Inspection visits: employee rights

From 05.10.2018, the campaign of the State Labor Committee, the SFSU, the PFC, the National Police and other central executive authorities and local self-government will start. Only here "under the gun" can get and honest employers. You must know that the “month” is going on, during which employers got the last chance to fill out unformed employees.

At this time, the supervising authorities are obliged to conduct an awareness-raising campaign about the planned verification activities and the inadmissibility of the admission of hired employees to work without formalizing labor relations with them. Such measures are provided for by Order No. 649-r. Resolution of the Cabinet of Ministers of Ukraine “On Measures to Determine Relations in the Sphere of Employment” dated 05.09.2018 No. 649-r.

But the worst will begin at the end of this “month” - from 05.10.2018, the State Labor Department, the SFSU, PFC, the National Police and other central executive authorities with the participation of local governments will carry out “comprehensive measures aimed at detuning employment and incomes of the population” and they will do it with a special predilection.

And these complex inspections will not be limited to a month, because the order obliges the said bodies to report monthly to the Cabinet of Ministers of Ukraine (through the State Labor Committee and the Ministry of Social Policy).

That is, the probability of the arrival of labor inspectors will rapidly increase.

Therefore, let us consider an important aspect - the rights and obligations of your employees during an inspection visit to the Trudoviks.

The procedure for exercising state control over compliance with labor legislation, approved by Resolution No. 295 of the Cabinet of Ministers of Ukraine on April 26, 2017, allows labor inspectors to:

- in private or in the presence of witnesses, ask the manager and / or employees of the site of the visit questions relating to labor legislation, receive oral and / or written explanations on these issues (paragraph 3, paragraph 11);

- to receive a workplace with the possibility of conducting a confidential conversation with employees regarding the subject of the inspection visit (clause 5, clause 11);

At the same time, the requirement of the labor inspector to provide the object of the visit for familiarization of documents and / or their copies or extracts from documents, explanations, access to the premises, organization of the workplace, made within the limits of authority, is mandatory (according to paragraph 12 of the Procedure).

- record the conduct of the inspection visit on the identification of unformed labor relations by means of audio, photo and video equipment (clause 6, paragraph 11).

According to clause 33 of the Procedure, a labor inspector has the right to independently decide on the need to visit the employer in order to inform him and the employees about the most effective ways of complying with labor legislation, monitoring the status of compliance, including the registration of labor relations.

That is, labor inspectors have the right to ask workers questions (but this does not mean to get answers to them!); to retire with them (for conducting a conversation), to shoot all this and ... advise at your discretion. But consulting is not what interests us now, because it should not bring negative consequences for the employer.

An important nuance: the legal entities (including their structural and separate subdivisions that are not legal entities) and physical persons using hired labor are considered the object of visits in the Order No. 295.

This is important because, in accordance with paragraph 16 of the Procedure, the object to be visited by obstacles in the work of a labor inspector may be the reason for drawing up an act on the impossibility of conducting an inspection visit.

And such an act, in turn, may entail the imposition of a fabulous fine according to par. 7 h. 2 Art. 265 Labor Code in the amount of 100 minzarplat (in 2018 - 372.3 thousand UAH.).

Under “obstruction”, Order No. 295 means an obstacle in the exercise of any rights provided for by paragraph 11 of this Procedure (including those mentioned above).

Including the creation of obstacles in accordance with clause 16 of Procedure No. 295 implies a denial of admission to the visit. And the same paragraph deciphers such a refusal as a failure to provide the information necessary for the inspection visit, and an obstacle in the exercise of other rights provided for in paragraph 11 of the Procedure. Or outside travel inspections.

But can it be considered a refusal to allow access to the visit if the individual employee did not provide information in response to the inspector's question? In good, should not.

Another question: can an employee creating obstacles to a labor inspector be considered a representative (part) of the object of visit? We believe that no, because in paragraph 16 of the Order we are talking about the fault of the object of the visit.

However, if the labor inspector will have a different opinion on this matter, then you will have to defend your case in court. Unless, of course, do not want to come to terms with the imposition of a fine.

