1 Terms and Conditions of Employment
1.1 What are the main sources of employment law?
In Kazakhstan, the legislation regulating employment law issues is composed of the following normative acts:
- Constitution of the Republic of Kazakhstan dated 30 August 1995;
- Labour Code of the Republic of Kazakhstan No. 414-V dated 23 November 2015;
- Code of the Republic of Kazakhstan On Administrative Offences No. 235-V dated 5 July 2014;
- Civil Code of the Republic of Kazakhstan (the General Part) No. 269-XII dated 27 December 1994;
- Civil Code of the Republic of Kazakhstan (the Special Part) No. 409-I dated 1 July 1999;
- Law of the Republic of Kazakhstan No. 211-V On Trade Unions dated 27 June 2014;
- Law of the Republic of Kazakhstan No. 105-V On Retirement Insurance dated 21 June 2013;
- Law of the Republic of Kazakhstan No. 149-II On Public Occupation dated 23 January 2001; and
- Law of the Republic of Kazakhstan No. 94-V On Personal Data and its Protection dated 21 May 2013.
1.2 What types of worker are protected by employment law? How are different types of worker distinguished?
The legislation of the Republic of Kazakhstan provides for a definition of the term "employee" as an individual employed by the employer and directly performing work under the employment agreement. Although the law provides for general provisions for all types of employees, it also distinguishes the following categories of the employees:
- employees employed for seasonal works;
- employees working on shifts (rotational works);
- household employees;
- employees performing remote work;
- civil servants;
- heads of the executive bodies of a legal entity and other members of collegial executive bodies of a legal entity;
- employees belonging to the aviation personnel of civil aviation;
- employees belonging to the crew members of vessels (part of swimming);
- state servants, members of the Parliament and Maslikhats, judges of the Republic of Kazakhstan;
- persons working in the military service, special government employees, law enforcement agencies and the state dispatch service;
- employees working at the National Bank of the Republic of Kazakhstan and its divisions; and
- employees belonging to the trade union bodies of a trade union.
1.3 Do contracts of employment have to be in writing? If not, do employees have to be provided with specific information in writing?
Employment agreements must be concluded in writing in Kazakhstan.
1.4 Are any terms implied into contracts of employment?
All terms of employment shall be prescribed in the employment contract. Employment relations and other relations directly related to the employment shall be regulated with the employment agreement, act of employer, agreement and collective agreement. Provisions of the agreements between the parties of the social partnership, collective and employment agreements, and acts of the employer that worsen the conditions of employees in comparison with the labour legislation of the Republic of Kazakhstan shall be recognised as invalid and shall not be exercised. Provisions of agreements, collective and employment agreements may not be changed unilaterally.
1.5 Are any minimum employment terms and conditions set down by law that employers have to observe?
The legislation establishes mandatory terms and conditions for the employment agreement, such as parties' particular details, definition of the work under a particular specialisation, professions, qualification or position, place of work, term of the agreement, date of commencement of work, working and rest hours, size and other conditions of remuneration, characteristic labour conditions, guarantees and privileges, if the work is referred to hard and/or is performed in harmful or dangerous conditions, rights and obligations of the employer and employee respectively, order of amendment and termination of the employment agreement, parties' responsibility, date of conclusions and number of the employment agreement. Agreements concluded with disabled or other special categories of employees must include other special conditions.
The legislation further regulates the term requirements for the employment agreements. Thus agreements may be concluded: (1) for an indefinite period; (2) for a fixed period of no less than one year, except for items listed in (3) to (6); (3) for the duration of the specific work; (4) for the period of replacement of a temporarily absent employee; (5) for the duration of the seasonal work; and (6) for the term of the work permit or permit for migrant workers.
The limitation provided in item (2) does not refer to small businesses, which may enter into employment agreements for a fixed term of less than one year.
1.6 To what extent are terms and conditions of employment agreed through collective bargaining? Does bargaining usually take place at company or industry level?
The Labour Code establishes mandatory conditions for collective employment agreements. Additional (optional) better conditions can be agreed and prescribed in the collective agreement.
Bargaining usually takes place at company level. There is also a social partnership agreement that can be concluded at industry level. Social partnership is a system of relationships between the employees, employers and state authorities, directed to ensure the alignment of their interests in issues of regulation of labour relations and other relations directly connected with labour relations.
