At the end of June of this year, on the website of the State Service of Ukraine for Labor Affairs with'there was an announcement that State Labor inspectors are resuming control over the observance of workers' rights. I will explain in more detail what inspections will be carried out in this article.
What happened to the inspections of the State Labor Office?
Since the introduction of martial law, the state has limited the ability of control bodies to conduct inspections. The State Service of Ukraine for Labor Affairs was no exception, whose powers primarily included conducting inspections on the subject of undeclared workers, labor protection, etc.
Inspections were limited by the resolution of the CMU of March 13, 2022 No. 303. At the same time, this resolution provided for the possibility of carrying out unscheduled inspections in the presence of a threat that has a negative impact on the rights, legitimate interests, life and health of a person, protection of the natural environment and ensuring the security of the state. Such inspections may be authorized on grounds decisions of the central bodies of executive power, which ensure the formation of state policy in the relevant spheres.
It should be noted that in July 2022, the Law of Ukraine "On the Organization of Labor Relations in Martial Law" was also amended and provided for the possibility of conducting unscheduled inspections by the State Labor Office on the following issues:
- registration of labor relations;
- legality of termination of employment contracts;
- compliance with the requirements of the Law of Ukraine "On the Organization of Labor Relations in the Conditions of Martial Law".
By order of the Ministry of Economy of Ukraine dated 16.06.2023 No. 5782, the State Labor Service is allowed to conduct unscheduled inspections on the grounds specified in the fifth, eighth and ninth paragraphs of the first part of Article 6 of the Law of Ukraine "On the Basic Principles of State Supervision (Control) in the Field of Economic Activity" (Law No. 877).
That is, today the State Labor Service can really carry out inspections in the above areas, in particular, regarding undeclared work.
What are the grounds for the inspection now?
The procedure for inspections is determined by Law No. 877. Taking into account the already mentioned normative legal acts, the grounds for carrying out unscheduled inspections are:
- appeals by employees about violations of their labor rights;
- mandate of the Prime Minister of Ukraine, in particular, regarding observance of salary payment deadlines;
- the occurrence of an accident at work.
It should be noted that such a reason as an employee's appeal is the most common. From experience, such appeals were quite often groundless and served only as formal reasons for State Labor to come and inspect the business.
An important nuance of the inspection at the employee's request is that such an inspection is carried out by inspectors of a territorial body, but the inspection must be approved by the central body - the State Labor Service. A copy of such consent must be provided before the inspection begins.
An equally important point is that during such an inspection, only those issues that became the basis for such an inspection are clarified. Although in practice, inspectors often go beyond their authority and check other issues that are not included in the subject of the inspection.
What documents should the inspector have?
Before admitting the labor inspector to the inspection, it is necessary to check his service card, which must correspond to the form specified in the order Ministry of Economic Development dated 11.11.2020 No. 2305.
In addition to the certificate, the labor inspector must provide a copy of the referral for inspection, signed by the head of the territorial body or his deputy. Detailed requirements for referral are defined in Part 3 of Art. 7 of Law No. 877. It should be noted that the referral must include the full names of the labor inspectors who came to you for inspection.
As already noted earlier, in the event of an inspection based on an employee's request, the inspector must have the consent of the State Labor Office.
What about fines?
Article 265 of the Labor Code of Ukraine provides for fines for violations of labor legislation. So, for example, for one unregistered worker, the fine is UAH 67,000, and for not allowing the labor inspector to conduct an inspection to identify unregistered workers, the fine is UAH 107,200.
At the same time, during the period of martial law, fines are not applied in the case of compliance with the orders of the labor inspector. That is, after the inspection, the labor inspector issues an order with which, for example, he obliges certain employees to register. If the order is not complied with, then a fine may be applicable.
As you can see, State Labor inspections on many issues are indeed being resumed. At the same time, previously the rules for conducting unscheduled inspections of this body were determined by the Procedure for State Control of Compliance with Labor Laws.
This procedure gave labor inspectors very broad powers, which led to abuses and pressure on business. This Order was canceled by the court. Therefore, as of today, inspectors must act in accordance with Law No. 877 and comply with all norms established by this law, which relate to the order of inspections, as well as the grounds and documents for admission to such inspections.
The article was prepared for the Association "Berry Growing of Ukraine"
