KORGAN Law Company took part in the work of the Council for the Protection of the Rights of Entrepreneurs of the NCE RK Atameken with the participation of state bodies of the Department of Internal Affairs of the Karaganda region, the Prosecutor’s Office of the Kazybek Bi district, the State Institution “Department of State Architectural and Construction Control” Karaganda region, the agenda of the meeting were:
- "Discussion of the legality and validity of inclusion in the Law of the Republic of Kazakhstan "On
architectural, urban planning and construction activities in the Republic of Kazakhstan» to article 32 paragraph 2-1.
- Regulation of requirements for equipment, control
measuring instruments, tools, machines, mechanisms and engineering
technical workers required for the respective sub-activity.
On the first issue, the Director of LLP «Law Company «KORGAN» Eshmuratov S.A. who gave strong arguments and justifications on the agenda of the first question:
So Article 32 of the LawRK “On Architectural, Urban Planning and Construction Activities in the Republic of Kazakhstan” set to:
2-1. Applicants who have applied for a license for design activities and construction and installation works, and licensees carrying out these types of activities, must include certified engineering and technical workers.
Combination of work by certified engineering and technical workers involved in the design and construction process in other organizations carrying out these types of activities is not allowed.
Article 6 of the Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code of the Republic of Kazakhstan) it is established that, the norms of civil law should be interpreted in accordance with the literal meaning of their verbal expression.
I.e. from the meaning of the articles of the above law and the Civil Code of the Republic of Kazakhstan, it follows that a person who has passed the certification of an engineering and technical worker participating in the design and construction process in other organizations carrying out these types of activities does not have the right to perform similar work in another organization according to & nbsp; part-time.
Article 1 paragraph 56 TC RK, part-time – performance by the employee of other regular paid work on the terms of an employment contract in his free time from his main job.
Article 5 The Labor Code of the Republic of Kazakhstan established that everyone has the right to freely choose work or freely agree to work without any discrimination and coercion to it, the right to dispose of their abilities for work, to choose a profession and type of activity. em>
Article 6 of the Labor Code of the Republic of Kazakhstan establishes that,everyone has equal opportunities to exercise their rights and freedoms in the labor sphere. No one may be restricted in their rights in the sphere of labor, except in cases and in the manner provided for by this Code and other laws of the Republic of Kazakhstan.
2. No one may be subjected to any discrimination in the exercise of labor rights based on origin, social, official and property status, gender, race, nationality, language, attitude to religion, beliefs, place of residence, age or physical disabilities, as well as belonging to public associations.
3. Differences, exclusions, preferences and restrictions, which, in accordance with the laws of the Republic of Kazakhstan, are established for the relevant types of labor activity or are due to the special care of the state for persons in need of increased social and legal protection, are not discrimination.
4. Persons who believe that they have been discriminated against in the sphere of labor have the right to apply to the court or other instances in the manner prescribed by the laws of the Republic of Kazakhstan.
It follows from the above that, the above restrictions in the Law for persons who have passed the certification of an engineering and technical worker, participating in the design and construction process, in other organizations, carrying out these types of activities, who do not have the right to perform similar work in another organization according to & nbsp; part-time, significantly and unreasonably restrict the employee in the rights provided for by the labor code, as well as violate and contradict the principles of the Labor Code of the Republic of Kazakhstan.
On the second issue, the Director of LLP «Law Company «KORGAN» Eshmuratov S.A. who gave strong arguments and justifications on the agenda of the first question:
Article 28 of the Law of the Republic of Kazakhstan “On Permits and Notifications” May 16, 2014 No. 202-V ZRK established that a license is required to engage in the following activities: survey activities, design activities, construction and installation works.
Qualification requirements for a licensee applying for the above activities are established by the Order of the acting Minister of National Economy of the Republic of Kazakhstan dated December 9, 2014 No. 136 “On approval of uniform qualification requirements and a list of documents confirming compliance with them for carrying out activities in the field of architecture, urban planning and construction”. The specified qualification requirements indicate that in order for the subject to engage in the relevant types of work, it is necessary to have a minimum material and technical equipment on the right of ownership (economic management or operational management) and / or lease, including a minimum set of equipment, instrumentation, tools, machines and mechanisms , which are established in accordance with the technical requirements for the performance of construction, installation and design work, depending on the technical requirements for the declared work of the subspecies of the licensed type of activity. The presence in the staff of engineering and technical workers with the appropriate higher professional education in the field of construction and installation works and work experience (labor activity) of at least two years in the profile of work included in the requested subspecies of the licensed type of activity, or the corresponding secondary vocational or technical and professional education in the field of construction and installation works, and work experience (labor activity) of at least three years in the profile of work included in the requested subspecies of the licensed type of activity.