Consideration of disputes on the recognition of legal relations as labor relations (in the case of the actual performance of labor functions in a particular specialty on the basis of a service agreement)
When considering cases of this category, courts should distinguish civil law relations from labor relations. Labor relations are relations between an employee and an employer that arise in the exercise of rights and obligations provided for by the labor legislation of the Republic of Kazakhstan, agreements, labor, collective agreements and acts of the employer. The distinguishing features of an employment contract from other types of contracts are the presence of one of the following conditions in it: 1) the employee performs work (labor function) according to a certain qualification, specialty, profession or position; 2) fulfilling obligations personally with subordination to the labor regulations; 3) the employee receives wages for work. In accordance with paragraph 3 of Article 33 of the Labor Code, a person is allowed to work only after the conclusion of an employment contract. Consequently, an employment relationship arises between an employee and an employer on the basis of an employment contract concluded in accordance with the Labor Code, with the exception of cases established by the laws of the Republic of Kazakhstan. The nature of the employment relationship may be evidenced by circumstances when an employee performs certain work in a specific specialty, qualification, position subject to the rules of labor regulations, and the employer pays him wages and provides working conditions stipulated by labor legislation.
Consideration of disputes on the recognition of legal relations as labor relations (in the case of the actual performance of labor functions in a particular specialty on the basis of a service agreement)
When concluding a civil contract, the contractor and the contractor independently determine the time required to perform the work and provide services under the contract. Disciplinary penalties are not applied to persons who have concluded civil law contracts for violating labor discipline, as well as labor regulations, orders, and executive orders. The person who has concluded a civil contract receives remuneration for the final result, not for the work of the contractor or contractor himself. The amount of this remuneration is determined by agreement of the parties. Remuneration under civil law contracts is calculated, as a rule, on the basis of a signed act of acceptance and delivery of works (rendering services). Example. The plaintiff, R., appealed to the court, arguing that the foreman, B., was allowed to enter the construction site of T LLP without concluding an employment contract. An accident occurred at the construction site of T LLP, where the plaintiff was seriously injured with a 90% loss of general ability to work, and he became a disabled person of the first group. A special accident investigation report was drawn up on this fact, where the cause of the accident was the gross negligence of the injured R., since he was intoxicated. The act also states that R. He was not in an employment relationship with "T" LLP. The Commission concluded that, in accordance with subparagraph 1) paragraph 3 of Article 322 of the Labor Code, this accident must be recognized as unrelated to production, without drawing up an act in accordance with the established form (N-1). By the district prosecutor in relation to foreman B. A criminal case was initiated under article 156, part 2 of the Criminal Code, which was subsequently terminated due to the application of the amnesty law. In court, witness B. explained that R. had indeed worked at the facility owned by T LLP for twelve days and was receiving a salary. In addition, in the materials of the criminal case on the fact of bodily injury against R., an order was found signed by the general director of T LLP, where B. was severely reprimanded for not providing construction workers, including R., with the necessary personal protective equipment. By a court decision, the legal relationship was recognized as labor, since R. actually performed labor duties in a certain specialty.
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