2 Employee Representation and Industrial Relations
2.1 What are the rules relating to trade union recognition?
The main normative acts regulating trade union recognition issues are: the Constitution of the Republic of Kazakhstan, Labour Code and the Law of the Republic of Kazakhstan On Trade Unions, as well as other normative acts.
2.2 What rights do trade unions have?
Trade unions in Kazakhstan have the following rights:
1) to represent and protect the rights and interests of its members, as well as to act as representatives of employees in relationships with state authorities, employers, associations of private businesses (associations, unions) and other civil society organisations;
2) to bring an action in court to protect the rights and interests of its members, to act in their best interests during mediation, in court, labour arbitration or court of arbitration, in state authorities, as well as to provide its members with other legal aid;
3) to apply to the state authorities on the abolition in full or in part or on change of normative legal acts adopted by them that infringe the rights and interests of trade union members;
4) to appeal in court against the acts of state authorities that infringe the rights and interests of trade union members;
5) to participate in pre-trial settlement of labour disputes;
6) to participate in resolution of individual and collective labour disputes;
7) to carry out public control over the observance of the rights and interests of its members;
8) to negotiate and conclude collective agreements;
9) to form the monetary funds;
10) as part of the works council for occupational safety and health, to organise joint activities with the employer directed on ensuring performance of the requirements of occupational safety, prevention of occupational injuries and diseases, as well as to conduct inspections of safety and working conditions at the workplace;
11) to participate in the elaboration of legal acts affecting labour and social rights and interests of citizens;
12) in accordance with the agreements and collective agreements in compliance with the rules on health and safety, to visit through its representatives the workplaces of union members to study and adopt measures to ensure normal working conditions;
13) to organise and carry out strikes, peaceful meetings, marches, pickets and demonstrations in accordance with the legislation provisions;
14) to make proposals for the state authorities to bring to justice persons violating the legislation on trade unions, failing to fulfil obligations provided in agreements and collective agreements;
15) to engage in publishing activity, cover its work in the press and other media, including in organisations;
16) to possess, use and dispose of the property belonging to the trade union; and
17) to carry out production and business activities in the interests of its members in accordance with the statutory goals.
The legislation and collective agreements may establish other trade union rights.
2.3 Are there any rules governing a trade union's right to take industrial action?
Yes, the Labour Code and the Law on Trade Unions stipulate the rules governing trade unions' right to take industrial action. Thus, trade unions have the right to make demands in compliance with the order and on terms determined by the legislation. Trade unions may adopt a decision on holding a strike if by means of conciliation procedures they did not achieve resolution of collective labour dispute, as well as in cases when the employer deviates from conciliation procedures or fails to execute the agreement reached in the process of resolution of the dispute. Trade unions are allowed to pool together for joint protests and carry out such actions in solidarity with other unions and groups of workers.
2.4 Are employers required to set up works councils? If so, what are the main rights and responsibilities of such bodies? How are works council representatives chosen/appointed?
There is no work council concept in Kazakhstan. However, there are some elements of the work councils present in the Labour Code. For example, trade unions, representatives of the employees, industrial council for health and safety, as well as conciliation committee for individual labour disputes.
Representation of the interests of employees is performed either by the above-described trade unions, or by representatives of employees, as they are mutually exclusive. Representatives of employees are the bodies of trade unions, associations and, in their absence, elected representatives, elected and authorised by the general meeting (conference) of employees by a majority of the votes, subject to the presence of no fewer than two-thirds of the employees (delegates).
Establishment of the representatives of a body of employees is not an obligation of the employer; it is rather a right of employees. There is a requirement of consideration of opinion of representatives of employees at adopting the acts of employer (orders, regulations and other internal policies), directly stipulated in the collective employment agreements and other agreements.
Elected representatives of the employees have the right to: (1) represent and protect labour rights and interests of employees; (2) conduct collective bargaining with the employer for the development of projects and collective agreements; (3) in accordance with collective agreements, to visit workplaces to study and adopt measures to ensure normal working conditions; and (4) participate in the settlement of labour disputes between employees and employers.
Industrial councils on health and safety may be established upon the initiative of employer, and/or employees or their representatives. It is composed of representatives of the employer and employees, including technical labour inspectors, on a parity basis. The composition of the industrial council on health and safety shall be approved by a joint decision of the employer and employees' representatives.
