EMPLOYMENT LAW

An employment contract is made in writing in at least two counterparts and signed by the parties; one counterpart is kept by the employee and one by the employer. It may also be concluded as an electronic document certified by an electronic digital signature. A person may be admitted to work only after the contract has been concluded. Where the contract is absent or not properly executed through the employer's fault, the employer bears liability under the laws of Kazakhstan, and the employment relationship is deemed to have arisen from the day the employee started work. Invalidation of the contract through the employer's fault does not deprive the former employee of the right to pay, compensation for unused days of paid annual leave and other payments.

Legal basisParas. 1, 3 and 4 of Art. 33 of the Labour Code of the RK

Article 28 sets out a closed list of mandatory terms: the parties' details, including the employee's individual identification number and the employer's business identification number; the job function; the place of work (not stated for remote work, except combined remote work); the term of the contract; the start date; working time and rest time arrangements; the amount and other terms of remuneration; the characteristics of working conditions together with guarantees and benefits where the work is heavy or performed in harmful or hazardous conditions; the rights and obligations of both parties; the procedure for amending and terminating the contract; liability of the parties; and the date of conclusion and sequential number. A contract with a person with a disability must additionally provide for the fitting-out of the workplace to suit their individual capabilities. Other terms may be included by agreement provided they do not conflict with legislation.

Legal basisArt. 28 of the Labour Code of the RK

A contract may be concluded for an indefinite term; for a fixed term of not less than one year; for the duration of specified work; for the period of replacing a temporarily absent employee; for seasonal work; or within the validity of a permit to engage foreign labour. A fixed-term contract may be extended no more than twice, and where the employment relationship continues it is deemed concluded for an indefinite term. If, on expiry of the term, neither party gives notice of termination during the last working day, the contract is deemed extended for the same period. Small business entities may conclude fixed-term contracts without the one-year minimum.

Legal basisParas. 1 and 2 of Art. 30 of the Labour Code of the RK

A probation clause may be included only when the contract is concluded, and it starts on the commencement date stated in the contract. Probation counts towards the employee's length of service and may not exceed three months; for heads of organisations and their deputies, chief accountants and their deputies, and heads of branches and representative offices it may be extended to six months. The period is suspended while the employee is in fact absent from work. The Code contains no general list of persons who may not be placed on probation; an express prohibition applies to contracts for seasonal work.

Legal basisArt. 36 of the Labour Code of the RK; para. 3 of Art. 135 of the Labour Code of the RK

Where the employee's work during the probation period produces an unsatisfactory result, the employer may terminate the contract, giving the employee notice stating the reasons that formed the basis for termination. If the probation period has expired and the employer has given no notice of termination, the employee is deemed to have passed probation. An unsatisfactory result of probation is a separate ground for termination at the employer's initiative.

Legal basisArt. 37 of the Labour Code of the RK; sub-para. 7) of para. 1 of Art. 52 of the Labour Code of the RK

Normal working time may not exceed 40 hours per week. Daily working time may not exceed 8 hours, save in the cases provided for by the Code and other laws. The default is a five-day working week with two days off; where this is impractical given the nature of production, a six-day week with one day off applies. By agreement of the parties the contract may provide for a four-day working week, with the right to alternate it with a five-day or six-day week. The contract may also provide for shorter working time paid as for normal working time.

Legal basisArt. 68 of the Labour Code of the RK; paras. 1–4 of Art. 71 of the Labour Code of the RK

Overtime may not exceed two hours in any twenty-four-hour period for each employee, and one hour on heavy work and work in harmful or hazardous conditions. The total may not exceed twelve hours per month and one hundred and twenty hours per year where summarised recording of working time applies. Under time-based pay, overtime is paid at not less than one and a half times the daily or hourly rate; under piece-rate pay, the supplement is not less than fifty per cent of the established daily or hourly rate. By agreement of the parties, rest hours may be granted instead of pay, at not less than one hour of rest for each hour of overtime.

