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NORMATIVE RESOLUTION OF THE SUPREME COURT OF THE REPUBLIC OF KAZAKHSTAN

of October 6, 2017 No. 9

About some questions of application by courts of the legislation in case of permission of employment disputes

(as amended of the Normative Resolution of the Supreme Court of the Republic of Kazakhstan of 20.04.2018 No. 7)

Proceeding from results of generalization of court practice, for the purpose of ensuring unity of practice of application by courts of regulations of the labor law, and also considering the questions arising at courts by consideration of this category of cases, the plenary session of the Supreme Court of the Republic of Kazakhstan decides to make the following explanations.

1. Fixed by article 13 of the Constitution of the Republic of Kazakhstan (further - the Constitution) the right of everyone to judicial protection of the rights and freedoms extends also to participants of employment legal relationship.

2. Employment relationships of separate categories of persons are governed not only regulations of the Labor code of the Republic of Kazakhstan (further - the Labor code), but also special legal acts (about law-enforcement service, about military service and the status of the military personnel, about public service, about law-enforcement bodies and others).

Legal relationship of the parties of the employment contract, except the conditions stipulated in it, are regulated by the collective agreement, other agreements of the parties and acts of the employer which are not contradicting regulations of the labor law.

By consideration of the employment disputes which arose from the legal relationship which are not settled by special regulatory legal acts, courts should be guided by regulations of the Labor code.

If the working conditions of separate employee categories regulated by other normative legal and other acts worsen situation of these workers in comparison with the conditions provided by the Labor code, then in case of permission of employment dispute the last are subject to application taking into account provision of item 4 of Article 8 of the Labor code and hierarchy of regulatory legal acts, the stipulated in Clause 10 Laws of the Republic of Kazakhstan of April 6, 2016 No. 480-V "About legal acts".

3. The individual employment disputes concerning application of the labor law of the Republic of Kazakhstan following from the employment contracts provided by the Labor code, collective agreements and acts of the employer are considered by conciliation commissions, and on not settled questions or in case of non-execution of decisions of conciliation commissions - courts, except for small business entities, house workers, heads of executive body of the legal entity and other members of collegiate executive body of the legal entity, and also sole executive body of the legal entity.

Besides, in case of application in court practice of the regulations entered since January 1, 2016 about consideration of individual employment disputes by conciliation commissions in pre-judicial procedure it is necessary to consider provisions of Item 3 of Article 8, of Articles 143, of 144 and other regulations of the Labor code that work of the separate employee categories including which are in the military service, the staff of special state, law enforcement agencies, government employees is regulated by the Labor code with the features provided by special laws and other regulatory legal acts of the Republic of Kazakhstan which do not provide possibility of consideration of individual employment disputes by conciliation commissions. With respect thereto do not extend to the specified separate employee categories of provision of Article 159 of the Labor code.

Individual employment disputes on the questions arising in the course of application of the labor law in case of regulation of employment relationships, the relations which are directly connected with labor concerning social partnership, and also safety and labor protection are considered by conciliation commissions.

According to Article 159 of the Labor code the address of the workers or persons who were earlier consisting in employment relationships or the employer in conciliation commission is obligatory stage of pre-judicial procedure for settlement of the individual employment dispute which arose between them. If the party of individual employment dispute does not agree with the decision of conciliation commission in general or in part, the dispute is considered not settled, and the party not concordant with the decision of conciliation commission, as well as in case of non-execution of the decision of the conciliation commission having the right to apply for permission of employment dispute in court.

According to item 4 of Article 159 of the Labor code the statement which arrived in conciliation commission is subject to obligatory registration by said commission in day of giving.

The questions of creation and forming of structure of conciliation commission, the procedure of obligatory registration of statements of subjects of the appeal to conciliation commission, procedure for its work which are not regulated by regulations of Chapter 15 of the Labor code can be provided in the collective agreement or other prisoner between the employer and employee representatives the free standing agreement, the provision jointly approved as them.

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