Solicitud directa (CEACR) - Adopción: 2010, Publicación: 100ª reunión CIT (2011)

The Committee notes the Government’s report, which was received on 23 September 2009, and the detailed statistical information that it contains, as well as the statistical information provided on 27 May 2010.

Articles 3(1), 13 and 16 of the Convention. Preventive and advisory functions of labour inspection. The Committee notes from the Government’s report that, pursuant to the provisions of the Kazakhstan Private Enterprise Act, which is now in force, the Ministry of Labour and Social Protection has developed a risk management system which will be used to exercise State control of compliance with the legislation, with a view to engaging to a maximum extent in preventive and advisory work with employers and carrying out scheduled and unscheduled inspections based on risk assessments. The Committee requests the Government to communicate the text of the Kazakhstan Private Enterprise Act, describe its content with regard to the relevant provisions of the Convention and give details on the practical implementation of the risk management system developed by the Ministry of Labour and Social Protection.

Article 5(a). Cooperation in relation to labour inspection. With reference to its previous comment, the Committee notes that according to section 336 of the Labour Code of 2007, the State labour inspectorate shall carry out its activities in interaction with other state supervisory and control authorities, with workers’ representatives, public associations and other organizations and that the State authorities shall render assistance to the State labour inspectorate in the fulfilment of its tasks. The Committee notes the information provided by the Government in reply to its previous comments in this regard, including the organization of a seminar held on the subject of child labour and occupational safety in Kazakhstan with the participation of ILO representatives, members of Parliament, heads of state agencies, the social partners and heads of the inspectorates of labour of Kazakhstan, Tajikistan and Kyrgyzstan. Furthermore, the Committee notes that according to section 330 of the Labour Code, labour inspectors can, among other things, control the observance of labour legislation (subsection 1), participate in testing the knowledge of labour protection and labour safety requirements (subsection 11), verify the fulfilment of special conditions set for issuing permits to hire foreign manpower (subsection 12) and investigate industrial accidents (subsection 8) along with representatives of employers and workers and other authorities like, for instance, the authorities competent in the area of sanitary and epidemiological welfare (sections 324–326). The Committee requests the Government to provide examples of legal and practical measures adopted to promote cooperation in the above areas between the labour inspectorate and other government services, such as, for instance, the social security institutions, the tax authorities, training institutions, the immigration authorities and the authorities competent in the area of sanitary and epidemiological welfare.

Articles 5(a) and 21(e). Effective cooperation between the labour inspection services and the justice system. The Committee takes note with interest of the detailed statistical information provided by the Government according to which, in 2008, on the basis of 23,060 inspections carried out, 1,459 cases were referred to the law enforcement authorities and 1,026 criminal proceedings were instituted against persons who had committed serious breaches of labour legislation. In the first half of 2009, on the basis of 11,776 inspections, 1,045 were cases referred to the law enforcement authorities. The Committee would be grateful if the Government would provide further information on the sectors of activity concerned, the legislative provisions which were the subject of violations and the outcome of the legal proceedings instituted before the courts. Referring also to its 2007 general observation on effective cooperation between the labour inspection services and the justice system, the Committee requests the Government to indicate whether a system for the recording of judicial decisions is accessible to the labour inspectorate or measures are envisaged for its establishment, and more generally, whether any measures are envisaged to enhance the cooperation between the labour inspection services and the justice system.

Article 5(b). Collaboration with the social partners. With reference to its previous comments, the Committee notes with interest that the Labour Code provides in Chapter 39, that the employer has the obligation to take various measures so as to carry out internal control over labour protection and safety, while Chapter 40 empowers an elected workers’ representative to exercise “public control” over the observance of the labour legislation by the employer. The Committee would be grateful if the Government would describe the forms of concrete cooperation between the labour inspectorate and the social partners, and specify the impact of such cooperation on the achievement of the objective assigned to the labour inspectorate, namely improving conditions of work and the level of protection of workers while engaged in their work.

