A NEW ORDER OF LABOR INSPECTION

 So, on May 14, 2019, the Sixth Administrative Court of Appeal invalidated Resolution No. 295, which approved the old Procedures for the implementation of state control / supervision of compliance with labor laws. The fateful decision in case No. 826/8917/17 was later appealed against by the Gostrud to the Cassation Administrative Court of the Supreme Court, but he left everything in this case unchanged (resolution dated June 19, 2019 No. 826/8917/17).

 Decision No. 295 was appealed, inter alia, because it was not agreed upon by the State Regulatory Service. As a result of this, Gostruda, its territorial branches and “local assistants” (as we traditionally call labor inspectors of executive bodies of city councils of cities of regional significance and rural, town, city councils of OTG) lost the opportunity to conduct inspection visits and travel abroad on the basis of Decree No. 295 The CMU decided to make a “knight's move” and, in fact, re-approved by decree No. 823:
- The procedure for exercising state control over compliance with labor legislation;
- The procedure for the implementation of state supervision of compliance with labor laws.
The supervision procedure is of little interest to us, since it concerns the control of the supervisors themselves, and not of the employers. But they changed it completely insignificantly.
 Other decisions of the CMU were also changed, in particular the one that approved the “penalty” Order No. 509. Resolution No. 823 was officially published and entered into force on 30.08.2019.
But according to the information of the State Regulatory Service, she was refused approval of the draft of the relevant resolution (decision of June 25, 2019 No. 281). So, it seems, "again on the same rake." Perhaps the logic of the CMU was to enable the Trudoviks to conduct inspections at least in the short term.
 Immediately, we note that the Procedure for exercising state control over the observance of labor legislation (hereinafter referred to as the Procedure) has changed completely. The “super abilities” and “super-patency” of labor inspectors have not disappeared (they, as before, are provided for in clause 11 of the Procedure).
1) when conducting inspection visits to identify unformed labor relations, if there are grounds specified in clause 5 of this Procedure, at any time of the day, taking into account the requirements of labor protection legislation, go to any production, office, administrative premises of the site of the visit where hired labor is used.
Struggle with unformed work. A positive innovation is that the main emphasis is on the discovery of informal labor relations. Other violations of labor law will be considered not so "hot."
Firstly, according to the updated clause 29 of the Procedure, regardless of the subsequent elimination by the employer of the violations identified by the inspector immediately (simultaneously with the introduction of the order) they are fined only for using the labor of unformed workers. Previously, sanctions were immediately imposed in the case of untimely and not fully paid wages, non-compliance with minimum guarantees for wages.
Having discovered other "labor" violations, the inspector must issue an order, following which the offender will evade possible sanctions within the allotted time (which is provided for in paragraph 28 of the Procedure).
 Secondly, the labor inspector, as before, informs the object of the visit or an official authorized by him of the inspection visit to identify unformed labor relations, unless he considers that such a notification could harm the inspection visit.
Thirdly, the grounds on which an inspection visit can be scheduled are specified (paragraph 5 of the Procedure). In particular, an inspection visit may be conducted:
- by decision of the head of the control body solely on the identification of unformed labor relations;
- according to the officials of the state oversight (control) bodies, law enforcement bodies about signs of violation of labor legislation on the non-registration and / or violation of the procedure for registering labor relations identified during the exercise of their powers.
 Earlier, inspection visits could be ordered by law enforcement agencies about any violation of labor law.
They also specified that the inspection visits on the grounds specified in para. 4, 5, 11, 14 p.p. 6 p. 5 of the Procedure shall be carried out exclusively on the issues of revealing unformed labor relations.

