Observación (CEACR) - Adopción: 2022, Publicación: 111ª reunión CIT (2023)

Convenio sobre la libertad sindical y la protección del derecho de sindicación, 1948 (núm. 87) - Kazajstán (Ratificación : 2000)

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Observación

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The Committee notes the observations of the International Organisation of Employers (IOE), of the Sectoral Trade Union of Workers in the Fuel and Energy Complex (Sectoral Trade Union of TEK Workers), and of the International Trade Union Confederation (ITUC), received respectively on 25 August, 30 August and 1 September 2022, referring to the issues raised by the Committee below.

The Committee notes the report of the Direct Contacts Mission (DCM) which visited the country in May 2022 following a request to that effect made by the Committee on the Application of Standards (the Conference Committee) at its 109th Session (June 2021).

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 110th Session, May–June 2022)

The Committee notes the discussion that took place in the Conference Committee in June 2022 concerning the application of the Convention. The Committee observes that the Conference Committee urged the Government, in consultation with the social partners, to: (i) ensure that the allegations of violence against trade union members are thoroughly investigated, notably in the case of Mr Senyavsky; (ii) allow an independent investigation of the Zhanaozen events of 2011; (iii) stop practices of judicial harassment of trade union leaders and members conducting lawful trade union activities and drop all unjustified charges, including the ban preventing trade unionists from holding any position in a public or non-governmental organization; (iv) resolve the issue of registration of KSPRK and the Industrial Union of Employees of the Fuel and Energy Sector, so as to allow them to enjoy the full autonomy and independence of a free and independent workers’ organization, to fulfil their mandate and to represent their constituents without further delay; (v) engage with the free and independent employers’ and workers’ organizations to review issues concerning their registration in law and practice with a view to overcoming existing obstacles; (vi) review the composition of the permanent working group that assesses areas of concern involving the registration of trade unions, so as to ensure the full involvement of independent workers’ and employers’ organizations in this working group; (vii) refrain from showing preference towards a particular trade union and stop the interference in the establishment and functioning of trade union organizations; (viii) remove any existing obstacles in law and practice to the operation of free and independent employers’ organizations in the country; (ix) remove any existing obstacles in law and practice to the operation of free and independent employers’ and workers’ organizations in the country, in particular repeal provisions in the Law on the National Chamber of Entrepreneurs (NCE) on accreditation of employers’ organizations with the NCE; (x) ensure that workers’ and employers’ organizations are not prevented from receiving financial or other assistance by international workers’ and employers’ organizations, and extend the list in Ordinance No. 177 of 9 April 2018 to cover international workers’ and employers’ organizations, such as the ITUC and IOE; and (xi) fully implement the 2018 road map. The Conference Committee requested the Government to develop, in consultation with the social partners, a time-bound action plan in order to implement all these conclusions. In order to elaborate, implement and evaluate this action plan, it urged the Government to avail itself of technical assistance from the Office on an ongoing basis in this regard.

The Committee welcomes the Plan of Action elaborated with the participation of the social partners pursuant to the request made by the Conference Committee. The Committee expects that all measures to give effect to the recommendations of the ILO supervisory bodies, as outlined below, will be taken within the indicated time frames.

The Committee recalls that, while Mr Baltabay and Ms Kharkova, former trade union leaders, have served their respective sentences (after they have been found guilty of the alleged misappropriation of funds), they remained prevented from holding a trade union office. The Committee notes the Government’s indication that this restriction expires, with regard to Ms Kharkova, in November 2022, and in case of Mr Baltabay, in 2026. The Committee further notes that the DCM had discussed with the Human Right Commissioner the possibility that courts might impose an additional punishment in the form of a ban on holding a public office (including trade union leadership posts) or a prohibition to engage in “public activities” provided for by the Criminal Code. The Commissioner considered that this would appear to be in violation of basic civil liberties and human rights. The Prosecutor General’s Office (PGO) explained to the DCM that the relevant sections of the Criminal Code leave it to the appreciation of the courts as to whether such an additional penalty should be imposed, the time period and conditions. The legislation did not outline any precise criteria in this respect. The PGO pointed out that the Ministry of Labour and Social Protection of the Population (MLSPP) could submit to it a legislative initiative aimed at amending the relevant sections of the Criminal Code. The Committee notes that according to the above-mentioned Plan of Action, the responsible State bodies are to submit to the PGO working group their suggestions for the amendment of the criminal legislation before the end of 2022. The Committee requests the Government to provide information on all developments in this regard.

