Addressed below is a number of disputable issues related to the legal nature, as well as the contents and the terms of concluding and terminating labor agreements in the Republic of Kazakhstan. It should be noted that an answer to these questions largely depends on provisions of the Code of Labor Laws dated July 21, 1972 (the «Code»), which was adopted during the era of the «developed socialism» in the former USSR. However, as the Code is currently the only effective and, which is even more important, the only legal act regulating labor agreements, any other approach to answers to said questions would not be that substantiated in terms of practical interests. Moreover, it would not be practical in light of the fact that Kazakhstani courts issue their resolutions on labor issues on the basis of the norms included in the Code. However, when addressing the issues, the current needs have been taken into account and an attempt has been made to formulate the conclusions which make sense in the developing market.

It should be noted that a number of Code norms which were very significant in the past are no longer applicable now. Apparently, neither employees nor employers see any need in respective social and legal institutes. In particular, the practice of concluding collective agreements has been reduced to zero (due to a seriously decreased role of the labor unions), commissions on labor disputes are no longer set up, and such disputes are basically settled by courts, i.e., said commissions and trade union committees are even not considered by the parties as potential forums for settling labor disputes. At the same time, employees and employers are sensitive enough to the application of Code norms when it comes to defining labor functions, payment for work, determining working time and vacations, granting various types of privileges and compensation packages, resignations. When disputes arise with respect to said issues, employees, as a rule, are trying to rely on the Code, while the employers are often forced to look for way out of very unfavorable situations. As a rule, courts side with employees in such disputes.

In writing this article the fact has been taken into account that in a foreseeable future, many of below conclusions may become irrelevant when a new labor law of the Republic of Kazakhstan is adopted.

According to Article 1 of the Code, it regulates labor relations of all workers and employees. The Code establishes a high level of labor conditions and comprehensive protection of labor rights of workers and employees. In essence, a conclusion can be made that the law regulates labor relations and ensures the protection of labor rights of any individual working in Kazakhstan, regardless of his/her nationality, place of work, position, qualification, profession, experience, sex, age or any other distinctions. 

The above norm of the Code and the conclusion are also based on relevant norms of the Kazakhstani Constitution. For example, Article 24 of the Constitution states that «everyone has the right of free labor, free choice of any activity or profession…. Everyone has the right to have labor conditions in compliance with safety and hygiene rules, to compensation for the work done without any discrimination.» The same Article of the Constitution also recognizes the right to individual and collective labor disputes, which may be settled by any legal method, including a strike. According to Articles 12, 13 and 14 of the Constitution, everyone (including foreigners and individuals with no citizenship) is entitled to be considered as subject of law and may protect his/her rights and freedoms using any legal method, including necessary self-defense. Everyone is entitled to court protection of his/her rights and freedoms. Moreover, it is stated that all people are equal in terms of law, and no one may be discriminated against, regardless of the reasons. Said rights and freedoms are not unilateral (unbalanced). According to Article 34 of the Constitution, along with these rights, everyone is obligated to respect the Constitution and Kazakhstani law, and also respect other individuals’ rights, freedoms, honor and dignity.

The employees’ right to labor, established in the Constitution, is exercised by concluding a labor agreement for work at a respective organization. (Article 2 of the Code.) In other words, signing a labor agreement represents a method of exercising the right to labor by individuals, which right was granted by the Constitution. Also, Article 6 of the Code unequivocally and straightforwardly fixes the norm stating that any terms and conditions of labor agreements deteriorating the employees’ position in comparison with that under labor legislation shall be invalid. It means that the very inclusion of such conditions in a labor agreement is fraught with a potential risk that the employee will refuse to observe such conditions and the employer will not be able to force him/her follow such rules. In the event of such compulsion, the employer is at risk that he may be penalized for breaching labor legislation provisions, which violation may entail, inter alia, administrative and criminal liability.

Article 15 of the Code contains the definition of the labor agreement, which makes it possible to mention the following peculiarities of the labor agreement:

1. This is an agreement between the employees and the enterprise, institution, organization. That means that the parties to the labor agreement are an individual and a legal entity.

2. Under a labor agreement, an employee shall be responsible for performance of work in accordance with specific profession, qualification and position. That means that the employee bears the obligation to conduct any work that may be carried out by any other employee having the same qualification, or who is a specialist of the appropriate profession, or has the same position. In addition, the concrete action that the hired employee will take will not be indicated concretely but the scope of relevant duties of the employee will be specified. The meaning of the term «to carry out work» is of great importance in this case (but not «to complete work»), which assumes that under a labor agreement the employee will perform his(her) functions regularly and during a specified or indefinite period of time. In this case, the regularity of work means permanent implementation of labor relations by the employee under the same conditions during such specified or indefinite periods of time, or composition of consecutive periods, during each of them the employee shall continuously conduct his(her) duties, and in between of this period there are definite, as a rule, equal periods of time when these duties are not performed (e. g. seasonal works).

3. The employee shall be obliged to carry out required work in compliance with internal rules for labor discipline, that means to follow all requirements established by the employer for all the employees with respect to working day regime, rules for and conditions of performance of duties, etc.

4. The employer is obliged to pay salary to the employee, that means to pay for the labor depending on its quantity and quality (Art. 75 of the Code) and to ensure conditions for work as stipulated by the labor legislation and agreement of the parties.

Thus, the labor agreement may be concluded between an individual (an employee) and a legal entity (an employer) in accordance to which the employee shall on a regular and continuous basis conduct duties paid on the regular basis, as well, within the definite scope of functions, responsibilities due to definite profession, qualification or position under the condition of supply of all conditions for work provided for by the legislation and agreement of the parties. Again, attention should be paid to the fact that the agreement of the parties may not provide for terms and conditions that would worsen the position of the employee in comparison with said legislation. Notwithstanding freedom in conclusion of the labor agreement, the employers and the employees are significantly restricted in determining the terms and conditions of such agreement, as long as legislation contains a lot of norms that are subject to unconditional and compulsory compliance with the labor agreement by the parties, regardless of their inclusion into specific labor agreements and their wording. This represents the main difference between the labor agreement and a civil-and-legal contract agreement for provision of works or services.

Oftentimes foreign investors, based on the western practice of including representations and warranties of parties in contracts, insist on including representations and warranties in a labor contract. However, such inclusion seems to be unsubstantiated for the following reasons.