State labor inspectors, when exercising federal state supervision over compliance with labor legislation and other regulatory legal acts containing labor law norms, are obliged to comply with the legislation of the Russian Federation, the rights and legitimate interests of employers - individuals and employers - legal entities (organizations).
State labor inspectors are obliged to keep secrets protected by law (state, official, commercial and other) that become known to them during the exercise of their powers, as well as after leaving their position, to consider absolutely confidential the source of any complaint about shortcomings or violations of labor legislation and other regulatory provisions. legal acts containing labor law norms, refrain from informing the employer of information about the applicant if the inspection is carried out in connection with his appeal, and the applicant objects to informing the employer of information about the source of the complaint.
Article 358 of the Labor Code of the Russian Federation. Responsibilities of state labor inspectors (current version)
1. When exercising supervisory and control powers of the federal labor inspection, state inspectors act in accordance with the Constitution of the Russian Federation, the requirements of federal laws and other regulatory legal acts containing labor law standards. The list of such acts is given in Art. 5 TK.
First of all, state labor inspectors are guided by Art. 18 of the Law on the protection of the rights of legal entities and entrepreneurs. This norm obliges them:
— timely and fully fulfill the powers granted in accordance with the legislation of the Russian Federation to prevent, identify and suppress violations of mandatory requirements and requirements established by municipal legal acts;
— comply with the legislation of the Russian Federation, the rights and legitimate interests of the employer being inspected;
— carry out an inspection on the basis of an order or order from the head, deputy head of the relevant federal labor inspection body;
- carry out an inspection only during the performance of official duties, an on-site inspection only upon presentation of official identification, a copy of the order or order of the head, deputy head, the relevant body of the federal labor inspectorate and in the case provided for in Part 5 of Art. 10 of the Law, copies of the document agreeing to carry out the inspection with the prosecutor’s office;
- do not prevent the head (his deputy) of the inspected organization from being present during the inspection and giving explanations on issues related to its subject;
— provide the present manager (his deputy) of the organization being inspected with information and documents related to the subject of the audit;
— acquaint the head (his deputy) of the audited organization with the results of the audit;
— when determining the measures taken in response to detected violations, take into account the compliance of such measures with the severity of the violations, their potential danger to the life and health of workers, and also not allow unreasonable restrictions on the rights and legitimate interests of the employer;
— prove the validity of their actions when appealing them in the manner established by the legislation of the Russian Federation;
— comply with the inspection deadlines established by the Law;
— do not demand from the employer documents and other information, the presentation of which is not provided for by the legislation of the Russian Federation;
— before starting an on-site inspection, at the request of the manager (his deputy), familiarize him with the provisions of the administrative regulations (if any) in accordance with which the inspection is carried out;
— record the inspection performed in the inspection log.
In addition, state labor inspectors must take into account the provisions of departmental regulations adopted by the federal labor inspectorate.
2. Employment contracts concluded by the heads of the relevant state labor inspectorate with a person hired for the position of state labor inspector must include the established part 2 of Art. 358 of the Labor Code is the obligation to preserve state, official, commercial and other secrets protected by law received by a state labor inspector in the exercise of supervisory and control powers, as well as after leaving his position (see Article 57 of the Labor Code).
3. Part 2 of the commented article imposes on state labor inspectors the obligation to refrain from reporting to the employer information about an employee who has applied to the state labor inspectorate for the protection of his labor rights. This is necessary in order to prevent concealment of offenses, because workers often refuse to inform the federal labor inspectorate about violations of their labor rights, fearing a negative reaction from the employer.
Comment source:
Rep. ed. Yu.P. Orlovsky “COMMENTARY ON THE LABOR CODE OF THE RUSSIAN FEDERATION”, 6th edition ACTUALIZATION
ORLOVSKY Y.P., CHIKANOVA L.A., NURTDINOVA A.F., KORSHUNOVA T.YU., SEREGINA L.V., GAVRILINA A.K., BOCHARNIKOVA M.A., VINOGRADOVA Z.D., 2014
Commentary on Article 358 of the Labor Code of the Russian Federation
State labor inspectors, carrying out the functions of supervision and control over compliance with labor legislation entrusted to them, must first of all take care of compliance with the rights and legitimate interests of employers.
In the course of their activities, inspectors may become aware of information that constitutes a secret protected by law. This may be a state, official or commercial secret. Therefore, the Code obliges them to maintain legally protected secrets even after they have left their position.
Inspections based on employee complaints are becoming more popular every year. Both employed and fired workers, and even those who were refused employment, complain about their employers. Those who file complaints should not fear negative consequences from their employer. Since the inspector does not have the right to disclose this information if complainants request it.
Organizations are inspected for compliance with labor legislation by the federal labor inspectorate. Inspections are carried out both based on complaints and appeals from citizens, and on a scheduled basis. The commented article gives the employee who filed a complaint the right to demand that the inspectorate maintain the confidentiality of his appeal.
What are the rights and responsibilities of a state labor inspector?
The basic rights of state labor inspectors (both legal and labor protection) are listed in Art. 357 TK. They can be divided into two groups.
