“Lack of knowledge of labor legislation and failure to comply with it lead to serious consequences.” How are labor rights working in Uzbekistan?

“Ignorance of and non-compliance with labor legislation leads to serious consequences.” How are labor rights working in Uzbekistan?

The broadcast discussed key matters in employment activity — what to pay attention to when starting a job, the procedure for executing an employment contract, and the rights and obligations of the parties in this regard.

Lawyer Saidali Mukhtaraliyev, an attorney specializing in labor rights, was the guest in the new episode.

— The main document regulating labor relations in Uzbekistan is the Labor Code. According to it, the employment contract determines the relations between the employer and the employee. Let's talk about this first. What is an employment contract itself, and what kind of legal guarantee does it provide to both parties?

— As many people know, there are mainly two parties in employment activity. In fact, most legal relationships involve at least two participants. Primary relationships constitute civil legal relations. For example, if we take the transaction of a product between two people, this is also regulated by a purchase and sale agreement from the perspective of civil legal relations.

Or, if someone borrows money, a loan agreement is concluded; if they take a loan from a bank, there is a credit agreement between them. Overall, agreements and contracts are concluded in social relationships in society, that is, in reciprocal interactions between people. Labor relations are the same.

Because there are mainly two sides in a labor relationship: on one side is the employee, that is, the hired worker, and on the other side is the employer, that is, the hirer. If we call the relations between the employer and the employee labor relations, the agreement concluded between them is considered an employment contract.

If we look at labor relations at the level of an enterprise or organization, they are of two types: collective and individual relations. For example, the relationship that a single employee establishes personally with an employer is considered an individual labor relationship, and this relationship is regulated by an employment contract.

If dozens of employees join an organization or enterprise, the relationship between them and the employer can be a collective relationship. Labor legislation states that collective relations are regulated by documents such as collective agreements or collective accords. Overall, this is the format of labor relations in enterprises and organizations.

If we look at its official definition, the employment contract is specified in Article 103 of the Labor Code, where it is defined as a written agreement establishing the rights and obligations between the employer and the employee. In general, an employment contract is considered a written agreement that initiates the relationship between the two parties.

— Let's delve into the written agreement, Saidali aka. What exactly should one pay attention to when signing it?

— An employment contract itself is a very formal concept. Many people think, “an employment contract is the sole document defining the relations between the employer and the employee. If this document is missing, that's it, we are deprived of everything.” In reality, it is not so.

An employment contract is merely the most essential part of an individual document regulating relations between an employer and an employee. Such relations are regulated not only by the employment contract, but also by labor legislation acts.

First of all, the Constitution.

Articles 40 to 46 of it are dedicated to the regulation of labor relations. After that, the Labor Code.

In each of its articles, labor-related processes are regulated in detail. You know, Articles 10, 11, and 12 of the Labor Code list the documents regulating labor relations between an employer and an employee.

So, labor relations are regulated by labor legislation, internal labor documents, and the employment contract. There are these 3 main documents.

Sometimes situations occur where, if an employer has actually allowed a job applicant to start working, that employee is considered hired regardless of whether there is an employment contract between them or not.

In this case, the law protects the employee's rights. Article 128 of the Labor Code contains such a rule: if a person authorized to hire officially permits (this can be verbal or through a document) an applicant, that is, an employee, to actually start work, the employee is considered to have started work from that day. In this case, it does not matter whether an employment contract was concluded or not, or whether an order on employment was issued or not. The employer assumes the obligation to pay the employee for the performed duties starting from that day.

— Are disputes currently arising at this very point? How do you think they should be resolved?

— Currently, active participants and employers in the labor market of Uzbekistan are mainly state organizations and state enterprises. At the same time, there are non-governmental organizations and private enterprises as well. I think the problems you are referring to mainly arise in non-governmental and private organizations.

For instance, one can mention catering enterprises, cafes or restaurants, construction companies, and trading companies. Currently, a fight against informal employment is being carried out. But there are also processes that have turned into a bad trend. For example, some employees working in cafes or restaurants are treated in this exact manner.

That is, they brush off the issue by saying, “you just keep working, we will conclude an employment contract and pay you based on your performance, don't worry.” This is one of the main problems in labor disputes — the issue of employees who have started working without an employment contract being concluded or formalized. What is the employer's main stance and goal regarding them? The goal is to avoid granting the guarantees and paying the benefits established by law as much as possible.

