The hidden pitfalls of state oversight reform

DEAR READERS!

On 28 October, the newly created Platform for Public Dialogue and Reforms in Occupational Safety, established by civil society organisations, announced its launch and held a round table discussion on draft law No. 14030 ‘On the Basic Principles of State Supervision (Control)’. The document, adopted by the Verkhovna Rada in the first reading, is presented as a step towards modernising the control system, transitioning from a punitive model to a partnership, and concerns not only the field of occupational safety.

The idea is noble. But the discussion showed that the path to this ‘partnership’ is fraught with risks. We also saw that a professional environment has matured in society that is capable of expert analysis and seeks to effectively influence state policy. I would like to take this opportunity to note that the declared Platform aims precisely at cooperation with interested central executive bodies and practical assistance in social dialogue in order to create laws and regulations that will be perceived by employers and employees as reasonable rules that benefit everyone. Where control instruments are not interpreted from a position of power and are fair to all participants in labour relations.

The most worrying aspect of the aforementioned draft law is the combination of the concepts of ‘state supervision’ and ‘voluntary audit’. It is this combination, in the opinion of the round table participants, that creates the ground for a conflict of interest and a new form of administrative dependence. ‘Consultations’ from a body that has the right to punish are contrary to international standards of audit independence. A civil servant cannot be an independent auditor. Therefore, the audit risks becoming a paid service of the same supervisory body — attractively, without sanctions, but... with controlled cash flows. Are there any innovations and changes here? This has already happened, as a well-known figure said.

Representatives of the State Labour Service and the State Regulatory Service assured us that the law is a framework law and the audit is voluntary. But it is precisely this ‘voluntariness’ that often becomes a ‘mandatory recommendation’ in our reality. Until an independent audit system based on the European model is created, there is no hope for trust. We aspire to join Europe, but for some reason we continue to ‘reinvent the wheel,’ alarming our partners and deceiving ourselves.

The situation where qualification commissions of auditors and supervisory boards are created within the supervisory (control) body itself has been called absurd. In other words, the one who checks determines who to authorise to check and considers complaints about their own actions.

This is how a monopoly is born, undermining trust in any idea of prevention.

Businesses emphasize the danger of vague wording: ‘reasonable request’ or ‘may cause harm’ is an invitation to arbitrariness. The list of grounds for unscheduled inspections must be exhaustive, and activities may only be suspended if there is a direct threat to life.

Trade unions, on the other hand, fear excessive delays in response. Waiting for a court decision to shut down dangerous equipment means waiting for a tragedy. This shows once again how difficult it is to find a balance between business freedom and the right of workers to safe working conditions.

The round table resulted in a summary of proposals, including:

• transferring the function of auditor certification to independent professional organizations;
• harmonising the draft law with ILO Conventions No. 81 and No. 129;
• introducing personal liability for officials for illegal actions that cause damage to business;
• limiting the publicity of inspection plans during wartime.

Based on the results of the round table, recommendations were prepared and sent to lawmakers for consideration and inclusion in the second reading of the bill in the Verkhovna Rada.

Without a doubt, Ukraine needs reform of state supervision. But real reform is not just a new name for old practices. It is a change in philosophy. Control must be reasonable and inspire public confidence, and thus support and willingness to comply.

As long as the authorities with the power to punish claim to be ‘auditors’ and ‘advisers,’ we risk ending up with a new form of manipulation rather than partnership, i.e., a veiled version of the same repressive format that we claim to reject. Fight on, and you will prevail!

Editor-in-chief Dmytro Matviychuk