Articles 6 and 11(1)(b) and (2). Transport facilities available to labour inspectors. The Committee notes that the Government’s report does not contain any information in reply to its previous comments relating to the lack of adequate transport facilities for long journeys of labour inspectors, who were often reduced to depending on enterprises for this purpose. Recalling the Government’s previous declaration that efforts were being made to rectify this situation, the Committee once again requests it to describe the labour inspectorate’s own transport facilities in the regions concerned and the measures taken to strengthen these facilities so that labour inspectors maintain their freedom of action and in particular avoid being exposed to improper influences. The Government is also requested once again, to indicate the legal provisions and the applicable procedure regarding the reimbursement of any travel costs covered in advance by inspectors in the performance of their duties.

Article 7(1) and (2). Conditions for the recruitment of inspection staff. With reference to its previous comments, the Committee once again requests the Government to state the level of education, qualifications and skills required of candidates in competitions for the post of labour inspector.

Articles 10 and 21(b) and (c).  Distribution of labour inspectors in relation to needs. The Committee takes due note of the detailed information for 2008 and 2009 (first half) sent by the Government concerning the geographical distribution of labour inspectors by region and city, as well as the number of workplaces inspected and the number of workers employed therein. The Committee would be grateful if the Government would supply further information on these subjects broken down by sector of economic activity.

Article 12(1)(a). Right of inspectors to enter freely workplaces liable to inspection. The Committee notes that section 330(1) of the Labour Code provides that labour inspectors have the right to carry out unhindered visits to organizations and enterprises for the purpose of controlling the observance of the labour legislation. However, it does not specify whether such visits can take place at any hour of the day or night. In its previous comments the Committee referred to the conclusions of the 2004 audit by an ILO group of experts at the request of the Ministry of Labour and Social Security, which pointed out the extensive legal and practical restrictions on inspectors’ access to workplaces in relation to planned inspections (Order No. 12 of 1 March 2004, providing for the prior registration of the inspection at the Public Prosecutor’s Office, preparation of numerous documents, etc.) and the reduced effectiveness and scope of inspections as a result of these restrictions. The Committee recalls in this regard that, according to Article 12(1)(a) of the Convention, labour inspectors should be authorized to enter freely and without previous notice at any hour of the day or night, any workplace liable to inspection.

Noting that the recently adopted Labour Code does not appear to amend the restrictions introduced by Order No. 12 on inspectors’ access to workplaces, and referring to the Government’s commitment to take the necessary steps to bring its legislation into full conformity with Article 12(1)(a) the Committee once again requests it to do so and to keep the ILO informed of any progress achieved.

Article 12(2). Notification of presence of labour inspectors. Noting that the Government’s report does not contain a reply to the Committee’s previous comments in this regard, the Committee once again requests the Government to indicate whether the labour inspector is obliged to notify the employer or his representative of his presence on the occasion of an inspection visit, unless he/she considers that such a notification may be prejudicial to the effectiveness of the inspection. If not, the Committee would be grateful if the Government would indicate in its next report the measures taken to this end.

Articles 13 and 17. Remedial measures including legal proceedings. The Committee notes that according to section 333(1) of the Labour Code, labour inspectors can issue the following types of acts: (i) orders (on elimination of violations, on the carrying out of preventive work or on suspension of operation of production units, workshops, sites, etc.); (ii) reports on an administrative offence; (iii) resolutions on termination of proceedings in cases of administrative offence; and (iv) resolutions in cases of administrative offence. According to section 330(10) of the Labour Code, the state labour inspectors have the right to submit to the law enforcement authorities and the courts, information, statements of claim and other materials on violations of the labour legislation and failure by employers to fulfil the instructions of the state labour inspectors. The Committee would be grateful if the Government would specify details on each of the acts issued by the labour inspectors and the conditions in which they are issued.