If an employee displeases the employer, they aim to easily get rid of a person who has not been officially hired. Sufficient guarantees and benefits are established in labor legislation for a person who has officially entered employment and started working on the basis of an employment contract, that is, a person with the status of an employee. These benefits and guarantees are tied to material value, and naturally, employers do not like this.

Thus, since there is control to some extent in state organizations at the moment, such problems are rare. However, control in private and non-governmental organizations is weak to some extent, because state intervention in the activities of business entities is restricted. From this perspective, some business entities abuse this and allow instances of employing people without documentation.

Of course, here we know for certain that an employee who has started working and is working informally is deprived of nearly 50% of guarantees. Yes, there is a problem in this matter.

— How should an employee protect themselves in such a situation?

— We always emphasize one thing. As I mentioned above, according to Article 128 of the Labor Code, even if an employment contract has not been concluded with the employee, they are considered officially hired and an employment contract is deemed concluded from the day they start working. However, one must be vigilant here: if you have started working informally, from now on you need to collect evidence to protect yourself to the extent that a court decision will be issued in your favor when you go to court in the future.

If necessary, collect evidence of your daily work.

For example, it is possible to prepare at least weekly reports, or submit daily reports to the supervisor or employer, for instance, via Telegram accounts or in another form. Keep documenting records related to your work.

For example, if you are an employee working with service documents, write a notice every day or every two days stating that you did such work on a certain day, such work on another day, and such work on that day. In short, there are many tools and methods that can be used for protection in a necessary situation. It is also good to have witnesses and supporters confirming that work has started and labor has been performed.

This can be proven in court through phone conversations, voice messages, and so on. Currently, there are many similar dispute situations in court litigation. If they are not concluding an employment contract or issuing an employment order, the employee must put forward this demand.

— So, the main consensus here still turns out to be signing an employment contract, is that right?

— Yes, overall, signing an employment contract is better anyway. The absence of an employment contract significantly reduces the opportunities for employees. The absence of a contract and the absence of an employment order implies that the information about the employee has not been entered into the single national labor system.

If you are working without documents and cannot prove your past activities in court, the court will reject your claim or request. In such a situation, the employee completely loses their opportunity. Therefore, after all, our primary recommendation is: if they say, “just start work without an employment contract, we will formalize it later,” we certainly say fight for your rights.

That is, it is necessary to make a demand: “Please, conclude an employment contract with me. And issue an employment order. And enter my information regarding this into the relevant system.” For this, employees must know these rights of theirs. There are such aspects too.

— Understood. Now let's focus on the employment contract itself. Can you tell us about the points in the employment contract that an employee should pay attention to and check? What obligations does an employment contract impose on both sides?

— The content of an employment contract is a separate issue. Article 104 of our current Labor Code specifies clear requirements regarding what the composition and content of an employment contract should be. You know what? This exact article also provides a list of clauses that must be reflected in the employment contract. At the same time, there are also conditions that the parties can mutually agree upon and include if they wish.

That is, there are mandatory conditions as well as optional conditions. In particular, what conditions are mandatory in an employment contract? As stated in Article 104 of the Labor Code, first of all, it is mandatory to specify the employee's workplace, position, that is, the labor function to be performed, whether the concluded employment contract is fixed-term or indefinite, conditions regarding working hours and regime, and guarantees related to days off provided to the employee — that is, when they will rest, at what time of the working day a daily break will be given to them — such matters must be specified.

Furthermore, matters related to labor leaves must also be indicated.

At the same time, Articles 22 and 25 of the Labor Code stipulate that the rights and obligations of both parties must be specified. One of the most interesting parts here is the specification of labor duties.

A number of articles in the Labor Code contain a rule on demanding the duties specified in the employment contract from the employee or paying the employee for performing the duties specified in the employment contract. Based on this, we often say that labor duties of employees should be specified as clearly as possible in the employment contract, and this is the most important thing.

It is also advisable for employees to demand this to the maximum from the employer. If duties are not clearly defined in the employment contract, it creates inconvenience for both the employee and the employer in the future. Firstly, the employer cannot set a clear task. Secondly, the employee does not know which task to perform. One of the most important requirements of an employment contract or one of the most important obligations of an employer is to pay for the work performed. There are matters like this.

— For example, we say that in practice duties should be clearly defined. What should employees do in situations where additional duties or obligations outside their scope of duty are being assigned?

