Specifics of labour relations of religious organisations
- 1. Legal framework
- 2. Specifics of labour relations with the involvement of religious organisations
- a. Employment contract
- b. Parties to the employment contract
- c. Employment contract form
- d. Terms of the employment contract
- e. Working hours
- f. Material liability of employees
- g. Termination of an employment contract
- h. Labour disputes
1. Legal framework
The following articles of the legislation of the Kyrgyz Republic are devoted to the regulation of labour of employees of religious organisations:
- Article 24 of the Law of the Kyrgyz Republic “On Freedom of Religion” (hereinafter - the Law on Freedom of Religion);
- Chapter 37 of the Labour Code of the Kyrgyz Republic (hereinafter - the Labour Code).
Article 24 of the Law on Freedom of Religion is a referential article. It states:
“Citizens, working under an employment contract in religious organisations and missions, enterprises, establishments and charitable institutions (shelters, boarding schools, hospitals) established by them, shall be subject to the labour legislation of the Kyrgyz Republic.”
In turn, the Labour Code stipulates different legal regulations for religious organisations (missions) and enterprises established by religious organisations.
Chapter 37 of the Labour Code provides for the specifics of regulating the labour of employees of religious organisations. Thus, the general provisions of the Labour Code, containing labour law norms, are applicable to employees of religious organisations, subject to special rules established by Chapter 37 of the Labour Code and the Law on Freedom of Religion (Article 6 of the Labour Code).
Since the mission is also a religious organisation or a representative body of a religious organisation of foreign countries (Article 3 of the Law on Freedom of Religion), labour relations in missions shall be regulated in the same manner: Chapter 37 of the Labour Code shall be applied, and in the part not regulated by this Chapter, the general provisions of the Labour Code shall be applied.
The general provisions of the Labour Code shall be applied to employees of enterprises, establishments and charitable institutions (shelters, boarding schools, hospitals) established by religious organisations and missions. The specifics of labour regulation in religious organisations shall not be applied to them. The same applies to alliances (associations, unions) of religious organisations that do not carry out religious activities themselves.
2. Specifics of labour relations with the involvement of religious organisations
The following section focuses on the specifics of labour relations with the involvement of religious organisations and missions, which, in general, are manifested in greater freedom of discretion in the regulation of labour relations in these organisations. Many issues traditionally regulated by the Labour Code, in this case, are delegated to the religious organisations themselves and are set out in their internal regulations.
a. Employment contract
An employment contract shall be concluded with citizens working in a religious organisation.
The labour legislation makes no exceptions and requires the conclusion of a contract with all employees. In practice, employment contracts are concluded with accountants, lawyers, drivers, and other specialists of a religious organisation. No employment contracts are concluded with the clergy.
The justification for this is the stance that the activity of a clergyman is a ministry, and not a labour activity. Relations between clergymen and religious organisations are not regulated by secular law, but refer to issues of canonical administration and are regulated by the norms of canon law. The procedure for hiring, dismissal, liability of such persons is, therefore, not determined by labour law, but is the prerogative of the religious organisations themselves.
The absence of an employment contract with employees of a religious organisation is a violation for which a fine of up to 230 calculation indices shall be imposed on the religious organisation under Article 92 of the Code of Offences. Resolution No. 1115-III of the Jogorku Kenesh of 15 June 2006 approved the calculation index in the amount of 100 KGS.
There are cases when an employer, with a view to avoid the burden of social guarantees and payments under an employment contract, concludes a civil law contract (a service contract, a work contract) with employees, thereby shifting all the risks onto the employee him/herself. If such a fact is established in court, the provisions of labour legislation (Article 6 of the Labour Code) shall be applied to the relationship between the employee and the employer. In this case, the religious organisation shall also be subject to a fine under Article 92 of the Code of Offences.
The Law on Freedom of Religion permits the use of unpaid labour of citizens in the activities of a religious organisation (Article 26 (3)). It appears that the rules for engaging volunteers, pilgrims who voluntarily and without payment assist a religious organisation on a permanent or ad hoc basis should be defined in the internal regulations of a religious organisation. Such activities shall refer to charitable and not to labour activities. In the practice of some religious organisations, such persons are asked to request permission to perform certain duties on a charitable basis in order to prevent them from being subject to labour law.
An employment contract between an employee and a religious organisation can be concluded either for a fixed term (no more than 5 years) or for an indefinite period (Article 389 of the Labour Code). The possibility of concluding an employment contract for a fixed term can be explained by the non-commercial nature of the activities of a religious organisation and the absence of a permanent planned income. Another reason, often referred to, is the high labour mobility within a religious organisation, the need for pilgrimage, etc.
b. Parties to the employment contract
The parties to an employment contract in a religious organisation are the employee and the employer (Article 387 of the Labour Code).
An employer is a religious organisation registered in accordance with the procedure established by law and which has concluded an employment contract with the employee. The Labour Code uses the general term “registration”, which covers the accounting and state registration of a religious organisation as a legal entity for the acquisition by a religious organisation of the status of an employer. Thus, a religious organisation that has not been registered with the authorised body in charge of religious affairs and with the justice authorities shall not have labour legal personality.
