Commentary to article 93. Violation of occupational safety and health regulations  The Code of the Republic of Kazakhstan on Administrative Offences  

     1. Absence of an occupational safety and health service (specialist) in industrial organizations in accordance with the requirements of the labor legislation of the Republic of Kazakhstan –

     entails a warning.

     2. Violation by the employer of the requirements for conducting mandatory and periodic medical examinations and pre-shift medical examinations of employees in accordance with the requirements of the labor legislation of the Republic of Kazakhstan –

     entails a warning.

     3. Failure to provide workers with therapeutic and preventive nutrition, means of individual and collective protection in accordance with the requirements of the labor legislation of the Republic of Kazakhstan –

     entails a warning.

     4. Failure by the employer to comply with the requirements of the labor legislation of the Republic of Kazakhstan for the education and training of employees, testing the knowledge of managers and specialists in occupational safety and health –

     entails a warning.

     5. The actions provided for in the first, second, third, and fourth parts of this Article, committed repeatedly within a year after the warning, –

     They impose a fine on small businesses or non–profit organizations in the amount of twenty, on medium–sized businesses in the amount of thirty, on large businesses in the amount of one hundred and twenty monthly calculation indices.

     6. Failure by the employer to comply with the requirements of the labor legislation of the Republic of Kazakhstan for conducting instruction (except for introductory instruction) and the absence of documents on occupational safety and health –

     They impose a fine on small businesses or non–profit organizations in the amount of twenty, on medium–sized businesses in the amount of thirty, and on large businesses in the amount of eighty monthly calculation indices.

     7. The acts provided for in part six of this article, committed repeatedly within a year after the imposition of an administrative penalty, –

     They impose a fine on small businesses or non–profit organizations in the amount of forty, on medium–sized businesses in the amount of sixty, and on large businesses in the amount of one hundred and twenty monthly calculation indices.

     The generic object of an administrative offense is public relations related to the realization of the individual's right to working conditions that meet the requirements of labor legislation.  

     According to article 7 of the International Covenant on Economic, Social and Cultural Rights, the States parties to the Covenant recognize the right of everyone to fair and favorable working conditions, including, in particular, conditions meeting the requirements of safety and hygiene.  

     The Republic of Kazakhstan, being a party to the Pact, enshrines this principle in paragraph 2 of Article 24 of the Constitution, according to which everyone has the right to working conditions that meet the requirements of safety and hygiene, to remuneration for work without any discrimination, as well as to social protection from unemployment.

     Occupational safety and health requirements are established by the labor legislation of the Republic of Kazakhstan. Labor legislation is based on the Constitution and consists of the Labor Code, laws and other regulatory legal acts of the Republic of Kazakhstan. It is prohibited to include norms regulating labor relations, social partnership relations and labor protection in other laws of the Republic of Kazakhstan, except in cases stipulated by the Labor Code.

     Occupational safety is the state of worker security provided by a set of measures that exclude the impact of harmful and (or) dangerous production factors on workers during their work.

     Occupational safety and health is a system for ensuring the safety of life and health of employees in the course of their work, including legal, socio-economic, organizational, technical, sanitary, epidemiological, therapeutic, preventive, rehabilitative and other measures and means.

     Occupational safety and health requirements should contain rules, procedures, and regulations aimed at preserving the life and health of employees during their work. They are mandatory for employers and employees when carrying out their activities in the territory of the Republic of Kazakhstan. The financing of occupational safety and health measures is carried out at the expense of the employer and other sources not prohibited by the legislation of the Republic of Kazakhstan.

     The direct object of an administrative offense is the rules established by labor legislation to ensure occupational safety and health.

     Part 1 of the commented article establishes responsibility for the absence of a safety and labor protection service (specialist) in industrial organizations in accordance with the requirements of the labor legislation of the Republic of Kazakhstan.

     According to Article 202 of the Labor Code, in order to carry out internal control over compliance with occupational safety and health requirements in organizations engaged in industrial activities with more than fifty employees, the employer creates an occupational safety and health service, which reports directly to the first head of the organization or a person authorized by him.

     An employer with up to fifty employees introduces the position of an occupational safety and health specialist, taking into account the specifics of the activity, or assigns responsibilities for ensuring occupational safety and health to another specialist.

     The objective side of the offense is the violation of this rule, expressed in the form of inaction. The employer does not take measures to create an occupational safety and health service and does not introduce the position of an occupational safety and health specialist.  

     The special subject of the offense is the employer. An employer is a natural or legal person with whom an employee has an employment relationship.

