Consideration of disputes on termination of an employment contract with members of elected trade union bodies without a reasoned opinion of a higher trade union body
In accordance with paragraphs 1, 2, 3 of Article 26 of the Law of the Republic of Kazakhstan "On Trade Unions", members of elected trade union bodies who are not released from their main work cannot be subjected to disciplinary action without a reasoned opinion of the trade union body of which they are members. The head (chairman) of a trade union body who has not been released from his main job cannot be brought to disciplinary responsibility without a reasoned opinion from a higher trade union body. Termination of an employment contract at the initiative of an employer with members of elected trade union bodies who have not been released from their main work is allowed subject to the general procedure for termination of an employment contract, taking into account the reasoned opinion of the trade union body of which these persons are members, except in cases of liquidation of a legal entity or termination of the activity of an individual employer. An employment contract with the head (chairman) of a trade union body who has not been released from his main job may not be terminated on the initiative of the employer without the reasoned opinion of a higher trade union body, except in cases of liquidation of a legal entity or termination of the activity of an individual employer.
Consideration of disputes on termination of an employment contract with members of elected trade union bodies without a reasoned opinion of a higher trade union body
The reasoned opinion of the trade union body shall be taken into account when issuing an act of the employer on the imposition of disciplinary punishment and termination of the employment contract with the persons specified in paragraphs 1 and 2 of this article, in accordance with the procedure provided for in the collective agreement. In case of termination of an employment contract on the initiative of the employer on the grounds provided for in Article 52 of the Labor Code, with the exception of subparagraph 1) of paragraph 1 of Article 1 of the Labor Code, when issuing an order to terminate the employment contract, the employer must obtain a reasoned opinion from the trade union body of the trade union. According to Article 146 of the Labor Code, the labor of employees who are members of the trade union bodies of a professional union is regulated by the Labor Code with the specifics provided for by the Law of the Republic of Kazakhstan "On Trade Unions". When resolving labor disputes about the legality of termination of an employment contract at the initiative of the employer, the courts should distinguish between the concept of "trade union member" and "trade union body". The legislation requires obtaining a reasoned opinion from the trade union body of a trade union only in relation to members of elected trade union bodies who are not released from their main jobs. Based on paragraph 1 of Article 27 of the Law of the Republic of Kazakhstan "On Trade Unions", trade union members have the right to elect and be elected to trade union bodies in accordance with the procedure established by the trade union charter. Therefore, only if a trade union member is elected to a trade union body, the restrictions provided for in paragraphs 1, 2 of Article 26 of the Law of the Republic of Kazakhstan "On Trade Unions" apply to him. An important aspect is the existence of a collective agreement with the employer, since the procedure for obtaining a reasoned opinion from the trade union body when issuing an act of the employer on the imposition of disciplinary action and termination of the employment contract must be determined by the parties in the collective agreement. Such a procedure must be carried out by the employer if a member of an elected trade union body who has not been released from his main job is brought to disciplinary responsibility.
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