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What changes have been made to the Labor Code regarding foreign employees?
What changes have been made to the Labor Code regarding foreign employees?
The amendment made to subparagraph “ç” of Article 6 of the Labor Code is essentially aimed at eliminating an existing gap in the legislation. However, this change is misunderstood by some specialists. So, what does the new amendment envisage regarding foreign employees? Expert Anar Bayramov provides clarification.
Before the amendment, according to subparagraph “ç” of Article 6 of the Labor Code, the Code did not apply to foreigners who had concluded an employment contract with a legal entity of a foreign country and performed their work functions at an enterprise (branch or representative office) operating in the Republic of Azerbaijan.
With the latest amendment, the words “at an operating enterprise (branch, representative office)” were removed from this provision. The main reason was that this wording caused incorrect legal interpretations regarding foreign employees. Thus, a foreign individual who has concluded an employment contract with a legal entity of a foreign country may perform their work function in Azerbaijan not only in a branch or representative office but also with any other employer.
Example 1: A representative of a company registered in Ukraine and operating in the field of information technology performs their work function at a partner company in Azerbaijan. Since this person has concluded an employment contract with a foreign legal entity, the Labor Code does not apply to them during their period of work in Azerbaijan.
The main purpose of the amendment is that a foreign individual who has concluded an employment contract with a legal entity of a foreign country remains outside the scope of the Labor Code regardless of which employer they perform their work function for in the Republic of Azerbaijan.
However, if an employer, in compliance with the requirements of the Migration Code, concludes a direct employment contract with a foreign employee, then the Labor Code fully applies to that employee. In other words, the recent amendment does not affect the legal status of foreign employees who enter into employment contracts with employers in our country.
The second addition to Article 47 of the Labor Code, titled “Cases where fixed-term employment contracts are concluded,” relates to employment contracts concluded with foreigners and stateless persons. According to subparagraph “h” added to Article 47, it is permitted to conclude fixed-term employment contracts with foreigners and stateless persons who are engaged in paid labor activity in the Republic of Azerbaijan on the basis of a work permit.
Let us clarify the important aspects related to this provision.
The first point is that, in accordance with the Migration Code, a work permit is mandatory for employing certain individuals. First of all, it should be noted that a work permit is an authorization issued to foreigners and stateless persons in accordance with the procedure established by the Migration Code to engage in paid labor activity in the Republic of Azerbaijan. However, there are exceptions for certain individuals.
Example 2: An employer signs an employment contract with a foreign person who is married to a citizen of the Republic of Azerbaijan (provided that the citizen is registered at a place of residence in Azerbaijan). According to Article 64 of the Migration Code, since a work permit is not required for this person, an open-ended (indefinite) employment contract may be concluded.
The second point is that when concluding an employment contract with a foreign employee who requires a work permit, it is allowed for the duration of the employment contract to correspond to the duration of the work permit. According to Article 69.1 of the Migration Code, a work permit is issued for one year, or for a shorter period if the employment contract is concluded for less than one year. The duration of the work permit may be extended each time for no more than one year, taking into account Article 69.1-1 of the Code.
It should also be noted that, according to Article 69-1.1 of the Migration Code, for individuals engaged in labor activity in the territories of the Republic of Azerbaijan liberated from occupation, the duration of the work permit may be extended each time for up to two years.
Example 3: When an employer signs an employment contract with a foreign employee who requires a work permit, the term of the contract should be set for one year.
Finally, it should be noted that under Article 578.1 of the Code of Administrative Offences, if an employer engages a foreigner or a stateless person in employment without obtaining a work permit in violation of the requirements of the Migration Code, officials are fined between 3,000 and 4,000 manats, while legal entities are fined between 15,000 and 20,000 manats.
The amendment made to subparagraph “ç” of Article 6 of the Labor Code is essentially aimed at eliminating an existing gap in the legislation. However, this change is misunderstood by some specialists. So, what does the new amendment envisage regarding foreign employees? Expert Anar Bayramov provides clarification.
Before the amendment, according to subparagraph “ç” of Article 6 of the Labor Code, the Code did not apply to foreigners who had concluded an employment contract with a legal entity of a foreign country and performed their work functions at an enterprise (branch or representative office) operating in the Republic of Azerbaijan.
With the latest amendment, the words “at an operating enterprise (branch, representative office)” were removed from this provision. The main reason was that this wording caused incorrect legal interpretations regarding foreign employees. Thus, a foreign individual who has concluded an employment contract with a legal entity of a foreign country may perform their work function in Azerbaijan not only in a branch or representative office but also with any other employer.
Example 1: A representative of a company registered in Ukraine and operating in the field of information technology performs their work function at a partner company in Azerbaijan. Since this person has concluded an employment contract with a foreign legal entity, the Labor Code does not apply to them during their period of work in Azerbaijan.
The main purpose of the amendment is that a foreign individual who has concluded an employment contract with a legal entity of a foreign country remains outside the scope of the Labor Code regardless of which employer they perform their work function for in the Republic of Azerbaijan.
However, if an employer, in compliance with the requirements of the Migration Code, concludes a direct employment contract with a foreign employee, then the Labor Code fully applies to that employee. In other words, the recent amendment does not affect the legal status of foreign employees who enter into employment contracts with employers in our country.
The second addition to Article 47 of the Labor Code, titled “Cases where fixed-term employment contracts are concluded,” relates to employment contracts concluded with foreigners and stateless persons. According to subparagraph “h” added to Article 47, it is permitted to conclude fixed-term employment contracts with foreigners and stateless persons who are engaged in paid labor activity in the Republic of Azerbaijan on the basis of a work permit.
Let us clarify the important aspects related to this provision.
The first point is that, in accordance with the Migration Code, a work permit is mandatory for employing certain individuals. First of all, it should be noted that a work permit is an authorization issued to foreigners and stateless persons in accordance with the procedure established by the Migration Code to engage in paid labor activity in the Republic of Azerbaijan. However, there are exceptions for certain individuals.
Example 2: An employer signs an employment contract with a foreign person who is married to a citizen of the Republic of Azerbaijan (provided that the citizen is registered at a place of residence in Azerbaijan). According to Article 64 of the Migration Code, since a work permit is not required for this person, an open-ended (indefinite) employment contract may be concluded.
The second point is that when concluding an employment contract with a foreign employee who requires a work permit, it is allowed for the duration of the employment contract to correspond to the duration of the work permit. According to Article 69.1 of the Migration Code, a work permit is issued for one year, or for a shorter period if the employment contract is concluded for less than one year. The duration of the work permit may be extended each time for no more than one year, taking into account Article 69.1-1 of the Code.
It should also be noted that, according to Article 69-1.1 of the Migration Code, for individuals engaged in labor activity in the territories of the Republic of Azerbaijan liberated from occupation, the duration of the work permit may be extended each time for up to two years.
Example 3: When an employer signs an employment contract with a foreign employee who requires a work permit, the term of the contract should be set for one year.
Finally, it should be noted that under Article 578.1 of the Code of Administrative Offences, if an employer engages a foreigner or a stateless person in employment without obtaining a work permit in violation of the requirements of the Migration Code, officials are fined between 3,000 and 4,000 manats, while legal entities are fined between 15,000 and 20,000 manats.