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Legislation

Change in the Conditions of the Employment Contract on the Initiative of the Employer

Modern trends of judicial practice on the most common individual labor disputes. Permanent and temporary transfers.

Introduction

Labor relations are relations between an employee and an employer arising in the exercise of rights and obligations stipulated by the labor legislation of the Republic of Kazakhstan, agreements, labor, collective agreements and internal acts of the employer. The peculiarity of such relationships is that the employee undertakes to perform work in person regarding the job functions, keep to the work schedule, and the employer undertakes to provide the employee with work on the stipulated job functions, to ensure working conditions, and to pay the employee salary in full and on time.

Change in the conditions of the employment contract on the initiative of the employer

After the conclusion of the employment contract, certain rights and responsibilities arise both for the employer and for the employee. We would like to note that the employee has more rights in relation to the employer, and also proportionally less duties to the employee than the employer: as a rule, employee's rights mirror the responsibilities of the employer and vice versa. According to articles 22 and 23 of the Labor Code of the Republic of Kazakhstan (hereinafter referred to as the - Labor Code), there are three basic rights that are absolutely equal for the employee and employer, while both parties are not restricted to have other rights and fulfill other duties stipulated by the Labor Code:

The employee has the right to:

1. enter into, change, amend, discontinue and terminate an employment contract in the manner and under the conditions provided by the Labor Code;

2. demand from the employer to fulfill the conditions of labor contract, collective agreements;

3. appeal for the settlement of an individual labor dispute, consequentially, to the conciliation commission, the court in the manner provided by the Labor Code;

The employer has the right to:

1. amend, supplement, discontinue and terminate labor contracts with employees in the manner and on the grounds established by the Labor Code;

2. demand from employees to fulfill the conditions of labor contract, collective agreements, labor schedule regulations and other acts of the employer;

3. appeal for the settlement of an individual labor dispute, consequentially, to the conciliation commission, the court in the manner provided by the Labor Code.

As the Labor Code provides the right to change the terms of the employment contract both by an employee and an employer, we will consider changing the terms of the employment contract at the initiative of the employer. In this connection, it is necessary to understand what is a change in the terms of the employment contract, and whether the change in working conditions is a change in the terms of the employment contract.

For this purpose, let's examine what the terms of the employment contract and working conditions are. As it was said above, labor relations are formalized by the employment contract, which consists of the following obligatory conditions of the employment contract: The details of the parties; Job description for a particular specialty, profession, qualification or position (job function); Place of work performance; Term of the employment contract; Date of commencement of work; Mode of working time and rest time; Size and other terms of payment for labor; Characteristics of working conditions, guarantees and benefits, if the work is heavy and (or) performed in harmful and (or) dangerous conditions; Rights and duties of the employee; Rights and obligations of the employer; The procedure for changing and terminating the employment contract; Responsibility of the parties; Date of execution and contract number.

Given that both parties are entitled to change the terms of the employment contract by mutual agreement, such a modification is carried out by the parties in writing in the form of an additional agreement. At the same time, notice of a change in the terms of the employment contract is filed by one of the parties to the employment contract and is considered by the other party within 5 working days from the date of its filing. The party that received notice of changing the terms of the employment contract, including when transferring to another job, is obliged within 5 working days to inform the other party about the decision taken. Thus, a change in the conditions of an employment contract is possible under the following conditions:

1. notice of a change in the terms of the employment contract has been sent to the other party (5 business days);

2. consent of the parties is required;

3. changes in the terms of the employment contract formalized in the form of an additional agreement.

The impacts of the changing of working conditions

According to the Labor Code, working conditions are terms of payment, labor rationing, performance of labor duties, working hours and rest time, the order of combining professions (positions), expanding service areas, performing temporarily absent employee duties, safety and labor protection, technical, industrial-habitual conditions, as well as other working conditions as agreed by the parties. Working conditions are a combination of several conditions of an employment contract, which means that changes in working conditions entail a change in the conditions of the employment contract, which in turn must be formalized by concluding an additional agreement between the parties. The Labor Code sets separate deadlines for notification of changes in working conditions.

In practice, the change in working conditions occurs mainly or almost always on the initiative of the employer, since it is the employer who determines the labor function of the employee, creates working conditions, and therefore the employee initially agrees with the agreed (proposed) terms of the employment contract and working conditions when signing the employment contract. Therefore, the Labor Code determines the foundation for the changes in the working conditions on the initiative of the employer, and in order to protect the rights of employees, determines the different terms of notification by the employer of an employee whose terms and conditions of employment change. So, for example, consider the grounds for changing working conditions, provided that the work of an employee continues in accordance with his specialty or profession, relevant qualifications:

1. Changes in the production arrangement associated with reorganization;

2. Changes in the production arrangement associated with changes in economic conditions;

3. Changes in the production arrangement associated with changing technological conditions;

4. Changes in the conditions of the labor coordination;

5. Changes in the conditions of the labor coordination and the reduction of workload of employer;

6. Changes in the production arrangement, associated with the reduction of workload of employer.

The employee receives an appropriate notification not later than 15 days before the change in working conditions for the above circumstances (unless a longer period is provided). In case of a written refusal of the employee to continue working in connection with changes in working conditions, the employment contract with the employee is terminated on the grounds provided for by Article 58.1.2 of the Labor Code.

Permanent and temporary transfers

Permanent or temporary transfer of an employee also entails a change in working conditions. Let's look at what is a transfer of worker to another job. In accordance with Article 38 of the Labor Code, the transfer of an employee to another job is:

1. changing the job (job function) of the employee, which is, performing work on another position, specialty, profession, qualification;

2. assignment of other work, in the performance of which the working conditions (wages, hours of work and rest time, benefits and other conditions), conditioned by the employment contract, change;

3. transfer to a separate structural subdivision of the employer;

4. transfer to another location together with the employer.