On the obligation to eliminate violations of the law on non-accrual of the coefficient for payment of services and recovery of environmental allowances

No. 6001-24-00-6ap/2021 dated April 17, 2025

Plaintiff: G.U.

The defendants: KSU "Employment Center of the Department of Employment, Social Programs and registration of acts of civil status of the district" (hereinafter referred to as the Employment Center), KSU "District Department of Employment and Social Programs" (hereinafter referred to as the Employment Department)

The subject of the dispute is about the obligation to eliminate violations of the law by not calculating the coefficient of 1.3 for services and collecting an environmental surcharge.

Review of the plaintiff's cassation complaint PLOT:

Since February 1, 2021, the plaintiff has been an individual assistant to a disabled person of the first group, K.B., residing in the city of B. The plaintiff carries out his activities on the basis of social service contracts dated February 1, 2021, January 1, 2022, January 1, 2023 and receives payment from the local executive body (hereinafter referred to as the MIO) in accordance with the established the tariff.

On January 1, 2022, she submitted a statement for the services of an individual assistant with an environmental coefficient (hereinafter referred to as the coefficient) provided for in Article 13 of the Law of the Republic of Kazakhstan No. 1468–XII "On Social Protection of Citizens affected by an environmental disaster in the Aral Sea Region" (hereinafter referred to as the Law on the Aral Sea Region), but the coefficient was not paid.

The defendants motivated this refusal by the fact that, according to the "Rules for the provision of personal assistant services for persons with disabilities of the first group who have difficulty moving, in accordance with the individual habilitation and rehabilitation program for persons with disabilities," approved by Order of the Deputy Prime Minister - Minister of Labor and Social Protection of the Population of the Republic of Kazakhstan dated June 30, 2023 No. 288 (hereinafter referred to as the Rules), individual assistants are paid for the provision of services to persons with disabilities of the first group who have difficulty moving. The guaranteed amount for the social services of an individual assistant is determined based on the calculation of 13.64 percent of the monthly calculation index established by the Law on the Republican Budget for the corresponding fiscal year.

In accordance with the Social Code and the Law of the Republic of Kazakhstan "On Compulsory Social Health Insurance", expenses for mandatory pension contributions and contributions for compulsory social health insurance are deducted from the guaranteed amount. Since the plaintiff receives payment for the provision of services of an individual assistant to a person with a disability of the first group, and the coefficient is not applied to her.

The plaintiff, disagreeing with this refusal, appealed to the court with the above requirements.

Judicial acts:

1st instance: the claim was denied.

Appeal: the decision of the court of first instance remains unchanged.

Cassation: judicial acts in this case have been annulled.

In the case, a new decision was made to satisfy the claim - to oblige the KSU "district Department of Employment and Social programs" to eliminate the violations of the law by not calculating the coefficient of 1.3 for the plaintiff's payment, taking into account the legal position of the judicial board.

Conclusions: according to paragraph 2 of Article 4 of the Law on the Aral Sea region, the ecological crisis zone includes the territories of the districts of the region, the city of K. and the city of B., including settlements under its administrative and territorial subordination.

In accordance with subparagraph 2) Paragraph 1 of Article 13 of the Law on the Aral Sea Region establishes remuneration and scholarships for the population living in the zone of environmental crisis using a coefficient of 1.3.

According to subparagraph 55) of Article 1 of the Social Code, an individual assistant is a person who provides services for accompanying a person with a disability of the first group who has difficulty moving and providing assistance when visiting facilities.

In accordance with subparagraph 19) of article 19 of the Social Code, the provision of personal assistant services for persons with disabilities of the first group who have difficulty moving is one of the measures taken by local executive bodies to implement state policy in the field of social protection.

By virtue of paragraph 2 of Article 163 of the Social Code, an individual assistant carries out activities on the basis of a contract concluded in accordance with the civil legislation of the Republic of Kazakhstan. Paragraph 4 of this article stipulates that the payment for the services of an individual assistant is made by the MIO within the guaranteed amount.

 This situation, in the context of these norms, represents two types of independent and separate legal relations between the three parties.:

an individual assistant and a person with a disability of the first group;

individual assistant and MIO.

In the first case, the validity of the conclusion of a Contract between an individual assistant and a person with a disability of the first group is not disputed by the parties and is not the subject of a legal dispute. Therefore, the court does not enter into the discussion of the legality of the Contract.

A dispute arose regarding the legal relationship between the individual assistant and the MIO.

In clause 2.2 of the Contracts, the terms of payment and by whom they should be made are not specified.

The plaintiff "services" were provided under service agreements dated February 1, 2021, January 1, 2022, and January 1, 2023, concluded between the disabled customer of the first group K. and the plaintiff service provider (hereinafter referred to as the Agreements).

According to the terms of the Contracts, "The Contractor - individual assistant undertakes to stay with a disabled person for 8 (eight) hours a day and seven days a week, to accompany from home to the facility and back, without violating the rules for the provision of services specified in the order dated May 22, 2015, hereinafter referred to as services" (paragraph 1.2).

According to paragraph 42 of the Rules, payment for the services of an individual assistant is made by local executive authorities within the guaranteed amount. At the same time, mandatory social contributions in excess of the guaranteed amount are calculated and transferred monthly no later than the 25th day of the month following the reporting one.

The calculation (withholding) and transfer of mandatory pension contributions and contributions to compulsory social health insurance are carried out monthly, no later than the 25th day of the month following the reporting month, within the guaranteed amount.

In accordance with paragraph 10 of the Rules, reimbursement of the cost of goods and services to persons with disabilities when selling their goods and services through the Social Services Portal, approved by the order of the Minister of Labor and Social Protection of the Population of the Republic of Kazakhstan dated June 6, 2023.