Industrial councils on health and safety are headed by a chairman elected by the members of the council from among the representatives of the employer and employees on a rotational basis at regular intervals of two years. Decisions of the works council for health and safety are mandatory for the employer and employees.
The conciliation committee for individual labour disputes is a permanent body created in a legal entity, its branches and representative offices on principles of parity of an equal number of representatives from the employer and employees. The number of its members, the order of its work, the content and the order of its decisions, the term of office, and the issue on involvement of intermediaries are established in a written agreement between the employer and employees' representatives, or in the collective agreement.
2.5 In what circumstances will a works council have co-determination rights, so that an employer is unable to proceed until it has obtained works council agreement to proposals?
The representatives of employees have co-determination rights in cases directly provided by collective employment agreements.
Industrial councils on health and safety organise joint actions of the employer and employees to ensure the execution of the requirements for occupational safety, prevention of labour injuries and professional diseases. They also organise inspections of working conditions and safety at the workplace, using technical labour inspectors. Decisions of the works council for health and safety are mandatory for the employer and employees.
2.6 How do the rights of trade unions and works councils interact?
The trade unions and representatives of employees are mutually exclusive: representatives of employees can exist only in the absence of trade unions.
2.7 Are employees entitled to representation at board level?
No, the law does not provide for the right of representation at board or other executive body level.
3.1 Are employees protected against discrimination? If so, on what grounds is discrimination prohibited?
No one shall be subjected to any discrimination in the process of exercising of their labour rights on the grounds of origin, social, job or property status, sex, race, nationality, language, attitude to religion, beliefs, place of residence, age or disability, as well as belonging to the public unions.
Distinctions, exclusions, restrictions and preferences, which, in accordance with the laws of the Republic of Kazakhstan are set for the respective types of work or due to special care of the state to persons requiring enhanced social and legal protection, are not regarded as discrimination according to law.
3.2 What types of discrimination are unlawful and in what circumstances?
The above-listed discrimination types are prohibited in any circumstances.
There is also prohibition of indirect discrimination in Kazakhstan; particularly, prohibition of discrimination in salary sizes that is provided by the Labour Code.
3.3 Are there any defences to a discrimination claim?
There is no specific defence to a discrimination claim. The general civil procedure is applicable to employment disputes. However, sovereign immunity defence is not applicable at employment disputes, including discrimination claims with certain exceptions.
3.4 How do employees enforce their discrimination rights? Can employers settle claims before or after they are initiated?
Employees enforce discrimination rights through conciliation committee and, if not resolved or enforced, by applying to courts.
Employers can settle claims equally during consideration by conciliation committee, and at court.
3.5 What remedies are available to employees in successful discrimination claims?
In successful discrimination claims, employees receive restoration of breached rights, various compensations and re-instatement at work. In the case of re-instatement at work, the employee receives from the employer the average salary for the period of forced unemployment, or the amount of salary difference for the period of performance of lower-paid work in the case of illegal transfer to a different position/job, but for no more than six months.
3.6 Do "atypical" workers (such as those working part-time, on a fixed-term contract or as a temporary agency worker) have any additional protection?
In terms of enforcement of discrimination rights, "atypical" employees enjoy the same rights as full-time employees and employees working for fixed and indefinite terms.
4 Maternity and Family Leave Rights
4.1 How long does maternity leave last?
Pregnant women, women who have given birth to a child (children), and women or men who adopted a newborn child (children), are provided with the following leave in connection with the birth of the child:
1) maternity leave – maternity leave is granted for 70 calendar days before delivery and 56 (and in cases of complicated childbirth or the birth of two or more children – 70) calendar days after childbirth;
2) leave for employees who adopted a newborn child (children) – this leave is granted either for mother or father from the day of adoption and until the expiration of 56 days after the child was born; and
3) unpaid childcare leave – until the child reaches three years of age, unpaid childcare leave is granted either for mother or father.
4.2 What rights, including rights to pay and benefits, does a woman have during maternity leave?
The employer is obliged to pay for the maternity leave, leave for employees who adopted a newborn child, with preservation of the average salary, if this is provided by the terms of employment and/or collective agreement/act of employer. The leave is paid with a deduction of the amount of social payments for loss of income due to maternity or adoption of a newborn child.