Legal basisArt. 78 of the Labour Code of the RK; Art. 108 of the Labour Code of the RK

Work on days off and public holidays is permitted with the employee's written consent or at their request on the basis of an act of the employer; for those working to a shift schedule or on a rotational basis, neither consent nor an act is required. For such work the employee is granted, at their wish, another day of rest or paid at not less than one and a half times the daily or hourly rate. Each hour worked at night is paid at not less than one and a half times that rate. Where night-time coincides with a public holiday or day off, the night hours and the holiday or day-off hours are paid separately. Pregnant women who have given the employer a certificate of pregnancy may not be required to work on days off or public holidays.

Legal basisArt. 85 of the Labour Code of the RK; Arts. 109 and 110 of the Labour Code of the RK

Basic paid annual leave is twenty-four calendar days, unless a greater number is provided for by the Code, other regulatory legal acts, the employment or collective agreement, or an act of the employer. Its duration is counted in calendar days, excluding public holidays that fall within the leave, regardless of the working regime or shift schedule. Additional paid annual leave is added to the basic leave. Length of service for leave purposes includes time actually worked, periods when the position and pay were retained, periods of temporary incapacity including maternity leave, and time preceding reinstatement at work.

Legal basisArts. 88, 90 and 91 of the Labour Code of the RK

On termination of the employment contract an employee who has not used, or has only partly used, their paid annual leave receives a compensation payment for the unused days. It is calculated on the basis of the employee's average wage. The Code sets no limit on the number of years for which compensation is payable. Sums due to the employee on termination are paid no later than three working days after the contract ends.

Legal basisArt. 96 of the Labour Code of the RK; para. 4 of Art. 113 of the Labour Code of the RK

The list of grounds for termination at the employer's initiative is closed and set out in Article 52. It includes liquidation of the employer, reduction of headcount or staff, a fall in the volume of production that has worsened the employer's economic position, unsuitability for the position established by appraisal or by a medical report on the state of health, an unsatisfactory result of probation, absence from work without valid reason for three or more consecutive hours in one working day, being at work while intoxicated, refusing a medical examination, theft at the place of work established by a court judgment or ruling that has entered into force, loss of trust in an employee handling money or goods, disclosure of information protected by law, and repeated failure to perform duties by an employee who already has a disciplinary sanction.

Legal basisPara. 1 of Art. 52 of the Labour Code of the RK

On liquidation of the employer and on reduction of headcount or staff, the employee is given at least one month's notice, unless the employment or collective agreement provides a longer period; with the employee's written consent the contract may end before the notice period expires. Where production volumes fall, notice is fifteen working days and termination is possible only if three conditions are met at once: closure of the structural unit, no possibility of transferring the employee, and notice to the employees' representatives at least one month in advance. The compensation payment for loss of work is one month's average wage on liquidation and redundancy, and two months' average wage where production volumes have fallen. Employees who are less than two years away from pension age may not be dismissed for redundancy or for insufficient qualification without a positive decision of a parity commission.

Legal basisArt. 53 of the Labour Code of the RK; Art. 131 of the Labour Code of the RK

An employee may terminate the contract on giving the employer at least one month's notice; the contract may set a longer notice period. The contract may end before the notice period expires with the employer's written consent. During the notice period the employee may withdraw the notice, and the Code sets no further conditions for doing so. A separate procedure applies where the employer fails to comply with the contract: the employee notifies the employer, and if the non-compliance continues after seven working days from that notice, the employee may terminate on not less than three working days' notice. In that case a compensation payment for loss of work equal to one month's average wage is due. For employees with full financial responsibility the date of termination is the date on which the handover of the employer's property is completed.

Legal basisArt. 56 of the Labour Code of the RK; sub-para. 3) of para. 1 of Art. 131 of the Labour Code of the RK

Mutual agreement is a separate statutory ground for terminating the employment contract. The party initiating termination sends the other a notice, and the receiving party must state its decision within three days. The termination date and the terms are set by the agreement, and the one-month notice period does not apply. Such an agreement cannot be undone unilaterally, since termination on this ground rests on the mutual will of both parties.

Legal basisArt. 50 of the Labour Code of the RK; sub-para. 1) of para. 1 of Art. 49 of the Labour Code of the RK

The available sanctions are a remark, a reprimand, a severe reprimand and termination of the contract on the grounds expressly listed in Article 64. No other sanctions may be applied. Before imposing one, the employer must request a written explanation; the request is delivered with confirmation of receipt, a report is drawn up if the employee evades it, and a further report is drawn up if no explanation is given within two working days. Failure to give an explanation does not prevent the sanction. A sanction is imposed no later than one month from the discovery of the misconduct and may not be applied later than six months from its commission, or one year where the misconduct is revealed by an audit or inspection of financial and economic activity. Time is suspended during temporary incapacity, leave, business trips, training, criminal or administrative proceedings, and while the employee is challenging the employer's act in court.

