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For an employer enjoying qualified legal assistance prior to making definitive decisions is an effective way to avoid making further mistakes. Labour relations are a complicated business regulated not only by the Labour Code, but also by a number of other regulations, whose requirements are not always known to the director or HR manager of a company. In view of this, employers are recommended to obtain and rely on the opinion of a lawyer, who specialises in labour law.

The extensive experience of GRATA allows us to provide a wide range of advices on labour law, which includes, inter alia, advising on issues related to hiring procedures, changes in the working conditions of employees, termination of employment, disciplining, working schedule, payment terms and labour safety, compensation for and recovery of damage caused by the parties to an employment agreement, material liability of an employee and employer, work with personal data of employees, etc.

In the context of providing such comprehensive advice, we would like to focus on our proposed memorandum on the basic provisions of the legislation of the Republic of Kazakhstan regulating labour relations.

This Memorandum covers the main requirements of Kazakhstani labour laws, which are particularly relevant to companies starting their business in Kazakhstan. In particular, this document covers  the following issues:

• the basic legal framework of Kazakhstan governing labour relations;
• hiring regulations;
• salaries and wages (minimum size and payment terms, overtime and night-time payment);
• working hours (normal duration of working time, overtime work, reduced working hours, etc.);
• rest time (duration of a daily break and labour leave, additional social leaves);
• taxation issues (individual income tax, obligatory social and pension contributions, etc.);
• insurance of employer's liability for damage to the health of employees in the course of work;
• termination of employment agreements (grounds and procedures);
• status and competence of employees' representatives;
• specific features for hiring foreign employees.

Audit of HR Documentation

Hiring issues play a significant role in the business of every company. Moreover, proper compliance with  regulation of them directly affect the security of employers’ rights and interests.

Given that, directors of companies should understand the significance of documentation that governs employment as well as the effect of the lack or improper execution of such documentation. For instance, the availability of an insurance agreement for the employer's civil liability will allow the employer compensating an employee for the damage cause to the health of the latter in the course of work at the cost the relevant insurance company. In case of no such agreement, the employer will have to compensate the damage in full and at its own costs and, moreover, the employer may be brought to administrative liability for failing to sign such an agreement.

In our practice there are often cases when employees using the employer's property caused damage to that property or refused to return it after they had quit. In the course of analysing HR documentation, we often encounter the failure to sign a full material liability contract with the said employees and of the transfer of assets to employees without registration of the relevant delivery-acceptance acts. In these situations, ensuring prompt compensation for damage to the employer or bringing an employee to material liability was fairly difficult. 

Given the above, in order to avoid critical situations, which may reveal shortcomings in the execution of documents and entail material costs for a company, we recommend auditing HR records in the company in advance.

Auditing HR documentation is a comprehensive study and legal analysis of HR documents for their compliance with existing labour laws.

As a result of the audit we will provide a report covering the following:

• actual condition of employment documentation in the company;
• presence of labour law violations identified in the course of the audit;
• legal sanctions that may be imposed on the company, in case of violations revealed by controlling authorities, and other related risks;
• plan of action to eliminate the revealed violations.

Development of Employment Documentation

One of the main issues for employers is a lack of properly developed and executed HR documents. There are often cases when due to the lack of job descriptions, code of conduct, labour regulations, material liability agreements, and other important legal documents, the employer's interests are not protected, and employers cannot apply sanctions against unfair employees. To avoid these risks, we would pleased to draft for you the following HR documents based on our many years of experience and individual features and peculiarities of your company's business:

• employment agreement (appendixes thereto): for CEOs of the company, employees working under the schedule of five(six)-days a week, shift work, rotation-based work, job-combining work; individual (joint) material liability agreements with employees, employees' non-disclosure undertakings, training agreements;
• administrative regulatory documents: code of conduct, job descriptions, labour payment regulations, bonus policy, and other regulatory documents;
• standard employment orders on hiring, transfer, termination of employment, leaves schedule, worksheets, staff schedule, etc.

Legal Support of Employment Termination Procedure

The majority of claims arising from labour relations are connected with the illegal termination of employment agreements by employers. It is common for an employer, having ignored the requirements of the Labour Code, to terminate employment agreements without relevant legal grounds or to breach the termination procedure specified by the Labour Code. According to our experience, this is often attributable  to the unfamiliarity with or disregard of the employer for the relevant provisions of labour laws. To avoid claims from employees and their subsequent reinstatement due to illegal dismissal, we offer you our services on supporting the procedure for termination of employment agreements and, in particular, we are ready to provide:

• analysis of the legality of possible options for termination of employment agreements with employees;
• preparation of all documents required for the termination of employment agreements (respective  notices, agreements, orders, etc.);
• negotiations with employees and representation of employer's interests, if required;
• control over the execution by the employer of its obligations to employees in terms of the termination.

Moreover, please note that our company has substantial experience in the termination of employment agreements with senior executives of companies - a category of employees, who have a number of significant features that need to be taken into account in case of dismissal.

Instruction on Hiring, Changing Working Conditions and Termination of Employment Agreements

The labour law practice shows that employment relations for the employer can be divided into three basic stages:

1) hiring stage;

2) changing working conditions, if required;

3) termination of employment agreements.

Proper performance and documentation by the employer of these stages will allow it to avoid most of the legal risks associated with the relations with employees. Given that, we are pleased to offer you our services on developing the internal instruction, which will serve as a practical guide for HR specialists of your company and include a step by step description of the procedures for hiring, changing working conditions and dismissing employees.

Let us focus on the fact that the instruction, in addition to the obligatory requirements of the legislation, contain many provisions of practical use and are aimed at minimising the risks of employers during these stages.

In particular, these instructions contain recommendations, which may help the employer:

• avoid hiring employees who have had a negative experience with their previous employers;
• fully evaluate the qualifications and professional capacity of an employee during a trial period;
• have real leverage on unfair employees;
• terminate employment agreements with employees taking into account restrictions and regulations specified by law for some categories of employees, etc.

Representation of a Client in Relations with Employees and Governmental Authorities

Our company, having frequently represented the interests of employers, has a practice of working and negotiating with employees and their representatives in resolving various disputes. We found that negotiation with employees is a constructive and effective way that allows the employer to foresee  and avoid unnecessary litigation.

At the same time, if the employer does not succeed in resolving a labour dispute in the pre-trial phase, we are ready to offer our services in representing its interests in court.

In relations with governmental authorities - when they carry out various audits, make inquiries, etc.  - we provide our clients with information about their rights, the procedure of audits, ways for appealing unlawful decisions etc.

Engaging Foreign Labour in Kazakhstan

Special attention we would like to pay to is advising on the procedure for engaging foreign labour in Kazakhstan. Given an extensive list of legal requirements governing the procedure, employers often do not have a comprehensive understanding of all stages of engaging foreign employees.

The practice shows that the lack of perfect information may entail a range of breaches by employers, most of which involve the application of penalties and negatively affect the process of hiring non-residents in future. Given the above, we found it necessary to offer our clients a detailed advice not only on the procedure for obtaining permits to engage foreign labour, but also on the following issues:

• obtaining visa for the entry of foreigners into Kazakhstan for the purposes of business trip, secondment, and engaging in labour activities;
• registration of foreigners with migration and tax authorities;
• specific features of foreign citizens employment. 

Please also note that the legislation governing the procedure for engaging foreign labour, regardless of the requirements contained therein, is more regulated by the application practice of one or other rules of public authorities. Our firm has branches in all regions of Kazakhstan, which allows us to provide advice in view of the specific requirements established in the territorial public authorities.