Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee notes with regret that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

Article 2 of the Convention. The Committee notes a contradiction between section 25 of the Labour Code, which requires a minimum of three employers to constitute an employers’ organization and section 10 of the Law on Employers’ Organizations, which requires a minimum of two employers. The Committee asks the Government to clarify the minimum membership required for establishing an employers’ organization.

Article 3. 1. Right of workers’ and employers’ organizations to draw up their constitutions and rules, to elect their representatives in full freedom and to organize their administration and activities. The Committee notes section 12 of the Law on Employers’ Organizations, according to which, the structure, the functioning and the powers of the governing bodies of an employers’ organization are regulated by the by-laws of that organization. The Committee further notes sections 28–30 of the Labour Code, which regulate in detail the internal functioning of these bodies, including the rules of adoption of the decisions by governing bodies, their powers and the composition of the executive committee, and section 25, according to which, the officials of an employers’ organization should be citizens of Kyrgyzstan. The Committee recalls that legislative provisions which regulate in detail the internal functioning of workers’ and employers’ organizations pose a serious risk of interference by the public authorities. The regulation of procedures and methods of functioning, including the number of leaders of an organization and as to the majority of votes required for a decision to be adopted by workers and employers’ organizations, is primarily to be governed by the rules of the organizations themselves. Indeed, the fundamental idea of Article 3 of the Convention is that workers and employers may decide for themselves the rules which should govern the administration of the organizations. Furthermore, as concerns the nationality of the officers of an organization, the Committee considers that legislation should allow foreign employers to take up the office of an organization, at least after a reasonable period of residence in the host country. The Committee requests that the Government take the necessary measures to amend sections 25, 28, 29 and 30 of the Labour Code so as to bring it into full conformity with the Convention and keep it informed in this respect.

The Committee notes section 27(1) of the Labour Code, which states that “employers’ organizations cannot carry out political activities and activities not related to the labour relations and employment”. Recalling that employers’ organizations, like trade unions, must be able to voice their opinions on political issues in the broad sense of the term and, in particular, to express their views publicly on a government’s economic and social policy, the Committee asks the Government to indicate whether this legislative provision prohibits employers’ organizations to carry out political activity to express their point of view on matters of economic or social policy affecting their members.

2. Right to strike. The Committee notes that under section 78(3) of the Labour Code, the strike is prohibited in the railway transport, public transport, civil aviation, communication services and continuously working enterprises, the stoppage of which would have hazardous consequences. The Committee requests that the Government indicate the enterprises and services it qualifies as “continuously working enterprises, the stoppage of which would have hazardous consequences” where the right to strike is prohibited under section 78(3) of the Labour Code. The Committee recalls that the right to strike can be restricted or prohibited in the event of an acute national emergency, in the public services or in essential services in the strict sense of the term, i.e. those, the interruption of which, would endanger the life, personal safety or health of the whole or part of the population (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 159). Considering that railways, public transport, civil aviation and postal services in general (with the exception of air traffic control) are not essential services in the strict sense of the term, the Committee requests that the Government amend its legislation so as to ensure that workers of the above services may exercise the right to strike. The Committee considers that the authorities may establish a system of minimum service in services which are of public utility in order to avoid damages which are irreversible or out of all proportion to the occupational interests of the parties to the dispute, as well as damages to third parties, namely the users or consumers who suffer the economic effects of collective disputes. The minimum services could be appropriate in situations in which a substantial restriction or a total prohibition of strike action would not appear to be justified and where, without calling into question the right to strike of the large majority of workers, one might consider ensuring that users’ basic needs are met or that facilities operate safely or without interruption (see General Survey, op. cit., paragraphs 160 and 162).

The Committee notes that section 78(4) of the Labour Code provides that workers, following mediation and conciliation procedures provided for in the Code, could address the Government of Kyrgyzstan to defend their legitimate rights and interests. The Committee recalls that, if the right to strike is subject to restrictions or a prohibition, workers who are thus deprived of an essential means of defending their socio-economic and occupational interests should be afforded compensatory guarantees, for example, conciliation and mediation procedures leading, in the event of deadlock, to arbitration machinery seen to be reliable by the parties concerned which should provide sufficient guarantees of impartiality and rapidity (see General Survey, op. cit., paragraph 164). The Committee therefore requests that the Government review its legislation so as to ensure that in those cases any disagreement concerning a collective dispute is settled by an independent body enjoying the confidence of the parties concerned and not by the Government and to keep it informed of measures taken or envisaged in this regard.