Observation (CEACR) - adopted 2019, published 109th ILC session (2021)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Kazakhstan (Ratification: 2000)

Other comments on C087

Observation

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The Committee notes the observations of the International Organisation of Employers (IOE), received on 29 August 2019, containing the Employers’ statements made before the 2019 Conference Committee on the Application of Standards (hereinafter, the Conference Committee).

The Committee further notes the observations of the International Trade Union Confederation (ITUC), received on 1 September 2019, referring to the issues raised by the Committee below, as well as the observations received on 14 November 2019, alleging the imprisonment, on 16 October 2019, of Mr Erlan Baltabay, the leader of the Independent Oil and Energy Workers’ Union. The Committee also notes the observations of the Federation of Trade Unions of Kazakhstan (FPRK) on the application of the Convention, received on 18 November 2019, expressing its concern over the situation of Mr. Baltabay. Expressing its concern over this allegation, the Committee requests the Government to provide its comments thereon.

The Committee recalls that it had previously noted with deep concern the ITUC 2018 allegation of assault and injuries suffered by the chairperson of a trade union of workers of the fuel and energy complex in the Karaganda region and urged the Government to investigate the matter without delay and to bring the perpetrators to justice. The Committee notes the information provided by the Government confirming the assault of the chairperson of the Trade Union of Workers in the Fuel and Energy Complex of Shakhtinsk, Mr Dmitry Senyavsky, by unknown persons on 10 November 2018. The Government indicates that pre-trial proceedings were opened under section 293(2)(1) of the Criminal Code (disorderly conduct). According to a forensic medical report, Mr Senyavsky suffered mild damages to his health. However, the pre-trial investigation has been suspended pursuant to section 45(7)(1) of the Criminal Procedure Code (failure to identify the person who committed a crime) until new circumstances (evidence) come to light. The Committee requests the Government to continue to provide information on the developments in this case.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 108th Session, June 2019)

The Committee notes the discussion that took place in the Conference Committee in June 2019 concerning the application of the Convention. The Committee observes that the Conference Committee regretted the persistent lack of progress since the last discussion of the case in June 2017, in particular with regard to the serious obstacles to the establishment of trade unions without previous authorization in law and in practice, and the continued interference with the freedom of association of employers’ organizations. The Conference Committee took note of the ILO high-level tripartite mission (HLTM) that took place in May 2018 and the resulting road map. The Committee notes that the Conference Committee called upon the Government to: (i) amend the provisions of the Law on Trade Unions consistent with the Convention, on issues concerning excessive limitations on the structure of trade unions which limit the right of workers to form and join trade unions of their own choosing; (ii) refrain from imposing restrictions on the right to hold elected positions in trade unions and the right to freedom of movement for engaging in legitimate trade union activities; (iii) ensure that the allegations of violence against trade union members are investigated, and where appropriate, impose dissuasive sanctions; (iv) review, in consultation with the social partners, the existing law and practice regarding re registration of trade unions with a view to overcoming the existing obstacles; (v) amend, in consultation with the most representative, free and independent employers’ organizations, the provisions of the Law on the National Chamber of Entrepreneurs (NCE), and related regulations, in a manner that would ensure the full autonomy and independence of free and independent employers’ organizations, without any further delay. In particular remove the provisions on the broad mandate of the NCE to represent employers and accredit employers’ organizations by the NCE; (vi) ensure that the Confederation of Independent Trade Unions of Kazakhstan (KNPRK) and its affiliates enjoy the full autonomy and independence of a free and independent workers’ organization, without any further delay, and are given the autonomy and independence needed to fulfil their mandate and to represent their constituents; (vii) confirm the amendment to legislation to permit judges, firefighters and prison staff, who do not occupy a military rank, to form and join a workers’ organization; (viii) adopt legislation to ensure that national workers’ and employers’ organizations are not prevented from receiving financial assistance or other assistance by international organizations. In this regard, provide information on the legal status and contents of its recommendation regarding the authorization of workers’ and employers’ organizations to receive financial assistance from international organizations; and (ix) implement the 2018 road map in consultation with the social partners as a matter of urgency. The Conference Committee decided to include its conclusions in a special paragraph of the report.

The Committee notes the Government’s indication that a draft law to amend certain legislative acts has been submitted to Parliament and that a working group of the Mazhilis considered the draft on six occasions. The Committee takes note of a copy of the proposed amendments to the Law on Trade Unions (2014), the Labour Code (2015), the Law on the NCE, the Criminal Code, the Code of Criminal Procedure and the Law on Public Associations contained in this draft law.

Article 2 of the Convention. Right of workers, without distinction whatsoever, to establish and join organizations. Prison staff and firefighters. The Committee duly notes the information provided by the Government regarding the right to unionize of firefighters and prison staff.

Right to establish organizations without previous authorization. The Committee recalls that following the entry into force of the Law on Trade Unions, all existent unions had to be re-registered. It further recalls that it had noted with concern that the KNPRK affiliates were denied registration/re-registration, which ultimately led to its liquidation. The Committee recalls the Government’s indication that a helpline regarding the issues of trade union registration and activities had been established at the level of the Ministry of Labour and Social Protection (MLSP) in June 2018, as per the road map. The Committee recalls, however, the ITUC allegation that the helpline lacked the capacity and mandate to fulfil its role. The ITUC referred in this respect to the denials to register organizations which previously formed the KNPRK. The Committee requested the Government to provide its comments thereon. Further in this respect, the Committee recalls that it had noted that several pieces of legislation regulated registration and that some trade unions were denied re-registration because their by-laws were found not to be in conformity with either one or all of the applicable laws. The Committee therefore requested the Government to engage with the social partners to review the difficulties identified by trade unions seeking registration with a view to finding appropriate measures, including legislative, to fully give effect to Article 2 of the Convention and to ensure the right of workers to establish organizations without previous authorization.

The Committee notes the Government’s indication that there are three national associations of trade unions in the country, which bring together around 3 million workers or half of all employees in Kazakhstan, 39 sectoral, 19 regional, 635 local and over 20,000 primary trade union organizations. All trade unions may be established without previous authorization. Primary trade unions do not need to register. If a trade union wishes to become a legal entity (which entitles it to open a bank account), it must register with the justice authorities. The latter has the following powers to determine the status of trade unions: (1) to verify compliance with the legislation of documents submitted for registration; and (2) to issue certificates of state registration. In the event that the registering authority identifies shortcomings, it issues a reasoned refusal, citing the applicable legislative provision, as per section 11 of the Law on the State Registration of Legal entities and the Official Registration of Branches and Representative Offices. If the trade union in question rectifies these shortcomings, it may re-submit its application for registration, appending all necessary documents. The Government points out that this can be done for an unlimited number of times. The Committee further notes the Government’s indication that the MLSP and the Ministry of Justice have held a series of sessions for national federations of trade unions providing information on the registration procedure and seeking to identify problems that arise during registration. As a result, a working group has been set up to examine problems arising during registration and recommendations (step-by-step instructions) have been drawn up regarding trade union registration. These have been sent to trade unions for use in their work. The Government indicates that it has made every effort to provide guidance on registration to all trade unions and problems now occur only in isolated cases. While taking note of this information, the Committee regrets that the Government provides no information regarding the current situation of the KNPRK. The Committee requests the Government to provide information on the current status of the KNPRK and reiterates in this respect the need to ensure that the KNPRK and its affiliates enjoy the full autonomy and independence of a free and independent workers’ organization, without any further delay, and are given the autonomy and independence needed to fulfil their mandate and to represent their constituents.

Right to establish and join organizations of their own choosing. The Committee had previously requested the Government to amend the following sections of the Law on Trade Unions so as to ensure the right of workers to freely decide whether they wish to associate or become members of a higher-level trade union structure and to lower thresholds requirements to establish higher-level organizations:

-sections 11(3), 12(3), 13(3) and 14(4), which require, under the threat of deregistration pursuant to section 10(3), the mandatory affiliation of sector-based, territorial and local trade unions to a national trade union association within six months following their registration, so as to ensure the right of workers to freely decide whether they wish to associate or become members of a higher-level trade union structure; and
-section 13(2), which requires a sector-based trade union to represent no less than half of the total workforce of the sector or related sectors, or organizations of the sector or related sectors, or to have structural subdivisions and member organizations on the territory of more than half of all regions, cities of national significance and the capital, with a view to lowering this threshold requirement.

The Committee notes with interest the Government’s indication that the draft law, if adopted, would amend sections 11, 12, 13 and 14 of the Law on Trade Unions so as to remove the mandatory affiliation of trade unions to a higher-level association of trade unions. The Committee further notes the Government’s indication that the draft law seeks to simplify the conditions for confirming the status of a trade union as a national, sectoral or regional organization by extending the time limit for this procedure from six months to one year. The Committee expects that the legislative process will be concluded without further delay.

The Committee notes that the draft law proposes to modify the threshold requirements to stipulate that “a sectoral trade union should have structural divisions, member organizations in a territory that includes more than half the number of regions, cities of republican significance and the capital. Workers of small businesses have the right to create a sectoral trade union if there are structural divisions, affiliates in a territory that includes more than half the number of regions, cities of republican significance and the capital”. The Committee requests the Government to provide information on all developments on this matter.

Law on the National Chamber of Entrepreneurs (NCE). The Committee had previously urged the Government to amend the Law on the NCE and any other relevant legislation so as to ensure the full autonomy and independence of the free and independent employers’ organizations. The Committee recalls, in particular, that the Law calls for the mandatory affiliation to the NCE (section 4(2)). The Committee had further noted the difficulties encountered by the Confederation of Employers of Republic of Kazakhstan (KRRK) in practice, which stem from the mandatory membership and the NCE monopoly, and in particular, that the accreditation of employers’ organizations by the NCE and the obligation imposed in practice on employers’ organizations to conclude an annual agreement (a model contract) with the NCE, meant, for all intents and purposes, that the latter approved and formulated the programmes of employers’ organizations and thus intervened in their internal affairs. In this respect, the Committee had noted that there was an agreement to amend section 148(5) of the Labour Code so as to delete reference to the NCE’s authority to represent employers in the social dialogue at the national, sectoral and regional levels and that the road map provided for the measures to be taken to address the above concerns culminating with the submission of the draft law to amend various pieces of legislation, including the Law on the NCE to Parliament in November 2018.

The Committee notes the Government’s indication that the accreditation by the NCE is an internal procedure, which takes place on a voluntary basis. The Government stresses that this procedure is not an authorization procedure and does not prevent employers’ organizations from operating. Moreover, the compulsory NCE membership is not imposed on associations. The Government reiterates that the proposed amendment to the Labour Code outlined above is reflected in the draft law and thus, the NCE will withdraw from the National Tripartite Commission on Social Partnership and the Regulation of Social and Labour Relations, sectoral commissions (20 sectors) and regional commissions (16 regions). Accordingly, the NCE will no longer be a signatory to the General Agreement between the Government and national associations of employers and workers, sectoral agreements and regional agreements. The Committee notes this proposed amendment with interest. The Committee further notes with interest the proposed amendment to section 9 of the Law on the NCE, which would exclude explicitly from the definition of the representative functions of the NCE the right to represent entrepreneurs in the system of social partnership as set out in the Labour Code. The Committee expects that section 148(5) of the Labour Code as well as section 9 of the Law on the NCE will be amended as indicated without further delay thereby ensuring that the NCE and its structures at the national, sectoral and regional levels are no longer employers’ representatives in social dialogue. The Committee requests the Government to provide information on all developments in this regard.

The Committee recalls that it had also requested the Government to provide its comments on the 2018 observations of the KRRK which alleged that there was no real national dialogue regarding the implementation of the road map and that the implementation of the road map required a comprehensive approach, including modifications to the Entrepreneurship Code and beyond the proposed amendment to the Labour Code, which did not address the issue of financial and institutional dependency of employers’ organizations from the NCE. The Committee once again requests the Government to provide its comments thereon.

Article 3. Right of organizations to organize their activities and to formulate their programmes. The Committee had previously requested the Government to provide information on the status of its proposal to amend the Labour Code regarding the right to strike by making section 176(1)(1) (pursuant to which strikes shall be deemed illegal when they take place at entities operating hazardous production facilities), more explicit as to which facilities were considered to be hazardous. The Committee had noted that currently, “hazardous production facilities” are listed in sections 70 and 71 of the Law on Civil Protection, and can be further determined pursuant to Order No. 353 of the Minister of Investment and Development (2014).