If a religious organisation has been registered only with the authorised body in charge of religious affairs, it shall not qualify as a legal entity. In this case, the employer under the employment contract will be an individual who has concluded an employment contract with the employee. The conclusion of such an employment contract is permitted under Article 351 of the Labour Code.
The lack of registration by a religious organisation shall not constitute an excuse for a failure to conclude an employment contract with an employee. An employee who has actually started working with the knowledge or on behalf of the employer is deemed to have employment relations with the said employer and shall enjoy all the rights provided for in the Labour Code. The actual admission of the employee to work shall not exempt the employer from the obligation to conclude a written employment contract with the employee (Articles 14 and 57 of the Labour Code).
An employee is a person who has reached the age of 18, has concluded an employment contract with a religious organisation, personally performs certain work and is subject to the internal regulations of a religious organisation.
Attention should be drawn to the age restrictions set for employees of religious organisations, contrary to the general provisions of the Labour Code, according to which an employee can be a person who is at least 16, and in some cases as young as 14 years old (see Article 18 of the Labour Code). The increased age limit for employees of religious organisations stems from the ban on the involvement of children in religious organisations, established by Article 4 (5) of the Law on Freedom of Religion. This restriction is explained by the fact that religious organisations, in accordance with their internal regulations, have the right to demand that an employee complies with certain religious norms. A citizen, on the other hand, can fully exercise his/her rights in the area of freedom of religion only upon reaching the age of majority.
Meanwhile, there are many examples of minors being involved in work in a religious organisation as acolytes and psalm readers in churches or for preparing the mosque for Friday prayers or cleaning up the territory. Parents often take this positively, considering such work as part of their children’s upbringing in accordance with their religious beliefs. The Labour Code prevents the legal formalisation of labour relations between minors and employers.
However, the possibility of volunteering activities is permitted by Article 26 of the Law on Freedom of Religion. Its rules should be incorporated into the internal regulations of a religious organisation.
By concluding an employment contract, the employee undertakes to perform any work not prohibited by law, as defined in the contract. Thus, the employee’s labour function is defined in the most general form: an employee is obliged to perform any work rather than work relating to a particular occupation or qualification, as stipulated by the general rules of labour legislation. The employee has the right to perform work, including more than one occupation. Such legislative regulation takes into account the specifics of the functioning of religious organisations and makes it possible, given the small number of employees, to fully meet the needs of such organisations by defining the labour function in a very general form.
A peculiarity of the legal status of employees of a religious organisation is the exemption from income tax on their wages, bonuses, compensations and other compensatory and incentive payments in accordance with paragraph 10, part 3, Article 191 of the Tax Code of the Kyrgyz Republic.
The right to exemption arises only if a religious organisation is registered as such with the justice authorities and has undergone accounting registration with the State Commission for Religious Affairs of the Kyrgyz Republic. The second condition is the availability of an employment contract with the employee. For all other entities, an employee's income shall be subject to income tax in the general manner at the rate of 10 percent (Article 197 of the Tax Code).
The employer is obliged to provide employees of religious organisations with a work record book, which is the main document confirming an employee's length of service (Articles 58 and 65 of the Labour Code).
When concluding an employment contract, one should keep in mind the restrictions imposed by law on the employment for certain categories of persons. For example, Article 12 (9) of the Law on Freedom of Religion prohibits a missionary from engaging in labour or self-employment activities without the permission of the relevant state body.
Some officials are prohibited from participating/holding positions in a religious organisation: for example, the chairperson, deputy chairperson and members of the Board of the National Bank (Article 59 of the Constitutional Law of the KR of August 11, 2022 No. 92 “On the National Bank of the Kyrgyz Republic”), the General Director of the Public Broadcasting Corporation of the Kyrgyz Republic (Article 19 of the Law of the KR of December 21, 2011 No. 247 “On the Public Broadcasting Corporation of the Kyrgyz Republic”). A general ban on participation in any form in the activities of religious organisations is established for civil and municipal servants (Article 15 of the Law of the KR of October 27, 2021 No. 125 “On the State Civil Service and Municipal Service”).
c. Employment contract form
The employment contract shall be concluded in writing. It shall define the rights and obligations of the parties, taking into account the specifics established by the internal regulations of the religious organisation, which shall not contradict the Constitution, the Labour Code and other laws (Article 388 of the Labour Code).
Internal regulations are internal documents of religious organisations that regulate the relations of their members, determine the procedure for the functioning of religious organisations, the rules for conducting religious procedures, observance of holidays and days off, etc. Internal regulations may have different names or be reflected in the Charter, Regulations, fundamentals of religious teaching, job descriptions and other documents. The lack of a clear definition of internal regulations is explained by the diversity of religious organisations, each of which may have a different name. For labour relations, internal regulations are a special kind of local regulatory act (see Article 5 of the Labour Code). At the same time, their content may not contradict the current legislation.
