GILS Employment Law: Kazakhstan

KAZAKHSTAN

(1) Maternity and Family Leave Rights

1.1. How long is the duration of maternity leave?

The duration of maternity leave in accordance with the Labour Code of Kazakhstan (“Labour Code”) is 126 days (70 calendar days before the delivery and 56 calendar days after childbirth). In case of complicated childbirth or the birth of 2 or more children, an additional 14 calendar days of maternity leave may be provided. 

In areas affected by nuclear testing, the duration of maternity leave is 170 calendar days, and in case of complicated childbirth or the birth of 2 or more children - 184 calendar days. 

In addition, upon request, an employee has the right to take unpaid childcare leave until he reaches 3 years old, either in full or in parts.

1.2. What are the rights of a parent when returning to work after parental leave?

During unpaid childcare leave until the child reaches the age of 3 years, the employee retains his place of work (position). 

Working mothers with children under 1.5 years old and fathers raising children under 1.5 years old without a mother, are entitled to additional breaks for feeding the child(ren) at least every 3 hours during work hours. The duration of these breaks is as follows: 

• for 1 child, each break must be at least 30 minutes;
• for 2 or more children, each break must be at least 1 hour. 

The specific duration of these breaks is subject to negotiation with the employer. 

An employee with a child under 3 years old has the right to request a part-time working hours arrangement. Additionally, a female employee with a child under 3 years old, a single mother, raising a child under 14 y.o. (a child with a disability under 18 y.o.), and other individuals raising these categories of children without a mother, are prohibited from being unilaterally terminated by the employer under certain circumstances, such as a workforce or staff reduction and a decrease in the volume of production, works performed and services provided, resulting in a deterioration in the economic condition of the employer. 

Employers are prohibited from requiring women with children under 7 years old, and other individuals raising children under 7 years old without a mother, to work night shifts without the written consent of the employee.

1.3. Do fathers possess the right to take paternity leave? 

In accordance with the Labour Code, employers are obligated to provide unpaid childcare leave to an employee until the child reaches 3 years old. This applies to either parent at their discretion or to a parent raising a child alone. 

Paternity leave is granted upon receipt of a written application from an employee, and it can be utilised either in full or in parts until the child reaches the age of 3 years.

1.4. Are there any additional parental leave rights that employers must adhere to?

The employer pays maternity leave, leave to employees who have adopted a newborn child (children), with the preservation of the average salary, if this is provided for by the terms of the labour and (or) collective agreement, the act of the employer. This provision deducts the amount of social benefits in case of loss of income in connection with pregnancy and childbirth, adoption of a newborn child(ren), which is carried out in accordance with the Social Code of Kazakhstan. 

Furthermore, adoptive parents are entitled to standard and additional parental leaves, which closely mirror maternity leave entitlements. When an employee adopts a new-born child(ren), one of the parents is granted a parental leave from the adoption date until 56 calendar days after the child's birth date. 

In addition to Section 1.3 above, upon request, employers are required to provide an unpaid childcare leave to another relative responsible for a child deprived of parental care, a guardian, and an employee who has adopted a new-born child(ren), until the child reaches 3 years old.

1.5. Do employees have the right to flexible working arrangements if they are responsible for dependents? 

For employees, including those engaged in remote work, a flexible working arrangement may be established in order to combine their social, everyday and other personal needs with the interests of production, regardless of the reasons for doing so. Such a flexible working arrangement must be stipulated in the labour and (or) collective agreement, establishing fixed working hours; flexible (variable) working hours, during which the employee has the right to perform job duties at his own discretion; accounting period. 

In addition, if the dependents are children under 3 years old, eligible employees are entitled to the above-mentioned part-time working hours arrangement according to the Labour Code. Upon submission of a written request by an employee responsible for caring for a sick family member as per the medical report, the employer is also obliged to establish a part-time working hours schedule for the employee.

(2) Termination of Employment

2.1. Is it mandatory for employers to provide notice of termination of employment? How is the notice duration determined?

In accordance with the Labour Code, either party to the employment contract shall give prior notice to the other during the last working day when the term of an employment contract expires. 