No. 205, the provider of social services for an individual assistant sends monthly, no later than the 10th (tenth) day of the month following the reporting period, to the authorized body:

an act of completed works (services rendered) in the form approved by Order No. 562;

an accompanying sheet of an individual assistant in the form defined by the rules for the provision of individual assistant services for persons with disabilities of the first group who have difficulty moving, in accordance with the individual habilitation and rehabilitation program for persons with disabilities approved by the authorized state body in accordance with paragraph eighteen of subparagraph 5) of Article 12 of the Social Code;

issues an invoice.

In accordance with paragraph 12 of the Rules, reimbursement of the cost of social services of an individual assistant is carried out by the authorized body within 10 (ten) working days from the date of receipt of documents.

The plaintiff was paid the guaranteed amount, without a coefficient, by the MIO.

Analyzing the above circumstances and legal norms, the judicial board came to the following conclusions.

Kazakhstan became a member of the International Labour Organization in May 1993 and has ratified 24 ILO Conventions, including 8 fundamental and 4 directive conventions.

In the recommendation of the International Labour Organization No. 198, approved at the 95th session of the General Conference of the International Labour Organization, (hereinafter – The ILO) states that "national policy should, at a minimum, provide for measures aimed at actually establishing the existence of an individual employment relationship," as well as "combating hidden forms of labor relations in the context of, for example, the existence of other forms of relationships, which may include the use of other forms of contractual arrangements that conceal the real nature of legal status, taking into account that a hidden employment relationship arises when an employer treats a specific person not as an employee., moreover, in such a way as to conceal his or her true legal status as an employee, and that situations may arise where contractual arrangements lead to the deprivation of workers of the protection to which they are entitled."

Paragraphs 9, 12 and 13 of the same document clarify that in order to protect employees in an individual employment relationship, the existence of such a legal relationship must first be determined on the basis of facts confirming the performance of work and payment of remuneration to the employee, regardless of how this employment relationship is characterized in any other agreement to the contrary, which is contractual or of a different nature, which could have been concluded between the parties.

Among them, the international document includes the conditions recommended for use to establish the existence of an employment relationship (except for the performance of work and payment of remuneration to an employee).: subordination; dependence; performing work in accordance with instructions and under control; integrating an employee into the organizational structure of an enterprise; performing work solely or primarily in the interests of another person, in accordance with a specific schedule or workplace, which is specified or agreed upon; It is supposed to provide tools, materials and mechanisms; the frequency of remuneration payments to the employee; such remuneration is the only or main source of income for the employee; payment in kind by providing the employee, for example, food, housing or vehicles, etc.

In accordance with Article 27 of the Labor Code of the Republic of Kazakhstan (hereinafter referred to as the Labor Code), the distinguishing features of an employment contract from other types of contracts are the presence of one of the following conditions in it:

an employee's performance of a job (labor function) in a certain qualification, specialty, profession, or position;

fulfillment of obligations in person with subordination to the work schedule;

receiving an employee's salary for work.

In the presence of one of the specified conditions, an employment contract must be concluded with the employee in accordance with the norms of the Labor Code.

The establishment of the provision of services for 8 (eight) hours a day and seven days a week, the period of provision of services throughout the year, which excludes the possibility of working elsewhere, the systematic payment of remuneration is confirmed by the case materials.

The nature and species of the relationship between the parties are predetermined by the presence of one or more signs indicating the existence of a hidden labor relationship.

The Judicial Board found the presence of many of them, including those specified in Article 27 of the Labor Code, in the present administrative case about the existence of a hidden labor relationship between the plaintiff and the MIO, despite the fact that no employment contract was concluded between them.

In addition, the Contracts set the deadline for the completion of work from the date of conclusion of the Contracts until December 31 of the current year (paragraph 1.3). The contractor is obliged to perform the work honestly, in good faith, ... (clause 2.1.4). The customer (K.) is obliged to pay for the work at the price ... (clause 2.1).

Contracts are contradictory, since the subject of the contract is referred to as "services" and "work" at the same time. That is, in the Contracts themselves

"services" are recognized as "works".

It follows from the content of the Contracts that the process of providing this service is carried out through physical labor. At the same time, the recipient of the service, a person with a disability of the first group, does not pay for the results of the services received.

The recognition of an employment relationship determines the legal status of payment of a guaranteed amount in the form of work from an M&A.

Ensuring that the employer must pay remuneration to the employee for his work in accordance with labor legislation

It is the responsibility of the employer and is provided by Chapter 8 of the Labor Code through, among other things, remuneration for work depending on the employee's qualifications, complexity, quantity, quality and conditions of work performed (salary), as well as compensation and incentive payments.

The monthly calculation and transfer of mandatory pension contributions and contributions to compulsory social health insurance to individual assistants (in accordance with paragraph 42 of the Rules) is a confirmation of the employment relationship and the existence of the fact of remuneration (work).

In such circumstances, the judicial board came to the conclusion about the labor nature of the legal relationship (labor relations) between the plaintiff and the MIO. Accordingly, by virtue of subparagraph 2) of paragraph 1 of Article 13 of the Law on the Aral Sea Region, which provides for remuneration using a coefficient of 1.3, which must be applied to the plaintiff when paying the guaranteed amount.

Therefore, there were no grounds for refusing to satisfy the claims.

Considering that the case does not require the collection and additional verification of evidence, the judicial board considered it necessary to cancel the decision of the court of first instance and the decision of the court of appeal and make a new decision to satisfy the claim.

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