Art. 217 of the Labor Code contains several requirements for ensuring labor protection at enterprises and private entrepreneurs. And they are only a small part of the regulatory material that addresses labor protection issues.
Legislative regulation
Art. 217 TC serves as the basis for legislative regulation of labor protection. The main act is a specialized law on labor protection.
The organization of labor protection services is described in a special recommendation of the Ministry of Labor. It applies to all sectors of the economy.
The status of the recommendation means that the head of the enterprise or individual entrepreneur has the right to adhere to its provisions to the extent that they consider it necessary. However, in practice, their accurate application will serve as protection against claims of state supervisory authorities.
Also published a lot of GOSTs, other recommendations, rules that one way or another relate to safety rules at the enterprise.
Thus, legislative regulation is provided for the most part not by the norms of the law, but by a whole range of by-laws, some of which are formally recommendations, and not a set of binding rules.
This situation complicates the application of Art. 217 of the Labor Code of the Russian Federation.
Responsible person
Who is responsible for the safety of the company? Legislation places it on the head of the enterprise, who heads the labor protection service. In practice, either the owner, acting as a manager, or a person hired by the owner to manage. In a large organization, the service is led by a chief labor protection engineer. He is directly subordinate to the director or his deputy.
Service Organization Form
Part 1, Art. 217 of the Labor Code of the Russian Federation offers two options:
- the service is created at the enterprise, where the number of employees is at least 50 people;
- if the number of organizations is less than 50 people, either the head or the person hired by him is responsible for labor protection.
It’s not necessary to hire someone as an employee. The law allows you to invite an entrepreneur who provides related services.
The recommendations suggest creating a service as a special unit in a large enterprise.
The head issues an order in which he appoints an employee to the position or delegates to him the corresponding powers.
Art. 217 TC does not say anything about the device service. Regardless of the number of employees, their activities are regulated by job descriptions.
At a large enterprise, the division of directions between individual employees is accepted.
Strength of service
Occupational safety measures in a small enterprise are minimal and often formal. In the case of large companies, especially when it comes to construction or manufacturing enterprises, labor protection is organized differently.
Three main criteria are taken into account:
- number of employees;
- the specifics of the organization;
- degree of production hazard, other factors.
P. 3 Art. 217 of the Labor Code of the Russian Federation makes serious demands on those who are responsible for labor protection. Here, reference is made indirectly to departmental regulations.
If a person has received higher education, he has the right to occupy the position of labor protection engineer without any work experience.
If an employee has undergone additional training, is qualified and admitted, he is allowed to hold a position with at least 1 year experience as a service technician.
Occupational Safety Committee
The committee includes representatives of the trade union and the employer on an equal footing.The employer usually includes occupational safety officers. The tasks of the committee include:
- ensuring the implementation of labor protection measures;
- verification of working conditions;
- communication of the results of inspections to employees.
The creation of a committee is a voluntary measure. It can be formed at the suggestion of the union, individual workers or the employer. Does his activity have practical significance? This is determined by the atmosphere in the enterprise, the attitude, first of all, of the employer to employees.
The Committee does not replace specialists or a labor protection service, its task is different - to facilitate their successful work.
Strength of service
At the moment, intersectoral requirements for the number of employees should be taken into account. Art. 217 of the Labor Code of the Russian Federation indirectly refers to them.
The technique contains a formula for calculating the size of the service. The number of employees is multiplied by a factor. If the number of employees is up to 700 people, it is allowed to entrust the performance of labor protection functions to individual specialists without forming a bureau or department from them.
If the number of employees exceeds this number, it is advisable to create a bureau or service headed by a boss. His responsibilities include:
- distribution of duties between employees, coordination of their actions;
- development of necessary documentation;
- performance of other duties.
He is primarily responsible for solving labor protection problems.
The number of service specialists can be 3-6 people. This is quite enough for it to function normally.
Service Tasks
The tasks of labor protection specialists include the following provisions:
- ensure compliance by employees of the enterprise with labor protection rules;
- monitoring compliance by employees with labor protection legislation;
- take measures aimed at reducing the risk of injuries, the risk of occupational diseases;
- informing the management of the enterprise, its employees about new methods of labor protection.
The legislation obliges the employer to provide advanced training for labor protection specialists. Training allows you to update the knowledge of employees and confirm the level of their training.