In case of termination of employment by mutual agreement of the parties, a party to an employment contract that has expressed a desire to terminate the employment shall notify the other party. The party that received the notice is obliged to inform the other party in writing about the decision made within 3 working days. 

Article 52 of the Labour Code prescribes certain cases under which an employment contract may be terminated at the employer’s initiative. As such, upon dismissal due to the liquidation or workforce or staff reduction, the employer is obliged to notify the employee in writing about the termination of the employment contract no later than 1 month in advance, unless the labour or collective agreement provides for a longer notice period. With the written consent of the employee, termination of the employment contract may be carried out before the expiration of the notice period.

Termination of an employment contract at the employer’s initiative on the grounds of dismissal, such as an employee’s presence at work in a state of alcohol or drug intoxication; an employee’s absence from work without a valid reason for 3 or more hours in a row in 1 working day, repeated failure to perform or repeated improper performance without good reason of work duties by an employee who has a disciplinary sanction, etc., is carried out in compliance with the procedures of application of disciplinary sanctions. Before applying a disciplinary sanction (remark, reprimand, severe reprimand, termination of an employment contract at the employer’s initiative on such grounds), the employer is obliged to request an employee’s explanation in writing, and the employee must provide it within 2 working days. 

The act of imposing a disciplinary sanction is issued to the employee subjected to disciplinary action against signature within 3 working days from the date of its issuance. A disciplinary sanction is imposed on an employee directly upon discovery of a disciplinary offence, but no later than 1 month from the date of its discovery, unless otherwise specified by the law.

2.2. Can employers enforce "garden leave" during the notice period, where the employee remains employed but does not have to attend work?

The Labour legislation of Kazakhstan does not have the concept of “garden leave”. 

According to the Labour Code, employers cannot compel employees to take a leave without their consent.

2.3. What safeguards do employees have against dismissal? Under what circumstances is an employee considered to be dismissed? Is consent from a third party necessary before dismissal by an employer?

Employees are safeguarded against unlawful dismissal under labour legislation. An employer’s decision to dismiss an employee shall be made in accordance with the legislation and on the grounds of dismissal at the employer’s initiative prescribed by Article 52 of the Labour Code. Furthermore, certain employee categories may be granted additional protections and guarantees against dismissal, as elaborated in Section 2.4 below. 

A dismissed employee may file a claim for unlawful dismissal for consideration by the conciliation commission, and in case of unresolved matters or non-execution of decisions of conciliation commissions – to the judicial authorities with a claim for reinstatement at work, recovery of remuneration for the period of forced labour absenteeism, compensation for moral damages, compensation for moral damage and other remedies. 

An employee is treated as being dismissed when the employment contract is terminated through issuance of the act (order) of the employer outlining the ground of dismissal. The day of termination of the employment contract is the last day of work. A copy of the act (order) of the employer shall be provided to the employee or sent to him by registered mail with acknowledgment of receipt within 3 working days from the date of its issuance. The employee must review and receive a copy of the order by signing it. 

In certain cases provided for by law, as well as collective agreements, termination of a labour agreement must be submitted for discussion to the labour collective.

2.4. Are there specific employee categories enjoying special protection against dismissal?

Employers do not have the right to terminate an employment contract at their initiative during the period of employee’s temporary incapacity for work and the employee’s annual labour leave, except for certain cases provided for by the Labour Code.

Termination of an employment contract at the employer’s initiative is not permitted with a pregnant women, women with children under 3 years old, single mothers, raising a child under 14 years old (a child with a disability under 18 years old), other individuals raising these categories of children without a mother, on the following grounds: a workforce or staff reduction; a decrease in the volume of production, work performed and services provided, resulting in a deterioration in the economic condition of the employer. Additionally, the employer cannot terminate the employment contract at his initiative with employees on a maternity leave on the ground of an employee’s consecutive absence from work for more than 2 months due to temporary incapacity for work. 

