NORMATIVE RESOLUTION OF THE SUPREME COURT OF THE REPUBLIC OF KAZAKHSTAN

of November 28, 2024 No. 1

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

Proceeding from results of generalization of court practice, for the purpose of ensuring uniformity of application by courts of regulations of the labor law, and also considering the questions arising in 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 "About legal acts".

3. Individual employment disputes are considered by conciliation commissions, except for the disputes arising between the employer and the worker of the subject of microentrepreneurship, non-profit organization numbering workers no more than fifteen people, the house worker, sole executive body of the legal entity, the head of executive body of the legal entity, and also other members of collegiate executive body of the legal entity, and over not settled questions or non-execution of the decision of conciliation commission - courts.

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 provisions of Article 159 of the Labor code do not extend to the specified separate employee categories.

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 conciliation commission, in the time established by it 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.

Consideration of dispute without participation of the applicant in the presence of its written consent is allowed. The written consent to consideration of dispute without participation of the applicant can be expressed as in the statement in case of the appeal to conciliation commission, and in the separate document introduced before decision of conciliation commission.

The procedure for forming and activities of conciliation commission are determined by the agreement on work of conciliation commission which is signed between the employer and employee representatives, or the collective agreement.

Courts in case of permission of question of legitimacy of activities of conciliation commission should check observance of requirements of Item 3 of article 159 of the Labor code about contents of the collective agreement or agreement on work of conciliation commission.

Provisions of Item 5 of Article 159 of the Labor code provide that the conciliation commission is headed by the chairman elected by members of the commission from among representatives of employer and employee representatives on rotational basis with frequency at least every two years. The meeting and the decision of conciliation commission are competent if at consideration of individual employment dispute at meeting there was equal number of members of conciliation commission from representatives of employer and employee representatives. Each member of conciliation commission during the vote has one voice.

Courts should mean that these regulations have imperative character.

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