The Improvement of Labor Legislation in the Context of Legal Support for the Admission of Kazakhstan to the OECD


ZHANNA A. KHAMZINA

YERMEK A. BURIBAYEV








THE IMPROVEMENT OF LABOR LEGISLATION IN THE CONTEXT OF LEGAL SUPPORT FOR THE ADMISSION OF KAZAKHSTAN
TO THE OECD



Monograph












Moscow

PRIMEC Publishers

2020

УДК 331.91
ББК 67.405.1
Х18


This research has been funded by the Science Committee of the Ministry of Education and Science of the Republic of Kazakhstan
(Grant No.AP05131637)

Reviewers:
      O. Z. Mukhamedzhanov, Doctor of Juridical Science, Professor of the Tashkent State University of Law.
      B. A. Taitorina, Doctor of Juridical Science, Professor of the Asfendiyarov Kazakh National Medical University.



      Khamzina, Zh. A. Buribayev, Ye. A.
Х18 The Improvement of Labor Legislation in the Context of Legal Support for the Admission of Kazakhstan to the OECD: monograph / Zhanna А. Khamzina, Yermek А. Buribayev. - Moscow: PRIMEC Publishers, 2020. - 172 p.





ISBN: 978-5-91292-338-8 doi: 10.18334/9785912923388





ISBN: 978-5-91292-338-8

       © Zh. A. Khamzina, Ye. А. Buribayev, 2020 © Typography, cover design LLC Publishing House “PRIMEC Publishers”, 2020

            CONTENTS



Abbreviations....................................................5
Introduction.....................................................7
Chapter 1.      Anglo- Saxon or Civil Law for Effective Regulation of Labor Relations in Kazakhstan?................................11
     Chapter 2.      Sources of Legal Regulation of Labor Relations: The Structure of Their System and the Balance of Legal Force......24
     Chapter 3.     Trade Unions and the Regulation of Employment.42
     Chapter 4.      Enforcement of Social Partnership Agreements and Collective Contracts........................................56
     Chapter 5.     Pre-Trial Settlement of Individual Labor Disputes:
The Results of Legal Regulation Development in Kazakhstan and Future Prospects............................................75
     Chapter 6.      Possibilities of Creating Special Courts for Labor and Social Disputes in Kazakhstan.................................100
     Chapter 7.     Principle of Equality in Labor Relations:
The Implementation of Best Practices and Standards of the OECD......................................112
     Chapter 8.     Proposals and Recommendations for the
Implementation of the Wage Labor, Occupation and Employment Standards of the OECD  States in the Legislation of Kazakhstan.129
Conclusion.....................................................156
References.....................................................158

     The research provides a basis for a comprehensive approach to solving the problems of legal regulation of the labor market and employment, and also expands the boundaries of research in the law that allows combining the advantages of modern theoretical science and legal practice. The conclusions and final recommendations can be used for the following purposes: improving the sources of Kazakhstani labor law; introducing the standards of wage labor in the OECD states into the system of Kazakhstan law; identifying the specifics of transformation of the OECD standards into the domestic law.
     The monograph makes it possible to meet the modern demand of the state and society for a high-quality scientific study of the process of legal support in the Kazakhstani new social policy, corresponding to the program documents of the country's development. Moreover, the study has been conducted in a proactive mode and determines certain prospects for the development of the Kazakhstani labor market, considering the study of the OECD states' positive experience.
     This research has been funded by the Science Committee of the Ministry of Education and Science of the Republic of Kazakhstan (Grant NO.AP05131637).

     Keywords: OECD, employment, labour relations, labour rights.