Legal basisArts. 64, 65 and 66 of the Labour Code of the RK

An employee must compensate the actual direct damage caused to the employer. Liability is excluded where the damage arose from force majeure making proper performance impossible, from extreme necessity or necessary defence, or from the employer's failure to provide proper conditions for the safekeeping of property entrusted to the employee. The Code sets no automatic cap at average earnings: the cases of financial liability are determined by the Code, other regulatory legal acts and acts of the employer. Deductions from wages are made by court decision and in the cases expressly provided for by the laws and by Article 115 of the Code.

Legal basisArt. 123 of the Labour Code of the RK; Art. 115 of the Labour Code of the RK

Individual labour disputes are considered by conciliation commissions and, on unresolved matters or where the commission's decision is not complied with, by the courts. Exceptions apply to disputes between an employer and an employee of a micro-business entity, a non-commercial organisation, or a branch or representative office of a foreign legal entity with no more than fifteen employees, and to disputes involving a domestic worker, the sole executive body, the head of the executive body and other members of a collegial executive body — these go directly to court.

Legal basisPara. 1 of Art. 159 of the Labour Code of the RK

For reinstatement disputes the time limit for applying to the conciliation commission is one month from delivery, or dispatch by registered post with acknowledgement of receipt, of a copy of the employer's act terminating the contract; the limit for applying to court is two months from delivery or dispatch of a copy of the commission's decision, where the matter remains unresolved or the decision is not complied with. For other labour disputes the limit is one year from the day the employee or the employer learned or ought to have learned of the infringement. Time is suspended while a mediation agreement on the dispute is in force, and where there is no conciliation commission, until one is formed.

Legal basisArt. 160 of the Labour Code of the RK

Wages are paid in money in tenge at least once a month and no later than the first ten days of the following month; the specific date is set by the employment or collective agreement, and where it falls on a day off or public holiday, payment is made the day before. Where wages are not paid in full and on time, the employer pays the employee the arrears together with interest for the period of delay. The interest is calculated on 1.25 times the base rate of the National Bank as at the date the payment obligation is performed, and accrues for each overdue calendar day from the day after payment was due until the day of payment. The same interest applies where the three-day deadline for the final settlement on termination is missed.

Legal basisParas. 1, 3 and 4 of Art. 113 of the Labour Code of the RK

Deductions are made by court decision and in the cases provided for by the laws and by Article 115. On the basis of an act of the employer, with notice to the employee, deductions are permitted to recover unspent and unreturned travel advances, to recover training costs where a training agreement exists, in proportion to the unworked part of the required service period on early termination, to recover an unearned advance against wages, on deferral of or recall from paid annual leave, and in other cases where the employee has consented in writing. The total monthly deduction is capped at the share of wages fixed by Article 115.

Legal basisArt. 115 of the Labour Code of the RK

Working conditions may be changed where there are changes in the organisation of production connected with reorganisation or with changes in economic or technological conditions, in the organisation of work, or with a reduction in the volume of work, provided the employee continues to work in their speciality, profession and qualification. The employer must notify the employee in writing at least fifteen calendar days in advance, unless the employment or collective agreement provides a longer period. The corresponding changes are made to the contract by supplementary agreement. Where the employee refuses in writing to continue working under the new conditions, the consequences set out in Article 46 follow.

Legal basisArt. 46 of the Labour Code of the RK; para. 2 of Art. 33 of the Labour Code of the RK

A transfer to other work is normally documented in writing by supplementary agreement. The Code provides for cases of temporary transfer without the employee's consent — in particular to prevent or remedy the consequences of emergency circumstances and in other expressly named situations — subject to the requirements as to qualification and state of health and with the established level of pay retained. The procedure and periods for such a transfer are governed by the Code's provisions on transfer to other work, so whether a particular ground applies must be checked against the circumstances.

