Pre-trial settlement of individual labor disputes

In accordance with paragraphs 1 and 2 of Article 159 of the Labor Code, individual labor disputes are considered by conciliation commissions, and on unresolved issues or non-compliance with the decision of the conciliation commission - by the courts, with the exception of small businesses and heads of the executive body of a legal entity. Conciliation commissions are permanent bodies established in organizations, its branches and representative offices on a parity basis from an equal number of representatives from the employer and employees. The number of members of the conciliation commission, the procedure for its work, the content and procedure for making decisions by the conciliation commission, the term of office of the conciliation commission, and the issue of involving an intermediary are set out in a written agreement between the employer and employee representatives or in a collective agreement. The application received by the conciliation commission is subject to mandatory registration by the specified commission on the day of submission. The dispute is considered in the presence of the applicant and (or) his authorized representative within the limits of the powers delegated to him in accordance with the regulatory legal acts of the Republic of Kazakhstan. The Conciliation Commission is obliged to consider the dispute within fifteen working days from the date of registration of the application and provide the parties to the dispute with copies of the decision within three days from the date of its adoption. The decision of the conciliation commission is subject to execution within the time limit set by it, with the exception of a dispute about reinstatement. In case of non-fulfillment of the decision of the conciliation commission within the prescribed period or on unresolved issues, the party to the labor dispute has the right to apply to the court. Thus, contacting the conciliation commission is the responsibility of the party to the labor dispute.

By agreement of the parties, the conciliation commissions may consider any category of labor disputes. This innovation is due to an increase in the effective protection of workers' rights, which makes it possible to shorten the actual time for resolving a labor dispute, and significantly reduce the workload of the courts.

According to paragraph 2 of Article 161 of the Labor Code, the decision of the conciliation commission or the court for the consideration of an individual labor dispute on the reinstatement of an employee at his previous job is subject to immediate execution. If the employer delays the execution of the decision on reinstatement, the conciliation commission or the court decides to pay the employee the average salary or the difference in wages during the delay in the execution of the decision.

Despite this imperative requirement of the Labor Code, in practice there are issues related to employers' refusals to comply with the decisions of the conciliation commissions.

The courts previously proposed that it be possible to legislate the enforcement of the decision of the conciliation commission as an executive document, which, by its very nature, is subject to strict enforcement, which will certainly increase both the effectiveness of the commission's work and its real importance in resolving labor disputes. In such cases, disputes, for example, over claims for the recovery of wage arrears or other labor disputes that are not particularly difficult, would eventually find a real solution directly in the labor collective. In such cases, it would not be necessary to re-apply to the court for dispute resolution already in the framework of the issue of non-compliance with the decision of the conciliation commission.

According to subparagraph 6) of the first part of Article 148 of the CPC, the statement of claim must contain information on compliance with the pre-trial procedure for contacting the defendant, if this is established by law or provided for by contract. The claim must also be accompanied by documents confirming the pre-trial settlement of the dispute (Article 149 of the CPC).

In accordance with subparagraph 1) In the first part of Article 152 of the CPC, the judge returns the statement of claim if the plaintiff has not complied with the pre-trial dispute settlement procedure established by law for this category of cases or provided for by the parties' agreement and the possibility of applying this procedure has not been lost.

Consequently, statements of claim in labor disputes that do not include evidence confirming the appeal to the conciliation commission, or the conclusion of such a commission, are subject to return to the plaintiff.

These innovations in labor legislation regarding the mandatory pre-trial settlement of labor disputes would certainly have an impact on simplifying the process of administration of justice. Such a pre-trial procedure for a number of labor disputes, such as the collection of wages and others, contributes to a faster resolution of labor conflicts. At the same time, without violating the constitutional provision on everyone's right to judicial protection, since the subsequent appeal of the parties to the court to resolve the dispute or to appeal or not to comply with the decision of the conciliation commission is provided for by the Labor Code.

For example, the courts did not consider individual labor disputes that, prior to the plaintiffs' appeal to the court, were the subject of consideration by the conciliation commissions, as well as disputes related to missing the deadline for applying to the court due to the late issuance of a decision by the conciliation commission, making decisions by the conciliation commissions without the participation of employees, and restoring the deadline for applying to the conciliation commission.  