These are the following reasons:
1) according to the STS and its territorial bodies about:
- discrepancies in the number of employer workers to production volumes (work performed, services rendered) to average indicators for the corresponding type of economic activity;
- facts of violation of labor legislation identified during the exercise of authority;
2) according to the information of the PFU and its territorial bodies about employers for whom:
- within a month, the number of employees working on a part-time basis increased by 20 percent or more;
- during the year, wage indexation was not carried out or the amount of increase in wages is less than the amount of accrued indexation.
Reasons: new and changed. Since the changes in the grounds for conducting inspection visits have been affected, then we will dwell on them in more detail.
The following grounds are new (in comparison with the existing ones) (given in paragraphs 8–11 of paragraph 5 of the Procedure):
- order of the Prime Minister of Ukraine;
- appeal of the Verkhovna Rada Commissioner for Human Rights;
- request of the people's deputy;
- failure to comply with the requirements of the regulation. An inspection visit (or on-site inspection) on this basis may be carried out if the object of the visit does not provide an answer within the time allotted for elimination of violations or provides it in an amount insufficient to confirm that the order has been fulfilled.
Some reasons for making an inspection visit have changed. So, according to the information of the PFU and its territorial bodies about:
- employers who accrue wages to 30 percent or more of workers less than the minimum;
Earlier, formally payroll to at least one employee in an amount less than the minimum wage could lead to the appointment of an inspection visit.
- to employers who have no payroll in respect of employees in the reporting month that has ended. The last amendment is quite logical, because PFU would still not be able to judge a month that has not yet ended.
Duration of inspection visits / on-site inspections. He, as before, should not exceed 10 slaves. days (according to clause 10 of the Procedure). But:
- the clause disappeared that for subjects of micro-entrepreneurship and small business it should not exceed 2 slaves. days;
- it is determined that the period for the visit / inspection starts from the day following the day the object of the visit provides the documents and explanations necessary for its conduct.
At the same time, they separately prescribed a ban for labor inspectors to extend the 10-day period (paragraph 8, paragraph 13 of the Procedure).
But here, not everything is simple. In case of exceeding the terms of an inspection visit or on-site inspection, an act is drawn up on the impossibility of an inspection visit (or on-site inspection) with an indication of the relevant grounds. Further, if the reason is a “shortage” of documents, a written request will be indicated indicating the period for restoration and / or provision of documents. For the duration of such a requirement, visits / inspections are suspended.
The rights of auditors and auditors. At the very beginning of this section of the article, we already said that the rights of the inspectors were not only not constrained, but also slightly expanded. In addition to patency in all types of premises, they will be allowed to ask questions regarding labor legislation, not only to the manager and employees of the site, but also to other people who have the necessary information!
But a few pleased and checked. At their request, the labor inspector will be required to provide a copy of the appropriate direction for the inspection visit and make an entry about the inspection visit to the appropriate registration journal of the state supervision (control) of the visited object (if any) before submitting the inspection visit certificate for signature.
In addition, the objects of the visit were “given the right” (paragraph 14 of the Procedure):
- demand the termination of the inspection visit (or on-site inspection) if the term of 10 slaves is exceeded. days;
This is not an extension, but an infringement of the rights of the inspected, because earlier in such a case they had the right to prevent the inspector from conducting the inspection.
- record the inspection visit by means of audio, photo and video equipment. Although it could have been done before.
Reporting the results of inspection visits. The main document in this case is the inspection visit (on-site inspection) (hereinafter - the act). Comments on such an act can be submitted no later than three business days from the day following the day of signing the act (earlier - from the date of its signing).

Appeal against the order or requirement of the labor inspector. According to paragraph 30 of the Procedure, an administrative appeal (to the head or deputy head of the relevant territorial body of the State Labor Committee) of the labor inspector's request (not to be confused with the order) can be made within one day from the date it was received.
Previously, a single 10-day period was provided for appealing against the precept and requirement.
The possibility of further administrative appeal of the decisions of the heads and deputies of the territorial bodies of Gostrud above (to the Chairman or Deputy Chairman of Gostrud) has not gone away.
Moreover, a 30-day period from the day following the day of its receipt (earlier - from the date of receipt) is set aside for consideration of the complaint, unless otherwise provided by law.
It was also established that during the examination of the complaint, the inspection visit or on-site inspection is stopped.
 Changes were made to other decisions of the CMU, in particular to the one that approved Procedure No. 509. And they are also worthy of attention.
Firstly, they specified the grounds on which fines are authorized to impose:
- on the one hand, the Chairman of Gostrud, his deputies, heads of territorial bodies of Gostrud and their deputies;
- on the other hand, the heads of the executive bodies of city councils of cities of regional significance, rural, township, city councils of OTG and their deputies.
The powers of local authorities are narrower than those of the Trudoviks. In particular, only Trudoviks can fine on the basis of:
- an act of verification of the STSU, its territorial body, during which violations of labor law have been identified;
- court decisions on registration of labor relations with an employee who performed work without concluding an employment contract, and establishing a period of such work or work on a part-time basis if the work is actually performed, the full working time established at the enterprise, institution, organization.
 By the way, they also specified other grounds that may serve as a reason for imposing a “labor” fine. They can be:
- an act drawn up according to the results of the state control over compliance with the legislation on labor or employment of the population, carried out in connection with the failure to comply with the requirements of the requirements;
- an act drawn up according to the results of the state control over the observance of labor legislation, during which the facts of the use of labor of informal workers were revealed;
- the act of the impossibility of conducting an inspection visit / on-site inspection.
Both the Trudoviks and the heads (and their deputies) of the executive bodies of local councils are authorized to impose fines on the above grounds.
 Secondly, they extended the duration of the consideration of the fine. Now 45 k. Days are allotted for this. from the day following the day the authorized person receives the above documents (which serve as the basis for a fine).
Previously, 10 days were given for making a decision on the consideration of the case and 15 days after that - for the consideration itself.
 But now it will not work to extend this period at the request of a business entity or employer - clause 5 of Order No. 509, which provided such an opportunity, has been deleted.
The authorized official shall be obliged to notify the business entity and the employer in writing about the date of receipt of acts and other documents that serve as the basis for a fine (they were previously informed of the consideration of the case). For this, 5 days after receiving such documents are allotted.
 Thirdly, it is additionally indicated that, based on the results of the consideration of the case, the authorized official draws up a fine on the basis of the relevant documents. If there are no grounds for drawing up such a resolution, the authorized person must inform the business entity or employer in writing.