On the recognition of illegal and cancellation of the regulation of the Office of Control and Quality of the Urban Environment on the elimination of violations
No. 6001-23-00-6ap/1387 dated 05.12.2023
Plaintiff: AK LLP (hereinafter referred to as the Partnership)
Defendants: State Institution "Department of Control and Quality of the Urban Environment" (hereinafter referred to as the Department), State labor inspector
Interested parties: NGO "Branch Professional Union of Machine Builders" (hereinafter referred to as the Union), RSU "Committee of Labor and Social Protection of the Ministry of Labor and Social Protection of the Population" (hereinafter referred to as the Committee)
The subject of the dispute: on the recognition of the illegal and cancellation of the regulation on the elimination of violations No. 312 dated July 29, 2022
Review of the plaintiff's cassation complaint PLOT:
The State Labor Inspector conducted an unscheduled inspection of the Partnership from July 22 to July 29, 2022.
The reason for the appointment of the inspection was the appeal of the Trade Union from
On June 24, 2022, upon the fact that the Partnership failed to comply with the terms of the Industry Agreement concluded between the authorized state body, representatives of employees and employers of the machine-building and defense industries 2020 - 2022 (hereinafter referred to as the Agreement).
According to the results of the audit, the facts of violation by the Partnership of the terms of the Agreement regarding the failure to make monthly payments in the period from March to June 24, 2022 were established.:
1) in the amount of 0.2 percent of the wage fund to the Trade Union account (clause 9 of section 12 of the Agreement);
2) in the amount of at least 1 percent of the wage fund to the account of the branch of the Trade Union established by the employees of the Partnership on March 24, 2022.
By Order No. 312 dated July 29, 2022, the Partnership was ordered to terminate:
1) violation of Article 154 of the Labor Code (hereinafter referred to as the Labor Code) and eliminate the violations and comply with the requirements of the Agreement for the period from March 2022 to the day of the issuance of the order;
2) continue to comply with the requirements of the Agreement on an ongoing basis.
The deadline for the execution of the order is set for August 22, 2022.
Having disagreed with the order, the plaintiff filed a lawsuit with the court, believing that his activities did not relate to the engineering industry, and as a result, it was unlawful to extend the provisions of the Agreement to him.
Judicial acts:
1st instance: the claim is satisfied. The contested order was declared illegal and cancelled.
Appeal: the decision of the court of first instance was overturned with the issuance of a new decision to dismiss the claim.
Cassation: the decision of the judicial board is upheld.
Conclusions: by resolving the dispute and satisfying the stated requirements, the court of first instance agreed with the above arguments of the plaintiff.
By overturning the decision of the court of first instance and rejecting the claim, the appellate instance, guided by subparagraph 10) of Article 1 of the Law
"On Trade Unions", paragraph 1 of Article 117, Article 154 of the Labor Code, based on the provisions of paragraph 3 of Section 1 of the Agreement, the constituent documents of the plaintiff and the Framework Agreement between the Government of the Republic of Kazakhstan and the company "S" on the basic principles for the implementation of projects for the production and maintenance of electric locomotives and equipment for rolling stock and infrastructure of railway transport in the Republic of Kazakhstan, I came to the correct conclusion that the activities of OKED Partnerships subclass
33.17.1 "Repair of railway rolling stock" refers to a related branch of engineering. The employees of the Partnership, having joined the branch of the Trade Union, chose an Agreement in the field of mechanical engineering, respectively, by virtue of paragraph 5 of Article 150 of the Labor Code, the provisions of this Agreement apply to the Partnership.
The indicated conclusions of the appellate instance correspond to the case file and the requirements of the legislation.
The arguments of the plaintiff's cassation complaint that the decision of the court of first instance was not appealed by the defendants themselves are not grounds for revoking the judicial act, since the Trade union, being an interested party in the case, has the right, on the basis of part two of Article 401 of the CPC, to appeal the judicial act affecting its legitimate interests.
The complaint author's reference to the absence in the order of the inspector's conclusions about the Partnership's affiliation to the machine-building or related industry does not affect the legality of the order. So, on the page
1 The provisions of subparagraph 10) of Articles 1 and 5 of the Law are given in the regulations.
"On Trade Unions", respectively, the formation of a branch of a Trade union by employees of a Partnership indicates that the Partnership's activities are related to a related industry and the provisions of the Agreement are extended to it.
The absence of a statement from the employees of the Partnership to the Labor Inspectorate about a violation of the terms of the Agreement has no legal significance for the case, since the Trade union, being an association of employees, is authorized to represent the interests of its employees in relations with government agencies.
members in order to protect their labor rights and legitimate interests on the basis of subparagraph 1 of Article 16 of the Law "On Trade Unions" and subparagraphs 2.1 and 2.22 of the Charter, approved by the VIII Congress of the Trade Union of Machine-building Workers of the Republic of Kazakhstan dated January 22, 2015.
The plaintiff's arguments that company "S" is not the founder of the Partnership and the Framework Agreement between the Government of the Republic of Kazakhstan and the said company cannot be applied to the disputed legal relationship are untenable. It follows from paragraph 1 of the Framework Agreement that the Partnership belongs to the A-L group of companies. According to subparagraph 3) of paragraph 5 of the Framework Agreement, its provisions apply, among other things, to the long-term service purchase agreement between AK LLP and KTZ - Passenger Locomotives JSC.
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