            Abbreviations



     RIA - Regulatory Impact Analysis
     ADR - Alternative Dispute Resolution
     TSS - Targeted Social Support
     CCRK, CC - Civil Code of the Republic of Kazakhstan (General Part) dated December 27, 1994; Civil Code of the Republic of Kazakhstan (Special Part) dated July 1, 1999, No. 409-I
     CPC - Civil Procedural Code
     LDC - Labor Dispute Commission
     ILO - International Labor Organization
     MCI - Monthly Calculation Index
     SME - Small and Medium Entrepreneurship
     MLSP RK, The Ministry - Ministry of Labor and Social Protection of Kazakhstan
     OECD, The Organization - Organization for Economic Cooperation and Development
     P. - Paragraph
     Sp. - Sub-paragraph
     RK - Republic of Kazakhstan
     Art. - Article
     LC - Labor Code
     LC, LC RK, LC 2016, The Code - Labor Code of the Republic of Kazakhstan dated November 23, 2015, No. 414-V

     Labor Code 2007 - Labor Code of the Republic of Kazakhstan dated May 15, 2007


      LD - Labor Dispute(s)

            Introduction



      The relevance of this research is determined by the interests of the state and society in the qualitative consolidation and regulation of human labor rights in the modern legal system and public relations. The timeliness of the scientific analysis is due to the theoretically weak development of the system of legal bases for ensuring labor and directly related relations, the demand for the practice of forming and developing labor legislation in Kazakhstan on the universal basis of generally recognized norms and standards recognized in the OECD states.

      The development of domestic labor law that has occurred during the years of state independence is a legal and political phenomenon that awaits the research of legal scholars. In a short time, the labor legislation was created and has already been subjected to secondary codification, a new system of relations between labor market participants was built, and judicial practice in the field of labor relations is being systematized.

      Despite the natural errors committed in the course of building a modern system of labor and relations directly related to them, one may state absolute progress in improving the legal regulation of wage labor in our country, and dynamic accumulation of legal experience.
      In recent years, the area of labor legislation in Kazakhstan has undergone fundamental changes, and the system of relevant regulatory legal acts has become more effective as a result of the second codification aimed at liberalizing labor relations. At the same time, despite a significant improvement in the quality of legal support for human rights, the regulation in this area nevertheless has several drawbacks: the percentage of labor disputes is still high, and there are no real mechanisms for preventing collective conflicts that generate dangerous social confrontations; there is a significant number of self-employed people; there is a widespread practice of non-conclusion of labor contracts, the substitution of civil

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agreements, concealment of actual wages; an increase in the number of collective and individual labor conflicts, and low effectiveness of nonjudicial dispute resolution mechanisms. The authors propose to solve these and other problems based on the best experience of the OECD states. The long history of legal regulation of the labor market, the development of effective mechanisms to prevent social contradictions, allow us to consider the OECD states as a certain standard, the best foreign experience that can and should be used in our country.
      The main directions of all the spheres of state policy in Kazakhstan are aimed at implementing measures for the admission of our state to the OECD prior to or on 2050. Kazakhstani entry into the "club of advanced countries of the world" will allow us to adopt the best standards of developed countries, strengthen the integration with them, thereby increasing and improving the competitiveness of our country.

      The OECD members are 36 countries, and the majority of them are the EU member states. The Organization's extensive expertise and flexible decision-making system allow it to develop the recommendations for the entire world, including in the areas of public administration, the labor market, social protection, migration, and employment. The adoption of these recommendations and their legislative support are one of the most important conditions for joining the Organization. This process requires comprehensive analytical work on the scientific and legal support of a large-scale legislative process in the country, aimed at unifying all the areas of public administration, social protection, legal regulation of the labor market and employment, as well as other areas of public relations with the OECD standards.

      Together with national governments, the OECD works to create evidence-based international standards and to find solutions to several social, economic, and environmental problems from the improvement of economic performance and job creation to the development of strong education and the fight against international tax evasion. The OECD


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provides a unique forum and knowledge hub for data collection and analysis, experience sharing, best practices exchange, and advice on public policy and international standard-setting.

