On the recognition of the illegal and cancellation of the labor inspection order
No.6001-22-00-6ap/1346 dated 02.02.2023
Plaintiff: U LLP
Respondent: State Institution "Department of the State Labor Inspectorate of the East Kazakhstan region"
The subject of the dispute: on the recognition as illegal and the cancellation of Regulation No. 549 of November 11, 2021
Review of the defendant's cassation complaint PLOT:
On October 27, 2021, the Labor Inspectorate issued an act on the appointment of an inspection of the Partnership for compliance with the labor legislation of the Republic of Kazakhstan.
The period under review was from January 01, 2014 to October 22, 2021.
On November 11, 2021, the Labor Inspectorate drew up an act on the results of the inspection No. 549, which stated that the Partnership had violated subparagraph
1) paragraph 2 of Article 23 of the Labor Code, paragraph 12.5 of Section 12 of the Sectoral Agreement on
2014-2016 and paragraph 12.5 of Section 12 of the Industry Agreement for 2017-2019, and issued Order No. 549 on the elimination of violations of the requirements of the labor legislation of the Republic of Kazakhstan (hereinafter referred to as the order).
Judicial acts:
1st instance: the claim is satisfied.
Appeal: the decision remains unchanged.
Cassation: judicial acts are cancelled, the claim is denied.
Conclusions:
The Judicial Board considered that there was no reason to assert the termination of Industry Agreements in the presence of violations established by the regulation. The industry agreement in the field of mechanical engineering for 2014-2016, according to paragraph 15.7, applies to relations that have arisen since January 1, 2014, and is valid until December 31, 2016. The industry agreement in the field of mechanical engineering for 2017-2019, in accordance with paragraph 16.1, applies to relations that have arisen since January 1, 2017, and is valid until December 31, 2019.
In these paragraphs, the terms of the duration of legal relations between the parties to Industry Agreements are established.
And in paragraphs 14.7 and 14.8 of the Industry Agreements, it is noted that in the event of a violation by one of the parties of the terms of the Agreement, the relevant authority of the opposing party sends her a submission on the elimination of these violations, which is reviewed within a week. In case of refusal to eliminate these violations within a week, the disagreements are considered in accordance with the legislation.
Regarding the subject of the appeal: The main subject of the Trade Union's activities according to subparagraph 2.1 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, is the protection of labor, professional, as well as other socio-economic rights and interests of its members.
In accordance with subparagraph 2.22 of the Charter, the Trade Union, in order to achieve its statutory goals, represents and protects the rights and interests of its members and affiliated organizations in public authorities and before the employer, in the pre-trial settlement of disputes, during consideration in courts, petitions the prosecutor's office to challenge regulatory legal acts that are in the field of prosecutorial supervision.
The Board concluded that the Trade Union's Charter explicitly stipulates its right to apply to the control and supervisory authorities for an audit, provided for in subparagraph 3) paragraph 5 of Article 144 of the PC.
Government agencies are involved in social partnership. The Labor Inspectorate is a government agency. Accordingly, by carrying out control measures, she represents the side of the Sectoral Agreement on the part of the state.
The board's conclusions are that the order regarding the non-transfer of 0.2% of the salary fund to the account of the Central Council of the Trade Union is legitimate, and judicial acts should be canceled with a new decision to dismiss the claim.
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