On the cancellation of the instruction on the elimination of violations on the appointment of an inspection

No. 6001-24-00-6ap/2000 dated April 15, 2025

Plaintiff: JSC "I"

Respondent: State Institution "Labor Inspection Department" (hereinafter referred to as the Department)

The subject of the dispute: the repeal of paragraph 1 of the regulation on the elimination of violations dated September 6, 2023

Review of the plaintiff's cassation complaint PLOT:

On August 23, 2023, the Department issued an act on the appointment of an audit. On the basis of this act, preventive control and supervision were carried out with a visit to the branch of the Department of Main Gas Pipelines of JSC "I" on the issue of compliance with the labor legislation of the Republic of Kazakhstan.

During the audit, the Department adopted the following documents: an opinion on the results of preventive control and supervision with a visit to the subject (object) of control and supervision (hereinafter referred to as the opinion), an order to eliminate violations dated September 6, 2023 (hereinafter referred to as the order).

The audit established that in order to calculate vacation pay and compensation for unused work leave, the employer, acting through a branch of the Company, determines the balance of hours falling on the vacation period, taking into account the Production calendar. In other words, the average monthly number of hours per year is divided by the average monthly number of calendar days, and then the result is multiplied by the number of calendar vacation days.

Judicial acts:

1st instance: the claim was denied.

Appeal: the decision of the court of first instance remains unchanged.

Cassation: judicial acts in this case have been annulled.

In the case, a new decision was made to satisfy the claim regarding the recognition of paragraph 1 of the regulation on the elimination of violations dated September 6, 2023 as illegal.

Paragraph 1 of the regulation on the elimination of violations dated September 6, 2023 was declared illegal.

To force the defendant to re-conduct the administrative procedure, taking into account the legal position of the court.

Conclusions: paragraph 1 of Article 195 of the Labor Code provides that, based on the results of the inspection, the state labor inspector, in accordance with the Labor Code, draws up an act on the results of the inspection.

Depending on the identified violations of the labor legislation of the Republic of Kazakhstan, the State labor inspector issues (draws up) an order to eliminate violations of the requirements of the labor legislation of the Republic of Kazakhstan.

Paragraph 3 of this article states that the acts of the State labor inspector are mandatory for officials, individuals and legal entities.

In accordance with Article 152 of the Criminal Code, based on the results of the audit, an official of the control and supervision body draws up an act on the results of the audit and an order to eliminate the violations identified, in cases of their detection.

Subitems 6) and 7) of paragraph 6 of Article 152 of the PC define that the instruction on the elimination of identified violations states:

a list of identified violations in accordance with the paragraphs of the requirements of the checklist with mandatory indication of the severity of the violation in accordance with the subjective criteria for assessing the degree of risk.;

instructions for the elimination of identified violations, indicating the time frame for their elimination.

These points, in the context of the requirements imposed by the APPC to the administrative act, determine and prescribe what specific actions need to be taken to eliminate violations, as well as set a time frame for the implementation of these measures.

In other words, the order must be clear, enforceable, and contain a specific procedure for its execution.

Paragraphs 2 and 3 of Article 143 of the PC establish that the checklist contains mandatory requirements for the activities of subjects (objects) of control and supervision, the violation of which threatens the life, health, environment and legitimate interests of citizens and the state. During the inspection and preventive control, only the requirements specified in the checklists are taken into account.

However, paragraph 1 of the regulation on the elimination of violations dated September 6, 2023 and paragraph 3 of the conclusion indicate that the requirements are not sufficiently specific and do not cover the full scope of violations to be eliminated. In addition, examples of measures to eliminate violations are provided without a detailed study of all identified violations, whereas the checklist (in this case, the conclusion) should fully reflect the main violation.

This approach excludes the possibility of a clear analysis of specific violations, since the full scope of the detected deficiencies and the picture of their coverage by the inspection body are not presented. The lack of a detailed breakdown complicates monitoring the execution (elimination), as there is no clear indication of which violations are to be eliminated and in what order.

As a result, the effectiveness of the supervisory impact is reduced, since more specific requirements would facilitate the rapid and targeted elimination of identified violations, providing clear instructions to the employer and improving the control system. In general, the checklist should not only record examples of remedial measures, but also reflect in detail the main violations, which is a key condition for an effective response to violations.

This means that the initial administrative procedure was carried out with violations, which negatively affects the protection of employees' rights, since the checklist does not cover violations for all employees.

From this point of view, the further implementation of measures to eliminate violations requires a new administrative procedure, during which all identified violations must be documented and specified.

At the same time, the contested administrative act is illegal due to its enforceability with respect to individual employees, while violating the rights and legitimate interests of other employees, as well as the lack of enforceability with respect to all employees whose rights, in the opinion of the inspection body, were violated. Such uneven adoption and application of the act of supervision leads to infringement of the rights and legitimate interests of some employees, which is a significant violation of the established norms of legislation.

Taking into account the identified omissions during the verification of compliance with labor legislation in the activities of the Partnership, as well as the violation of the rights and legitimate interests of all its employees protected by the Labor Code, the criteria of reasonableness and fairness, the claim was subject to satisfaction by forcing the defendant to re-conduct the administrative procedure.

At the same time, the judicial board believes that the new procedure must take into account:

a complete and detailed reflection of all identified violations in the verification report (or conclusion);

a clear and detailed statement of measures to eliminate violations, indicating specific deadlines for their implementation;

compliance with all the requirements of the APPC and the PC, ensuring that the instruction to eliminate violations will be clear, enforceable and ensure effective control over the adoption of corrective measures.

The fourth part of Article 6 of the CPC regulates that violation of the principles of administrative procedures and administrative proceedings, depending on its nature and materiality, entails the recognition of administrative acts, administrative actions (inaction) as illegal, as well as the cancellation of judicial acts.

Thus, the conclusions of the local courts on the dismissal of the claim are incorrect and not based on the circumstances of the case.

Consequently, the judicial acts of the local courts were annulled with the adoption of a new decision on the satisfaction of the claim, since the local courts misinterpreted the norms of substantive law.

This led to an incorrect definition of the range of circumstances relevant to the case, which, in turn, led to an incorrect resolution of the dispute and the issuance of judicial acts that did not correspond to the circumstances of the case.  

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