If on the expiration day of an employment contract concluded for at least 1 year, a pregnant woman submits a certificate (proof) of pregnancy for 12 weeks or more, as well as an employee who has a child under the age of 3 years, who has adopted a child and wishes to use his right to unpaid leave to care for a child, requests an extension of the term of the employment contract, except for temporary replacement cases, the employer is obliged to extend the term of the employment contract until the end of maternity leave. 

Additionally, it is not allowed to terminate an employment contract with employees, who have less than 2 years until reaching the retirement age established by the Social Code, on the grounds of workforce or staff reduction or the employee’s incompatibility with the position held or the work performed due to insufficient qualifications confirmed by certification results and without a positive decision of a commission.

2.5. Under what circumstances is an employer justified in dismissing employees: 1) due to individual reasons; 2) business-related grounds? Do employees receive compensation upon dismissal, and if so, how is it calculated?

As noted earlier, an employer may terminate an employment contract with an employee at his initiative on the following grounds, including but not limited to (related to individual reasons): 

• an employee’s absence from work for more than 1 month for reasons unknown to the employer;
• an employee’s consecutive unexcused absence from work for 3 or more hours in 1 working day;
• an employee’s absence from work for more than 2 months due to temporary incapacity (except in cases of maternity leave and illness, for which the government agency has established a longer period of incapacity);
• an employee’s presence at work in a state of alcohol or drug intoxication;
• an employee showed negative work results during the probationary period (except seasonal workers, for whom a probationary period is not established);
• an employee violated fire safety, labour protection or transport safety rules, which resulted in grave consequences;
• an employee’s incompatibility with the position held or the work performed due to insufficient qualifications confirmed by certification results;
• an employee committed theft of property, corruption offence, disclosure of secret information, etc. 

In addition, an employment contract can be terminated on businessrelated grounds in case of workforce or staff reduction, liquidation, and a decrease in production of volumes, work performed and services provided, resulting in a deterioration in the economic condition of the employer. 

Upon dismissal, the employer is obligated to provide compensation for any accrued but unused annual leave to an employee. If the employee has utilised only a portion of their vacation entitlement, compensation is disbursed for the remaining unused days.

In circumstances where the employer undergoes liquidation, or workforce or staff reduction, the dismissed employee is entitled to receive compensation for the loss of employment equivalent to the average monthly salary. In the event of a reduction in production volumes, work performed and services provided, resulting in deterioration in the employer’s economic condition, compensation is provided at the rate of the average salary for a duration of 2 months. 

An employment contract, a collective agreement or an employer’s act may provide for a higher amount of compensation payment in connection with the loss of a job.

2.6. Are there particular protocols that employers must adhere to regarding individual dismissals? 

Yes, employers are obligated to adhere to certain procedures when dismissing employees, as outlined below and in Section 2.1 above. 

The standard procedural requirements for termination of an employment contract are as follows: 

• Notification of an employee in writing of termination of the employment relationship (The specifics of this stage varies depending on the grounds for termination of an employment contract);
• Issuance of an employer’s act (order) on dismissal by the employer (no later than the employee’s last day of work and with indication of the ground on dismissal) and conclusion of a termination agreement (in case of termination of employment by mutual consent);
• Registration of the employer’s order in the journal of registration of the orders;
• Provision of a copy of the order to the employee (within 3 working days from the issuance date; the order must be signed by an employee);
• Receipt of material assets previously transferred to the employee according to the act of transfer and acceptance;
• Receipt of a completed bypass sheet signed by other company’s departments;
• Provision to the employee of a document confirming his work activity on the day of termination of the employment contract;
• Payment of wages and compensation for unused days of annual leave;
• Making changes related to dismissal of the employee in the Unified system for recording employment contracts.

2.7. What claims can an employee pursue if they are dismissed? What remedies are available for a successful claim?

As mentioned previously, a dismissed employee may file a claim for unlawful dismissal for consideration by the conciliation commission, and in case of unresolved matters or non-execution of decisions of conciliation commissions – to judicial authorities with a claim for reinstatement at work, recovery of remuneration for the period of forced labour absenteeism, compensation for moral damages, compensation for moral damage and other remedies. 