4.3 What rights does a woman have upon her return to work from maternity leave?
Upon return from the types of leave listed in items 1) and 2) of question 4.1, the employer must preserve the average salary if it is provided by the individual or collective employment agreements/act of employer, with a deduction of the amount of social payments for loss of income due to maternity or adoption of a newborn child.
As the listed leave types are regarded as leave, and the general rule for leave stipulates that the employer must preserve the position and employee's average salary during the leave, the woman upon her return from the types of leave listed in items 1) and 2) of question 4.1 has a right to work in the same position and for the average salary. However, for the leave mentioned in item 3), the woman has a right only for preservation of her position but not the average salary.
4.4 Do fathers have the right to take paternity leave?
Yes, fathers can take leave as an employee who has adopted a newborn child (children) and unpaid childcare leave until the child reaches three years of age.
4.5 Are there any other parental leave rights that employers have to observe?
During parental leave, the employer cannot terminate employment with certain exceptions. Moreover, the employer is not allowed to appoint: (1) to work at night, pregnant women, women with children aged up to seven years of age, and other persons with growing children aged up to seven years without a mother, in addition to employees with disabled children up to the age of 16; (2) to overtime work, pregnant women, persons under 18 years of age, and disabled persons; (3) to work on weekends and holidays, pregnant women; and (4) to shifts-based work, persons under 18, pregnant women with a term of pregnancy of twelve and more weeks, and 1st group disabled persons. Employees with children under three years old and employees caring for sick family members or disabled children are entitled to refuse attendance from a business trip.
In addition to the above, if on the date of expiration of the term of employment agreement concluded for a definite term of no less than one year, a pregnant woman will present a medical certificate of pregnancy of 12 weeks or more, as well as an employee with a child aged up to three years, or an employee who has adopted a child and who wishes to exercise their right for unpaid childcare leave, submit a written request for an extension of the employment agreement, except if such employees were replacing a temporarily absent employee, the employer is obliged to extend the term of the employment agreement until the end date of the leave for childcare.
4.6 Are employees entitled to work flexibly if they have responsibility for caring for dependants?
Yes, pregnant women or a parent (adoptive parent) who has a child under the age of three years may submit a written application to the employer requesting flexibility, and the employer has to fix a part-time job.
5 Business Sales
5.1 On a business sale (either a share sale or asset transfer) do employees automatically transfer to the buyer?
Change of name, departmental affiliation, ownership of shares (participation interests) or reorganisation of the employer, does not affect the employment relationship with the employee.
In the case of assets transfer, there is no sale and no transfer of employees. Employees in such cases can terminate their employment with the previous employer, and get employed at the new employer. Forced termination is possible only in certain cases (reduction of personnel, liquidation of the employer, etc.).
5.2 What employee rights transfer on a business sale? How does a business sale affect collective agreements?
Business sale in terms of employment issues are separated for sale and purchase of shares and assets transfer. In the case of sale and purchase of shares, there is no change in rights of employees, but in the case of assets transfer, the employees' rights terminate with the previous employer, and the new employment conditions are agreed with the purchaser of assets.
5.3 Are there any information and consultation rights on a business sale? How long does the process typically take and what are the sanctions for failing to inform and consult?
There are no information or consultations rights in the case of business sale. Sale and purchase of shares does not entail any changes in employment conditions, and upon transfer of assets, the procedure of termination of the employment has to be performed, as described in section 6 below.
5.4 Can employees be dismissed in connection with a business sale?
No, business sale is not a ground for dismissal of employees. However, employees can be dismissed for other grounds stipulated by law, for example, liquidation of the legal entity, redundancy of the number or the staff, and decrease of production volume.
5.5 Are employers free to change terms and conditions of employment in connection with a business sale?
No, employers may not change the terms and conditions of employment due to the business sale.
