Commentary to article 86. Admission to work of a person without an employment contract The Code of the Republic of Kazakhstan on Administrative Offences
1. The employer's admission to work of a person without concluding an employment contract –
entails a fine for officials in the amount of thirty, for small businesses or non–profit organizations - in the amount of sixty, for medium–sized businesses – in the amount of one hundred, for large businesses - in the amount of one hundred and fifty monthly calculation indices.
2. The action (inaction) provided for in the first part of this Article, committed repeatedly within a year after the imposition of an administrative penalty, –
entails a fine for officials in the amount of sixty, for small businesses or non–profit organizations – in the amount of eighty, for medium-sized businesses - in the amount of one hundred, for large businesses – in the amount of two hundred monthly calculation indices.
3. The action (inaction) provided for in the first part of this Article committed against minors, –
entails a fine for officials in the amount of fifty, for small businesses or non–profit organizations – in the amount of eighty, for medium–sized businesses - in the amount of one hundred fifty, for large businesses - in the amount of two hundred monthly calculation indices.
4. The action (inaction) provided for in part three of this article, committed repeatedly within a year after the imposition of an administrative penalty, –
entails a fine for officials in the amount of seventy, for small businesses or non–profit organizations – in the amount of one hundred and fifty, for medium-sized businesses - in the amount of two hundred, for large businesses – in the amount of three hundred monthly calculation indices, with the suspension of the license.
Part 1. The generic object of an administrative offense is public relations related to the realization of the human right to work, its fair and favorable conditions.
The Universal Declaration of Human Rights, in article 23, proclaims that everyone has the right to work, to free choice of work, to fair and favorable working conditions, and to protection from unemployment.
This principle is also contained in Article 24 of the Constitution of the Republic of Kazakhstan. Its observance forms the basis of the labor legislation of the Republic of Kazakhstan, which regulates labor relations and other relations directly related to labor relations.
The direct object of an administrative offense is the procedure established by labor legislation for the admission of a person to work.
According to Article 33 of the Labor Code, a person is allowed to work only after signing an employment contract.
An employment contract is a written agreement between an employee and an employer, according to which the employee undertakes to personally perform a certain job (labor function), comply with the labor regulations, and the employer undertakes to provide the employee with work according to the stipulated labor function, ensure working conditions provided for by the Labor Code, laws of the Republic of Kazakhstan and other regulatory legal acts of the Republic of Kazakhstan, collective to pay the employee's salary on time and in full (clause 36 of art. 1 of the Labor Code).
The employment contract is concluded in writing in at least two copies and signed by the parties. One copy of the employment contract is kept by the employee and the employer. The employment contract must contain:
1) details of the parties:
the surname, first name, patronymic (if it is indicated in the identity document) of the individual employer, the address of his permanent place of residence and information about registration at the place of residence, the name, number and date of issue of the identity document;
individual identification number (business identification number);
name of the employer – legal entity and its location, number and date of state registration of the employer – legal entity, business identification number;
last name, first name, patronymic (if it is indicated in the identity document) of the employee, address of his permanent place of residence and information about registration at the place of residence, name, number, date of issue of the identity document, individual identification number;
2) work in a specific specialty, profession, qualification or position (labor function);
3) place of work;
4) the term of the employment contract;
5) the start date of the work;
6) Working time and rest time mode;
7) the amount and other conditions of remuneration;
8) characteristics of working conditions, guarantees and benefits if the work is difficult and (or) performed in harmful and (or) dangerous conditions;
9) employee's rights and obligations;
10) the rights and obligations of the employer;
11) the procedure for changing and terminating an employment contract;
12) responsibility of the parties;
13) the date of the conclusion and the serial number.
By agreement of the parties, the employment contract may include other conditions that do not contradict the legislation of the Republic of Kazakhstan.
In case of absence and (or) failure to properly formalize an employment contract due to the fault of the employer, he is liable in accordance with the procedure established by the laws of the Republic of Kazakhstan.
The objective side of the offense provided for in the first part of the commented article is the admission by the employer of a person to work without concluding an employment contract. The act is expressed in the form of an action (inaction), i.e. the employer sends an employee to work and at the same time does not sign an employment contract or does not conclude a new contract with the employee due to changes in working conditions. Thus, the issuance of an order, approval or signing of job descriptions, including the actual work activity of an employee, can be considered an admission to work.
Here is the following example, reflecting the objective signs of an offense. An administrative case against LLP "A" was considered in the specialized administrative court of Aktobe. According to the case file, on March 25, 2016, an authorized person of the State Institution "Labor Inspection Department of the Aktobe region" initiated an administrative case against LLP "A" under Part 1 of Article 86 of the Administrative Code, which resulted in the admission to work of a person without concluding an employment contract, namely Gr. U., Zh., A., Zh. without concluding an employment contract. We provided chimney inspection services in private sector homes.
In accordance with paragraph 3 of Article 33 of the Labor Code of the Republic of Kazakhstan, a person is allowed to work only after the conclusion of an employment contract.
By a court decision, LLP "A" was subjected to administrative punishment in the form of a fine in the amount of 127260 tenge to the state revenue.
The subject of the offense is an employer who is an official, a non–profit organization, or a small, medium, or large business entity. An employer is a natural or legal person with whom an employee has an employment relationship (clause 39 of Article 1 of the Labor Code).
The subjective side is characterized by both intentional and careless forms of guilt.
