An important document in the regulation of labor relations has entered into force recently. This is the procedure for state control over compliance with the labor legislation, approved by the Cabinet of Ministers of Ukraine of April 26, 2017 No. 295. How it changes the procedure of inspections in labor sphere and what issues are important for business − in the following.
Principal innovations
Henceforth not only the State Labour Service of Ukraine checks the employment issues but the executive committees of local councils as well (the latter - on issues of timeliness/completeness of wages, compliance with the minimum guarantees in the field of wages, employment registration). The business entities will be mainly checked by the executive committees. The main function of the State Labour Service of Ukraine is to supervise how legally the inspections are carried out by the executive committees. It is not clear whether the State Labour Service of Ukraine can check the business entities by itself.
In 2017 there was a moratorium on inspections. A lot of authorities “dropped out” from it, including the State Fiscal Service of Ukraine (hereinafter − SFSU) and the State Labour Service of Ukraine. But the executive committees are put under its effect, which is evidence by the letter from the Ministry of Social Policy of 26.04.2017 No. 8830/0/2-17/28. That means that this year they do not have rights to carry out such checks.
Inspections are impossible without the approval of a number of subordinate regulatory acts. While they are not approved, the business still has time to be prepared.
Reasons for inspection
All inspections are unscheduled. The list of reasons for their carrying out is rather large. In particular:
- an employee appeal of the violation on labour legislation against him/her;
- an individual appeal against whom rules of labor relations to be violated;
- results of analysis of the information from the media, public information sources, from individuals, government agencies, trade unions by the State Labour Service of Ukraine or executive committees;
- notification of the supervisory authorities about the violation of labor legislation during their of inspections;
- notification of the SFSU on non-compliance of the number of employees to the production level (works performing, services provision) with regard to the average indexes for the relevant activities;
- notification of the Pension Fund of Ukraine about:
- employers who did not submit reports on employment;
- employers who during a month have increased number of employees under part-time work condition by 20% or more;
- employers who have increased number of employees in terms of civil contracts by 30% and more;
- employees who perform work (provide services) under civil contracts for one employer over a year.
Controllers’ rights
The large list of reasons for inspections will be the challenges for business as well as the rights of controllers.
Thus, controllers during the inspection on the detection of non-registered employment relationship are entitled to come to inspection at any time of the day taking into account the requirements of legislation on labor protection to have access to any industrial, official, administrative offices that use hired labor. This right raises many questions. For instance, can the controllers come to inspection at night? Also, can they be denied admission on the ground that hired labor is not used there?
Representatives of the controlling authorities have the right to inspect any of the documents, maintaining of which is under the legislation on labor and which contain information/data on issues that are the subject of inspections, and receive their certified copies and make notes. They are allowed alone or in the presence of witnesses to put questions related to labor legislation to the head and/or employees, and get verbal and/or written explanation on them. It should be noted that ordinary employees of the company are not required to understand the labor laws, so the normal responses on specific questions are “I do not know, “I do not remember” etc. Neither they nor their employer are responsible for that.
Reasons for denial of admission to inspection
There are only three reasons for denial of admission:
- the absence of official certificate. The Ministry of Social Policy should approve its form. However, it has not been prepared yet. The absence of the certificate in the register of licenses is to be equated to its absence. The State Labour Service of Ukraine should maintain a register, but it is not clear if it publishes the register.
- the absence on the website of the State Labour Service of Ukraine of decisions of the Ministry of Social Policy about the form of a service certificate of inspector on labour, act, certificate, prescription, requirements, the list of issues to be inspected;
- excess of deadline for the inspection. It should be noted that inspections can not exceed 10 working days, and two working days for subjects of small and micro enterprises.
Denial of admission to inspection without legitimate reason can cause considerable fine for company − in the amount of three minimum wages, and if the inspection appointed concerning new paragraph 2 of sec. 2 of Art. 265 of the Labor Code (particularly, registration of labor relations) – in the amount of 100 minimum wages (today it is UAH 320 thousand). There will be the same penalties, if someone interferes to controllers to realize their rights.