6 Termination of Employment
6.1 Do employees have to be given notice of termination of their employment? How is the notice period determined?
The Labour Code defines specific reasons for termination of the employment upon initiative of the employer, which are as follows:
1) liquidation of the employer;
2) redundancy of the number of employees or staff;
3) loss of production, works and services that resulted in the deterioration of the economic condition of the employer;
4) non-compliance of the employee to the position or work due to insufficient qualifications confirmed with the results of attestation;
5) repeated failure to pass the examination of knowledge on issues on health and safety or industrial safety by the employee responsible for ensuring the health and safety in the organisation engaged in production activities;
6) non-compliance of the employee with the occupied position or job due to the state of health impeding to continuation of the work and preventing from its continuation;
7) negative results of work during the probationary period;
8) absence of the employee at work without reasonable excuse for three or more hours in a row in one working day (or shift);
9) presence of the employee at work in a state of alcoholic, narcotic, psychotropic, intoxication (their analogues), including the cases of use of substances causing a state of alcoholic, narcotic, intoxication (their analogues) during the working day;
10) refusal to undergo medical examination to determine the fact of use of substances that cause a state of alcoholic, narcotic, intoxication, confirmed by the relevant act;
11) violation by the employee of the occupational safety or fire safety or safety in transport rules, which resulted in or could have led to serious consequences, including work-related injuries and accidents;
12) commitment of theft (including small), intentional destruction or damage of another's property by the employee at the workplace, established by a judgment or order of court;
13) commitment of guilty actions or omissions to act by the employee serving monetary or commodity values, if these actions or omissions give rise to loss of credibility on the part of the employer;
14) commitment of the employee, performing educational functions, the immoral offence which is not compatible with the continuation of this work;
15) disclosure by the employee of information constituting state secrets and other secrets protected by law, that became known to him in connection with the performance of job duties;
16) repeated failure or repeated improper performance of job duties without good reason by the employee having to disciplinary action;
17) submission by the employee to the employer of knowingly false documents or information at conclusion of employment agreement or upon transfer of the employee to another job, if the original documents or information could have been a ground for denial for employment or transfer to another job;
18) violation of labour duties by the head of executive body of the employer, his/her deputy or head of department of the employer (branches, representative offices and other subdivisions of the employer, defined by acts of the employer), that caused material damage to the employer;
19) termination of the employee's admission to state secrets in cases established by the laws;
20) absence of the employee at work for more than two consecutive months due to temporary disability, except when the employee is on maternity leave, and if the disease is included in the list of diseases for which a longer period of disability is prescribed, approved by the authorised state body in the field of public health. The place of work of the employee unable to work due to occupational injury or illness, is preserved until the rehabilitation or establishment of disability;
21) commitment by the employee of a corruption offence that according to the entered into force court decision excludes the possibility of further work, except for the cases directly provided by law;
22) continuation of the participation by the employee in the strike after bringing a court decision to his (her) attention on recognition of the strike as illegal or on suspension of the strike;
23) termination of powers of the head of the executive body, members of collegial executive body of the legal entity, as well as employees of the internal audit and corporate secretary, pursuant to the decision of the owner of the property or authorised body of the legal entity;
24) achievement by the employee of the retirement age, with the right to an annual extension of the employment by mutual consent of the parties; and
25) absence of the employee at work for more than one month for reasons unknown to the employer.
The notice period is prescribed by Labour Code for each ground. For grounds 1), 2) and 24) there is a notice period of no less than one month, for ground 3) ground – 15 business days' prior notice, and for other grounds – upon decision of the authorised commissions or presentation of respective documents/confirmations.
6.2 Can employers require employees to serve a period of "garden leave" during their notice period when the employee remains employed but does not have to attend for work?
In cases stipulated by the laws, the employer has to suspend the employee from work on the basis of the relevant acts of the authorised state bodies. The employer also must suspend the employee:
1) who is present at work in a state of alcoholic, narcotic, intoxication (their analogues), or to use during the working day substances that cause such intoxication;
2) who does not pass the examination to confirm knowledge on health and safety and industrial safety;
3) who does not use an individual and/or collective protection equipment provided by the employer;
4) who did not pass medical examination or pre-shift medical examination if they are required under the law;
5) who lost the right to drive a vehicle or other permits required to perform the job duties; and
6) whose actions or omissions have caused or could have caused creation of an emergency situation, violation of safety rules, fire safety or the safety of transport rules.
The employer is entitled to suspend from work an employee that does not ensure the safety of property and other assets transferred to the employee on the basis of a written contract on the acceptance of material responsibility.
The "garden leave" during the notice period can and must be served for the grounds listed above only.
6.3 What protection do employees have against dismissal? In what circumstances is an employee treated as being dismissed? Is consent from a third party required before an employer can dismiss?
The employer has exhaustive grounds for dismissal of employees that are listed in the answer to question 6.1 above.
