On recognition as illegal and cancellation of the order on elimination of violations Control Department
No. 6001-24-00-6ap/2464 dated June 5, 2025
Plaintiff: JSC "T" (hereinafter – the Company).
Respondent: KSU "Control Department" (hereinafter referred to as the Department).
The subject of the dispute: the recognition of the illegal and cancellation of the instruction on the elimination of violations.
Review of the defendant's cassation complaint PLOT:
It follows from the case file that the Department, based on appeals from S.T., M.A. E.Z., Zh. and other employees, ordered an inspection of the Company for compliance with the requirements of labor legislation, which resulted in an order to eliminate violations.
No. 338 dated January 8, 2024 (hereinafter referred to as the contested order), according to which the Company violated the requirements of paragraph 1 of Article 77, paragraph 1 of Article 78, paragraph 2 of Article 79, Article 110 of the Labor Code.
Judicial acts:
1st instance: the claim is satisfied.
The order to eliminate violations has been declared illegal and must be revoked.
By a private definition dated April 5, 2024, the akim of the region was informed of the established facts of violations by the Administration.
Appeal: the decision and ruling of the court of first instance are left unchanged.
Cassation: judicial acts in this case have been annulled. A new decision has been made in the case.:
to refuse to satisfy the Company's claim to the Management for recognition as illegal and cancellation of the order to eliminate violations;
the private ruling of the court of first instance, the ruling of the appeal in this case, to cancel.
Conclusions: satisfying the claim and recognizing the injunction as illegal, the courts indicated that the defendant's verification was not carried out fully, without examining the collective agreement concluded between The Company and the NGO "P" (hereinafter referred to as the NGO) dated January 30, 2023, which specified a summary accounting of working hours for shift workers. The defendant used only employment contracts, payslips and time sheets as the basis.
However, this conclusion of the local courts cannot be considered justified, since the plaintiff's employees, according to the terms of their employment contracts, work in shifts during the day shift.
This is evidenced by clause 6.1 of the employment contracts, which explicitly state that daily working hours are from 7.00 a.m. to 7.00 p.m., that is, night work is not provided.
The case materials established, and the plaintiff's side did not refute, that the workers who filed the complaint were employed at night without adequate pay for overtime and night work.
However, according to paragraph 5 of Article 71 of the Labor Code, the duration of daily work (work shift), the start and end times of daily work (work shift), and the time of work breaks are determined in compliance with the conditions established by the labor regulations, labor and collective agreements.
As indicated above, clauses 6.1 of the employment contracts set the time for the start of the work shift of the plaintiff's employees, S.T., M.A., J.K., E.Z. – from 9:00 a.m., the time for the end of the work shift – 19:00 p.m.
By virtue of subparagraph 48) of paragraph 1 of Article 1 of the Labor Code, cumulative accounting of working hours is accounting of working hours by summing them up for the accounting period established by the employer, that is, cumulative accounting of working hours must be carried out for work performed during the working hours specified in the employment contract.
In this regard, the judicial board agrees with the defendant's position on the illegality of the courts' conclusion that the cumulative accounting of working hours allows employees to be employed at a time other than night, as in this case, than the time of the work shift, which is established by the employment contract.
It should be noted that in accordance with Article 108 of the Labor Code, every hour of work at night is paid in an increased amount according to the terms of labor or collective agreements and (or) an act of the employer, but not less than one and a half times based on the daily (hourly) the employee's rates.
Clause 2.5.1.2 of the Regulations on Remuneration of Employees of the Company, which is an annex to the collective agreement, establishes that night hours are set upon the fact that employees leave for the night shift. Night hours are recorded in the report card on a daily basis. Each hour of work at night is paid in one and a half times the established tariff rate (official salary) of the employee.
The above provisions of the Labor Code and the collective agreement indicate that, in violation of the requirements of Article 110 of the Labor Code, employees of the plaintiff S.T., M.A., Zh.K., E.Z. were paid only half the amount of the hourly rate (0.5 hourly rate or 50%) for night work in excess of the work performed during the day, whereas they should have an amount equal to one and a half times (1.5 hour rate) of the established tariff rate (official salary) of each of the above-mentioned plaintiff's employees must be paid.
The conclusion of the courts that the inspection was carried out superficially is also not justified due to the fact that the defendant did not study the collective agreement, since the reason for the inspection was the appeal of a representative of the aforementioned employees regarding unpaid amounts for night work and overtime.
In this regard, the defendant requested from the plaintiff those documents and materials that were directly related to the subject and the basis of the audit, which is consistent with the norms of Article 144 of the Criminal Code.
Taken together, the judicial board concludes that the contested order is lawful and justified, issued within its competence and without exceeding the limits of administrative discretion established by law.
In these circumstances, the judicial board concludes that the claim should have been dismissed.
The inconsistency of the conclusions of the local courts with the circumstances of the dispute, the erroneous interpretation of the law by virtue of subparagraphs 3), 4) of the first part of Article 427 of the CPC is the basis for the cancellation of the contested judicial acts.
Considering that the case does not require the collection and additional verification of evidence, the judicial board considered it necessary to cancel the decision of the court of first instance and the decision of the court of appeal and make a new decision to dismiss the claim.
Since judicial acts of local courts are subject to cancellation, the judicial board canceled the private ruling issued to the akim of the region.
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