In addition to the claims above, employees who have had their employment terminated – depending on the factual circumstances– may be able to bring claims, including but not limited to breach of contract, failure to pay wages or compensations prescribed for annual leaves, as well as other requirements (change of the ground of dismissal, provision of an employee’s labour book, etc.). 

If the court considers the claims to be justified, the employer will be obliged to take appropriate actions aimed at restoring the employee’s rights and paying appropriate compensations.

2.8. Can employers resolve claims before or after they are initiated?

Employers may settle claims both before and after they are initiated. The Labour Code requires individual labour disputes to be settled by pre-trial settlement through conciliation commission, with exceptions for small businesses and certain officials, and in case of unresolved matters or non-execution of decisions of conciliation commissions can then be addressed by courts. Besides, the parties to the dispute shall take part in conciliation procedures at the stage of filing a claim with the court. 

Within the framework of the court proceeding, parties may settle disputes through various methods outlined in the legislation, including settlement agreements, mediation, or other means of conciliation procedures in order to resolve the dispute. A settlement can be reached by the parties at any stage of the process and in a court of any instance, including after the initiation of enforcement proceedings.

2.9. Does an employer bear additional obligations when dismissing multiple employees simultaneously?

As specified above, when terminating an employment contract on the grounds of workforce or staff reduction, the employer must provide an employee with at least 1 month prior notice of termination, unless a longer period is stated in labour and collective agreements. Termination may occur before the notice period expires in case if an employee provides a written consent. 

In addition, the employer must issue an order on the workforce or staff reduction, notify the authorised body in the field of social protection at least 1 month before the reduction, terminate the employment contract, pay wages to the employees and compensations for unused annual leave. The employer is also obliged to pay an employee a compensation in the amount of the employee’s average monthly salary or in the bigger amount if prescribed by labour or collective agreements due to the loss of work on the ground of workforce or staff reduction. 

As noted earlier, termination of an employment contract is not allowed on the ground of workforce or staff reduction in case of the following circumstances: during a period of an employee’s temporary incapacity for work; with pregnant women, women with children under 3 years old, single mothers raising a child under 14 years old (a disabled child under 18 years old), other individuals raising these categories of children without a mother; during an employee’s paid annual leave; for employees nearing the mandated retirement age with less than 2 years remaining.

2.10. How can employees enforce their rights regarding mass dismissals, and what are the consequences if an employer fails to comply with its obligations? 

An employee has the right to protect his rights and legitimate interests by all means that do not contradict the law and to apply for consideration of an individual labour dispute to a conciliation commission and a court in the manner prescribed by law. 

As mentioned earlier, a dismissed employee may file a claim for unlawful dismissal for consideration by the conciliation commission, and in case of unresolved matters or non-execution of decisions of conciliation commissions – to judicial authorities with a claim for reinstatement at work, recovery of remuneration for the period of forced labour absenteeism, compensation for moral damages, compensation for moral damage and other remedies. 

In case of employer’s non-compliance with its obligations related to termination of employment contract on the ground of a workforce or staff reduction, the employee reinstated at his previous job shall be entitled to receive salary for the entire period of forced labour absenteeism or the difference in salaries for the period he performed lower-paid work in case of unlawful transfer to another job, but not more than 6 months. Should the employer delay the implementation of the reinstatement decision, the employee shall receive his salary or the calculated difference due to the delay in executing the decision of the court or conciliation commission. 

According to the Civil Code of Kazakhstan (“Civil Code”), judicial protection of civil rights also includes compensation for moral damage. The employee has the right to file a claim for compensation of moral damages for the moral suffering caused to him associated with the illegal dismissal. Thus, claims for compensation for moral damage to an employee can be recovered from the employer in favour of the employee in part or in full. 

If an employee files a complaint with state authorities, it could prompt a labour inspector to conduct an inspection of the employer to ensure compliance with labour laws, which in turn might lead to directives to rectify any violations found and could also result in the imposition of fines.

(3) Data Protection and Employee Privacy 

3.1. How does the employment relationship get impacted by employee data protection rights? Is the transfer of employee data across borders unrestricted for employers?

Employers must comply with Personal Data Protection Law, when collecting, processing and protecting personal data of employees, as well as ensure its confidentiality and protection as per the Labour Code. 

