Practice Area Articles
By Dana Ibrayeva and Victoria Simonova
Back to International Employment Law
KEY DEVELOPMENTS FOR 2021
Unified system of labour agreements recording
The Ministry of Labour launched the Unified System of Labour Agreements Recording (the "USLAR") to computerise the recording of the labour agreements, the labour activity and the number of employees. All employers will be required to enter information on the conclusion and termination of employment agreements with the employees, as well as amendments thereto.
Information on newly executed employment agreements must be entered into the USLAR within five business days from the date of signing of the agreements by both parties.
Information on any amendments to the executed employment agreement, in turn, must be entered into the USLAR within 15 calendar days from the date when such amendments are signed.
Information on termination of an employment agreement must be added to the USLAR within three business days from the date of termination.
Information on existing employment agreements must be entered into the USLAR:
- Until September 17, 2021 by organisations with up to 2,000 employees;
- Until September 17, 2022 by organisations with more than 2,000 employees.
There is currently no administrative liability for the employer's failure to add the information into the USLAR. However, after 31 December 2020, upon expiration of the established terms for entering the information into the USLAR, the entry can be done only upon specific approval of the Ministry Labour.
Labour Code amendments regarding remote work
In September 2020, draft amendments to the Labour Code were developed on remote work (the "Draft Law"). In addition to the existing conditions of remote work ("RW"), the Draft Law contains the following new provisions:
- When hiring an employee on the basis of a RW regime, the employer must establish a procedure of employer-employee interaction that allocates a specific time for performance of work duties and a separate time during which the employee can respond to telephone calls, emails, and address the employer's inquiries.
- The above interaction procedure must be acknowledged by and agreed with the employee. Otherwise, the employer would not be able to hold the employee liable for a delayed response to the employer's inquiries.
- In order to protect the employer's confidential information in the RW format, an agreement for protection of the confidential information would be signed with the employee.
Temporary remote work
The Draft Law proposes to permanently establish the employer's right to transfer employees to RW by a unilateral decision for the duration of emergencies (temporary RW). At the same time, salaries would be paid in full in exchange for maintenance of a full workload, as agreed in the employment agreement.
Combined remote work
It is also proposed to introduce a concept of "combined remote work." According to the Draft Law, this will require an additional agreement to the employment agreement.
Adoption of the above listed amendments will allow employers for the period of RW to control performance of work and protect confidential information, as well as transfer employees to RW unilaterally based on the internal order for the duration of emergencies.
The above information is subject to change as the Draft Law progresses.
Provision of personnel services
In December 2020, a draft amendment law to the Labour Code was developed on provision of personnel services (the "Amendment Law").
Although provision of personnel is widely used in Kazakhstan, especially by foreign investors, it is not well regulated by Kazakhstan law. The Amendment Law aims at regulation of entities that professionally render services associated with provision of personnel. In particular, it proposes to set out the arrangement, where transferring company "lends" an employee to a receiving company for a fee pursuant to a service agreement between the transferring company and the receiving company. The personnel provided under the service agreement remain an employee of the transferring company during the term of service agreement.
KEY DEVELOPMENTS FOR 2020
Employers no longer able to terminate the employment agreement upon mutual agreement and payment of compensation
Under the Kazakhstan Labor Code, it was possible for an employer to terminate an employment agreement with an employee upon mutual agreement of the parties, without having to deliver any written notice to the employee and obtain his/her consent to terminate the employment agreement. The employee was, however, entitled to compensation. This right and the amount of any compensation payable had to be expressly provided for in the employment agreement. However, an amendment has been introduced to the Labor Code which means that employers are no longer permitted to terminate an employment agreement on this ground. As a result, the inclusion of such a provision in an employment agreement executed before 16 May 2020 may be deemed to be unenforceable; however, this is unclear, particularly as the law amending the Kazakhstan Labor Code does not have a retrospective effect.
The Ministry of Labour has sought to clarify the position, indicating that such provisions in existing employment agreements should survive. However, these communications by the Ministry of Labour do not have mandatory force, and employers should reconsider relying on such provisions to terminate an employment relationship until the position has been formally clarified by way of a further amendment to the Labor Code or otherwise.
Enhanced protection against discrimination
One of the key principles of Kazakhstan labor law is the prohibition of discrimination. Employees who consider that they have being discriminated against at work have the right to bring a discrimination claim in the courts or via the competent state authorities. Recently adopted amendments to the Kazakhstan Labor Code and Administrative Code establish an even stricter regulation of and liability for discrimination. The employee has the right not only to equal pay for equal work, but also to equal working conditions. Working conditions are the conditions necessary for the employee to remain in the workplace, including work on a rotational basis where needed, sanitary facilities and amenities, sufficient breaks for rest and meals, etc.
Therefore, the employer must ensure both equal pay for equal work and equal working conditions without any discrimination. If it is established that one employee enjoys more benefits and has a higher salary when compared to another employee with the same job title who is doing the same work, the employer may be liable to pay an administrative fine for a violation of the employee's right to equal working conditions (of up to $691 USD depending on the size of the business). It is therefore important to ensure that employees who occupy equal positions are entitled to the same salary and benefit from equal working conditions.
Ensuring safety at remote work
Due to the COVID-19 emergency, remote work became extremely popular. Ordinarily, the employee and the employer must agree on the conditions associated with the remote working regime, such as the scope of work, working hours, methods to record working time, etc. These conditions should be implemented by both parties signing a supplemental agreement to the existing employment contract. In addition, recent amendments to the Kazakhstan Labor Code require organisations to put in place an internal policy ensuring the safe performance of labor duties and compliance by employees with other safety and labor protection requirements.