     The subjective side of the offense is characterized by both intentional and careless forms of guilt.  

     93 of the Administrative Code provides for liability for violation of the requirements established by labor legislation for mandatory and periodic medical examinations and pre-shift medical examinations of employees.

     To carry out mandatory, periodic (during the course of work) at their own expense Medical examinations and pre-shift medical examination of employees are required by employers in accordance with art. 182 of the Labor Code. Inspections and examinations are carried out in cases stipulated by an agreement, a collective agreement, the legislation of the Republic of Kazakhstan, as well as when transferring to another job with changes in working conditions or signs of an occupational disease.

     The objective side lies in the failure, improper performance by the employer of the above-mentioned duties, expressed in the form of an action or omission.

     According to Article 185 of the Labor Code, the employer, at his own expense, is obliged to organize periodic medical examinations and examinations of employees engaged in heavy work, work with harmful and (or) dangerous working conditions, in accordance with the procedure established by the legislation of the Republic of Kazakhstan.

     The procedure and frequency of mandatory medical examinations are determined by the Rules for conducting mandatory medical examinations, developed in accordance with paragraph 4 of Article 155 of the Code of the Republic of Kazakhstan dated September 18, 2009 "On the health of the people and the healthcare system." The provisions of the Rules are binding on legal entities and individuals, as well as healthcare entities, regardless of departmental affiliation and forms of ownership.

     Mandatory medical examinations include preliminary and periodic medical examinations.

     Preliminary medical examinations are mandatory medical examinations that are carried out upon admission to work or study in order to determine suitability for fulfilling professional or academic duties, as well as to prevent general and occupational diseases.

     Periodic medical examinations are mandatory medical examinations that are conducted in order to ensure dynamic monitoring of the state of health, timely detection of initial signs of diseases, prevention and non–proliferation of common, occupational, infectious and parasitic diseases.

     Workers engaged in high-risk jobs involving machinery and mechanisms must undergo a pre-shift medical examination. The list of professions requiring a pre-shift medical examination is determined by the authorized body in the field of healthcare.

     The subjects of the offense are employers.

     The subjective side is characterized by both intentional and careless forms of guilt.

     Part 3 of the commented article provides for responsibility for the failure of employees to provide medical and preventive nutrition, personal and collective protective equipment in accordance with the requirements of the labor legislation of the Republic of Kazakhstan.

According to Article 182 of the Labor Code, the employer is obliged to create the necessary sanitary and hygienic conditions for employees, ensure the issuance and repair of special clothing and shoes for employees, supply them with preventive treatment products, detergents and disinfectants, a first-aid kit, milk or equivalent foodstuffs, and (or) specialized products for dietary (therapeutic and preventive) use. food, personal and collective protective equipment in accordance with the standards established by the authorized state body for labor.

     The objective side consists in inaction to fulfill the above-mentioned duty.  

     The procedure for providing employees with milk or equivalent foodstuffs, therapeutic and preventive nutrition, special clothing and other personal protective equipment, providing them with collective protection, sanitary facilities and devices at the expense of the employer is established by the Rules approved by the Order of the Minister of Health and Social Development of the Republic of Kazakhstan dated December 28, 2015 No. 1054.

     Therapeutic and preventive nutrition is food that is given to employees based on the results of certification of production facilities according to working conditions, in order to prevent occupational diseases and poisoning, and improve the health of employees.

     Personal protective equipment – means designed to protect an employee from the effects of harmful and (or) dangerous industrial factors, including special clothing.

     Collective protection means are technical means designed to simultaneously protect two or more employees from the effects of harmful and (or) dangerous industrial factors.

     The following example reflects the objective signs of this offense. The Kostanay Transport Prosecutor's Office conducted an analysis of compliance with the labor rights of transport workers at enterprises in the region, during which it revealed that Avia Zhainar ignored the requirements of legislation on providing workwear to its employees. As a result of the measures taken by the prosecutor's office, 61 employees were given winter and summer suits, boots, and mittens. For these violations, the employer was brought to administrative responsibility under art. 93 of the Administrative Code (failure to provide employees with personal protective equipment) and were fined.  

     The subject of the offense is the employer.

     The subjective side is characterized by both intentional and careless forms of guilt.

     Part 4. The objective side of the offense provided for in part four of the commented article is expressed in the form of inaction and consists in non-compliance with the requirements of the labor legislation of the Republic of Kazakhstan for the education and training of employees, testing the knowledge of managers and specialists in occupational safety and health.  

