Employment & Labour Law 2016

1 Terms and Conditions of Employment

1.1 What are the main sources of employment law?

In Kazakhstan, the legislation regulating employment law issues is composed of the following normative acts:

Constitution of the Republic of Kazakhstan dated 30 August 1995; Labour Code of the Republic of Kazakhstan No. 414-V dated 23 November 2015; Code of the Republic of Kazakhstan On Administrative Offences No. 235-V dated 5 July 2014; Civil Code of the Republic of Kazakhstan (the General Part) No. 269-XII dated 27 December 1994; Civil Code of the Republic of Kazakhstan (the Special Part) No. 409-I dated 1 July 1999; Law of the Republic of Kazakhstan No. 211-V On Trade Unions dated 27 June 2014; Law of the Republic of Kazakhstan No. 105-V On Retirement Insurance dated 21 June 2013; Law of the Republic of Kazakhstan No. 149-II On Public Occupation dated 23 January 2001; and Law of the Republic of Kazakhstan No. 94-V On Personal Data and its Protection dated 21 May 2013. 1.2 What types of worker are protected by employment law? How are different types of worker distinguished?

The legislation of the Republic of Kazakhstan provides for a definition of the term "employee" as an individual employed by the employer and directly performing work under the employment agreement. Although the law provides for general provisions for all types of employees, it also distinguishes the following categories of the employees:

employees employed for seasonal works; employees working on shifts (rotational works); household employees; homeworkers; employees performing remote work; civil servants; heads of the executive bodies of a legal entity and other members of collegial executive bodies of a legal entity; employees belonging to the aviation personnel of civil aviation; employees belonging to the crew members of vessels (part of swimming); state servants, members of the Parliament and Maslikhats, judges of the Republic of Kazakhstan; persons working in the military service, special government employees, law enforcement agencies and the state dispatch service; employees working at the National Bank of the Republic of Kazakhstan and its divisions; and employees belonging to the trade union bodies of a trade union. 1.3 Do contracts of employment have to be in writing? If not, do employees have to be provided with specific information in writing?

Employment agreements must be concluded in writing in Kazakhstan.

1.4 Are any terms implied into contracts of employment?

All terms of employment shall be prescribed in the employment contract. Employment relations and other relations directly related to the employment shall be regulated with the employment agreement, act of employer, agreement and collective agreement. Provisions of the agreements between the parties of the social partnership, collective and employment agreements, and acts of the employer that worsen the conditions of employees in comparison with the labour legislation of the Republic of Kazakhstan shall be recognised as invalid and shall not be exercised. Provisions of agreements, collective and employment agreements may not be changed unilaterally.

1.5 Are any minimum employment terms and conditions set down by law that employers have to observe?

The legislation establishes mandatory terms and conditions for the employment agreement, such as parties' particular details, definition of the work under a particular specialisation, professions, qualification or position, place of work, term of the agreement, date of commencement of work, working and rest hours, size and other conditions of remuneration, characteristic labour conditions, guarantees and privileges, if the work is referred to hard and/or is performed in harmful or dangerous conditions, rights and obligations of the employer and employee respectively, order of amendment and termination of the employment agreement, parties' responsibility, date of conclusions and number of the employment agreement. Agreements concluded with disabled or other special categories of employees must include other special conditions.

The legislation further regulates the term requirements for the employment agreements. Thus agreements may be concluded: (1) for an indefinite period; (2) for a fixed period of no less than one year, except for items listed in (3) to (6); (3) for the duration of the specific work; (4) for the period of replacement of a temporarily absent employee; (5) for the duration of the seasonal work; and (6) for the term of the work permit or permit for migrant workers.

The limitation provided in item (2) does not refer to small businesses, which may enter into employment agreements for a fixed term of less than one year.

1.6 To what extent are terms and conditions of employment agreed through collective bargaining? Does bargaining usually take place at company or industry level?

The Labour Code establishes mandatory conditions for collective employment agreements. Additional (optional) better conditions can be agreed and prescribed in the collective agreement.

Bargaining usually takes place at company level. There is also a social partnership agreement that can be concluded at industry level. Social partnership is a system of relationships between the employees, employers and state authorities, directed to ensure the alignment of their interests in issues of regulation of labour relations and other relations directly connected with labour relations.

2 Employee Representation and Industrial Relations

2.1 What are the rules relating to trade union recognition?

The main normative acts regulating trade union recognition issues are: the Constitution of the Republic of Kazakhstan, Labour Code and the Law of the Republic of Kazakhstan On Trade Unions, as well as other normative acts.

2.2 What rights do trade unions have?

Trade unions in Kazakhstan have the following rights:

1) to represent and protect the rights and interests of its members, as well as to act as representatives of employees in relationships with state authorities, employers, associations of private businesses (associations, unions) and other civil society organisations;

2) to bring an action in court to protect the rights and interests of its members, to act in their best interests during mediation, in court, labour arbitration or court of arbitration, in state authorities, as well as to provide its members with other legal aid;

3) to apply to the state authorities on the abolition in full or in part or on change of normative legal acts adopted by them that infringe the rights and interests of trade union members;

4) to appeal in court against the acts of state authorities that infringe the rights and interests of trade union members;

5) to participate in pre-trial settlement of labour disputes;

6) to participate in resolution of individual and collective labour disputes;

7) to carry out public control over the observance of the rights and interests of its members;

8) to negotiate and conclude collective agreements;

9) to form the monetary funds;

10) as part of the works council for occupational safety and health, to organise joint activities with the employer directed on ensuring performance of the requirements of occupational safety, prevention of occupational injuries and diseases, as well as to conduct inspections of safety and working conditions at the workplace;

11) to participate in the elaboration of legal acts affecting labour and social rights and interests of citizens;

12) in accordance with the agreements and collective agreements in compliance with the rules on health and safety, to visit through its representatives the workplaces of union members to study and adopt measures to ensure normal working conditions;

13) to organise and carry out strikes, peaceful meetings, marches, pickets and demonstrations in accordance with the legislation provisions;

14) to make proposals for the state authorities to bring to justice persons violating the legislation on trade unions, failing to fulfil obligations provided in agreements and collective agreements;

15) to engage in publishing activity, cover its work in the press and other media, including in organisations;

16) to possess, use and dispose of the property belonging to the trade union; and

17) to carry out production and business activities in the interests of its members in accordance with the statutory goals.

The legislation and collective agreements may establish other trade union rights.

2.3 Are there any rules governing a trade union's right to take industrial action?

Yes, the Labour Code and the Law on Trade Unions stipulate the rules governing trade unions' right to take industrial action. Thus, trade unions have the right to make demands in compliance with the order and on terms determined by the legislation. Trade unions may adopt a decision on holding a strike if by means of conciliation procedures they did not achieve resolution of collective labour dispute, as well as in cases when the employer deviates from conciliation procedures or fails to...

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