The President of the Republic of Kazakhstan signed Law No. 321-VI, On Amendments into Certain Labour-Related Legislative Acts of the Republic of Kazakhstan (Amendment Law) on 4 May. The law entered into force on 16 May and amended a number of legislative acts of the of the Republic of Kazakhstan, including Criminal Code, Criminal Procedure Code, Code on Administrative Offences, and Law of the Republic of Kazakhstan “On Trade Unions.” The key amendments were made into Kazakhstan Labour Code dated 23 November 2015, No. 414-V (Labour Code).
This law flash summarizes the most important novelties in the Labour Code.
One of the key changes is exclusion of Article 50.3 of the Labour Code, under which one could provide in the employment contract the employer’s right for early termination of the employment, without complying with the requirements of Article 50.2 of the Labour Code (i.e., serving a notice to, and agreeing termination conditions with the employee), but subject to payment to the employee of a compensation, amount of which was pre-agreed in the relevant employment contract.
Due to the exclusion of Article 50.3 of the Labour Code, with the enactment of amendments at issue (i.e., from 16 May 2020) employer and employee can no longer agree in advance in the employment contract the terms of employment early termination with payment of the pre-agreed compensation. Such terms may only be discussed and agreed pursuant to the procedure set forth in Article 50.2 of the Labour Code when either party intends to early terminate the employment.
The Amendment Law does not provide for retroactive effect of its provisions, therefore with respect to employment contracts that as of 16 May 2020 already contain provisions on early termination of the employment subject to payment of compensation, there is a ground to argue that such provisions would remain in effect and may be applied by the parties.
The unified system for employment contracts recording (USECR) was launched by the Ministry of Labour and Social Protection of the Republic of Kazakhstan as early as in 2018 as a pilot project and was used by employers optionally (i.e., was not compulsory)via the website of the electronic labour exchange (enbek.kz). According to the definition given in the Labour Code, the USECR is “…the information system designed to automatize the recording of employment contracts, labour activity and number of employees”.
The Amendment Law provides for the employer’s obligation to use USECR starting 16 May 2020. In particular, it requires that the employers enter into the USECR the information about execution and termination of employment contracts with employee, any changes and/or amendments thereto such as parties’ details, work to be performed and/or labour function, term of the contract, commencement date and workplace description, execution date and number assigned to relevant employment contract (Article 23.1(26) of the Labour Code). The Amendment Law also provides for the employee’s right to receive from USECR the information about his/her activity, as well as the employer’s right to receive from USECR the information about employment background of job seekers (subject to their prior consent) and employees.
As of the date of this lawflash, the website of electronic labour exchange (enbek.kz) enables its registered users - employers to register employment contracts in the USECR. However, the competent labour authority has not yet approved the rules for submission and retrieval of employment information from USECR. Pursuant to clarifications from officials of the Ministry of Labour and Social Protection of the Republic of Kazakhstan, USECR use by employer on a compulsory basis will be implemented step by step in accordance with the above mentioned rules for submission and retrieval of employment information from USECR.
The Amendment Law also addresses the imminent need to implement electronic recording. Thus, changes introduced to Article 11 and Article 33.1 of the Labour Code allow to execute employer’s acts, enter into employment contract, make changes and amendments thereto, in the form of an electronic document certified by electronic digital signature.
The special procedure for regulation of employment of a legal entity’s executive body (management board members) (i.e., execution and termination of employment contract, payment of remuneration, financial and disciplinary responsibility, dismissal, etc.) as per procedure and conditions set out in Article 52.1(23) and Article 140 of the Labour Code is now extended to employees of internal audit service and corporate secretary of joint stock companies. Further, to avoid disputes on interpretation of Articles 52.1(23) and 140 of the Labour Code, these articles are amended to confirm application thereof to each member of the management board.
The Amendment Law introduces express obligation of the employer to establish conciliation commissions and expands the list of disputes that may be considered by state court without recourse to conciliation commission (Articles 23.1(27) and 159 of the Labour Code). Such disputes include (in addition to those on failure to execute decisions of the conciliation commission or issues not resolved by the commission): disputes arising between employer and employee of micro businesses (formerly, small-scale businesses only), disputes between non-profit organization with less than 15 employees and its employees, labour disputes with a domestic worker, sole executive body of legal entity, chief of the executive body of legal entity, and other members of collegial executive body of legal entity (formerly, dispute with head of executive body only). Moreover, the requirement to establish a conciliation commission does not apply as far as certain special categories of employees are concerned, such as military men, employees and officers of special state and law-enforcement authorities, and public officials.
In view of the amendments at issue, the Labour Code also envisages the competence of the conciliation commission to independently resolve the issues regarding reinstatement of missed procedural deadlines, and establishes special procedural deadlines for the parties that may bring an action with the court without recourse to the conciliation commission (Article 160 of the Labour Code).
Other significant amendments to the Labour Code include the following:
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