On recognition as illegal and cancellation of the order on elimination of violations of the requirements of labor legislation
No.6001-22-00-6ap/1257 dated 12.01.2023
Plaintiff: RSU "Institution of the EC" Committee of the Penal Enforcement System of the Ministry of Internal Affairs of the Republic of Kazakhstan"
Respondent: State Institution "Labor Inspection Department of Akmola region"
The subject of the dispute: on the recognition as illegal and cancellation of the regulation No. 394 on the elimination of violations of the requirements of the labor legislation of the Republic of Kazakhstan
Review of the cassation appeal of the person concerned PLOT:
T.A., according to the order dated June 5, 2018, was appointed to the post of controller of the supervisory service in the institution of the EC of the city of Kokshetau, and by order No. 115 l/s dated April 30, 2021, he was transferred to the institution of the EC of the city of Kokshetau, and subsequently dismissed.
On October 21, 2021, T.A. submitted a written appeal to the Inspectorate regarding violations of labor legislation by the Institution.
According to the results of the Inspection, on November 12, 2021, an order No. 394 was submitted to the Institution to eliminate violations of the requirements of the labor legislation of the Republic of Kazakhstan, with instructions to the employer to align the timesheets of T.A. according to the order of the Minister.
the Ministry of Internal Affairs of the Republic of Kazakhstan for No. 36 dated February 20, 2017 and Article 79 of the Labor Code (TC), as well as to calculate and pay T.A.'s wages for night work in accordance with Article 110 of the TC not less than one and a half times based on the days (hourly) bids.
Having disagreed with the said act, the Institution appealed to the court with the present claim.
Judicial acts:
1st instance: the claim was denied.
Appeal: the decision is overturned, the claim is satisfied. Cassation: judicial acts are cancelled, the claim is returned. Conclusions:
The Court of first instance concluded that the plaintiff's claim to declare the injunction illegal and to cancel it could not be satisfied, since no illegality had been established in the contested act.
The Court of appeal overturned the decision of the court of first instance, stating that special working conditions and remuneration were provided for employees of the internal affairs bodies.
In accordance with paragraph 15 of Chapter 3 of the "Rules for the Organization of activities for monitoring and Supervising the behavior of persons held in institutions of the penal correction system and conducting inspections and searches", approved by Order of the Minister of Internal Affairs of the Republic of Kazakhstan No. 36 dated February 20, 2017 (hereinafter referred to as the Rules), the duty shift consists of officers of the institution in the VNK (outfit of supervisors), assigned to perform tasks of monitoring and supervising the behavior of convicts, are assigned to duty for 12 hours with 2 hours, or 24 hours with a 4-hour break for meals and rest.
By virtue of Article 8 of the Labor Code, the laws of the Republic of Kazakhstan should not reduce the level of rights, freedoms and guarantees established by the Labor Code.
According to paragraph 2 of Article 73 of the Labor Code, during shift work, the duration of a work shift and the transition from one work shift to another are set by shift schedules.
By virtue of Article 79 of the Labor Code, the employer is obliged to keep records of the working time actually worked by the employee, the time worked and unworked by the employee is subject to accounting. At the same time, overtime, night work, weekends, holidays, and business trips are taken into account separately.
In accordance with Article 144 of the Labor Code, the work of employees of special state and law enforcement agencies is regulated by the Labor Code with the specifics provided for by special laws of the Republic of Kazakhstan and other regulatory legal acts of the Republic of Kazakhstan, which establish special conditions and procedures for admission to service, its passage and termination, special conditions
labor conditions, conditions of remuneration, as well as additional benefits, advantages and restrictions.
The Court of first instance came to a reasonable conclusion to dismiss the claim, since there was no evidence of illegality in the contested act. He also correctly pointed out that the regulation of the work of certain categories of workers may have special features, but this does not mean that the rights of these workers may be infringed.
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