First of all, these are rights that make it possible to identify violations of labor legislation and other regulatory legal acts containing labor law norms by employers and their representatives. These include the rights:
Freely visit inspected organizations and employers - individuals at any time of the day (for a state inspector to enter the territory of the inspected organization, he only needs to present an official identification document of the established form). The visiting procedure must be established by federal laws and other regulatory legal acts that have not yet been adopted;
Request from employers and their representatives, executive authorities and local governments and receive from them free of charge documents, explanations, information necessary to perform supervisory and control functions (at the same time, it is unacceptable for employers and their representatives to refuse to provide documents under any pretext, including on the grounds of containing commercial or state secrets);
To take samples of used or processed materials and substances for analysis, notifying the employer or his representative about this and drawing up a corresponding report.
The second group of rights is associated with the implementation of government powers aimed at suppressing violations and restoring violated rights. These include rights:
Provide employers and their representatives with binding orders to eliminate violations of labor legislation and other regulatory legal acts containing labor law norms, to restore the violated rights of employees, to bring those responsible for these violations to disciplinary liability or to remove them from office in the prescribed manner;
Submit to the courts, in the presence of conclusions of the state examination of working conditions, demands for the liquidation of organizations or termination of the activities of their structural divisions due to violation of labor protection requirements;
Issue orders to remove from work persons who have not undergone training in safe methods and techniques for performing work, instructions on labor protection, on-the-job training and testing of knowledge of labor protection requirements;
Prohibit the use of personal and collective protective equipment for workers that does not have certificates of conformity or does not meet labor protection requirements;
Draw up protocols and consider cases of administrative offenses within the limits of authority, prepare and send to law enforcement agencies and the court other materials (documents) on bringing the perpetrators to justice in accordance with federal laws and other regulatory legal acts of the Russian Federation.
In addition, government inspectors participate in the investigation of industrial accidents when required by law. For example, in the investigation of a group accident, a serious accident, or a fatal accident (Article 229 of the Labor Code).
The Labor Code also grants state inspectors the right to act as experts in court on claims for violation of laws and other regulatory legal acts containing labor law standards for compensation for harm caused to the health of workers at work.
It must be borne in mind that the Regulations on the Federal Labor Inspectorate, approved by the Decree of the Government of the Russian Federation, separates the powers of legal inspectors and labor safety inspectors.
The responsibilities of the state labor inspector are listed in Art. 358 TK.
Carrying out supervisory and control functions, state labor inspectors must comply with the Constitution, labor legislation and other regulatory legal acts containing labor law norms, as well as the rights and legitimate interests of employers - both legal entities and individuals.
State labor inspectors are obliged to keep secrets protected by law (state, official, commercial and other) that become known to them during the exercise of their powers, as well as after leaving their position, to consider absolutely confidential the source of any complaint about shortcomings or violations of the provisions of laws and other regulatory legal acts containing labor law norms, refrain from informing the employer of information about the applicant if the inspection is carried out in connection with his appeal, and the applicant objects to informing the employer of information about the source of the complaint.
Yu. P. Orlovsky, A. F. Nurtdinova, L. A. Chikanova
From the book: 500 topical questions on the labor code
Source: SPS Consultant
Commentary on Article 359 of the Labor Code of the Russian Federation
In accordance with Art. 6 of ILO Convention No. 81 “On Labor Inspection”, inspection personnel should consist of civil servants precisely because the status and working conditions of civil servants make them independent from any undue external influence. The independence of state labor inspectors lies in the fact that, when exercising their control and supervisory powers, they are guided only by the Constitution of the Russian Federation, labor legislation and other federal laws, acting exclusively within the framework of the rights and obligations established by the legislation of the Russian Federation, based on the materials of inspections carried out by them with compliance with the requirements of completeness, comprehensiveness and objectivity regulated by law.
The principle of independence of state labor inspectors is enshrined in the commented article, according to which officials exercising state supervision and control over compliance with labor and labor protection legislation, when exercising their powers, are independent of state bodies and are guided only by the Constitution of the Russian Federation and federal laws. This means that when carrying out their activities, these state officials must correctly apply various regulations, observing the rules of their vertical and horizontal hierarchy (see Articles 5 - 13, 423, 424 of the Labor Code and commentary thereto).
One of the means of protection of state labor inspectors is provided for in Art. 363 of the Labor Code liability for obstructing their activities. In accordance with this norm, persons who interfere with the implementation of state supervision and control over compliance with labor legislation and other regulatory legal acts containing labor law norms, do not comply with the instructions presented to them, use the threat of violence or violent actions towards state inspectors, members of their families and property, bear liability established by federal laws.
Commentary to Art. 358 Labor Code of the Russian Federation
1. This article specifies the responsibilities of state labor inspectors, enshrined in ILO Convention No. 81 “On Labor Inspection in Industry and Commerce” (1947), which indicates the possibility of national legislation to provide for some exceptions for labor inspectors in order to effectively carry out the functions of the inspection service.
2. See Order of Rostrud dated April 10, 2006 N 60 “On approval of the List of officials of the Federal Service for Labor and Employment and its territorial bodies for state supervision and control over compliance with labor legislation and other regulatory legal acts containing labor law norms ( state labor inspectorates in the constituent entities of the Russian Federation) authorized to draw up protocols on administrative offenses" (BNA RF. 2006. N 21).
