practice area articles
By Dana Ibrayeva
Back to International Employment Law
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.