     According to art. 182 of the Labor Code, the employer is obliged to provide training and test the knowledge of employees on occupational safety and health issues.  

     The procedure and timing of training and knowledge testing of workers on occupational safety and health issues are determined by the Rules approved by the Order of the Minister of Health and Social Development of the Republic of Kazakhstan dated December 25, 2015 No. 1019.

     Training and testing of employees' knowledge on occupational safety and health issues are carried out by the employer at their own expense.

     Employees are required to undergo training organized by the employer, followed by mandatory knowledge testing on occupational safety and health issues. Employees who have not completed training, instruction, and knowledge testing on occupational safety and health issues are not allowed to work.

     Employees who are responsible for ensuring occupational safety and health are tested for their knowledge of occupational safety and health no later than one month from the date of conclusion of the employment contract.

     The employer is also obliged to organize training and knowledge testing on occupational safety and health issues for managers and persons responsible for ensuring occupational safety and health, periodically at least once every three years in organizations engaged in professional development, in accordance with the procedure established by the authorized labor authority, according to the list approved by the employer's act.

     The subject of the offense is the employer.

     The subjective side is characterized by both intentional and careless forms of guilt.

     Part 5 of the commented article defines as a qualifying feature the commission of an action provided for in parts one, two, three, and four of Article 93 of the Administrative Code, repeatedly within a year after the imposition of an administrative penalty.

     Part 6 of the commented article provides for liability for failure by the employer to comply with the requirements of the labor legislation of the Republic of Kazakhstan for conducting instruction (except for introductory instruction) and the absence of documents on occupational safety and health.

     Instructing employees on occupational safety and health issues, as well as providing documents on the safe conduct of the production process, are among the duties of the employer established by labor legislation.

     The objective side of the offense is the failure to fulfill this duty and is expressed in the form of inaction.

     The procedure and deadlines for instructing employees on occupational safety and health issues are determined by the Rules approved by the Order of the Minister of Health and Social Development of the Republic of Kazakhstan dated December 25, 2015 No. 1019.

     According to the nature and time of the briefing, it is divided into: introductory; primary in the workplace; repeated; unplanned; targeted.

     Introductory instruction on occupational safety and health is conducted with employees regardless of their education, work experience in this profession or position. In order to ensure occupational safety, introductory and initial safety and health briefings are conducted with temporary workers, business travelers, students and students who have arrived for industrial training or internship. An introductory briefing is also given to visitors when they visit production sites and employees of contractors working on the territory of a hazardous production facility of the organization.

     The primary instruction at the workplace before the start of the production activity of employees is carried out by responsible employees. The briefing is conducted individually with each employee with a practical demonstration of safe working methods.

     Employees are re-instructed at least once every six months, regardless of their qualifications, education, length of service, or the nature of their work.

     An unscheduled briefing is conducted:

     1) when new or revised safety standards, rules, and instructions on occupational safety and health are put into effect;

     2) when changing the technological process, replacing or upgrading equipment, fixtures and tools, raw materials, materials and other factors affecting occupational safety;

     3) if employees violate occupational safety requirements that may or have led to injury, accident, explosion or fire, poisoning;

     4) at the request of the supervisory authorities.

     Targeted instruction is carried out when performing one-time work that is not related to direct duties in the specialty (loading, unloading, cleaning of the territory, one-time work outside the organization, workshops and sites), in the aftermath of accidents, natural disasters and disasters.

     Responsibility under Part 6 of Article 93 of the Administrative Code comes for violating the requirements for conducting these types of instruction, with the exception of introductory instruction.

     The subject of the offense is the employer.

     The subjective side is characterized by both intentional and careless forms of guilt.

     Part 7 of the commented article qualifies the commission of a similar offense repeatedly within a year after the imposition of an administrative penalty under part six of Article 93 of the Administrative Code.  

     Cases of administrative offenses provided for in Article 93 of the Administrative Code are considered:

     - bodies of the State labor Inspectorate (art. 693 of the Administrative Code) - in parts one, three, four, five, six and seven;

     - authorized body in the field of industrial safety (Article 698 of the Administrative Code) – in all parts;

     - bodies exercising control and supervision in the field of sanitary and epidemiological welfare of the population (art. 701 of the Administrative Code) – according to parts two and five.

     The prosecutor issues a resolution on the initiation of cases of administrative offenses provided for in Article 93 of the Administrative Code (Article 805 of the Administrative Code).