In practice, the question arises as to whether the internal regulations of a religious organisation may include conditions for an employee to profess a particular religion, observe rites, fasts and mandatory rules established by religious organisations. It seems that such a requirement cannot be regarded as a restriction of labour rights on the basis of attitude to religion, since, by virtue of Article 9 of the Labour Code, the establishment of distinctions or restrictions that are determined by the requirements inherent in a particular type of labour, as established by law, shall not constitute a discrimination.
d. Terms of the employment contract
Pursuant to Article 54 of the Labour Code, an employment contract must contain the following mandatory information:
- the date and place of conclusion of the employment contract;
- details of the parties:
- full name of the employer - religious organisation, its location, number and date of state registration of constituent documents;
- last name, first name, patronymic (if specified in the identity document) and position of the employer (his/her representative), and in the case when the employer is an individual - the address of his/her permanent place of residence, name, number, date of issue of the identity document;
- last name, first name, patronymic (if specified in the identity document of the employee, the identification number of the social security certificate);
- the workplace where the work is to be performed;
- type of work to be performed;
- start date of work;
- the duration of the employment contract;
- mode of operation;
- the rights and obligations of the employee and the employer;
- conditions of remuneration (salary of the employee, additional payments, bonuses and incentives, compensation payments);
- reliable terms and conditions of employment, compensations and benefits to employees;
- signatures of the parties.
In addition to general conditions, the employment contract, in accordance with the Labour Code and the internal regulations of the religious organisation, shall include conditions that are essential for the employee and for the religious organisation as the employer (for example, clothing requirements, code of conduct, obligations to observe religious holidays).
When there is a need to change the essential conditions of the employment contract, a religious organisation is obliged to notify the employee in writing at least 7 calendar days prior to their introduction. This provision differs significantly from the general rule that applies to other subjects of labour relations, according to which the employee must be notified in writing at least 1 month in advance of changes in essential employment conditions (Article 71 of the Labour Code).
If the employee does not agree to continue working under the new conditions, general provisions shall be applied in the absence of special norms, by virtue of which the employer shall offer the employee in writing another job available in the organisation that corresponds to his/her qualifications and state of health.
In the absence of the specified work, the employee's refusal to accept the work offered or refusal to work under new conditions, the employment contract shall be terminated in accordance with Article 79 (8) of the Labour Code (refusal of the employee to continue working due to a change in essential employment conditions).
e. Working hours
The working hours of persons employed by religious organisations shall be determined based on the following criteria:
- taking into account the normal working hours, which according to Article 90 of the Labour Code, may not exceed 40 hours a week, and
- based on the mode of performing rites or other activities of a religious organisation, as determined by its internal regulations.
f. Material liability of employees
A full material liability contract may be concluded with an employee of a religious organisation (Article 391 of the Labour Code).
The list of positions and works to be held or performed by employees, with whom the employer may conclude contracts on full material liability, shall be determined by the internal regulations of the religious organisation. Thus, an Indicative list of positions and works, for the employment of which written contracts on full individual, collective (team) material liability, approved by the Resolution of the Government of the Kyrgyz Republic of December 27, 2001 No. 820, may be concluded, does not have a predetermined significance for religious organisations.
g. Termination of an employment contract
According to Article 79 of the Labour Code, the grounds for termination of an employment contract are as follows:
- agreement of the parties (Article 80);
- the expiry of the terms of the employment contract (Article 81);
- employee's initiative (Article 82);
- employer's initiative (Article 83);
- transfer of an employee at his/her request or with his/her consent to work for another employer or transfer to an elective (work) position;
- circumstances beyond the control of the parties (Article 88);
- refusal of the employee to be transferred to another job due to the state of health in accordance with a medical report (Article 75 (3));
- refusal of the employee to continue working due to a change in essential employment conditions (Article 71 (4));
- refusal of the employee to continue working in the organisation due to the change of ownership, a change in its subordination (jurisdiction) and its reorganisation (Article 77);
- refusal of the employee to be transferred due to relocation of the employer to another location (Article 69 (1));
- unsatisfactory results of the probationary period (Article 62 (7)).
With regard to religious organisations, the Labour Code allows for the inclusion of additional grounds for termination of an employment contract. According to Article 392 of the Labour Code, in addition to the above, so-called general grounds, an employment contract with an employee of a religious organisation may be terminated on the grounds stipulated in the employment contract itself. This can be explained by the specifics of a religious organisation as an employer and the peculiarities of the performance of the labour functions by employees. For example, employment contracts with an employee of religious organisations may include the following additional grounds for dismissal:
- disrespectful attitude to shrines;
- negligent attitude to the property of a religious organisation;
- failure to comply with specific provisions of the internal regulations of a religious organisation;
- disclosure of information constituting confidential information, etc.
The terms for notifying an employee of a religious organisation about dismissal on the grounds stipulated in the employment contract, as well as the procedure and conditions for providing the said employees with guarantees and compensations related to such dismissal, shall be determined by the employment contract.
h. Labour disputes
Individual labour disputes that have not been settled internally by the employee and the religious organisation as an employer shall be subject to judicial proceedings (Article 393 of the Labour Code). Thus, the Labour Code establishes a two-stage procedure for resolving a labour dispute: negotiations, followed by judicial proceedings, if the parties fail to reach an agreement.
Commissions on labour disputes are not established in religious organisations.