Some Issues of Labor Law

Is it necessary for the employee to accomplish one calendar year from the moment of signing the labour agreement, in order the employer could provide a paid annual employment vacation? May such vacation be provided partially?

The employer has the right to provide the employee the annual employment vacation in any time and not waiting for the end of one working year from the moment of the labour agreement conclusion with such employee. Such vacation may be provided partially, the length of which is defined between employee and employer. In accordance with the clause 1, Article 105 of the Labour Code of the RoK the paid annual employment vacation is provided to the employee in any time of working period for the first and for the following years of work under the agreement of parties. According to the clause 3, Article 105 of the Labour code of the Republic of Kazakhstan, under the agreement between the employee and employer the paid annual employment vacation may be divided into parts. Correspondingly, the employer has the right to provide a vacation partially and also has the right to refuse employee’s request to provide vacation partially.

According to the Article 102 of the Labour Code of the RoK, there are stipulated additional vacations in the Company that are provided to the employees, who are involved in production of chemical products, in the warehouses and laboratories. Does it mean that the Company is not entitled to recall the employees, who work in production of chemical products, in the warehouses and laboratories? What will be if such recall will take place? And what should be done, if such person is the only employee?

Nevertheless that such employee, who has the right for additional paid annual employment vacation, is the only employee, who holds this position; the Company is not entitled to recall him/her from this vacation. For illegal recall from additional paid annual employment vacation, there is stipulated administrative responsibility in accordance with the Article 87 of the Labour Code of the RoK on administrative misdeeds. According to the Article 102 of the Labour Code of the RoK, the additional paid annual employment vacation is provided to the employees who are involved in hard work, in the work with harmful (extremely harmful) and (or) dangerous working conditions of the length of not less than 6 calendar days. Such right is for employees, the work of which is included in the list of the productions, workshops, professions and positions of hard works, works with harmful (extremely harmful) and (or) dangerous working conditions, work which gives the right for additional paid annual employment vacation, is approved by the order of the acting Ministry of Labor and social protection of Republic of Kazakhstan dated 31st of July 2007 № 182-p. According to the Article 109 of the Labour Code of the RoK, the recall from the additional paid annual employment vacation is not accepted for the employees, who are involved in harmful (extremely harmful) and (or) dangerous working conditions.

Is it necessary to get consent from the employee to move him/her to another position in the same office, location with saving the same salary?

When the employee is moved to another position and his/her job description is changed, the consent of employee is required. At such move the corresponding changes are made in the labour agreement and issued the corresponding act of the employer. In accordance with the clause 1, Article 41 of the Labour Code of the RoK, move of the employee to another work is considered as follows: 1) change of work (labour function) of the employee that is execution of the work on the other position, specialty, profession and qualification. According to the clause 2 of the same Article, move of the employee to another work is accepted with consent of the employee and finalized by introduction of the corresponding changes in the labour agreement and with the act of the employer. According to the clause 3, Article 10 of the Labour Code of the RoK, the terms of agreements, collective, labour and employment contracts cannot be changed unilaterally.

Can the employee be employed to another job and whether it is necessary to get corresponding permission from the Company during the period when the Employee does not work in the Company in cold (winter) time, but, at the same time, the labour agreement is not terminated with this employee and he/she continues to get salary?

The legislation of RoK is free of any restrictions on employee’s additional employment during the period when the employer is unable to provide with work his/her employees. In accordance with the Article 196 of the Labour Code of RoK, the employee has a right to conclude a labour agreement simultaneously with current employer (in regard with his/her main job site) and as well as with other several employers. Morever, clause 2 of the same Article indicates that in the labour agreement it is necessary to indicate that the above job is considered to be as a combined job. The employer’s consent on combined job in the labour agreement is not required.

How to execute employees’ forced outage during the winter time of the year?

Employer is entitled to execute forced outage during the winter time as an outage/down time. In accordance with the sub clause 9), clause 1 of the Article 1 of the Labour Code of RoK, the term “outage” is understood as a temporary lay-off on economical, technological, organizational reasons and on other industrial, natural character. The company can execute the relationships with employees as an outage and make payments in accordance with requirements of the Labour Code, but at the same time the labour relationships are considered not to be terminated. According to the Article 133 of the Labour Code of the RoK the order and the terms of payment during the outage in fault of employer are defined in an amount no less than 50% of employee’s average salary, in conformity with the clause 2 of the same Article, the period of the outage in fault of employee is not subject to the payment.

How to execute business trips?

