectors.
As we can see, there are many grounds for appealing the fines of the State Labor Service and the courts often take the side of business. However, in order to reduce the negative consequences of the inspection, it is necessary to take care of it in advance. It is necessary to prepare the company and employees for the inspection, to know their rights and the rights of the inspector, to be attentive during the inspection, to provide their objections, not to forget about the deadlines for objections and appeals, to record violations of inspectors. In this case, the chances of canceling the fine will increase significantly.
Andriy Gevko, lawyer, partner of the law firm Bargen
Also read our article about why it is necessary to prepare for inspections of controlling bodies.