Part 2 of the commented article defines as a qualifying feature the commission of a repeated action (inaction) provided for in part one of Article 86 of the Administrative Code within a year after the imposition of an administrative penalty.
Part 3 of the article being commented on defines the minor age of the person being admitted to work (i.e., not having reached the age of 18) as a qualifying sign of the employer's admission to work of a person without entering into an employment contract.
Part 4 of the commented article defines as a qualifying feature the commission of a repeated action (inaction) provided for in part three of Article 86 of the Administrative Code within a year after the imposition of an administrative penalty.
Cases of administrative offenses provided for in Article 86 of the Administrative Code are considered by judges of specialized district and equivalent administrative courts (Article 684 of the Administrative Code).
They also consider cases of administrative offenses provided for in article 86 (parts one, two and three). Administrative Code bodies of the State Labor Inspectorate (art. 693 of the Administrative Code).
Scientific and practical commentary to the Code of the Republic of Kazakhstan on Administrative Offences (article-by-article) from the Author's team:
Bachurin Sergey Nikolaevich, Candidate of Law, Associate Professor – chapter 48 (co-authored with E.M. Khakimov);
Gabdualiev Mereke Trekovich, Candidate of Law – Chapters 11, 21, 22, 23;
Zhusipbekova Ainur Maratovna, M.yu.n. – chapter 13 (co-authored with Karpekin A.V.); chapters 33, 39 (co-authored with Seitzhanov O.T.);
Alexander Vladimirovich Karpekin, Candidate of Law, Associate Professor – chapter 13 (in collaboration with A.M. Zhusipbekova);
Korneychuk Sergey Vasilyevich – chapters 2; chapter 6 (co-authored with O.T. Seitzhanov, E.M. Khakimov); chapter 8; chapter 25 (co-authored with E.M. Khakimov); articles 457-470, 488, 488-1, 491-506; chapters 28, 30, 52;
Ilya Petrovich Koryakin, Doctor of Law, Professor – Chapter 49;
Kisykova Gulnara Bauyrzhanovna, Candidate of Law – chapter 20;
Omarova Botagoz Akimgereevna, Candidate of Law – chapters 17; chapter 18 (co-authored with B.A. Parmankulova); chapters 26, 31; chapter 32 (co-authored with B.A. Parmankulova);
Parmankulova Bayan Askhanbaevna – chapter 18 (co-authored with Omarova B.A.); chapters 19, 32 (co-authored with Omarova B.A.); chapter 43 (co-authored with Tukiev A.S.);
Podoprigora Roman Anatolyevich, Doctor of Law, Professor - Chapter 24, articles 489, 489-1, 490;
Porokhov Evgeny Viktorovich, Doctor of Law – Chapters 14, 15, 16, 29, articles 471-475;
Seitzhanov Olzhas Temirzhanovich, Candidate of Law, Associate Professor, – chapter 4; chapter 5 (co-authored with E. M. Khakimov); chapter 6 (co-authored with S.V. Korneychuk, E.M. Khakimov); chapter 9; chapter 10 (co-authored with B.E. Shaimerdenov, V.V. Filin); chapter 33 (co-authored with Zhusipbekova A.M.); chapter 36 (co-authored with Shaimerdenov B.E.); chapter 39 (co-authored with Zhusipbekova A.M.);
Smyshlyaev Alexander Sergeevich, PhD. – chapters 38, 40, 42, 43-1 (co-authored with A.S. Tukiev); chapter 44;
Aslan Sultanovich Tukiev - Candidate of Law, Associate Professor – chapters 1, 3, 35; chapters 38, 40, 42, (co-authored with A.S. Smyshlyaev); chapter 43 (co-authored with B.A. Parmankulova); chapter 43-1 (co-authored with A.S. Smyshlyaev); chapter 44-1 (co-authored with Shipp D.A.); chapter 45; 46 (co-authored with Shipp D.A.); chapter 47;
Filin Vladimir Vladimirovich, Candidate of Law, Associate Professor – Chapter 10 (in collaboration with O.T. Seitzhanov, B.E. Shaimerdenov);
Yerzhan Maratovich Khakimov, M.yu.n. – chapter 5 (co-authored with O.T. Seitzhanov); chapter 6 (co-authored with O.T. Seitzhanov, S.V. Korneychuk); chapter 7; chapter 25 (co-authored with S.V. Korneychuk); chapters 34, 41; chapter 48 (co-authored with S.N. Bachurin); chapter 53;
Shaimerdenov Bolat Yerkenovich, M.yu.n., – chapter 10 (co-authored with O.T. Seitzhanov, V.V. Filin); chapter 12; articles 476-487, 507-509; chapter 36 (co-authored with O.T. Seitzhanov); chapters 37, 50, 51.
Shipp Denis Alekseevich – chapters 44-1, 46 (in collaboration with A.S. Tukiev).
Date of amendment of the act: 01.01.2020 Date of adoption of the act: 01.01.2020 Place of acceptance: 100050000000 Authority that adopted the act: 103001000000 Region of operation: 100000000000 NPA registration number assigned by the regulatory body: 5 Status of the act: new Sphere of legal relations: 029000000000 / 028000000000 / 029002000000 / 028004000000 / 029001000000 / 026000000000 / 001000000000 / 001008000000 / 030000000000 The form of the act: COMM / CODE Legal force: 1900 Language of the Act: rus
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