New Labour Law
Abylkhair Nakipov and Akhmetzhan Abdullayev, Law firm «GRATA»
We are bringing to your attention the fact that on December 10, 1999, the Labour Law of the Republic of Kazakhstan (hereinafter the Law), which annulled the Code of Laws on Labour dated July 21, 1972 (hereinafter the CLOL), was adopted.
The new Law fully meets conditions of the transitional period that the country is currently undergoing. The parties involved in labour relations enjoy more freedom when determining the conditions of hiring and the labour regime. The contractual relations of an employee and an employer have priority force. Many procedural issues, previously stipulated, have been simplified. Any investor, as an employer, shall be obliged to follow new requirements of the Law, and this is why we would like to examine briefly the key changes.
Normative-legal acts, collective agreements and individual labour contracts, concluded in accordance with laws on labour, regulate labour relations between an employer and an employee. One needs to pay particular attention to the fact that the individual labour contract shall be concluded in writing, made at least in duplicate and signed by both parties. The Law provides only minimal terms and conditions, regulating labour relations, which may be changed to the best.
Conditions which an individual labour contract shall include:
An individual labour contract shall include, but shall not be limited to, the following conditions:
• requisites of the parties;
• labour functions;
• the term of the individual labour contract;
• the date of commencement of the labour obligations;
• the features of the working conditions, guarantees and compensation for the employees;
• working hours and time for rest;
• conditions of labour payment and labour protection;
• rights and obligations of the employer;
• rights and obligations of the employee;
• procedures for alteration, termination and prolongation of the individual labour contract;
• procedures for compensation payments and provision of guarantees.
The Law annuls the provision on a labour record book, as of the major document on labour activity. The documents, certifying the employee’s labour activity, are the labour record book (if any) or an individual labour contract, or excerpts from orders on admission and dismissal.
In order to regulate labour relations with a certain category of employees, the Law firstly introduces the definitions and the conditions of the conclusion of labour contracts with the following categories of employees: seasonal employees, domestic servants, and house-workers, as well as individuals working in shifts.
Grounds on which the individual labour contract may be terminated:
• the expiry of the validity term of the contract.
• circumstances beyond the parties’ control.
Such circumstances include:
• the call-up of an employee for military service, upon submission of the document within a period of three days;
• entrance into legal force of a court judgement on the employee’s conviction;
• the employee’s death, or a court declaration of the employee being deceased or obscurely absent;
• a court declaration of the employee invalid or bounded-valid;
• the agreement of the parties;
• the employer’s initiative.
The list of grounds for termination of the individual labour contract on the employer’s initiative is determined by art. 26 of the Law, and is exhaustive. The Law annuls making severance pay, but provides for making compensation payments in exclusive cases. The term and the procedures for the employee’s notification on forthcoming dismissal have been changed, the former being reduced to a month.
The Employee’s initiative:
The employee is entitled to terminate the individual labour contract by notifying the employer hereof in writing now not two months, but only one month prior. The circumstances excluding or considerably hindering the continuation of work may serve as the grounds for termination of the contract.
• Other grounds provided by the legislative acts.
For the purpose of creating economic and other necessary labour conditions, a shorter working week with a normal duration of no more than 40 hours is established. Individual labour contracts may provide for a shorter duration of working time on the agreement of both parties.
By now, legislation freely allows overtime work for all categories of employees, except for exclusive cases, as well as for employees younger than eighteen. One of the Law’s peculiarities is the change in the conditions of labour payment, namely payment for overtime work. As is well known, in accordance with CLOL, overtime labour was paid for the first two hours at a time-and-a-half, and for the following hours at a double rate. Payment on holidays was paid at a double rate only for certain professions. At present, payment for overtime work shall be made at a time-and-a-half rate, regardless of the working time. Payment for work during holidays and over week-ends is to be made at least at a time-and-a-half rate, regardless of the employees’ profession. Another major change is the condition that compensation for work on holidays and at week-ends at the employee’s request may be replaced by an additional vacation day, which used to be an inadmissible condition under previous legislation.
Rest time shall be regulated as follows. The duration of an employee’s daily rest between the end of work and its beginning on the next day (shift) shall be 12 hours at least. Prohibition on attracting an employee to work at week-ends was annulled, such work is now permitted upon the employee’s consent, with the exception of exclusive cases. Annually paid labour vacation is given to employees for at least 18 calendar days, if such is not provided by other normative legal acts for certain categories of employees, by individual or collective agreements and acts of the employer. Labour vacation for the first year of work is given not upon the expiry of 11 months, but from the first year of work under an individual labour contract.
Guarantees and compensations
The Law does not include direct provisions prohibiting the dismissal of pregnant women. Termination of an individual labour contract with a pregnant woman is made on common grounds. However, attention should be paid to the fact that pregnant women keep their working places during:
• pregnancy and child-birth leave;
• additional leave for child-care.
The Law annuls the provision on a break for baby-feeding, granting permits to health-recovery centres and rest homes to pregnant women and the rendition of financial aid, as well as mother- and baby service in enterprises and organisations featuring a wide application of female labour.
We are bringing to your attention a table of cases in which the need for the employer to make social payments to employees (at the employer’s expense) emerges:
• Unnatural pregnancy termination
• Temporary transfer to another job
• Tuberculosis or professional illness
• Labour mutilation
• Pregnancy, child birth
• Adoption of a child (children)
For the non-performance or improper performance of social payment obligations, the employer bears liability established by the legislation of the Republic of Kazakhstan.
Measures of administrative punishment and procedures for the settlement of labour disputes.
The Law introduces simplified procedures for incentives and punishment of employees. For violation of labour discipline, instead of applying four stages of punishment to an employee (reproof, reprimand, severe reprimand, transference to a lower-paid work), two stages are applied (reproof, reprimand), upon which termination of the individual labour contract takes place. The term of validity of disciplinary punishment has changed from one year to six months from the date of imposition. This means that if within six months an employee is not subject to any further disciplinary punishment, he will not be considered as having received disciplinary reprimand.
Types and procedures for incentives under new legislation are determined by the individual, labour, collective agreements and the employer’s acts.
One should note new procedures for the settlement of labour disputes. Labour disputes are settled upon the agreement of the parties or by court. Labour disputes upon agreement of the parties are settled by the conciliatory commission, which is formed on a parity basis from an equal number of representatives of both the employer and the employee on the joint decision of the parties. The employer makes the organisational and technical provision of the conciliatory commission.
Control over the observance of labour legislation is to be carried out by state labour inspectors, authorised by state labour bodies in accordance with a resolution approved by the Government of the Republic of Kazakhstan. The state inspectors have the right to visit and examine organisations upon presenting an official resolution, and to obtain any necessary documents and information. In the event of violating labour laws, state labour inspectors give instructions on elimination of revealed violation, which are binding upon an organisation of any property form.
For the purpose of preventing labour law violation, which may entail administrative responsibility, we recommend carrying out an expert examination of labour contracts in terms of their compliance with the labour laws in force.
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