     Becoming a member of the OECD is not a simple formality, but the result of a strict application review process. The OECD Board, which includes all members of the Organization, decides to open discussions on membership. The Council then adopts a roadmap that sets out the conditions and procedures for entry. The map lists technical reviews that should be undertaken by the OECD committees in various policy areas to assess the candidate country's readiness and ability to implement the relevant OECD legal instruments, as well as its policies and practices in comparison with the best OECD policies and practices in the relevant policy area. This often leads to some recommendations for change to bring the candidate country in line with the OECD standards and best practices. After completion of the technical process, the Council decides to invite the candidate country to membership, which ends with the signing and domestic adoption of the OECD Convention. On the date of Deposit of the adopted Convention, the country officially becomes a member of the Organization.

     Kazakhstan is in the middle of the road, the ultimate goal of which is membership in the OECD. Several country reviews have been developed and implemented for the country, and the recommendations have been made on the policy changes and best practices in various areas. The country's cooperation with OECD bodies is carried out in several areas: agriculture, education and skills, entrepreneurship and competition, fiscal policy, gender, green growth and sustainable development, innovation, integrity, investment and economic development, public administration, and social development. Issues of the functioning of the labor market and employment occupy an important position in these areas, involve the indepth analysis and development of recommendations for the


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transformation of the legal regulation standards for the labor market of the OECD states in the national legislation of Kazakhstan.

     To date, the OECD bodies have prepared and announced several reviews for Kazakhstan in the studied areas of public relations such as SME and business policy (OECD, 2018a), civil law and policy (OECD, 2016a), transparency and exchange of information for tax purposes (OECD, 2018b), gender policy (OECD, 2017a), innovation policy (OECD, 2017b), prevention of corruption for a competitive economy (OECD, 2017c), investment policy (OECD, 2017d), territorial policy (OECD, 2017e), access to information (OECD, 2020a), risk management (OECD, 2019a), effective, strategic and accountable government (OECD, 2017f), public service reform (OECD, 2018c), urban policy (OECD, 2017g), healthcare (OECD, 2018d), creation of inclusive labor markets (OECD, 2017h), etc.

     In this monograph, we have summarized the provisions and recommendations of the OECD developed in special reviews for Kazakhstan and suggested the ways to implement them in the domestic legislation. However, we did not limit ourselves to just one research line. We analyzed the current normative sources regulating human labor rights in the OECD states, the content of the guarantees of rights enshrined in the universal acts of the OECD in their comparison with the standards for ensuring labor rights in Kazakhstan. We have summarized the information on the approaches to regulation and experience of OECD states in the field of labor relations regulation, with an emphasis on the possibility of their implementation in order to develop internal social and labor policy, and decision-making in the field of legislation.

     We believe that the main result of this research is the creation of scientifically based recommendations for the law-making process to ensure the implementation of the best practices and recommendations in the labor legislation of Kazakhstan, as well as the universal standards of wage labor and employment of the OECD states, in order to improve the quality and



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standard of life of Kazakhstani citizens, create a transparent and understandable employment system, and ensure respect for human rights in labor relations.



            Chapter 1. Anglo-Saxon or Civil Law for Effective Regulation of Labor Relations in Kazakhstan?


     The state of legal regulation of relations in the OECD states in the field of the right to freedom of labor is influenced by the implementation of one of the possible variants of their regulation by the state, which can occur according to the scheme of the "American" concept or according to the principles of the doctrine of civil law.
     The "American" concept is based on the doctrine of confrontation between employees and employers and is characterized by giving the parties to labor relations as much freedom as possible in regulating relations arising from an employment contract. This theory is based on the inviolability of free competition, and autonomy in a free market of subjects of labor relations. The logical consequence of this is to minimize state interference in the regulation of labor relations, and accordingly, the main role in their regulation is played by the organization itself, mainly through the issuance of acts of the employer. Judicial practice, which essentially creates the rules of law, is of significant importance in the regulation, which, however, reflects the peculiarities of the Anglo-American legal family (Atleson, 1983; Friedman, 1994).
     European systems of labor relations regulation based on the doctrine of civil law differ in a much greater social orientation and degree of state intervention in labor relations. Recognizing and protecting the independence of the parties to labor relations, the primacy of collective contracts and other forms of their regulation directly in the organization and in the industry, European countries (especially France) widely use

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