— Article 115 of the Labor Code has one rule regarding the issue you mentioned. Unless otherwise provided for in labor legislation acts, it is prohibited to demand from an employee the performance of duties not specified in the employment contract.

Another thing should also be recalled: Resolution No. 758 of the Cabinet of Ministers approved and made available for use recommended model employment contracts. However, those model employment contracts are narrow in scope, meaning only basic conditions are included in them, while additional conditions are left to the discretion of the parties themselves.

The issue is that sometimes it is not possible to specify all the details of labor duties in the employment contract itself. Article 22 of the Labor Code has a section on the employee's obligations. Along with observing the terms of the employment contract and performing the duties specified in employment contracts, there are also sections on observing internal labor regulations and performing duties in job descriptions. That is, sometimes employers do not detail all duties as employee obligations in employment contracts.

— Could this also serve as a loophole?

— They can also abuse this. The main abuse arises right here. We say that according to Article 104 of the Labor Code, an employee's labor duties are a mandatory condition agreed upon in the employment contract. Therefore, these duties must also be agreed with the employee in the job description, which is drawn up separately from the employment contract.

We recommend that if details of the duties are to be specified separately in the regulations of the department where the employee works, let it be approved as an appendix to the employment contract in the form of a job description. We say that approving it as a structural element of the employment contract is beneficial to both sides. In that case, it will not be inconvenient for either the employer or the employee when going to court or facing disputes, because it will have been agreed upon in advance.

— Have you encountered these exact problems in court cases? Can you also tell us with examples?

— Many employers try to dismiss employees or apply disciplinary sanctions citing the reason that employees have insufficiently or not at all performed their labor duties. For example, in the list regarding gross violations of labor obligations, they also include violation of executive discipline, expanding on it in parentheses with an explanation as non-performance of duties specified in job descriptions or employment contracts.

This is given in the relevant clause of the second part of Article 161 of the Labor Code, and they attempt to dismiss based on it. In such a situation, we lawyers focus on several points. Namely, were the labor duties that the employer considers unperformed, firstly, specified in the employment contract? Secondly, if they were specified by a job description, are the duties in the job description within the scope of the duties specified in the employment contract? Or was it itself agreed with the employee or not?

If we prove during the court trial, pursuant to Article 115 of the Labor Code, that the employer demanded a duty not specified in the labor contract and dismissed or applied a disciplinary sanction based on that, naturally, the court satisfies the employee's claim and issues a decision on reinstating them to work and recovering material damages from the employer.

— So, when starting a job, one of the first things to pay attention to is clearly defining the duties and adding them as an addition, even if as an appendix to the contract, right?

— I just need to add one issue. That is, the opinion that everything must be specified in the employment contract and a matter not specified in the employment contract cannot be imposed on the employee is also not entirely correct. In our context, one of the most important aspects for the employer in an employee's activity at an enterprise and in carrying out employment activity is the employee's compliance with labor discipline.

This ensures the prosperity of the enterprise or organization and stability in its operations. In turn, it is also one of the factors contributing to the timely and full payment of wages to the employee. The issue is that according to Article 295 of the Labor Code, labor discipline, that is, rules regarding discipline, are specified to be established not only in the employment contract, but also in labor legislation, including the Labor Code, collective agreements, internal labor regulations, and other internal documents on labor, as well as in the employment contract.

We take into account that the main rights and obligations of the employee, as well as the main conditions, are specified in the employment contract. We pay attention to the fact that disciplinary rules that an employee must comply with at the enterprise may also be established in other documents. For example, when an employee is hired, along with concluding an employment contract with them, internal regulations or other disciplinary rules are introduced to them in advance.

After signing the employment contract and being hired, not only the terms in the employment contract, but also the above rules become mandatory for the employee. Disciplinary sanctions may be applied against the employee or they may be dismissed for failing to perform them. Therefore, one should not understand that the document resolving the issue is only the employment contract.

Of course, internal documents at the enterprise and the rules in them, as well as conditions specified in the employment contract, must not worsen the employee's condition relative to labor legislation. This exact point is important. That is, sometimes labor laws and legislation acts protect the rights of employees more and with higher priority than internal documents and the employment contract.

During the program, important issues such as how long the probation period should last, the appointment of officials as acting or temporary acting, what working hours should be like, involvement in overtime work, failure to pay salaries on time, and scheduling labor leave were also discussed.