Depending on the ground for dismissal, the employee has different protections. The employer has to confirm the grounds either by attracting third parties or at their own (please see the listed grounds).
6.4 Are there any categories of employees who enjoy special protection against dismissal?
Yes, there are certain employees' categories that enjoy special protection rights. For example, the employer may not terminate employment with an employee who has less than two years until they reach retirement age for the grounds listed in items 2) and 4) of the answer to question 6.1, with pregnant women and mothers with children under three years old, single mothers with children under 14 years old or disabled children under the age of 18, or with other persons raising such children for the grounds listed in items 2) and 3) of the answer to question 6.1.
6.5 When will an employer be entitled to dismiss for: 1) reasons related to the individual employee; or 2) business related reasons? Are employees entitled to compensation on dismissal and if so how is compensation calculated?
The employer is entitled to dismiss employees for reasons related to the individual employee at the occurrence of cases listed in items 4) to 25) of the answer to question 6.1, and for business-related reasons at the occurrence of cases listed in items 1) to 3) of the answer to question 6.1.
Employees dismissed for grounds listed in item 24) of the answer to question 6.1 are entitled to a form of compensation provided in the employment agreement or collective agreement. Employees occupied for seasonal works dismissed for grounds listed in items 1) and 2) of the answer to question 6.1 above are entitled for two weeks' average salary compensation.
6.6 Are there any specific procedures that an employer has to follow in relation to individual dismissals?
Yes; depending on the ground of the dismissal, the employer has to either submit a written notice with compliance of terms stipulated for each particular ground, or perform required examinations, attestations, and hold commissions as provided in each ground (please see the answer to question 6.1 above).
6.7 What claims can an employee bring if he or she is dismissed? What are the remedies for a successful claim?
The employee can file an action, first with the conciliation committee, and then with court to establish the illegality of dismissal and to be re-established at work. In the case of positive outcome, the employee is entitled for compensation of the lost salary during the period of forced suspension from work or difference in the salary for the work performed under the lower-paid work.
6.8 Can employers settle claims before or after they are initiated?
Employers can settle the claims of employees both before and after they were initiated.
6.9 Does an employer have any additional obligations if it is dismissing a number of employees at the same time?
Yes, the employer has to submit to the territorial Centre for Public Occupation information on the planned termination of employments due to liquidation of the employer redundancy of the number of employees or staff, decrease of production, at least one moth prior. Such information must include details on the number and categories of employees to be dismissed, their positions and professions, qualifications and size of salaries, as well as on the estimated terms when such dismissal will take place.
6.10 How do employees enforce their rights in relation to mass dismissals and what are the consequences if an employer fails to comply with its obligations?
Before the mass dismissal, the employer must submit the notification to the Centre for Public Occupation with detailed information on the forthcoming dismissal. The Centre for Public Occupation may interfere in the dismissal and perform investigation of the grounds and legality of the dismissals. Failure to notify the state authority on the forthcoming dismissal by the employer entails a fine equal to 10 monthly calculation indexes (where 1 MCI for 2016 comprises 2121 Tenge).
Employees may also bring an action to the conciliation committee and after that to court.
7 Protecting Business Interests Following Termination
7.1 What types of restrictive covenants are recognised?
The only restrictive covenant directly provided by the legislation in Kazakhstan is a non-compete clause. Nevertheless, it is not clear in the newly-adopted Labour Code if this covenant applies to the post-termination period or not.
7.2 When are restrictive covenants enforceable and for what period?
The general rule of law stipulates that parties (employee and employer) establish the effectiveness term of the non-compete clause. However, as mentioned above, it is not clear if this can apply to the post-termination period or not.
7.3 Do employees have to be provided with financial compensation in return for covenants?
The issue of financial compensation in return for the non-compete clause can be provided by mutual agreement. Exception to this rule is in cases where the non-competition clause is stipulated by the legislation; in such cases, there is no financial compensation.
7.4 How are restrictive covenants enforced?
Restrictive covenant, namely the non-compete clause, is enforceable through conciliation committee and court.
8 Data Protection and Employee Privacy
8.1 How do employee data protection rights affect the employment relationship? Can an employer transfer employee data freely to other countries?
