Kazakhstan: New In Settlement Of Labour Disputes: Conciliation Commission

Last Updated: 22 October 2016
Article by Victoriya Trofimovich and Abylkhair Nakipov
Most Popular Article in Kazakhstan, October 2016

Most employers and employees inevitably face the problem of labor disputes, be it individual or collective ones. However, not many are aware of methods for settling labor disputes.

With adoption of the new Labour Code, the procedure for settlement of labor disputes has changed considerably, thus, consideration of discord between employee and employer by conciliation commission has become a mandatory step.

In this regard, we decided to consider in depth urgent issues of creation and operation of conciliation commission.

What does the Conciliation Commission imply?

The Labour Code provides that the conciliation commission is a permanent body created in an organization, its branches and representative offices. The commission is created on a parity basis with an equal number of employer's and employees' representatives.

Regarding this regulation, some important points are noteworthy.

Firstly, as opposed to the previous Labour Code, according to Article 159, paragraph 1 of the present Labour Code, it is mandatory that individual labour disputes are considered by the conciliation commissions, except the disputes concerning small businesses and chief executive officers of any legal entity. Only the disputes concerning outstanding issues or non-enforcement of the decision of the commission may be considered by the courts.

This condition correlates with Article 8, paragraph 6 of the Civil Procedural Code of the Republic of Kazakhstan, according to which, if the pre-trial procedure for settling a dispute for a certain category of cases is either established by law or provided by contract, legal action may be carried out only after complying with such procedure.

Secondly, the commission shall consider all kinds of individual labour disputes, except disputes involving the chief executive officers of any legal entity and the employees of small businesses.

An analysis of Chapter 15 of the Labour Code implies a general conclusion that the subjects of medium and large businesses, as well as their branches and representative offices must necessarily create a conciliation commission.

Procedure for Creation of the Conciliation Commission

The present Labour Code does not expressly provide a procedure for the creation of a conciliation commission.

The Labour Code merely provides that the representatives of the employer and employees in a written agreement or collective agreement in relation to the conciliation commission must determine the following:

  • quantitative composition;
  • term of powers;
  • rules of procedure;
  • procedure for decision-making, and
  • issues of involvement of intermediaries in the conciliation commission.

In practice, issues arise precisely in relation to the sequence of the actions by the parties for the creation of the commission, namely: the duration from the date when the Labour Code came into force within which the commission should be established, in cases when labour disputes had not yet occurred; who should initiate the commission's creation; which acts should be issued by the employer; which documents should confirm the powers of the employees' representatives, etc.

Operation of the Conciliation Commission

The actual operation and procedure of the conciliation commission is determined by the regulations imposed on the commission (as a part of the collective agreement) or by an agreement entered into between the employer's and employees' representatives regarding the establishment and operation of the commission.

The Labour Code establishes the procedure for the consideration of applications filed with the commission by the concerned party.

In order to initiate the consideration of a labour dispute, a party under the employment contract must submit an application, which must be registered by the commission. The dispute must be considered within 15 working days in the presence of the applicant or his/her authorised representative. Failure to settle the dispute within the established period shall amount to be a determining factor for the initiation of legal action.

After the dispute has been considered, within three days the commission shall issue a copy of the decision to both the parties. The decision of the commission shall be executed within a period established thereby, except for the disputes concerning the reinstatement of the employee, because such a decision is subject to immediate execution.

On the reinstatement of the employee, the employer must pay to the employee the average salary for the period of the employee's temporary suspension or the wage gap for the period of the transfer of the employee to a lower paid position, but not exceeding 6 months. Such compensation is also paid to the employee by the employer in case of a delay in the execution of the decision of the employee's reinstatement.

Terms of Application to the Conciliation Commission

The Labour Code establishes that the parties may apply to the commission within one year from the date when the party became aware or should have become aware of the violation of its rights.

However, disputes concerning reinstatement are exceptional cases. If an employee believes that his/her dismissal is illegal, he/she may apply to the commission within 1 (one) month from the date of delivery of the copy of the employer's act of termination of the employment contract. If the matter is settled by the commission or the employer refuses to enforce the commission's decision, the employee may apply to the court within two (2) months from the date of delivery of the copy of the commission's decision.

FAQ

Who should initiate the creation of the conciliation commission?

In practice, employers do not facilitate the creation of the conciliation commission in the absence of potential labour disputes.

Thus, only in the event of dispute arousal, the employer initiates the creation of the commission. The employer drafts the agreement and coordinates regarding it with the employees' representatives, appoints his/her representatives and invites the employees to select their own representatives to participate as members of the commission.

In essence, any of the parties to the employment contract may prepare a draft agreement on the establishment of the commission or an amendment in the collective agreement (if the organisation has concluded one), and send for approval and signature to the other party.

Can a party to a labour dispute go to court, in absence of the conciliation commission?

As mentioned earlier, the employees of small businesses and chief executive officers of any legal entity can apply directly to the court.

However, subjects of medium and large businesses after receiving the employee's application must necessarily create a conciliation commission.

Thus, Article 160, paragraph 2 of the Labour Code stipulates that during the period of application for consideration of individual labour disputes, the disputes shall be suspended in the absence of the conciliation commission prior to its creation.

Is it necessary to conduct a general staff meeting for the appointment of the representatives to the conciliation commission?

According to the Labour Code, employees' representatives are bodies of trade unions and their associations. In their absence thereof, the elected representatives are those who are elected and authorised in the general meeting (conference) of the employees by a majority of the votes, subject to the presence of not less than two-thirds of the employees (conference delegates).

Consequently, for signing of the agreement for the creation of the conciliation commission and to participate in its work, employees' representatives must be elected at the general meeting of the employees. At the same time, the Labour Code does not regulate the procedure for holding the general meeting for the election of the employees' representatives in the commission.

In this connection, each organisation shall resolve the issue individually, based on the number of its employees, its organisational structure, presence of collective agreement or internal corporate policies.

Who should conduct the training of the members of the conciliation commission?

According to Article 159, paragraph 8 of the Labour Code, the parties in the commission are required to conduct an annual training of the members of the commission in areas such as providing knowledge pertaining to the basics of the labour legislation of the RK, development of negotiation skills and achieving consensus in labour disputes.

This regulation does not provide a clear division of responsibilities; however, the employer and employees' representatives may establish the order of the training of the members of the conciliation committee in a written or collective agreement.

Conclusion

In order to protect their legitimate rights and interests, the employers and employees must adopt a responsible approach to the issue of the creation and operation of the conciliation commission.

Awareness regarding the procedure for settlement of individual labour disputes, training of the members of the conciliation commission in the basics of labour law could constitute the basis for the settlement of many disputes without resorting to legal action.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement

    Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of www.mondaq.com

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

    Disclaimer

    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

    Registration

    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

    Cookies

    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

    Links

    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

    Mail-A-Friend

    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

    Emails

    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

    Security

    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at enquiries@mondaq.com.

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions