Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

Articles 1 and 2 of the Convention. Legislative developments. Prohibition of discrimination. The Committee notes that the new Labour Code, which was adopted on 15 May 2007, includes a number of provisions which give effect to the Convention. Section 4 declares the prohibition of discrimination to be the principle of the labour legislation of the Republic of Kazakhstan, while section 7 sets out this prohibition in more detail:

–      section 7(1) provides that everyone shall have equal opportunities to exercise their rights and freedoms in the sphere of labour;

–      section 7(2) provides that no one may be subjected to any discrimination in exercising their labour rights based on sex, age, physical disabilities, race, nationality, language, material, social or official position, place of residence, attitude to religion, political convictions, tribe or social stratum or membership of public associations; and

–      section 7(3) provides that differences, exceptions, preferences and restrictions determined by requirements inherent in the nature of the work or dictated by the state’s concern for people in need of increased social and legal protection, do not constitute discrimination.

The Committee notes that these provisions cover all prohibited grounds listed in Article 1(1)(a), of the Convention, except the ground of colour. It also notes that section 7(2) also includes a number of additional grounds, as envisaged in Article 1(1)(b) of the Convention (namely age, physical disability, tribe and membership in a public association). The Committee regrets that the ground of citizenship, which was included as a prohibited ground in the previous Labour Code has been removed. The Committee requests the Government to provide information on the implementation of the above provisions, including information on any activities undertaken to make these known and information on the number, nature and outcome of discrimination cases dealt with by the courts or the labour inspectorate. In the absence of such information, the Committee requests the Government to take the measures necessary to collect such data, and to indicate the measures taken to that end. The Committee recommends that the prohibited ground of colour is added to section 7(2).

Equality of men and women in employment and occupation. The Committee notes with interest that the new Labour Code grants paid leave to adoptive parents (either the mother or the father) to care for a newly born adopted child (section 194) and unpaid childcare leave until the child reaches the age of three at the parents’ choice, either for the father or the mother (section 195). The Committee welcomes these measures, in particular those that are available to women and men on an equal footing, and requests the Government to provide information on the extent to which this entitlement is being used by men and women.

However, the Committee notes that under section 187 of the Labour Code the employer is prevented from either engaging in night work or overtime work women with children under the age of 7 years and other persons bringing up children under the age of 7 years without a mother, or sending them on business trips or to perform rotational work, without their written consent. Under sections 188 and 189, fathers have the right to child-feeding breaks and to part-time work only in respect of children without a mother. The Committee notes that, in accordance with the principle of gender equality, measures aimed at facilitating the reconciliation of work and family responsibilities should be available on an equal footing for women and men. Provisions which reflect an assumption that caring for a child is the primary role of women prolong and reinforce gender inequality in society and the labour market. The Committee therefore requests the Government to amend these provisions accordingly.

Special measures of protection. The Committee notes that, under section 186(1) of the Labour Code, it is prohibited to engage women to perform heavy work or work under harmful and hazardous working conditions. Under section 186(2), it is prohibited for women to lift and move manually weights in excess of the maximum standards established for them. The list of jobs for which it is prohibited to engage women and the maximum weights for women to lift and move manually shall be determined by the state labour authority in agreement with the health authorities. The Committee recalls that special protective measures for women should be limited to safeguarding maternity, and should be proportional to the nature and scope of the protection needed. The Committee requests the Government to provide a copy of the list referred in section 186 of the Labour Code for examination by the Committee.

Draft gender equality legislation. The Committee previously noted that a draft law on equal rights and opportunities for men and women is under consideration. The Committee hopes that such legislation can be passed in the near future and requests the Government to provide the text of the law when adopted.

Practical application. The Committee notes that the Government has not yet replied to a number of requests for information made by the Committee with regard to the application of the Convention in practice. The Committee therefore once again requests the Government to provide the following:

(i)    detailed information on the specific measures taken to promote and ensure equality of opportunity and treatment of women and men in employment and occupation, including measures to promote women’s access to occupations and employment in areas where they are currently under-represented, including within the civil service;

(ii)   statistical information on the participation of men and women in the labour market (private and public sectors), branch of economic activity, occupational group and status of employment;

(iii) information indicating how the principle of gender equality has been integrated into the programmes and measures to promote employment, including statistical information on the number of women who have benefited from employment promotion measures;

(iv)  statistical information on the position in the labour market of men and women belonging to ethnic or religious minorities, including information on their participation in employment in the civil service; and

(v)   information on the measures taken to plan and implement activities to raise awareness of the principles of equality, in cooperation with workers’ and employers’ organizations as envisaged under Article 3(a) and (b) of the Convention.