Amendments and additions to Labor Code of the Republic of Kazakhstan on rotational and remote working

The following amendments have been introduced to the Labor Code of the Republic of Kazakhstan according to the Law of the Republic of Kazakhstan “On Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on Labor Issues” (hereinafter - the Law) on rotational method of work:

1. A new concept of “Production and living conditions - working conditions necessary for an employee to stay at the workplace, including rotational method of work, including provision of sanitary facilities, as well as conditions for rest and eating” has been introduced (new sub-clause 66-1) Clause 1 of Article 1);

To change conditions of rotational method of work, a new concept has been introduced to the Labor Code.

1. New obligation of the employer has been introduced, according to which the employer is obliged to temporarily transfer a pregnant woman working on a rotational basis, following pregnancy certificate for a period of twelve or more weeks, to a five-day or six-day working week with payment for the work performed, but not lower than average wage for the previous work (new paragraph of Article 44 of the Labor Code of the Republic of Kazakhstan);

Previously, on the basis of medical report, the employer was obliged only to transfer a pregnant woman to another job, excluding effects of harmful and (or) dangerous production factors, while maintaining average wage.

2. The employer is obliged to provide workers on a rotational basis during their stay at production site with housing and organize their meals for life support, delivery from gathering point to the place of work and vice versa, as well as conditions for work performance and rest period between shifts.

The employer determines application of rotational method of work, and also provides necessary conditions for the employee during his stay at production site and in places specially equipped for living (shift camps), in accordance with the labor, collective agreements and (or) regulations on rotational method of work approved by the employer.  

The employee is obliged, while on shift, to comply with the schedule established by the employer at production site and in places specially equipped for living (shift camps) (Clause 2 of Article 135 of the Labor Code of the Republic of Kazakhstan)

Previously, the employer performed delivery to the place of work and vice versa in accordance with labor, collective agreements and (or) regulations on rotational method of work approved by the employer. Thanks to the introduced amendments to the Labor Code, the employer must organize a collection point for transfer of workers to the place of work and back.

Earlier, the Code did not provide for the features of inter-shift rest at remote production sites and shift camps.

 

There were cases when individual workers, using personal transport at the end of the shift, left the territory of shift camp, including on weekends, holidays and family celebrations.

Now the employee, in turn, is obliged to observe the schedule while on shift.

4. Employees who have not reached the age of 18, pregnant women with a pregnancy term of twelve weeks or more and who have provided a pregnancy certificate, disabled persons of the first group from the date of the medical report are not allowed to work on a rotational basis. Other employees may be involved in work performed on a rotational basis, if such work is not contraindicated on the basis of medical reports (Clause 3 of Article 135 of the Labor Code of the Republic of Kazakhstan was changed).

Previously, the Labor Code did not require pregnant women to provide a pregnancy certificate.

5. With rotational method of work, a summarized recording of working time for a quarter or other longer period, but not more than one calendar year, or the period of a certain work performance is established.

At the time of replacement of a temporarily absent employee working on a rotational basis, it is allowed to change working hours (with a five-day or six-day working week) by agreement of the parties to the labor contract on a rotational basis with subsequent provision of rest days (hours) for the hours overworked (Clause 5, Article 135 of the Labor Code of the Republic of Kazakhstan).;

According to Article 75 of the Labor Code, accounting period for summarized recording of working hours can be any calendar period, but no more than one year or the period of a certain work performance. It was proposed to supplement and not delete the phrase “a quarter or another long period”, as this may serve as a basis for unrest among shift workers. When introducing a summarized recording of working hours, it is necessary to maintain a balance of working hours, with a shift duration (10 by 10, 21 by 21 or 28 by 28), it is impossible to observe monthly working schedule. In practice, quite often there is a need to attract workers working on a five-day or six-day working week in the event of a temporary absence of the main employee to work on a rotational basis, which creates difficulties in registering working time, since it is necessary to apply summarized recording of working time to this category. When transfer workers to work on a rotational basis, rights are violated in terms of payment and rest time. So, an employee after a worked shift (15, 21 or 28 calendar days), by order, returned back to a five-day work schedule without paying for overtime hours. In addition, in practice, labor disputes arise regarding payment of such a category of workers, who, referring to the terms of labor contract (8 hours), require payment for overtime hours for work on a rotational basis (3 hours). According to Art. 78 of the Labor Code, duration of overtime work should not exceed two hours for each employee during the day, and for heavy work, work with harmful and (or) dangerous working conditions - one hour and no more than twelve hours per month, which is considered by trade unions as violation of workers' rest time, not taking into account specifics of summarized recording of working time. In order to regulate this situation and protect labor rights of workers, and to exclude frequent labor disputes regarding payment, it is proposed to regulate this issue specifically for workers whose work schedule is temporarily changed with subsequent provision of rest hours based on the principle of labor protection.

In terms of remote work, the Law introduced the following amendment to the Labor Code of the Republic of Kazakhstan:

The order of compliance by workers engaged in remote work with safety and labor protection requirements, as well as with ensuring safe fulfillment of labor duties, is determined by the act of the employer (new Clause 4 of Article 138 of the Labor Code of the Republic of Kazakhstan).

Despite the fact that the Labor Code provides for obligation of the employer to organize training and knowledge assessment on safety and labor protection of workers, it is proposed to impose obligations on employee working remotely to comply with safety and labor protection requirements, as well as to ensure safe fulfillment of labor duties, taking into account that labor protection specialist is not able to verify actual compliance with safety work performance by the employee. In the event of an accident during remote method of work, accident investigation committee can hardly distinguish the fault between the parties to the labor contract, therefore it is proposed to provide the employer with an opportunity to discuss labor safety issues in the act of the employer, which will be made taking into account remote work regime that will help to protect the employer in case of judicial trial.