The Committee notes the Government’s indication that in July and August 2019, the Ministry carried out consultations with the relevant state bodies and national associations of workers and employers regarding additional measures that could be developed to ensure respect for freedom of association. The Committee notes that the proposed amendments transmitted by the Government aim at modifying section 176 of the Labour Code so as to explicitly refer to certain services (aviation, railway, automobile and public transport, and communication) as vital and where a strike is deemed illegal, unless the necessary minimum level of services, previously agreed upon by the workers’ representatives and the local executive authorities, is maintained during a strike. The Committee expects that the legislative process will be concluded without further delay and requests the Government to provide information on all developments in this regard.

The Committee recalls that it had previously noted with concern that trade union leaders have been convicted and sentenced in application of section 402 of the Criminal Code (2016), according to which an incitement to continue a strike declared illegal by the court was punishable by up to one year of imprisonment and in certain cases (substantial damage to rights and interest of citizens, mass riots, etc.), up to three years of imprisonment. It recalled that no penal sanctions should be imposed against a worker for having carried out a peaceful strike and thus for merely exercising an essential right, and therefore that measures of imprisonment or fines should not be imposed on any account. Such sanctions could be envisaged only where, during a strike, violence against persons or property, or other serious infringements of penal law have been committed, and can be imposed exclusively pursuant to legislation punishing such acts (see the 2012 General Survey on the fundamental Conventions, paragraph 158). The Committee requested the Government to take the necessary measures to amend section 402 of the Criminal Code to bring it into line with this principle.

The Committee notes the Government’s indication that the Ministry undertook a series of consultations with the law enforcement authorities, as well as national associations of workers and employers regarding section 402 of the Criminal Code. Proposals to amend the penalties set out in section 402 of the Criminal Code were supported by the state bodies. The Committee notes that the proposed amendments intend to amend section 402 of the Criminal Code and the relevant provisions of the Code of Criminal Procedure so as to categorize the deeds described in section 402 as delinquent acts (and no longer as criminal acts), and to lower the penalties (both fines and imprisonments) accordingly. The Committee notes, in particular, that the imprisonment for up to one year, and three years in specific cases described above, is to be replaced by an arrest for the duration of up to 50 days and two years of imprisonment, respectively. While welcoming the proposed amendments aimed at reducing the penalties, the Committee is nevertheless of the opinion that simply calling for a strike action, even one declared illegal by the courts, should not result in arrest for up to 50 days and that in general, sanctions should be envisaged only where, during a strike, violence against persons or property, or other serious infringements of penal law have been committed. The Committee expects that the additional amendments will be further reviewed taking into account the above and will be submitted to Parliament in the near future. The Committee requests the Government to provide information on all developments in this regard.

Article 5. Right of organizations to receive financial assistance from international organizations of workers and employers. The Committee had previously requested the Government to adopt, in consultation with the social partners, specific legislative provisions which clearly authorize workers’ and employers’ organizations to benefit, for normal and lawful purposes, from the financial or other assistance of international workers’ and employers’ organizations. The Committee recalls that the road map provides for the drafting of an explanatory note on this issue and on the procedure to follow for public distribution. Noting the Government’s indication that a Recommendation on receiving financial assistance from international organizations had been drafted, the Committee requested the Government to provide a copy thereof, and to provide information on steps taken to adopt this Recommendation as a matter of law.

The Committee notes the Government’s indication that the legislation in force does not impede the conduct by trade unions of activities (such as seminars on gender and youth policy, freedom of association, collective bargaining and resolution of industrial disputes) financed by international organizations. Financial assistance aimed at undermining the constitutional order, sovereignty and independence of the country is, however, forbidden. The Government indicates that between 2013 and 2017 the Federation of Trade Unions of the Republic of Kazakhstan held 101 international events (such as seminars, meetings, conferences and summer schools) jointly with the ILO and the ITUC. The Government further indicates that the legislation has been explained to all national associations of trade unions, which have also received a copy of the above-mentioned Recommendation. The Committee notes that the Recommendation outlines the Government’s explanation above. The Committee welcomes that the draft law intends to amend the Law on Trade Unions by adding provisions on the right of trade unions to cooperate with international trade union organizations and, jointly with international organizations, to organize and conduct activities, as well as to carry out projects aimed at defending the rights and interests of workers in accordance with the legislation of Kazakhstan. The Committee expects that the Law on Trade Unions will be amended without delay and requests the Government to provide information on the developments in this regard.