The cross-border transfer of personal data to the territory of foreign states is carried out only if these states ensure the protection of personal data. Countries that provide an adequate level of protection are generally understood to be states that have acceded to the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data. The cross-border transfer of personal data to the territory of foreign states that do not ensure the protection of personal data can be carried out in case if:

• an employee’s consent is received;
• provided for by ratified international treaties;
• mandated by Kazakhstani laws to safeguard constitutional system, public order, human rights, health, and morality;
• necessary to protect constitutional rights and freedoms when employee’s consent is unattainable.

3.2. Are employees entitled to obtain copies of any personal information held by their employer?

The legislation of Kazakhstan does not explicitly prohibit employees from obtaining copies of their personal information held by the employer, provided that the employee submits a request. According to Personal Data Protection Law, the employee has the right to know that the employer, as well as a third party, possess his personal data. Employees are also entitled to receive information containing confirmation of the fact, purpose, sources, methods of collection and processing of personal data; list of personal data; terms of processing of personal data, including duration of their storage. 

Additionally, as per the Labour Code, the employee retains the right to access information about the employment contract and his work activities from the unified system for recording of employment contracts.

3.3. Do employers have the authority to conduct preemployment checks on prospective employees (such as criminal record checks)?

Employers can carry out pre-employment checks on prospective employees; however, the checks must be on a necessity basis, and it is good practice to obtain the prospective employees’ informed consent before conducting such checks. Employers are not authorised to request on provision of documents beyond those outlined in the Labour Code or other relevant regulatory statutes unless consent is provided by the employee. 

The Labour Code explicitly grants employers the right to access information on a job applicant’s work history from the unified system for recording of employment contracts, contingent upon the employee’s prior consent. Additionally, the Labour Code provides for a predefined list of documents that employers may request from the prospective employee as part of the employment contract’s conclusion process. 

The specific additional documents that employers may request can vary based on the nature of the position being applied for. As such, employers are permitted to inquire about information on absence or presence of a criminal record and any history of corruption offences.

3.4. Do employers have the right to monitor employee emails, phone calls, or use of company computer systems?

One of the main guarantees of the right to privacy of correspondence, telephone conversations, postal, telegraph and other messages is the general constitutional duty of the state, which is to recognize, respect and protect rights and freedoms, human rights to privacy, in accordance with the Constitution of Kazakhstan. In this regard, the Law on Communications and the Law on Informatization have been enacted to further safeguard these rights. 

State regulation in the field of informatization is based on the principles of legality, respect for the rights, freedoms and legitimate interests of individuals, ensuring personal security when using information and communication technologies, etc. 

According to the Criminal Code, illegal violation of the confidentiality of correspondence, telephone conversations, postal, telegraph or other messages of individuals incurs penalties, including fines, imprisonment. 

At the same time, there is also a practice of the employer’s implementation of a comprehensive system for monitoring and analysing actions performed on an employee’s personal computer in order to monitor the employee’s work activities and information security in the company. To avert adverse outcomes, it's imperative to establish internal regulations outlining the parameters of monitoring. These regulations should detail the purpose, methods, and limitations of control over employees' personal computer usage during work hours. Moreover, these regulations should indicate the responsibilities of an employee and the liabilities of an employer, and the employee should be familiarised with them in writing.

3.5. Can employers control an employee's use of social media both inside and outside the workplace?

Although the legislation of Kazakhstan does not provide for an explicit legislative provision in this regard, an employer may have the right to restrict its employees from using social media for private purposes during work hours. In addition, the use of social media by an employee outside of work hours must not violate his obligations towards the company, such as confidentiality or no defamation. Misuse, even outside of work hours, may constitute misconduct subject to disciplinary action, provided that the company’s internal rules and (or) employment contract have clear provisions in this regard.

(4) Court Practice and Procedure

4.1. Which courts or tribunals hold jurisdiction over employment-related complaints, and what is their composition?

Labour disputes are subject to consideration in courts of general jurisdiction according to the general rules with several exceptions provided for by the Civil Procedure Code of Kazakhstan (“Civil Procedure Code”) and the Civil Code. Claims shall be filed in court at the location of the defendant, i.e. according to the legal or actual location of the legal entity - the employer. 

