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What to do if the employer violates the Labor Code/agreement?

According to the Constitution of the Republic of Kazakhstan, the supreme values in the Republic of Kazakhstan are the human being, his life, rights and freedoms; every human being has the right for certain working conditions that meet the requirements of safety and health, remuneration for work free from any discrimination.

However, the rights of the workers are being infringed, and far from every employer tries to make up for all the violations of the labor legislation in his company, and the workers in their turn are not in a hurry to stand upon their rights.

The main causes of the labor code violations are:

  1. ignoring the effective labor legislation;
  2. legal ignorance of a great number of employers (especially individual entrepreneurs and heads of small enterprises);
  3. legal nihilism of separate employers who are not willing to fulfill legal responsibilities;
  4. poor standards of legal competence of the employees who cannot stand upon their rights;
  5. unprofitability of enterprises, their bankruptcy.
1

Types of violations

  1. The employer has not concluded a labor agreement with you and you don’t have a copy of t agreement. In this case the employer breaks the norms stipulated by art. 33 of the Labor Code of the Republic of Kazakhstan;
  2. Labor agreement is concluded in written form in a set of two and signed by the sides. The employer and the worker have his copy of the agreement. If there is no agreement or if the labor agreement is not executed in proper way due to a fault of the employer, he is duly liable according to art. 87 of the Labor Code of the Republic of Kazakhstan of administrative violations. In this case labor relationships are considered to begin since the day the employee started working.
  3. Your labor agreement lacks essential conditions which are to be included according to art. 28 of the Labor Code of the Republic of Kazakhstan. It is a usual thing that the document does not include the terms of working regime, payment conditions, guarantees and compensations, vacation.
  4. When entering employment you were not acquainted with the regulations on the working schedule and other acts connected with your labor function. According to item 2/6 of art. 23 of the Labor Code of the Republic of Kazakhstan, the employer is to fill the worker in on the rules of the labor schedule and other acts related to the labor function of the worker and the collective agreement.
  5. Violations in the sphere of remuneration. Thus, your salary should be paid at least once a month. Upon the termination of the labor agreement payment of the sum due to the worker should be made within three working days after its termination (art. 113 of the Labor Code of the Republic of Kazakhstan).
2

Where to apply for help if there are violations in the labor legislation?

If there are violations in the labor legislation you are to apply to the state labor inspector according to your place of living or to the place of the employer’s location with a complaint of the violations or file a lawsuit against the employer. In case if there are violations in the labor agreement conditions the employee can make a complaint of the violations to the labor inspection. The complaint should be submitted in written form specifying the full name, position, full name of the company, its location and detailed description of the fact of the labor agreement violation. If the fact of violation of the employee’s rights is ascertained, the state labor inspector will require the employer to eliminate the committed violations. Do not forget that administrative and criminal liability is provided for violations of labor legislation.

3

Types of the employer’s liability for violations

Criminal liability

According to art.152 of the Criminal Code of the Republic of Kazakhstan, liability in the sphere of labor relationship is incurred for a committed crime, i.e. a deed constituting the essential elements of offense stipulated by the legislation. This type of liability is incurred for illegal termination of the labor agreement with the worker, non-compliance with court decision of reinstatement of employment, as well as any other violation of labor legislation resulting in substantial harm to the rights and legal interests of the citizens; for non-motivated refusal to conclude an agreement or termination of the labor agreement with a woman on the grounds of her pregnancy, or non-motivated refusal to conclude an agreement or termination of the labor agreement with a woman having children under three years old on these grounds, as well as non-motivated refusal to conclude an agreement or termination of the labor agreement with a disabled person on the grounds of his disability or with a juvenile on the grounds of his minority.

Administrative liability

As opposed to the criminal liability, administrative punishment of the employer can be set for violations of labor legislation irrespective of the fact whether the violation caused substantial harm to the rights and legal interests of citizens or not. According to art. 86 of Administrative Offenses Code, the employers are liable to heavy fines for violation of labor legislation.

Каспийский университет, Высшая школа права «Әдiлет» - Идрисова Зухра
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