The Head of State signed the Law “On Amendments and Additions to Some Legislative Acts of the Republic of Kazakhstan to simplify the procedure for resolving labor Disputes and conflicts” on February 15 this year.
It should be noted that from autumn 2022 to January 2023, representatives of the Federation of Trade Unions of the Republic of Kazakhstan, first as part of the working group of the Majilis of the Parliament of the Republic of Kazakhstan, and then the Senate of the Parliament, took a direct part in the consideration of the above-mentioned Law.
Among the new norms stipulated by the Law are issues regulating the activities of the conciliation commission and the conduct of protest actions.
Thus, in Article 159 of the Labor Code, the norms in the part “conciliation commission” are clarified and supplemented. In accordance with the Law: “The procedure for the formation and activities of the conciliation commission are determined by the agreement on the work of the conciliation commission, which is concluded between the employer and employees’ representatives, or a collective agreement.
An agreement on the work of the conciliation commission or a collective agreement must contain provisions on the number of members of the conciliation commission, the procedure for electing the chairman and secretary from among the members of the conciliation commission, the procedure for submitting an application to the conciliation commission, the rules of procedure of the conciliation commission, the procedure for making a decision by the conciliation commission and its content, the term of office of the members of the conciliation commission, providing guarantees to its members and other issues related to the organization of the work of the conciliation commission.”
For convenience, it is allowed to hold a meeting of the conciliation commission with the use of information and communication technologies. In this case, the participation of the members of the conciliation commission and other persons is confirmed by an electronic digital signature or other electronic means with authorization, identification and preservation by the employer of the recording of the meeting.
A person who has previously been in an employment relationship has the right to delegate the right to represent his interests in the conciliation commission to trade union bodies, elected representatives of employees by a written application.
In favor of employees, there is also a norm that the meeting and the decision of the conciliation commission is valid if, when considering an individual labor dispute, an equal number of commission members were present on it from representatives of employees and representatives of the employer.
The members of the conciliation commission are released from performing their work duties for the time of consideration of an individual labor dispute with the preservation of wages.
According to the provisions of the Law, the decision of the conciliation commission is subject to execution within the time limit set by it, but no later than one month from the date of the decision of the conciliation commission, with the exception of a dispute about reinstatement at work.
The amounts to be paid by the employer by the decision of the conciliation commission shall be paid to the applicant within the period not later than the month established for the payment of wages of the following month after the decision of the conciliation commission.
In cases of non-fulfillment of the decision of the conciliation commission within the time limit set by it, or non-settlement of issues, the employee or a person who previously had an employment relationship, or the employer has the right to apply to the court.
By analogy with such countries as the Republic of Belarus, Bulgaria, Croatia, Czech Republic, Hungary, Denmark, Iceland, Italy, Latvia, Lithuania, Luxembourg, Malta, Poland, Romania, Slovenia, the requirements for the number of votes for the nomination of workers’ claims in the event of a labor dispute have been reduced to more than half of the participants.
According to the Law: “The decision of the meeting (conference) of employees is considered adopted if more than half of the participants voted in support of the demands put forward by them. If it is impossible to hold a meeting (conference) of employees, the representative body of employees has the right to approve its decision by collecting more than half of the signatures of employees in support of the requirements put forward by them.
The employer, at the request of employees, is obliged to provide premises and create the necessary conditions for holding a meeting (conference) of employees and has no right to interfere with its holding.
The law provides for the introduction of representatives of tripartite commissions into the composition of labor arbitration, which will make it possible to activate the work of this institution. In accordance with the Law, the labor arbitration must consist of at least five people. The composition of the labor arbitration includes the State labor inspector, representatives of the tripartite commission on social partnership and regulation of social and labor relations. The members of the tripartite commissions representing the parties of the social partnership are included in the composition of the labor arbitration on a parity basis.
In many countries, both near and far abroad – the Republic of Azerbaijan, the Republic of Kyrgyzstan, Lithuania, Poland, Romania, Austria, Bulgaria, Hungary, Germany, Lithuania, Estonia, Poland and Romania – the holding of short-term preventive protest actions is legally fixed.
In this regard, the Law proposes to consolidate the same approach in labor legislation. According to the law: “During the consideration of a collective labor dispute by labor arbitration, employees may hold a one-hour warning strike …, in which no more than fifty employees can take part.
Representatives of employees participating in labor arbitration must warn employees participating in an hour-long preventive strike about the liability established by law in case of violation of its duration.
The employer must be warned by employees in writing about the beginning of an hour-long warning strike no later than three working days in advance.”
Representatives of the Federation of Trade Unions of the Republic of Kazakhstan during the consideration of this norm (the norm limiting the number of participants in an hour-long preventive strike was initiated by one of the deputies of the Majilis of the Parliament of the Republic of Kazakhstan) “in connection with the limitation of the number of employees “50 employees” expressed their position on the unacceptability of these formulations in connection with the restriction of the constitutional right of other workers to participate in such a preventive strike, so as per paragraph 2 of Article 14 of the Constitution of the Republic of Kazakhstan – no one may be subjected to any discrimination based on origin, social, official and property status, gender, race, nationality, language, attitude to religion, beliefs, place of residence or any other circumstances.
Moreover, by virtue of paragraph 3 of Article 39 of the Constitution of the Republic of Kazakhstan, the rights and freedoms provided for in Articles 11, 13-15 and a number of other articles are not subject to restriction in any case.
In addition, this norm – in terms of restricting the right of other workers to participate in a preventive strike, from the position of the trade union community, contradicts Convention No. 87 of the International Labor Organization “On Freedom of Association and Protection of the Right to Organize” (ratified by the Republic of Kazakhstan by Law of the Republic of Kazakhstan dated December 30, 1999 No. 29-II).
Also in the Law, in order to simplify the procedure for organizing strikes, as a legitimate mechanism for expressing workers’ demands, it is proposed to lower the thresholds.
According to the rule of Law: “A conference is considered competent if it is attended by more than half of the delegates elected by employees in accordance with protocol decisions.”
The law also clarifies the powers of the trade union body and elected representatives during the strike. In accordance with its norm, “If the interests of employees in the organization are represented by trade unions, the decision to hold a strike is taken by trade unions, and in their absence – by elected representatives.
If the interests of employees in the organization are represented by a trade union and an elected representative, as well as several trade unions, then the decision to hold a strike is taken by a single representative body created by them. A single representative body is formed in proportion to the number of employees who are and are not members of a trade union or trade unions.”.
Moreover, in order to simplify the procedure and resolve labor disputes, it is proposed to reduce the time for the creation of labor arbitration from five to two working days.
The deadlines for making a labor arbitration decision have also been reduced from seven working days to five working days.
And the last one is for law enforcement officers. This Law shall enter into force upon the expiration of sixty calendar days after the date of its first official publication.
The work of the Federation of Trade Unions of the Republic of Kazakhstan on improving labor legislation continues.