Since March 11, 2012 the "Regulations and Terms for Issuing Permits to Expatriate Employees for the Provision of Employment and to Employers for the Employment of Foreign Nationals" have come into effect in the Republic of Kazakhstan.
In keeping with GRATA Law Firm's policy of sharing with our clients information about major changes in legislation that can have a bearing on their activity, we would like to make you aware of forthcoming changes in Kazakhstani legislation due to this Law's entry into force.
I. GENERAL INFORMATION
On January 13, 2012 the Decree of Government of the Republic of Kazakhstan # 45 the "Regulations and terms for Issuing Permits to Expatriate Employees for the Provision of Employment and Employers for the Employment of Foreign Nationals" was approved and, came into effect on March 11, 2012.
The Decree makes alterations and supplements to the legislative acts of the Republic of Kazakhstan.
The Decree has introduced certain changes to the system for issuing work permits that we would like to bring to your attention.
II. THE CHANGES, MADE BY THE GOVERNMENT OF THE REPUBLIC OF KAZAKHSTAN DECREE:
1. The introduction of new concepts such as a "business-immigrant", "program for the increase of Kazakhstani content" "corporative transfer", "the total workforce", "country of origin" and "list of individuals for independent employment" are introduced.
2. The introduction of the concept of a guarantee deposit, the purpose of which is to ensure the departure of an employee from the territory of the Republic of Kazakhstan after the permit has expired.
3. The introduction of the program for increasing Kazakhstani content in staff, which establishes the package of mandatory measures for the training and professional development of employees of Kazakhstani citizenship.
4. The introduction of a mechanism for temporary relocation of foreigners or stateless persons from a foreign legal entity to its subsidiary, branch organization, representative office or affiliate, established within the territory of the Republic of Kazakhstan.
5. The list of persons, to whom the Decree does not apply, is enlarged.
6. The 120 day limit of a business trip for foreign workers within one calendar year is increased.
7. The section on the system for determining and applying quotas is excluded from the Decree. However, the norms relating to the determination and application of quotas for the employment of foreign nationals, are reflected in the text of Decree.
8. The categories of employees, to whom the conditions and arrangements for issuing permits for the employment of foreign nationals apply, are changed in the Decree. Thus, the workers, involved in seasonal agricultural work, are excluded from the specified check-list.
9. The percentage of Kazakhstani employees' in a company's total workforce is increased, in terms of the employment of foreign nationals of the first and second category from 50% to 70%, i.e. by 20%.
1) Since January 1, 2012 the number of citizens of the Republic of Kazakhstan should be not less than 70% of the total workforce, relating to the first and second categories;
2) Since January 1, 2012 the number of citizens of the Republic of Kazakhstan should be not less than 90% of the total workforce, relating to the third and fourth categories.
10. The set of people, to whom the norms concerning the proportion of Kazakhstani citizens and foreign workers within the total workforce do not apply, is expanded in the Decree.
11. The terms for the provision of permits for the employment of foreign nationals are indicated in the Decree, as well as the specific period during which the permit can be prolonged. According to point 20 of the Regulations, the permit to engage foreign labour of the first category can be given by the employer for up to three years. However the permit term is not extended to small businesses.
12. The new section, which determines the procedure for the issuing of permits to expatriate employees is specified in the Decree. The distinctive feature of this is that in the process of obtaining a permit for the expatriate employee, the requirements of special provisions do not apply.
13. In addition the Decree applies the norms relating to the independent employment of expatriate employees, if this employee is on the list of persons for independent employment in the Republic of Kazakhstan.
14. Certain exceptions in respect of the employment of foreign nationals in the territory of free economic areas are included.
In light of the above it is possible to draw the conclusion that public agencies will exercise tight control over foreign worker's compliance with the requirements of regulatory legal acts, which regulate the labour activity of foreigners and/or the stateless persons in the Republic of Kazakhstan, and also over the application of such norms by employers that engage foreign labor.
It should be observed that the Decree enables clearer and more precise tracking of expatriate employees as they perform their labour duties, which in turn will increase the legal protection afforded to employees.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.