Article 15. Ethical principles of labour inspection. The Committee once again requests the Government to send all available information on how effect is given to Article 15(a), (b) and (c) and to send copies of all relevant texts, including with regard to penalties incurred by labour inspectors if they violate the ethical principles established by these provisions.

Articles 15(c) and 16. Criteria and objectives relating to the frequency of inspection visits. With reference to its previous comments, the Committee notes that according to section 334(2) of the Labour Code, labour inspectors cannot conduct more than one planned inspection per year with respect to the same natural or legal person, and no more than one planned inspection every three years in small businesses. Unplanned visits can be conducted in cases where inspectors discover circumstances which constitute a threat to the lives or health of workers and require the immediate elimination of the causes of danger, in cases where they receive a complaint alleging violations of labour legislation, or as a result of their own investigations into industrial accidents (sections 334(3)) and 331(6)).

The Committee recalls that according to Article 16 of the Convention, workplaces shall be inspected as often and as thoroughly as is necessary to ensure the effective application of the relevant legal provisions. It therefore once again draws the Government’s attention to the need to allow labour inspectors to decide on the number of visits necessary in the same workplace and to ensure that this freedom is guaranteed by legislation. Indeed, it is essential that employers realize that an inspector may conduct a visit on a random basis and without prior notification, so that they have an incentive to execute as quickly as possible any orders imposed upon them and also so that they are not inclined to systematically associate any unplanned visit with the existence of a complaint and seek to identify the author of the complaint. It is on this condition that inspectors can guarantee absolute confidentiality with regard to the source of complaints and regarding any connection between a complaint and an inspection visit, thereby preventing the workers concerned from being exposed to possible reprisals. In paragraph 266 of its General Survey of 2006 on labour inspection, the Committee considers that the different restrictions placed in law or in practice on inspectors’ right of entry into workplaces can only stand in the way of achieving the objectives of labour inspection as set out in the instrument. The Committee therefore requests the Government to take necessary measures aimed at amending section 334(2) of the Labour Code in such a way as to ensure that labour inspectors have the freedom to assess how frequently visits to the same workplace are required, in conformity with Article 16 and supply in its next report detailed information on the progress made in this regard.

Article 18. Penalties for obstructing labour inspectors in the performance of their duties. The Committee notes the Government’s statement that penalties for violation of the provisions of the labour legislation are set out in the Administrative Offences Code and the Criminal Code. The Committee would be grateful if the Government would indicate in its next report the penalties for obstructing labour inspectors in the performance of their duties and specify the relevant provisions.

Articles 20 and 21. Annual report on the work of the inspection services. The Committee draws the Government’s attention to its 2009 general observation on the importance of statistics on workplaces liable to inspection and the number of workers covered, as a basis for assessing the effectiveness of the labour inspection system and its needs. While taking note of the statistics provided by the Government on the number of inspectors, the workplaces liable to inspection and the number of workers employed therein, the Committee once again reminds the Government that the information listed in Article 21 should appear in an annual report which, according to Article 20, should be published by the central authority on an annual basis and duly forwarded to the ILO within a reasonable time after its publication. As indicated in the Committee’s General Survey of 2006 on labour inspection, the preparation of an annual report enables the authorities to have an overview of the working of the inspection system and its publication is intended to provide transparency on the resources, activities and results of the inspection services. Furthermore, the information provided should be broken down by sector of economic activity so as to specify which data relates to the activities performed in the industrial and commercial workplaces covered by the Convention. The Committee therefore once again requests the Government to take the necessary steps to ensure that the central inspection authority discharges its obligation to publish an annual report on the work of the labour inspection services under its control and forward it to the ILO, in conformity with Article 20 regarding its form and Article 21 regarding its content.

In addition, with reference to its previous comment, the Committee once again urges the Government to ensure that information on the work of the inspection services in the field of child labour and on the results thereof appear regularly in the annual report published by the central inspection authority.