Labour protection: New rule for assessing individual workplaces and increase of liability

Pepeliaev Group advises that a number of laws and regulations have been adopted that amend labour protection rules. In particular, a new procedure for assessing individual workplaces for compliance with labour safety rules has been adopted and a draft law on increasing the criminal and administrative liability for violating the labour protection requirements has been introduced.

The most significant innovations and potential legislative amendments are described below.

1. Order No. 342n of the Ministry of Public Health and Social Development dated 26 April 2011 approved the new procedure for assessing individual workplaces for compliance with labour safety rules, which will enter into force on 1 September 2011 (the “Procedure”).

Deadline for performing assessments

The frequency of assessment remains the same: each individual workplace should be assessed for compliance with labour safety rules at least once in every five years.

The new Procedure stipulates the deadline for assessing new workplaces: the assessment should start within 60 business days after the workplace’s commissioning (the date when the assessment starts shall be the date of the employer’s order approving the composition of the assessment committee and the assessment schedule). The procedure that is currently in effect did not set such a deadline; therefore, there arose a risk of being held administratively liable for the failure to perform assessment within a short period of time after creation of a workplace.

Requirements to the assessment organisation

The procedure stipulates the requirements to the assessment organisation in more detail. The employee, in contrast to the procedure effective at the present moment, will not be allowed to perform the assessment by itself.

According to the new requirements, the assessment organisation should be an entity independent from the employer whose workplaces are assessed. Such organisation should be accredited according to the procedure stipulated in the

Rules for accrediting organisations that provide labour protection services (approved by order No. 205n of the Ministry of Public Health and Social Development dated 1 April 2010). The employer may engage several assessment organisations based on a civil law contract.

According to the new Procedure, the assessment committee must include, among other individuals, a representative of the elected body of the primary trade union organisation or another representative body of employees (if any).

Procedure for documenting assessment results

The Procedure stipulates the following obligation of the employer: at the end of the assessment the employer should, within ten calendar days from the date of the order on completion as assessment and approval of the assessment report in the paper and electronic formats, forward the summary report on the results of workplace assessment, as well as information on the assessment organisation to the state labour inspectorate in the relevant constituent entity of the Russian Federation. The assessment organisation in its turn should send the summary report and information about itself in the electronic format to the federal system collecting, processing and storing data.

Please be informed that if, based on results of assessment, any harmful factors and/or safety hazards are identified, the employees should be granted guarantees and receive compensation in the amount not less than the amount stipulated by resolution No. 870 of the Russian Government dated 20 November 2008 (reduced work day – not more than 36 hours a week; additional annual paid leave – at least 7 calendar days, and increase of the salary by at least 4% of the salary set for work in normal labour conditions).

The employer is responsible for performing the assessment, as well as for the reliability and completeness of information provided to the state labour inspectorate in the relevant constituent entity of the Russian Federation.

Moreover, both the employer and the assessment organisation are responsible for ensuring the reliability of measurements and evaluations.

2. According to federal law No. 238-FZ dated 18 June 2011 that entered into effect on 2 August 2011, the Ministry of Public Health and Social Development is competent to adopt the standard list of arrangements for improving labour conditions and labour protection and mitigating professional risks.

Pursuant to article 226 of the Labor Code, employers will have to perform the above arrangements on an annual basis and they will have to allocate for this purposes at least 0.2 percent of expenses incurred to produce the goods (work, services).

Until the present date the Ministry of Public Health and Social Development has not approved the standard list of arrangements.

3. The draft federal law On Amending the Code of Administrative Offences of the Russian Federation and article 143 of the Russian Criminal Code (draft law No. 557872-5) submitted to the State Duma increases the liability for violating the labour protection requirements.

In the draft law the following violations are classified as separate offences: the failure to comply with the procedure for assessing the workplaces for compliance with labour safety rules, the failure to perform assessment, the failure to perform mandatory medical examinations, violation of the procedure for conducting job safety trainings, the failure to ensure the safety of employees and other labour protection violations.

Increased fines are imposed for the above violations (up to RUB 600,000), including – with regard to certain offences – administrative suspension of operations for up to 90 days. For example, a fine of up to RUB 300,000 or administrative suspension of operations for up to 90 days is established for the failure to assess workplaces for compliance with labour safety rules.

The draft law proposes to increase the maximum term of imprisonment for violating the labour protection requirements for up to five years.

The date for the State Duma to consider the draft law in the first reading has not been scheduled yet.

Conclusions and recommendations

Due to the above changes, new local regulations for assessing workplaces for compliance with labour safety rules will need to be adopted.

Bearing in mind that the liability may be increased, we recommend performing the assessment of your workplaces for compliance with labour safety rules as soon as possible, if you have not done it yet, as well as ensuring that your company complies with other labour protection requirements.

Pepeliaev Group lawyers have an extensive experience of advising on compliance with labour and employment legislation and preparation of local regulation, and are ready to provide any assistant you may need to prepare your workplaces for assessment for compliance with labour safety rules, to document the results of assessment and to help you with any other labour protection issues.

For further details, please contact:

in Moscow – Julia Borozdna, Head of Employment and Migration Practice, at (495) 967-00-07 or by e-mail;  Andrey Slepov, Senior Associate, at (495) 967-00-07 or by a.slepov@pgplaw.ru

in St Petersburg - Sergey Spasennov, Partner, Head of St. Petersburg office, at (812) 640-60-10 or by e-mail; Alexander Korkin, Associate, at (812) 640-60-10 or by e-mail