The employer is obliged to collect, process and protect the personal data of employee upon consent of employees in accordance with the Law on Personal Data and its Protection. Thus, persons getting access to the personal data of a limited access must ensure its confidentiality. Use of the data is allowed only for the earlier declared purposes for its collection, and any disclosure of the personal data may be performed upon consent of the person.
Generally, the employer is not allowed to transfer an employee's personal data to other countries. Information can be transferred trans-border only to countries that provide protection of the personal data, for example, to countries that are parties to the Strasbourg Convention dated 28 January 1981. Otherwise, trans-border transfer of the personal data may be performed only: (1) upon consent of the person for the trans-border transfer; (2) in cases stipulated by international treaties ratified by Kazakhstan; (3) in cases provided by laws of Kazakhstan, if it is required to protect the constitutional order, maintenance of public order, protection of rights and freedoms of man and citizen, their health and morals; and (4) for protection of constitutional rights and freedoms of man and citizen, if the consent of the person or his legal representative is not possible.
8.2 Do employees have a right to obtain copies of any personal information that is held by their employer?
Employees have the right to obtain copies of their personal data by submitting written or electronic request or by other protected means.
8.3 Are employers entitled to carry out pre-employment checks on prospective employees (such as criminal record checks)?
The Labour Code establishes an exhaustive list of documents that are required for conclusion of employment agreement, that is composed of: (1) personal identification document or passport; (2) a residence permit or certificate of the stateless person (for foreigners and stateless persons permanently residing in Kazakhstan) or a certificate of refugee; (3) document confirming education, qualification, special knowledge or professional training if the work requires special knowledge and skills; (4) proof of work experience; and (5) document confirming prior medical examination (for those who are obliged to undergo such an examination in accordance with the legislation).
In the case of the conclusion of an employment agreement in the fields of education, training, recreation and health improvement, physical culture and sports, healthcare, social services, culture and arts with the participation of minors, a statement of presence or absence of records on criminal offences has to be presented: murder; intentional infliction injury; proceedings against public health and morality; sexual integrity; extremist or terrorist offences; and trafficking of human beings.
When applying for the civil service, to work in state-owned enterprises, national managing holdings, national development institutions, national holdings and national companies and their subsidiaries to the position associated with the performance of administrative functions, the potential employee has to provide a statement on presence or absence of records on corruption crimes.
For conclusion of the employment agreement for part-time work (dual-employer) with another employer, the employee has to provide a statement on the nature and working conditions at the main place of work.
The list of documents required for entering into an employment agreement with foreign employees for a state authority is determined in accordance with the order to attract foreign employees, approved by the Government of the Republic of Kazakhstan.
Besides the documents listed above, an employer is not entitled to request any other documents, except as otherwise is provided for by laws and other normative legal acts.
8.4 Are employers entitled to monitor an employee's emails, telephone calls or use of an employer's computer system?
Employers are entitled to monitor emails, telephone calls or use of employer's computer system only if such right is prescribed in the internal policies and regulations, and employees gave consent for such monitoring.
8.5 Can an employer control an employee's use of social media in or outside the workplace?
The employer may control use of social media in the workplace, if such a right is prescribed in the internal policies and regulations which the employee has acknowledged. Outside of the workplace, the employer may control such use on the employer's property, and only if such restriction is prescribed in the internal policies and regulations.
9 Court Practice and Procedure
9.1 Which courts or tribunals have jurisdiction to hear employment-related complaints and what is their composition?
General rules apply to consideration of employment claims.
9.2 What procedure applies to employment-related complaints? Is conciliation mandatory before a complaint can proceed? Does an employee have to pay a fee to submit a claim?
General court procedure applies to employment-related claims. Conciliation is mandatory at pre-court stage, as described above. Employees are exempt from payment of the state fee to submit the employment-related claim.
9.3 How long do employment-related complaints typically take to be decided?
The general terms for consideration of civil claims in first instance courts are applicable to employment-related complaints. These general terms shall not exceed 15 business days for preparation to the hearing and two months for consideration of the claim.
9.4 Is it possible to appeal against a first instance decision and if so how long do such appeals usually take?
Yes, as per the general rule applicable to civil procedure, decisions of first instance courts can be appealed. Generally, appeal claim can be submitted only within a one-month period from the date of decision of the court of first instance. The courts of appeal consider the cases within a two-month period; an exception to this rule is the consideration of cases by the specialised collegium of the Supreme Court that considers cases within one month.
Originally published in ICLG
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