The procedure for consideration of cases, complaints, and petitions are prescribed by the Civil Procedure Code. Civil cases in the court of first instance are considered and resolved by a single judge, who acts on behalf of the court. Consideration of cases in the court of appeal is carried out by a collegial composition of the court in an odd number (at least 3) of judges of the regional and equivalent court, one of whom is a presiding judge, or a single judge. 

Cases in the court of cassation are reviewed by a collegial composition of the court in an odd number (at least 3) of judges of the Supreme Court, chaired by the chairman of the judicial panel or a designated judge. Appeals against the decisions of the court of cassation are considered by a collegial composition of an odd number (at least 7) of judges, chaired by the Chairman of the Supreme Court or a designated judge.

4.2. What procedures govern employment-related complaints? Is conciliation obligatory before proceeding with a complaint, and is there a fee for employees to submit a claim? 

As specified above in Section 2.8, the Labour Code provides for the mandatory pre-trial settlement for the consideration of individual labour disputes through conciliation commission, with the exception of small businesses and heads of the executive body of a legal entity, and then (on unresolved issues or on issues of non-execution of decisions of the conciliation commission) - by courts. Besides, the parties to the dispute shall take part in conciliation procedures at the stage of filing a claim with the court. 

Within the framework of the court proceeding, parties may settle disputes through various methods outlined in the legislation, including settlement agreements, mediation, or other means of conciliation procedures in order to resolve the dispute. A settlement can be reached by the parties at any stage of the process and in a court of any instance, including after the initiation of enforcement proceedings. 

Collective labour disputes are resolved in the following sequence: considered by the employer (association of employers), if resolution is impossible - in the conciliation commission, if no agreement is reached - by labour arbitration, and on issues not settled by it - by courts. 

In claims pertaining to the recovery of wages and other matters associated with labour activities, claimants (employees) are entitled to exemption from payment of the state fees in court.

4.3. What is the typical duration for resolving employment-related complaints? 

The civil procedure legislation of Kazakhstan provides for several stages of civil process: 

Stage 1: Receipt of the statement of claim. 

The judge determines to initiate a civil case indicating the language of legal proceedings (5 working days). 

Stage.2: Preparation for the court proceeding and Preliminary hearing. 

After accepting the statement of claim for court proceedings and initiating a civil case, the judge prepares the case for trial in order to ensure its timely and correct resolution (15 working days). 

Stage 3: Court proceeding. 

The period for consideration of a civil case must correspond to its actual complexity and interests of the persons participating in the case. According to the Civil Procedure Code, civil cases are considered and resolved by the court within 2 months from the date of completion of preparation of the case for trial. Civil cases on reinstatement at work are considered and resolved by the court within 1 month from the date of completion of preparation of the case for trial.

4.4. Is it possible to appeal against a decision at the first instance, and if so, how long does such an appeal usually take? 

Yes, as mentioned above, it is possible to appeal against a decision made at the court of the first instance. An appeal may be filed within 1 month from the date of the issuance of the final decision, unless specified otherwise by the Civil Procedure Code. 

In the court of appeal, the case is considered within 2 months from the date of its receipt by the court, unless otherwise stipulated by the law.

(5) Work Permits 

5.1. What are the restrictions or limitations placed on individuals holding a work permit in terms of job duties, employer changes, or duration of stay? 

In accordance with the Rules on Work Permits Issuance, when employing a foreign employee to the position that does not correspond to the position specified in the work permit, the local executive body revokes the current work permit to attract foreign labour and imposes an administrative fine to an employer. 

The Rules on Work Permits Issuance indicates that the work permit issued by the local executive body is not transferable to other employers and is valid only on the territory of the corresponding administrative-territorial unit (the region where the Work Permit was obtained). At the same time, the employer is allowed to send employed foreign employees with work permits on business trips to enterprises and organisations located on the territory of other regions for a period that does not exceed a total of 90 calendar days within 1 calendar year. If the period of business trips is exceeded, an additional work permit shall be obtained for that region. Additional fine is entailed in case of a repeated non-compliance. 

