Mynbayeva Nurgul Baltayevna, Associate Professor, Candidate of Sciences(Jurisprudence) Law School, Department of «Law» Almaty Management University, Kazakhstan, Almaty
The article is devoted to the latest Labour Code in the Republic of Kazakhstan that has been adopted under the conditions of anti-recessionary measures . The innovations of the latest Labour Codehas been considered and the following institutional sectionsof labour legislation has been revised namely recruitment, relocation of employee, dissolution of labour contract, duty hours, guarantee and compensation of employees, remuneration of standard labour andqualification system, compliance control of labour legislation.
Key words: Labour Code, labour contract, probationary period, employer, employee, vacation, disabled persons of group I and II, overtime, dismissal of employee on the initiatives of the employer, worsening of economic conditions, public control.
The development of economy during downturn requires anti-recessionary laws. The main objective,which the President of the Republic of Kazakhstan states, is to facilitate the existence of entrepreneurs without prejudice to employees’ rights. In this respect, the renewed Labour Code №414-VЗ was introduced on November 23, 2015 in Kazakhstan and enacted from January 1, 2016. Considering the innovations of the latest Labour Code, the following institutional sectionsof labour legislation has been revised namely recruitment, relocation of employee, dissolution of labour contract, duty hours, guarantee and compensation of employees, remuneration of standard labour and qualification system, compliance control of labour legislation. The first amendments deal with recruitment. The employer is entitled toconclude labour contract for an indefinite period and definite period; however, providing prolongation of terminal labour contract, it is considered to be set up for an indefinite period. with due regard for tight constraints, three types of contracts are prescribed at present. The first is termless contract, the second is terminal contract, i.e. employer is eligible to make contract no less than 1 year, herewith, when concluding terminal contracts employer is entitled to prolong it for an indefinite period, but no less than 12 months, however, such right is granted no more than 2 times that acts as a new establishment. The third is provisional contract – seasonal work or volume of work that can be completed up to 1 year. Furthermore, there are amendments concerning probationary period, thus the following employer’s rights are provided. Firstly, employer is able not to designate probationary period, at once hire a worker, whois assignedfor the first time, or determine him/her to any category of employees. During the probationary period the employer is eligible to dissolve the labour contract at any time. Under these conditions a new employee, who does not have probationary period or whose trial has beencompleted less than 3 months, has right to receive extra payments, bonuses for own skilled labour on equal terms with functioning employees. Secondly, there is no suspended state within 3 month until the completion of the period. These establishments are intended toreinforcethe flexibility while concluding labour contracts.
The amendments also concerns pensioners.According to the former applicable law they could not be withdrawn upon the attainment of the age of 55 and until retirement without specific consent of special committee, whereas new Labour Code enables to dismiss pensioner a month after attainment of retirement age. The employer is eligible to conclude the contract with aged employee for the term of one year and prolong the contract annually. Reduced workweek per 36 hours has been established for handicapped people i.e. disabled persons of group I and II, providing that working day per seven hours for these people cannot be exceeded. Additionally for their vacations they had fifteen days off for the recovery,though the former prescribedarticle is missing in the latest Labour Code; instead of it there is another article on reducing the excess leave from 15 up to 6 days. Overtime and compensations for dismissal also have got laid off.
Earlier overtime labour was remunerated not less thanat the rate of 1.5. Holidays and weekends were not less double rate and for each working hour at night not less than 1.5. The new Labour Code in such cases specifies the remuneration not less than at the rate of 1.25 on the basis of tariff rates with right to its increase by labour collective contract. Meanwhile, under the latest Labour Code employer is able to involve in the performance of work for overtime and weekends only with the written consent of employees. Should the employee rejects such conditions, then employer will be motivated in increasing the charge rate and enhancing the employees’ working conditions.Before the Code set limitations on marginal number of hours per year which the employer was entitled to divest workers of leisure. On the other hand, marginally admissible number of hours above the norm the new Labour Code has raised almost to hundred percent: since nowadays 120 hours per year up to 200. That is to say, nobody can impose ban on the employer to deprive its personnel weekends approximately every one and half month.
In the former Labour Code 19 reasons were indicated under which theemployer was eligible to dismiss an employee. There were such definitions as inconsistent with job, the effects of drugs and alcohol in the workplace, pilferage, violation of labour protection rules and so forth. Before there was “commitment of guilty activities or inactivity of employee serving monetary and other valuables when activity or inactivity afforded ground for the loss of trust in employee on the part of employer”. According to Art. 52 of the latest Labour Code, there are 25 reasons for employee’s dismissal on the initiative of the employer such as “dismissal for the employee’s commitment of guilty activity or inactivity in case these activities or inactivities afford ground for the loss of trust on the part of employer”. That is to say, aforetime it dealt with officers working with money, now it is applicable for all employees. Also by the virtue of “worsening of economic conditions of organization that involves decline of production, work performance and rendering services”. In the former operating legislation annual contract was concluded merely upon entry into employment. Any prolonged contract was considered as termless. In 2015 alterations and additions, which obliged the employer to hire graduate not less than for two years, were introduced for youth. In the latest Labour Code the following articles are missing.
Earlier there was a provision in the Labour Code according to which employee had the right to resign and receive compensation for three months providing that the employer during employment misguided the working conditions. Also should the employee was dismissed on the grounds of redundancy or liquidation of enterprise, he/she could get quarterly disbursements. Regarding the compensation of deceived resigning employee with a view to better conditions is not written in the new Labour Code. Other compensations in case of staff reduction, liquidation or “worsening of economic conditions” of enterprise are downsized up to 2 average monthly earnest.
The whole chapter disappeared in the new Labour Code that was devoted to the collection, processing and protection of employee’s personal data. Perhaps, regarding the given issue legislators rely on Law “On personal data and its privacy”. Yet simultaneously there is no paragraph in the new Code regarding that employer has no rights to demand information from employee about his/her private life, political, religious and other beliefs.
It should be pointed out that simplification of procedures on modification of labour contract terms related with downturn of economics. The novel prescribes creating such conditions when employer instead of rundown introduce regime of half-time and temporary relocation of employees to another job. For instance, for the purpose of retaining the positions it is offered to impose a deadline on temporary relocation of employees for the whole downtime period (instead of one month). Moreover, the employer’s right is granted to relocate employee without his/her consent (in case of enterprise downtime) to any available vacancies that are not contradictive for medical reasons. The public control strengthening is offered by implementing the institute of technical inspectors from employees proposed by trade union and specify their authorities within the framework of industrial council on safety and labour protection that is created on principles of parity. The abovementioned councils are planned to entrust the following functions: organizing cooperation of employer and employees on provision of labour protection requirements, inspections of conditions and labour protection in the workplace, announcement of their results. Industrial councils on the principles of parity will be headed by the representatives of employees and employers on a rotating basis with two-year intervals. The decision of industrial council will be mandatory for the employer.
It is worth mentioning the Labour Code has joined into force since January 1 of current year. And enforcement process of the legislative act has begun operating.
- Strategy- «Kazakhstan– 2050»
- Labour code of the Republic of Kazakhstan 2016 from November 23,2015 № 414-V