During the employees’ business trips the employer must issue the corresponding order on business trip and in some cases to execute business trip certificate. In accordance with the clause 81 of the Article 1 of the Labour Code of the RoK, the term “business trip” is understood as the employee’s direction to other locality for the fulfillment of obligations with employer reference for the fixed period of time and employee’s direction to the other locality on education, training and retraining reasons as well. In accordance with the clause 3 of the Article 152 of the Labour Code of the RoK the order and terms of the business trip is defined by an act of employer. The direction of employee to business trip is conducted by the employer of the Company by issuing order and executing the business trip certificate. The order must contain the following: 1) place and purpose of the business trip; and 2) the terms of the business trip. The business trip certificate must contain: marks – date and signature of the authorized persons on arrival and departure, which are attested by the stamp of legal entity, because factual stay is considered by those marks. Business trips which are out of the boundaries of the RoK can be without business trip certificates, because the period of the business trip is defined by the marks on passport on arrival/departure or by the boarding passes of the air tickets.

What is the sequence of indicating job duties in labour agreement?

The legislation of the RoK does not contain regulations, which require indicate an employee’s job duties in the labour agreement. The job duties of the employee are indicated in the Uniform Wage-Rates and Skills Handbook, and the employer is entitled to make additions to the given list with additional job duties in conformity with the character of the work, which will not worsen the position of the employee. As a rule, the job duties are indicated in the job description. The job description is considered to be an essential part of the labour agreement. Due to the fact that the job description is appear to be the employer’s act according to the sub clause 45), clause 1, Article 1 of the Labour Code, then the employee should be introduced with the job description in conformity with the legislation of the RoK. When accepting the employee to the job, the employer is obliged to introduce employee with internal rules of labour order in organization, with other acts of employer regarding labour functions of employee and collective agreements. Thereby, the employer is entitled to indicate the job credentials in the labour agreement in the section – “Employee’s job credentials”. However we consider that the best alternative will be the indication of such credentials in the corresponding job description. Note that any changes, which influence on the character of the job duty, are entered by the employer into the job description with introduction to the employee.

How accurate will be to indicate in the labour agreement that the direct executive of the employee is not the employer, but

As a rule, the regulation on subordination of employees is indicated in the job description. The legislation of the RoK does not contain the regulations, which prohibit the employer to appoint as a direct executive for employee this or other employee of the other company. Correspondingly, since the specific character of the rendering of services, the employer is entitled to indicate in the job description or in the labor agreement that the current employee at discretion of the employer can work in other organizations.

And the employer is entitled to define the person whose instructions the employee will obey. For the note, the employer must precisely to indicate the direct executive of the employee, because it may happen that the employee will let himself/herself to allow disciplinary misdemeanor in a result of violating the requirements and instructions of the executive. The precise indication of the direct executive, further will allow bringing the employee into the disciplinary responsibility possessing the corresponding grounds on acting in that way. The suggested edition: “The employee at discretion of the employer can work in other organizations and the employer is entitled to define the person whose assignments and instructions will the employee execute and comply with”

Do the employers of the rotation employees with the fixed schedule of work (from 12.00. till 00.00. and from 00.00. till 12.00.) have to pay his/her employees for the night time on penalty rate?

Working on the fixed schedule mentioned above, the employer must pay for the night time, using the one-and-a-half rate. In accordance with the Article 87 of the Labor Code of the RoK the night time is considered to be from 22.00. till 06.00. According to the Article 129 of the Labour Code of the RoK, every hour of the work during the night time is paid not less than the oneand-a half rate, proceeding from the day (hourly) rate of the employee, in indicated case it is the time from 22.00. till 00.00 and from 00.00 till 06.00. Thereby, the Company is obliged to pay working hours, which comes on night times, on corresponding penalty rate. And it does not depend on the schedule of employees who is working by rotation.

Is it legitimate for the employer to confirm the Regulation on prohibition of alcohol usage and/or drug usage (further – the Regulation)?

The employer is entitled to establish in a company the rules regarding the prohibition of the alcohol and/or drug usage/bringing/passing and etc. to the working place, for example, after execution of the regulation, the norms of which will not worsen the position of the employees, the opinion of the employees in this case are not counted. In accordance with the sub clause 3), clause 1, Article 23 of the Labour Code, the employer is entitled to issue the acts of employees. Under the employee acts are understood the orders, arrangements, instructions, regulations, labour schedule rules, which are issued by the employer within his/her competency in conformity with the sub clause 45), clause 1, Article 1 of the Labour Code. In accordance with the sub clause 7), clause 1, Article 54 of the Labour Code, the condition of employee in alcohol, narcotic, psychotropic, toxicomanic inebriation (their analogues as well), including the cases of the usage the substances which trigger the condition of alcohol, narcotic, psychotropic, toxicomanic inebriation (their analogues as well). The mentioned above conditions are the base for termination the labour agreement between the employee and employer. Thereby, the given relationships are prohibited not only by the employer’s act, but by the effective labour legislation of the RoK. In accordance with the clause 3, Article 11 of the Labour Code, the employer’s acts are not effective if they: 1) worsen the position of the employee in contrast with the labour legislation of the RoK, collective agreements, agreements; 2) or issued without regard to procedures, which stipulated in the Labour Code.