Consideration of cases in the absence of the conciliation commission

The Labor Code provides for the obligation of an employee to apply to a conciliation commission to resolve a labor dispute. According to paragraph 2 of Article 159 of the Labor Code, the conciliation commission is a permanent body established in an organization, its branches and representative offices on a parity basis from an equal number of representatives from the employer and employees. In accordance with subparagraph 1) paragraph 2 of Article 23 of the Labor Code, the employer is obliged to comply with the requirements of the labor legislation of the Republic of Kazakhstan, including Article 159 of the Labor Code. Consequently, the obligation to establish a conciliation commission and ensure its continued functioning lies with the employer. In accordance with subparagraph 1) of Article 17 of the Law of the Republic of Kazakhstan "On Trade Unions", the duties of the trade union include compliance with the legislation of the Republic of Kazakhstan, including labor legislation. Consequently, trade unions that are one of the parties to the conciliation commission representing the interests of employees are not exempt from liability in case of evasion or refusal to establish a conciliation commission. At the same time, there are no norms in the Labor Code that oblige an employer to establish a conciliation commission. In this regard, in practice, questions arise about what to do to the court when the applications of employees are not considered by the conciliation commission due to its absence at the enterprise. Example: By the definition of the Taraz City Court, A.'s statement of claim to the employer for reinstatement at work, recovery of wages for forced absenteeism, compensation for moral damage was left without consideration by virtue of subparagraph 1) of Article 279 of the CPC. The plaintiff applied to the defendant for consideration of the labor dispute in the conciliation commission.

 

However, he received a reply stating that it was impossible to consider the application due to the absence of a conciliation commission in the organization. On the basis of the response received, A. re-applied to the court with the above-mentioned claim. In order to exercise the plaintiff's right to judicial protection, as indicated in the court's decision, A.'s statement of claim was accepted by the court for production and a decision was made on it, which is incorrect. When resolving this dispute, the court did not take into account the requirement of paragraph 1 of Article 159 of the Labor Code, according to which individual labor disputes are considered by conciliation commissions and only on unresolved issues or failure to comply with the decision of the conciliation commission by the courts. Consequently, based on the requirements of Articles 159 and 160 of the Labor Code, the conciliation commission, in the event of an employee or employer filing an application for an individual labor dispute, had to consider the application and make a decision on it, which would later be the basis for the party's appeal to the court. If the application was not considered, the employee had to submit an application to the state labor inspector, whose duties include ensuring state control over compliance with labor legislation. In accordance with paragraph 2 of Article 160 of the Labor Code, the duration of the application for consideration of individual labor disputes is suspended during the period of validity of the mediation agreement on the labor dispute in question, as well as in the absence of a conciliation commission before its establishment. In this regard, the party's appeal directly to the court, bypassing the conciliation commission, is premature, and also contradicts the requirements of labor legislation. According to paragraph 1 of Article 121 of the Labor Code, the employer is obliged to reimburse the employee for unpaid wages and other payments due to him. In this regard, by virtue of Article 121 of the Labor Code, if the conciliation commission delays the consideration of an employee's application, the latter has the right to subsequently raise the issue of payment of unpaid wages and other payments due to him for the period of illegal termination of the employment contract. Considering that when challenging an order to terminate or terminate an employment contract, the applicant, applying to the conciliation commission, is no longer an employee, but the dispute arises from an employment relationship, in such circumstances, Article 121 of the Labor Code provides for the financial liability of the employer for damage caused to the employee by unlawfully depriving him of the opportunity to work.  Despite the absence of an employment relationship between the employer and the former employee, on the basis of paragraph 4 of Article 120 of the Labor Code, termination of the employment contract after causing damage (harm) does not entail the release of the party to the employment contract from material liability for compensation for damage (harm) to the other party. Consequently, if the illegality of the termination of the employment contract is established by a decision of the conciliation commission or later in court, the employer is obliged to reimburse the employee for the wages he has not received and other payments due to him. If the employer refuses to voluntarily comply with the provisions of paragraph 1 of Article 121 of the Labor Code, the applicant, in the event of unlawful termination of the employment contract, has the right to re-apply to the conciliation commission to reimburse him for the wages he has not received and other payments due.

From the content of the norms of Articles 159 and 160 of the Labor Code, it follows that the conciliation commission, in the case of an employee filing an application for an individual labor dispute, considers the application, including the former employee, in the event of termination or termination of the employment contract. The court's conclusions on the acceptance of an employee's claim without a decision of the conciliation commission on the grounds of its absence, as well as in order to exercise the employee's right to judicial protection, are erroneous, since they negate the institution of the conciliation commission and violate the procedure established by law for considering labor disputes. Here I would like to note that the absence in the law of a direct instruction to the employer on the mandatory establishment of a conciliation commission within a clearly defined time frame is perceived by the employer as a right, but not an obligation. In this regard, many enterprises do not create such commissions, and employees are forced to directly apply to the courts, which accept and consider claims, which is incorrect. In this regard, we consider it advisable, in order to regulate the activities of the conciliation commission at the legislative level, to initiate an issue regarding amendments to the Labor Code, in particular to Article 159 of the Labor Code, specifying the employer's obligation to create a conciliation commission with specific deadlines, as well as to make a proposal to develop an agreement on the formation of the work of the conciliation commission. 

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