The legislation of Kazakhstan does not establish restrictions on employees, including foreign employees, working in several positions in organisations (including in one organisation) concurrently. At the same time, in order to employ a foreign employee to occupy several positions, the employer must obtain the appropriate work permit for each position held. It is also important to add that, in accordance with the Labor Code, the total duration of daily work at the place of primary work and sideline work should not exceed the standard duration of daily work.

5.2. What are the requirements for obtaining a work permit? 

According to Migration Law of Kazakhstan (“Migration Law”), attraction of the foreign labour force is conducted on the basis of a permit issued by local executive bodies within the quota established by the Government of Kazakhstan. The order and conditions of the issuance of the work permit are established by the Rules on Work Permits Issuance. 

The quota means the maximum permissible amount of foreign labour authorised to be attracted by employers to carry out a labour activity in Kazakhstan. 

If the company plans to attract foreign workers to Kazakhstan in 2025, then by the 30th of September of the current year, the company must apply for a quota. In practice, the acceptance of applications for a quota begins in August and September. 

For the purposes of the issuance of the work permits, the following categories of employees are established: 

• Category 1: heads and their deputies;
• Category 2: heads of structural divisions corresponding to the qualification requirements established by the established professional standards;
• Category 3: experts corresponding to the qualification requirements established by the established professional standards;
• Category 4: skilled workers corresponding to the qualification requirements established by the established professional standards. 

In order to obtain the work permit, the employer submits to the local executive authority in paper at the place of conducting labour activity or electronically through the “State database “E-licensing” the documents in accordance with the List of the general requirements as per the Rules on Work Permit Issuance.

The Work Permit is being issued for the following terms: 

• for employees of the Category 1 - for 1, 2 or 3 years based on the application with a right of extension for 1, 2 or 3 years;
• for employees of the Category 2 or the Category 3 - for 1 year with a right of extension for 1 year, but no more than 3 times;
• for employees of the Category 4 - for 1 year without a right of extension;
• for seasonal foreign employees - up to 1 year without a right of extension. 

In order to obtain or extend the work permit, the employer must pay the tax fee in accordance with the rates specified by the Decree of the Government of Kazakhstan "On the Establishment of the Rates of Duty for the Issuance and(or) Extension of the Permit for Attraction of Foreign Labour to Kazakhstan” and the Tax Code of Kazakhstan (“Tax Code”), The rates of state fee ranges from 137 MCI to 225 MCI per 1 year, depending on the category of foreign employee and the type of economic activity. 

Furthermore, there is a separate procedure for obtaining the work permit within the framework of an intra-company transfer. Separate articles of the Rules on Work Permit Issuance are devoted in this regard.

5.3. Are there any recent changes or updates to work permit regulations or policies that individuals or employers should be aware of? 

The Decree of the Government of Kazakhstan dated November 24, 2023, has been issued pertaining to the List of individuals exempted from acquiring a work permit for the attraction of foreign labour to carry out labour activity. 

The amendment entails the exclusion of the clause concerning the heads/general directors of branches and representative offices of foreign legal entities from the aforementioned List.

5.4. Are there specific industries or occupations that have different requirements or exemptions for obtaining a work permit? 

In accordance with Migration Law and the Decree of the Government of Kazakhstan dated 24.11.2023, the following individuals are exempt from obtaining a Work Permit for attracting foreign labour to carry out labour activity in Kazakhstan: 

Foreigners and stateless persons: 

