There are no legal restrictions for non-governmental organizations to conclude a collective agreement in another language. The parties were entitled to use the Russian language when concluding the contract.
A. filed a lawsuit against LLP "K", LLP "B" (hereinafter referred to as the partnership) to declare paragraphs 7, 8 of the Agreement dated December 18, 2013 No. D1334–190931-103290, concluded between LLP "K" and A., illegal; to recover the amount of compensation under the collective agreement for damages, caused to life and health in the amount of 8,783,800 tenge. The case was considered on the recommendation of the Chairman of the Supreme Court of the Republic of Kazakhstan on the revision of the decision of the Judicial Board for Civil Cases of the East Kazakhstan Regional Court dated July 20, 2016. I filed a lawsuit against LLP "K", LLP "B" with the above-mentioned requirements. By the decision of the Ust-Kamenogorsk City Court of the East Kazakhstan region dated April 28, 2016, the claims were partially satisfied and it was decided: to recognize paragraphs 7, 8 of the Agreement dated December 18, 2013 No. D1334-190931-103290 (hereinafter referred to as the Agreement) concluded between LLP "K" and A. as illegal and to cancel them; to recover from LLP "K" to the state revenue of the state duty in the amount of 1,061 tenge; in satisfaction of the claims of A. to refuse to apply to K LLP and the partnership for the recovery of compensation under the collective agreement in the amount of 8,783,800 tenge for damage caused to life and health. By the decision of the Judicial Board for civil Cases of the East Kazakhstan Regional Court dated July 20, 2016, the decision of the court of first instance was changed. The judicial act was cancelled regarding the refusal of the claim for compensation. From LLP "K" and the partnership in favor of A., an amount of 3,701,220 tenge and a state duty of 3012 tenge were collected in compensation for damage caused to life and health. The rest of the decision of the court of first instance is upheld. By the decision of the Judicial Board for Civil Cases of the Supreme Court of the Republic of Kazakhstan dated October 17, 2016, the transfer of the partnership's petition for a review of the judicial acts for consideration at a court session of the Judicial board for Civil Cases of the Supreme Court of the Republic of Kazakhstan was refused. In his submission, the Chairman of the Supreme Court of the Republic of Kazakhstan, pointing to violations of substantive law committed by the appellate instance, proposed to review the decision of the judicial board for Civil Cases of the East Kazakhstan Regional Court. The Judicial Board for Civil Cases of the Supreme Court changed the decision of the appellate instance: it cancelled 3,701,220 tenge in respect of recovery from LLP "K", LLP "B" in favor of A. on account of compensation for damage caused to life and health, leaving the decision of the court of first instance in force in this part. The submission of the Chairman of the Supreme Court of the Republic of Kazakhstan was satisfied on the following grounds. By virtue of paragraphs 4 and 5 of the normative resolution of the Supreme Court dated January 15, 2016 No. 1 "On the right of access to Justice and the Powers of the Supreme Court of the Republic of Kazakhstan to review judicial acts", uniformity of judicial practice is achieved not only through the adoption of normative decisions by the Supreme Court, but also as a result of the cassation review of judicial decisions that have entered into force. acts.
There are no legal restrictions for non-governmental organizations to conclude a collective agreement in another language.
At the same time, the activity of the Supreme Court in reviewing judicial acts aimed at ensuring their legality, validity and fairness is of crucial importance for the formation of judicial practice. The achievement of uniformity of judicial practice is conditioned by the tasks of ensuring legality and protecting the constitutional rights and freedoms of both individuals and legal entities. The judicial act adopted by the appeals board violates the uniformity in the interpretation and application of legal norms by the courts. The court found that on December 26, 2012, A., who worked as an underground fastener at the Orlovskaya mine - Orlovsky mine of the K-PO LLP branch, had an accident with injury in the form of a bruised scalp wound and a bruise of the sixth thoracic spine. On January 11, 2013, No. 38, the General Director of the branch of LLP "K" - PO "V" approved the accident act with the establishment of 100% fault of the employer. By the conclusion of the medical and social expert commission A. the degree of loss of professional working capacity was 89%, with the definition of 2 disability groups. Based on subparagraph 2) of paragraph 7.11 of the collective agreement dated September 01, 2011 (hereinafter referred to as the collective agreement), the protocol of the special commission dated November 26, 2013 No. 29 decided to pay A. 5,000,000 tenge. On December 18, 2013, an agreement was signed between A. and LLP "K" on payment by the employer of compensation for labor injury in the amount of 5,000,000 tenge. By payment order No. 66030 dated December 24, 2013, the funds were transferred to the settlement account of A. The Court of first instance, in rejecting the claim for recovery of the amount, proceeded from the fact that the terms of the collective agreement were discussed and accepted in Russian. The signed original of the collective agreement exists in the text only in Russian. Clause 7.11 of the collective agreement establishes payment to employees who have lost their ability to work as a result of an accident in the amount of up to five times the annual average earnings of an employee. A special commission decided to pay A. 5,000,000 tenge. Satisfying the requirements of A. Regarding the recognition of clauses 7,8 of the Agreement as illegal, the court of first instance justified its legal position by the fact that these clauses of the Agreement contradict Article 8 of the Civil Code of the Republic of Kazakhstan, which establishes the right of citizens to dispose of their civil rights at their discretion. These points violate A.'s constitutional right to full compensation for harm to health. The appeals board, overturning the decision of the court of first instance regarding the refusal to satisfy the claim for recovery of the amount and satisfying these requirements, concluded that it was necessary to take into account the draft text of the collective agreement in the official language published in the newspaper "M", paragraph 7.11 of which provides for payment in the amount of five times the average earnings of the employee, since after the prepared There were no comments or suggestions on the draft collective agreement. However, it is impossible to agree with such conclusions of the appeals board. Regarding the claim regarding the recognition of illegal clauses 7, 8 of the Agreement concluded between LLP "K" and A. All legally relevant circumstances in the case in this part of the claim are established correctly.
The arguments of the parties have been verified with sufficient completeness. The conclusions of the courts set out in the judicial acts in this part of the claims comply with the norms of substantive law governing disputed legal relations, and are not disputed by the parties. Regarding claims for recovery of the amount of compensation under the collective agreement for damages caused to life and health. According to article 281 of the Labor Code of the Republic of Kazakhstan (hereinafter referred to as the Code), which was in force at the time of the legal relationship, the principles of collective bargaining are: equality and respect for the interests of the parties; freedom of choice in discussing issues that constitute the content of a collective agreement or agreement; voluntary acceptance of obligations by the parties. It follows from the content of this rule of law that in order to conclude a collective agreement, it is necessary to express the agreed will of the two parties on all essential terms of the collective agreement. At the same time, the conclusion of a collective agreement by virtue of paragraph 1 of Article 282 of the Labor Code is possible only if one of the parties initiates this issue. Article 8 of the Law of the Republic of Kazakhstan "On Languages in the Republic of Kazakhstan" uses the state language and, if necessary, other languages in the work of non-governmental organizations. Thus, there are no legal restrictions for non-governmental organizations to conclude a collective agreement in another language. The parties were entitled to use the Russian language when concluding the contract. In the opinion of the board, the determining factor for the correct resolution of the dispute is the establishment of the true will of the parties when discussing the terms of the concluded collective agreement in general and paragraph 7.11. in particular. The procedure for lump-sum payments and their amount are not provided for by regulatory legal acts. Such conditions are defined in the collective agreement and accepted by the employer voluntarily.
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