Rights and obligations of service employees
The full list of their rights is quite long, so here are some of the main ones:
- statistics on injuries, the study of its conditions at the enterprise;
- conducting inspections of the condition of buildings, equipment;
- participation in the coordination of design, construction and other documentation, a collective agreement;
- participation in the commission for the acceptance of buildings into operation;
- participation in the investigation of accidents, making decisions on the payment of compensation to employees;
- organization of briefing, conducting training for employees;
- control over the passage of mandatory medical examination by employees, when required by law;
- publication of requirements binding on all employees of the enterprise and its management.
In the comments to Art. 217 of the Labor Code of the Russian Federation, it is noted that, despite the importance of the service, part of its work is carried out formally. The reason for this is either the attitude of the employees or the position of the employer.
The latter is important, because these tasks require significant cash. Unfortunately, not everyone understands that a high level of labor organization will save people from injuries and, as a result, the obligation to pay huge sums to injured workers or their relatives.
Who provides control
In large organizations, control is provided in two ways:
- by conducting inspections by the state labor inspectorate;
- by conducting inspections by a superior organization.
The first option concerns organizations of all forms of ownership. Inspections in private organizations are carried out according to the schedule. As a rule, the basis is a plan, if some positions require an assessment of working conditions (certification).
Enterprises and organizations of state ownership are always checked without exception.
The second reason is complaints of employees of the enterprise on violation of working conditions. Check on the complaint is carried out of schedule.
If there is an incident and there is the possibility of initiating a criminal case, the check is carried out to give an opinion.
State inspectors accredit organizations providing labor protection services and specialists - workers.
Corporate control is provided in large organizations consisting of several enterprises.
In the holding, for example, at each enterprise there is one or several specialists. Their work is controlled by an employee from the main office or management company. The system of a holding or corporation has its own labor protection service, which is not only formally integrated into one unit.
Disputes with supervisors
Judicial practice under Art. 217 of the Labor Code of the Russian Federation is represented by various cases, in particular:
- challenging decisions of labor inspection;
- bringing enterprises and officials to administrative responsibility;
- recovery of material and moral damage in connection with causing harm to the life and health of the employee.
What form of legal proceedings provides for the consideration of cases?
When it comes to appealing decisions for violation of Art. 217 TC, it is necessary to separate the application of CAS and CAO.
Claims according to CAS are filed against supervisory authorities that have made a statement about the violation.
One caveat: the final act is appealed - the order. If there are comments on the verification act and violations of the verification procedure, comments on them are set forth in the lawsuit filed in connection with the order. Intermediate documents and decisions are not subject to appeal.
Challenging the Fine
If the case has already been submitted to court and according to the Code of Administrative Offenses, the company was fined for violating labor protection rules, an appeal is made in the manner prescribed by the Code of Administrative Offenses.
For example, a violation of the order of instruction and its frequency has been issued an order. It is appealed in CAS by filing a lawsuit.
If the labor inspectorate considered that the order was not executed, and sent the materials to the court with an additional act, the proceedings are conducted within the framework of the Code of Administrative Offenses.
It should be noted that a fine or other administrative penalty is imposed only by the court.
Subject of administrative disputes
What violations are the subject of administrative proceedings?
- The order and terms of procedures and measures for labor protection.
- Lack of proper labor protection services.
Enterprises often do not receive proper briefings, working conditions do not meet the requirements of the law, employers make other omissions. For example, the working hours are violated and illegal processing is allowed.
The second category of cases is related to ignorance of the legislation by the leaders. For example, directors of small municipal or state organizations where there are no difficult working conditions, in particular schools, are held accountable because they do not hire a labor protection specialist.
The number of employees has already reached 50 people, and the head as a responsible person is insufficient, and the absence of a specialist is already considered a violation.
Civil litigation
Civil case of violations of Art. 217 of the Labor Code is submitted to court only because of harm to human life and health. A lawsuit is being filed. The main evidence is:
- decisions of supervisors;
- court ruling on bringing to administrative responsibility;
- sentence in a criminal case.
If a final decision has not been made in the last two categories of cases, either the court terminated the proceedings due to the expiration of the statute of limitations, or the criminal case was also terminated and the verdict was not passed, a civil lawsuit is filed. However, in such a situation, winning a case is more difficult.
The judge will evaluate the materials provided, the guilt of the enterprise and the plaintiff, if indicated in an objection to the claim.
If a verdict of innocence is passed, or the investigator dismisses the case due to the lack of fault of the owner of the enterprise and its officials, or the court refused to bring them to administrative responsibility by virtue of innocence, the civil lawsuit will be considered unfounded.