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Remote working regulations in the Kazakhstan Labour Code
What Kazakhstan legislation says about the approach to working during a pandemic
The global pandemic and the subsequent state of emergency introduced in Kazakhstan have had a significant effect on businesses’ ability to operate effectively, with many of them forced to have their people work remotely, making use of available online technology. However, many companies are facing issues around how to properly formalise the remote working process and operate under the new conditions.
For those employees whose business allows it, working remotely is an obvious solution to the current situation as it allows the business to continue operating and, importantly, employees to keep their jobs. This approach has also been recommended by the Ministry of Labour and Social Welfare.
The Labour Code provides an overview of the overall remote working process, describing it as a process whereby people work away from the office, using information communication technology provided. When working remotely, the two parties can agree in writing on statutory compensation for any additional employee costs attributable to it.
However, the Labour Code does not treat working outside the office the same as remote working, because the latter requires a change of operating methods and place of work, which means that the terms governing remote work should be included in an employment agreement, together with the value of any related additional compensation.
Employers need to remember that working remotely outside of the office without the corresponding employer acts and employment agreement amendments may not be treated as remote work. In this case, the employee retains all his rights and obligations under a current employment agreement, except for the entitlement to additional compensation.
Importantly, employers may be able to use the remote work mechanism to their advantage, as it allows them to employ foreign nationals who have not been able to enter Kazakhstan due to the state of emergency and quarantine measures, without having to apply for a work permit.
What else can be done to improve operations during quarantine?
Modern technology, including electronic documentation, both within a company and with third parties, can reduce employee contact and allows people to work away from the office, for example during quarantine. By law, documents created electronically and signed using an electronic signature are recognised as originals. Electronic documents can be exchanged within a company using any information technology or identification tools, while the exchange of electronic documents with third parties requires special platforms allowing both parties to create documents and sign them electronically in accordance with the statutory procedure. There are currently a number of such platforms in Kazakhstan, and you can find more detailed information on them from the Deloitte webinar discussing the exchange of electronic documents.
What other options are possible?
Employers whose business cannot accommodate a remote work mechanism may:
· establish part-time shift schedules that are sufficient to perform sanitary measures to protect against infection and at the same time limit the number of employees in the office at any one time;
· send employees on vacation – both paid (if the employee has vacation days available) and unpaid. While paid vacation should decrease the infection risk due to employee absence from the office, it will not reduce the employer’s financial burden as it is paid based on the employee’s average monthly salary. Unpaid leave could decrease employer expenses, but is only provided with employee consent;
If an employee does not agree to take unpaid leave, he/she will be entitled to payment for downtime, irrespective of the reason for it. The amount of any such payment is based on an employment or collective agreement, but should not be less than the statutory minimum salary.
Redundancy is an extreme measure that could lead to tension during this challenging period, but if employers are forced to use it as a strategy, they should give one month’s advance notice and during the following year not hire anyone to the positions made redundant.
Employers are also entitled to terminate employment agreements if production levels decline, leading to a deterioration in the employer's economic condition. However, for employers to be able to use this approach, there must be a causal link between the employer’s condition and need for staff redundancies.
Employers planning staff redundancies or work time reductions might find it useful to look into creating a shared service centre for standard routine processes, for example, a call-centre, which tend to be popular for streamlining HR and accounting department functions. In the long term, shared service centres help standardise work processes and reduce staff costs. More detailed information on this issue is available in the shared service centres Deloitte podcast.
To conclude, we would like to stress that in these difficult times, both employees and employers have an obligation to each other, to the fullest extent possible, not to contribute to social tension or further aggravate what is already a very difficult situation. All parties to an employment relationship should try to use this period to adjust the business environment and their approach to their work, and take time to find new innovative approaches to day-to-day business processes. We believe that the 10 key steps recommended by Deloitte to businesses to overcome future uncertainties could become a part of these measures.
Author: Olessya Kirilovskaya, Deloitte Caspian, Tax and Legal Department Director
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