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WAIT FOR THE STATE LABOUR SERVICE FOR 24 HOURS!

From the beginning of 2020 the State Labor Service starts conducting inspections without prior notice.

Thus, on December 31, 2019, a new version of the Procedure for Exercising State Control over the Observance of Labour Law (Decree of the Cabinet of Ministers of Ukraine No. 1132, dated December 04, 2019) came into force.

According to the Procedure, now the inspector during the inspection visits shall have a right without prior notice at any hour of the day, taking into account the requirements of the legislation on labour protection, to enter any industrial, office, administrative premises of the visit site where the hired labour is used.

However, the inspector shall provide an official identification during the inspection visit (that is, already during this visit), and only before signing the certificate on the results of the visit the inspector must provide a copy of the referral for such visit and make an appropriate entry in the record book of state control activities.

The reasons for the visit are, in particular:

1.An application by an individual (employee or person against whom the labour law was violated),

2.Decision of the head of the body based on the analysis of public information,

3.Court decision,

4.Notification of law enforcement and controlling bodies,

5.Information provided by the State Statistics Service (on the outstanding wage arrears),

6.Information provided by the State Tax Service (on the inconsistency of the number of employees of the employer with the production volume (work performed, rendered services) to the average rates for the relevant type of economic activity; on violations of the labour law revealed during the exercise of powers; on the facts of conducting economic activities without state registration in accordance with the law as a business entity),

7.Information provided by the Pension Fund of Ukraine (on employers that pay a wage to 30 or more percent of workers less than the minimum wage; on employers that do not have a notice of employment; on employers with the increased number of  part-time employees by 20 percent or more during a month; on individuals who perform work (render services) under civil contracts with one employer for more than a year; on employers with no employees’ payroll accruals in the reporting month that ended, on employers with no wage indexation during a year or the amount of the increased wage is less than the amount of accrued indexation; on employers with 30 or more percent of individuals working under civil contracts; on employers with 20 or more employees, who reduced staff by 10 percent or more during a month).

Therefore, the inspector may come suddenly without any prior notice to any business entity where the hired labour is used. In order to minimize the consequences of such a visit, it is necessary to prepare in advance, as during inspection it will be difficult or even impossible to prepare.

CANCELLATION OF ATTORNEYS’ MONOPOLY

On December 29, 2019 the Law of Ukraine On Amendments to Certain Legislative Acts of Ukraine regarding a Wider Self-Representation in Court of Public Authorities, Authorities of the Autonomous Republic of Crimea, Municipal Authorities, Other Legal Entities regardless of their establishment procedure came into effect.

According to the said Law the procedural codes were expanded by the definition of self-representation of a legal entity. In particular, it is determined that regardless of its establishment procedure a legal entity shall  participate in the case through its director, member of the executive body, as well as another person authorized to act on its behalf in accordance with the law, charter, regulation, employment agreement (contract), or through representative. Similar right of self-representation is provided for the public authorities, authorities of the Autonomous Republic of Crimea and municipal authorities.

At the same time, the Constitution of Ukraine still contains the provision that only an attorney shall represent another person in court, as well as defense against criminal charges.

In addition, since January 01, 2020 according to the Transitional Provisions of the Constitution of Ukraine representation of public and municipal authorities in courts shall be carried out by prosecutors or attorneys only.

Thus, provisions of the Constitution expressly provide for the attorneys’ monopoly on representing another person in court. At the same time, pursuant to the abovementioned Law legal entities and public authorities shall have a right to participate in case through a person authorized to act on their behalf in accordance with the law, charter, regulation, employment agreement (contract). However, according to the amendments there are no obligations to have a right to practice as attorney.

Therefore, we have an ambiguous situation where it is unknown whether from January 1, 2020 representatives of legal entities and public authorities acting on their behalf in accordance with the law, charter, regulation or employment agreement (contract) and do not provide professional legal services may be allowed by judges to participate in court hearings.

Currently, provisions specifying that only attorneys and legal representatives may represent individuals in courts are still in force, except for disputes arising out of labour relations and minor cases.

Igor Kalitventsev

Managing Partner

KPD Consulting

 

 

Kyrylo Kazak

Partner

KPD Consulting

 

 

Should you have any questions with respect to above or require any additional information, please do not hesitate to contact Mr. Kyrylo Kazak (k.kazak@kpdconsulting.com.ua) and Mr. Igor Kalitventsev (i.kalitventsev@kpdconsulting.com.ua). We will be pleased to assist You. The information contained in this overview is not intended to provide legal advice and should not be relied on or treated as a substitute for specific advice concerning individual situations.

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