Trudoviki has the right, alone or in the presence of witnesses, to ask the workers of the visiting object questions relating to labor legislation, to receive oral and / or written explanations on these issues. But are employees required to answer such questions and give explanations? What if the employee, for example, declares that he refuses to talk to the inspector? And if all the staff do so?

Frankly speaking, this does not bode well for the object of the visit. If we say one or two employees refuse, then this can “get away with” the audited employer, but if all (or most) of the employees respond with a refusal, it is highly likely that the inspectors will perceive this as an obstacle with all the consequences. Although, strictly speaking, the duties of the employee does not include communication with the inspectors, and no law obliges him to talk with them.

Coming to work, each employee acts primarily in accordance with the employment contract (contract). In this case, under such a contract, the employee undertakes to perform the work determined by this agreement, with subordination to the internal labor schedule. What duties the employee is obliged to perform, described in more detail in the job description. And it is unlikely in it you will find the duty of communication with the supervisors.

But the refusal to communicate with inspectors is like walking on a razor's edge, so it’s better not to take such a step. And if they refuse, then not directly, but referring to forgetfulness. Better yet, instruct your employees in advance about what they need to know.

Consider another controllers right - to receive a workplace with the possibility of conducting a confidential conversation with employees regarding the subject of the inspection visit. Here, employee rights are in many ways similar to those discussed above. If you provide a job, this is more to the employer's management (an individual employee is unlikely to oppose it, of course, if he is not a director), then it is not obligatory for the employee to have a conversation with the auditor, and in general retire to it with him.

Although, again, the risks overlap with those described above (relating to refusal to speak), but they primarily concern the employer (and not the employee).

Also, labor inspectors are entitled to record an inspection visit by means of audio, photo and video equipment. But can an employee refuse to be filmed? Yes, this right gives him art. 307 GKU, which establishes that an individual may be filmed on a photo, film, television or videotape only with his consent.

The consent of the person to the shooting is allowed if the shooting is carried out openly on the street, at meetings, conferences, rallies and other events of a public nature.

Also according to part 3 of art. 307 GKU shooting of physical persons on a photo, film, television or videotape without his consent can be carried out only in cases established by law. But in our case, the right of inspectors to conduct a survey is enshrined in Section 11 of Procedure No. 295, and this document is not a law.

Sometimes the requirements of labor laws do not know not what the employees are, but the employers themselves, committing violations. On which of them are the most serious (and therefore punitive).

To prepare for the correct behavior during inspections in practice, conduct special training of staff. Most interested in checking and what they are most likely to ask. So, an indicative list of questions:

- employee's position. Here, we hope, there should be no problems. However, if there have been transfers, relocations, post overlaps, changes in the name of posts (including for the benefit of the Occupational Classification), then it is desirable that the employee know who he is working with now and who he was before;

- list of job duties. To this end, it is advisable for the employee to re-introduce his job description (or, if it was not done on time);

- salary amount. In this case, it is not bad if the employee is oriented in the structure of wages (for example, official salary, bonuses and allowances, indexation, bonuses, etc.), and also remembers the last increase in his earnings. But the main thing is for him to know how much he gets in his hands, and that these data coincide with what is reflected in the accounting records.

And in more detail about the components of employee benefits, accruals of ERUs and deductions of personal income tax and the Supreme Court, trade union dues (if any) will have to be “reported” to accountants.

Should it be explained that labor inspectors need data on the incomes of workers to detect amounts hidden from taxation? Even if part of the salary is paid to the employee legally, and part is “in the envelope,” identifying such a fact can be a reason for imposing a fine in accordance with para. 2 h. 2 tbsp. 265 Labor Code in the amount of 30 minzarplatov (in 2018 - 111,69 thousand UAH.) For each employee in respect of whom a violation was committed.

Also, the data of such a survey can make the facts of non-compliance by the employer of minimum state guarantees in wages (which are fraught with the imposition of a fine in the amount of 10 minimum salaries (for violations-2018 - 37.23 thousand UAH)) for each employee for whom ).