It should be noted that the returns of statements of claim are at the stage of accepting a statement of claim and initiating a civil case due to the need to clarify the status of the employer in order to classify it as a small, medium or large business entity, which affects the need for a pre-trial procedure.

When clarifying at a preliminary court hearing the issue of classifying an employer as a medium-sized or large business entity, the courts, on the basis of subparagraph 1) of paragraph 1 of Article 152, left the claims without consideration due to non-compliance with the pre-trial dispute settlement procedure specified in the law.

Labor disputes arising from employment contracts stipulated by the Labor Code may be considered both out of court by the conciliation commission and directly by the court.

In labor disputes arising from labor relations after the new version of the Labor Code came into effect (from January 1, 2016), it is the responsibility of the party to the labor dispute to contact the conciliation commission, with the exception of small businesses and heads of the executive body of a legal entity.

The Conciliation Commission is a permanent body established in the organization, its branches and representative offices on a parity basis from an equal number of representatives from the employer and employees. The number of members of the conciliation commission, the procedure for its work, the content and procedure for making decisions by the conciliation commission, the term of office of the conciliation commission, and the issue of involving an intermediary are set out in a written agreement between the employer and employee representatives or in a collective agreement.

The application received by the conciliation commission is subject to mandatory registration by the specified commission on the day of submission. The dispute is considered in the presence of the applicant and (or) his authorized representative within the limits of the powers delegated to him in accordance with the regulatory legal acts of the Republic of Kazakhstan. The Conciliation Commission is obliged to consider the dispute within fifteen working days from the date of registration of the application and provide the parties to the dispute with copies of the decision within three days from the date of its adoption.

The decision of the conciliation commission is subject to execution within the time limit set by it, with the exception of a dispute about reinstatement. In case of non-fulfillment of the decision of the conciliation commission within the prescribed period, the employee or the employer has the right to apply to the court.

In case of non-fulfillment of the decision of the conciliation commission, or on unresolved issues, the party to the labor dispute has the right to apply to the court.

According to subparagraph 6) of the first part of Article 148 of the CPC, the statement of claim must contain information on compliance with the pre-trial procedure for contacting the defendant, if this is established by law or provided for by contract. The claim must also be accompanied by documents confirming the pre-trial settlement of the dispute (Article 149 of the CPC).

In accordance with subparagraph 1) In the first part of Article 152 of the CPC, the judge returns the statement of claim if the plaintiff has not complied with the pre-trial dispute settlement procedure established by law for this category of cases or provided for by the parties' agreement and the possibility of applying this procedure has not been lost.

Consequently, statements of claim in labor disputes that do not include evidence confirming the appeal to the conciliation commission, or the conclusion of such a commission, are subject to return to the plaintiff.

At the same time, in judicial practice, courts accept labor dispute cases when plaintiffs do not attach the relevant documents on the appeal or settlement of the dispute to the conciliation commission.

The investigation of the issues of the plaintiff's appeal to the conciliation commission, the existence of a decision of the conciliation commission, the establishment of such a commission by the employer, the assignment of the employer to a business entity (small, medium, large), is carried out by the court in order to prepare the case for trial. In this case, the court will require the relevant documents from the party. The fact of classifying a legal entity as a business entity (small, medium, large) can be established by sending a request to the judicial authorities.

If the plaintiff did not comply with the pre-trial dispute settlement procedure in the conciliation commission, in accordance with subparagraph 1) of Article 279 of the CPC, the statement of claim must be dismissed.

In judicial practice, questions arise about the need to create a conciliation commission in government and law enforcement agencies.

In judicial practice, questions arise about the need to create a conciliation commission in government and law enforcement agencies.

According to the Labor Code, the work of civil servants, deputies of Parliament and maslikhats, judges of the Republic of Kazakhstan is regulated by this Code with the specifics provided for by the laws of the Republic of Kazakhstan and other regulatory legal acts of the Republic of Kazakhstan, establishing special conditions and procedures for admission to service, its passage and termination, special working conditions, terms of remuneration, as well as additional benefits, advantages and limitations.

Since the obligation of a party to an individual labor dispute to apply to a conciliation commission is established by the Labor Code, and the work of the persons indicated in it is regulated by the Labor Code with the specifics established by special laws, it is not necessary to apply to a conciliation commission.

 

 

Attention!   

       Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.  

 For more information,  please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085. 

Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office  Court Cases