Legal basisArts. 38 and 41 of the Labour Code of the RK; para. 2 of Art. 33 of the Labour Code of the RK

Termination at the employer's initiative is not allowed during temporary incapacity for work or while the employee is on leave, save in the cases expressly listed in Article 54. Termination for reduction of headcount or staff and for a fall in the volume of production is not allowed in respect of pregnant women who have given the employer a certificate of pregnancy, women with children under three, a single parent raising a child under fourteen or a child with a disability under eighteen, and other persons raising such children without a parent. Pregnant women may not be required to work on days off or public holidays.

Legal basisParas. 1 and 2 of Art. 54 of the Labour Code of the RK; para. 4 of Art. 85 of the Labour Code of the RK

Secondary employment is documented by a separate employment contract. The combined daily working time at the main place of work and in secondary employment may not exceed the standard daily working time by more than four hours. Since daily working time may not as a rule exceed eight hours, the combined total may not exceed twelve hours a day. A person in secondary employment is paid under the general rules, for time actually worked or according to output.

Legal basisPara. 3 of Art. 68 of the Labour Code of the RK; para. 4 of Art. 71 of the Labour Code of the RK

A person may be admitted to work only after an employment contract has been concluded, and where the contract is absent or improperly executed through the employer's fault, the employment relationship is deemed to have arisen from the day the person started work. This means that where the features of employment are present — personal performance of a job function, subordination to the working regime, regular pay — a civil law contract gives the employer no protection: the relationship is treated as employment with all the resulting obligations on leave, pay and guarantees, and the employer additionally bears liability under the laws of Kazakhstan.

Legal basisPara. 3 of Art. 33 of the Labour Code of the RK; Arts. 21 and 23 of the Labour Code of the RK

The Code places on the employer the duties of investigating and recording accidents connected with work activity: arranging assistance for the injured person, notifying the authorised bodies, forming an investigation commission and recording the findings in a report in the prescribed form. The employer must also insure, at its own expense, its liability for harm to the life and health of employees in the performance of their duties. The investigation procedure and the list of documents to be drawn up are set out in the chapter of the Code on the investigation of accidents.

Legal basisCh. 20 of the Labour Code of the RK; Law of the RK on Compulsory Insurance of Employees against Accidents

By agreement of the parties, the employer and the employee may enter into a non-competition agreement under which the employee undertakes not to take actions capable of harming the employer. The agreement sets out the restrictions and the conditions on which they are accepted, and may provide compensation for the period during which the restriction applies, except where the non-competition condition is prescribed by legislation. The list of positions and work for which such an agreement may be concluded is approved by an act of the employer. The absence of an approved list and vagueness in the restrictions are the usual reasons the clause proves unenforceable in practice.

Legal basisArt. 29 of the Labour Code of the RK

The Code sets out the list of documents evidencing an employee's work activity; information on the conclusion, amendment and termination of employment contracts is entered by the employer into the unified system for recording employment contracts. Entries in an employment record book issued before its abolition remain valid as a document evidencing work activity. Where the system holds no data, service is proved by other documents from the established list, so employees are well advised to keep their own copies of contracts and acts of the employer.

Legal basisArt. 35 of the Labour Code of the RK

The procedure for recording downtime and the terms of payment are set by the employment and collective agreements; where the contracts are silent, the start of the downtime is recorded by an act of the employer stating its cause. Downtime arising from a cause beyond the control of both employer and employee is paid at not less than the minimum wage. Downtime caused by the employer's fault is paid at not less than fifty per cent of the employee's average wage. Downtime caused by the employee's fault is not paid. When the downtime ends, the employer gives the employee advance notice of the date to return to work.

Legal basisArt. 112 of the Labour Code of the RK

The Code states expressly that where the employment contract is absent or improperly executed, and where wages are not paid in full and within the established periods, the employer bears liability under the laws of Kazakhstan. Besides paying the arrears and interest for the period of delay, administrative liability under the Code of Administrative Offences applies, and for certain offences criminal liability. State labour inspectors may issue binding orders requiring breaches to be remedied.

Legal basisPara. 3 of Art. 33 of the Labour Code of the RK; para. 3 of Art. 113 of the Labour Code of the RK; Ch. 19 of the Labour Code of the RK