Scientific and practical commentary to the Code of the Republic of Kazakhstan on Administrative Offences (article-by-article) from the Author's team:

     Bachurin Sergey Nikolaevich, Candidate of Law, Associate Professor – chapter 48 (co-authored with E.M. Khakimov);

     Gabdualiev Mereke Trekovich, Candidate of Law – Chapters 11, 21, 22, 23;

     Zhusipbekova Ainur Maratovna, M.yu.n. – chapter 13 (co-authored with Karpekin A.V.); chapters 33, 39 (co-authored with Seitzhanov O.T.);  

     Karpekin Alexander Vladimirovich, Candidate of Law, Associate Professor – chapter 13 (in collaboration with Zhusipbekova A.M.);

     Korneychuk Sergey Vasilyevich – chapters 2; chapter 6 (co-authored with O.T. Seitzhanov, E.M. Khakimov); chapter 8; chapter 25 (co-authored with E.M. Khakimov); articles 457-470, 488, 488-1, 491-506; chapters 28, 30, 52;

     Ilya Petrovich Koryakin, Doctor of Law, Professor – Chapter 49;

     Kisykova Gulnara Bauyrzhanovna, Candidate of Law – chapter 20;

     Omarova Botagoz Akimgereevna, Candidate of Law – chapters 17; chapter 18 (co-authored with B.A. Parmankulova); chapters 26, 31; chapter 32 (co-authored with B.A. Parmankulova);

     Parmankulova Bayan Askhanbaevna – chapter 18 (co-authored with Omarova B.A.); chapters 19, 32 (co-authored with Omarova B.A.); chapter 43 (co-authored with Tukiev A.S.);  

Podoprigora Roman Anatolyevich, Doctor of Law, Professor - Chapter 24, articles 489, 489-1, 490;

     Porokhov Evgeny Viktorovich, Doctor of Law – Chapters 14, 15, 16, 29, articles 471-475;

     Seitzhanov Olzhas Temirzhanovich, Candidate of Law, Associate Professor, – chapter 4; chapter 5 (co-authored with E. M. Khakimov); chapter 6 (co-authored with S.V. Korneychuk, E.M. Khakimov); chapter 9; chapter 10 (co-authored with B.E. Shaimerdenov, V.V. Filin); chapter 33 (co-authored with Zhusipbekova A.M.); chapter 36 (co-authored with Shaimerdenov B.E.); chapter 39 (co-authored with Zhusipbekova A.M.);

     Smyshlyaev Alexander Sergeevich, PhD. – chapters 38, 40, 42, 43-1 (co-authored with A.S. Tukiev); chapter 44;

     Aslan Sultanovich Tukiev - Candidate of Law, Associate Professor – chapters 1, 3, 35; chapters 38, 40, 42, (co-authored with A.S. Smyshlyaev); chapter 43 (co-authored with B.A. Parmankulova); chapter 43-1 (co-authored with A.S. Smyshlyaev); chapter 44-1 (co-authored with Shipp D.A.); chapter 45; 46 (co-authored with Shipp D.A.); chapter 47;  

     Filin Vladimir Vladimirovich, Candidate of Law, Associate Professor – Chapter 10 (in collaboration with O.T. Seitzhanov, B.E. Shaimerdenov);  

     Yerzhan Maratovich Khakimov, M.yu.n. – chapter 5 (co-authored with O.T. Seitzhanov); chapter 6 (co-authored with O.T. Seitzhanov, S.V. Korneychuk); chapter 7; chapter 25 (co-authored with S.V. Korneychuk); chapters 34, 41; chapter 48 (co-authored with S.N. Bachurin); chapter 53;

     Shaimerdenov Bolat Yerkenovich, M.yu.n., – chapter 10 (co-authored with O.T. Seitzhanov, V.V. Filin); chapter 12; articles 476-487, 507-509; chapter 36 (co-authored with O.T. Seitzhanov); chapters 37, 50, 51.  

     Shipp Denis Alekseevich – chapters 44-1, 46 (in collaboration with A.S. Tukiev).

Date of amendment of the act:  01.01.2020 Date of adoption of the act:  01.01.2020 Place of acceptance:  100050000000 Authority that adopted the act: 103001000000 Region of operation:  100000000000 NPA registration number assigned by the regulatory body:  5 Status of the act:  new Sphere of legal relations:  029000000000 / 028000000000 / 029002000000 / 028004000000 / 029001000000 / 026000000000 / 001000000000 / 001008000000 / 030000000000 The form of the act:  COMM / CODE Legal force:  1900 Language of the Act:  rus  

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