• kandas;
• business immigrants who arrived to carry out entrepreneurial activities;
• refugees or asylum seekers;
• immigrants arriving for humanitarian reasons;
• individuals sentenced to non-custodial penalties by the courts of Kazakhstan;
• victims of human trafficking during ongoing criminal proceedings;
• individuals entering for family reunification purposes under special conditions;
• full-time students also working part-time in educational institutions of Kazakhstan;
• citizens of states that are parties to the Treaty on the EEU;
• crew members of sea and river vessels, air and railway transport;
• artists, directors, conductors, choirmasters, choreographers, athletes and coaches; individuals attracted by participants and bodies of the AIFC;
• specialists in creation of a space rocket complex and the operation of ground-based space infrastructure facilities, attracted within the framework of international treaties of Kazakhstan on cooperation in the field of aerospace activities;
• individuals carrying out pedagogical activities under international treaties on cooperation in the field of education in educational organisations of Kazakhstan, as well as for those implementing international integrated educational programs - no more than 50% of the organisation’s staff, unless a different share is established by an international treaty;
• teaching staff in educational organisations that have been assigned a special status in accordance with the legislative procedure, and heads and teachers of educational organisations, whose qualifications meet the requirements established by the legislation, and who train personnel for industries economics;
• first heads of Kazakhstani legal entities and their deputies with a 100% foreign participation;
• individuals on a business trip for business purposes, which shall not exceed a total of 120 calendar days annually;
• first heads of organisations that have concluded contracts with the Government of Kazakhstan for an investment amount in monetary equivalent of over USD 50 million, and the first heads of Kazakhstani legal entities carrying out investment activities in priority types of activities and having entered into a contract with the authorised investment body;
• individuals working in a national management holding in positions not lower than heads of structural divisions with higher education with confirmed documents in the prescribed legislative manner;
• members of the board of directors of a national management holding;
• holders of an investor visa, excluding family members and dependents.

5.5. What is the ratio of foreign and local labor? 

The issuance of the work permits to foreign employees is subject to the following ratio requirement pursuant to the Rules on Work Permits Issuance: 

• The number of Kazakhstani citizens should be no less than 70% of the number of employees related to the Category 1 (heads and their deputies) and the Category 2 (heads of structural departments meeting certain requirements); and
• The number of Kazakhstani citizens should be no less than 90% of the number of employees related to the Category 3 (experts meeting certain requirements) and the Category 4 (skilled workers meeting certain requirements). 

This rule on the Ratio of foreign workers does not apply to: smallsized businesses; state institutions and enterprises; representative offices and branches of foreign legal entities with no more than 10 employees; and etc. 

The employer who attracts foreign employees within the framework of intra-company transfer ensures a percentage ratio of the number of foreign employees (managers and specialists) attracted within the framework of an intra-company transfer of not more than 50% of the number of Kazakhstani personnel of the relevant category.

(6) Tax

6.1. What are the legal obligations and requirements regarding the individual income tax paid by employers? 

According to the Tax Code, the standard personal income tax rate is a flat 10% for both resident and non-resident employees. 

Employers in Kazakhstan, including Kazakhstani legal entities, as well as branches and representative offices of foreign legal entities, are regarded as tax agents, and are required to withhold personal income tax and remit it to the state from payments they make to individuals.

6.2. What is the percentage of withholding tax? 

Employers in Kazakhstan, including Kazakhstani legal entities, as well as branches and representative offices of foreign legal entities, must withhold personal income tax (see Section 6.1 above) and pension fund contributions (at the rate of 10% of salary, exempt for nonresident employees without permanent residency in Kazakhstan) from salaries payable to its employees, which shall be paid at the employees’ expense. 

Employers must also pay social tax for each of its employees (local citizens and non-residents) on salaries and other income payable to them. The social tax applies at a flat rate of 9.5% (to be increased to 11% in 2025). Furthermore, they must pay social contributions to the Social Security Fund at a rate of 3.5% (5% starting from January 1, 2025) of the employee’s income, with these contributions deductible from social tax payments. The maximum upper income of an employee for calculating social contributions is seven times the established minimum wage. Both social tax and social security contributions are paid at the employer’s expense. 

Moreover, employers are required to make mandatory contributions to the Social Medical Insurance Fund for employees’ benefit, set at 3% effective in 2022, which shall be made at the employer’s expense. Additionally, employers must withhold 2% of employees' salaries for Social Medical Insurance Fund contributions. Starting from January 1, 2024, employers are also required to pay mandatory pension contributions at the rate of 1.5%.

 

Author:

Akzhan Sargaskayeva.