The Committee recalls that it had previously noted that no progress has been made in investigating the assault on Mr Senyavsky, a former trade union leader, and urged the Government to investigate the matter without delay and to bring the perpetrators to justice. The Government reiterates that while the investigation has been suspended for lack of evidence, if new circumstances come to light, Mr Senyavsky will be informed. The Committee further notes that the Plan of Action provides for steps to be taken with a view to finding the perpetrators before the end of 2022. The Committee urges the Government to intensify its efforts in investigating the incident with a view to bringing to justice those responsible for the assault, and to report on all developments in this regard.

The Committee notes the ITUC allegation that judicial harassment of trade union leaders continues in the country; the ITUC refers in this respect to the arrest and administrative detention in October and December 2021 of two trade union leaders, Mr Zhenis Orynaliev and Ms Saule Seidakhmetova, in connection with their participation in a strike action. The Committee requests the Government to provide its comments thereon.

The Committee notes the Government’s detailed reply to the Conference Committee’s request to allow an independent investigation of the Zhanaozen events of 2011. The Committee understands from the information contained in the Government’s report that the circumstances of those 2011 events, which the Government refers to as riots, have been investigated and that various outside observers agreed on the transparency of both pre-trial procedures and trial processes. The Government indicates that criminal proceedings against 11 defendants who had called for mass unrest were discontinued at the preliminary investigation stage due to an amnesty, and that among those organizers of riots brought to trial, 13 received prison sentences, 16 received suspended sentences, three were acquitted and five were released following amnesty. The Government further indicates that following inquiries into 16 complaints of unlawful methods of investigation, a decision was taken not to initiate any criminal proceedings. The Committee observes with concern that the Government does not reply to the statements made by several speakers during the discussions at the Conference Committee alleging the deaths of 17 strikers and injuries to more than 100 others following the extremely violent repression of strike action in Zhanaozen. The speakers, as well as the ITUC in its latest observations, alleged that the violence ended a seven-month long peaceful strike involving more than 3,000 workers demanding a wage increase. The Committee points out that it is against this background that the Conference Committee urged the Government to allow an independent investigation to take place. This Committee considers that the maintenance of a climate of impunity for the perpetrators of such violence is extremely harmful and constitutes a major obstacle to the free exercise of freedom of association in the country. The Committee therefore urges the Government to take all necessary steps, in consultation with the social partners, to establish an independent investigation into the 2011 events in Zhanaozen, with a view to elucidating all facts and determining responsibilities so that healing and reconciliation can begin to take place. The Committee requests the Government to inform it of all measures taken in this regard.

Article 2 of the Convention. Right to establish organizations without previous authorization. The Committee had previously requested the Government to take all necessary steps to resolve the issue of registration of the Congress of Free Trade Unions (KSPRK) and of the affiliate organizations of the Sectoral Trade Union of TEK Workers, so as to allow them to enjoy the full autonomy and independence of a free and independent workers’ organization, to fulfil their mandate and to represent their constituents without further delay. The Committee further requested the Government to continue engaging with the social partners to review the difficulties identified by trade unions seeking registration with a view to finding appropriate measures, including legislative, to give full 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 to date (and since November 2019), no application for state registration has been submitted by the KSPRK. In this respect, the Committee notes from the DCM report that, with the exception of the Sectoral Trade Union of TEK Workers, there is no other union that the KSPRK could immediately affiliate to be granted registration at the republican level. In this connection, the Committee notes the Government’s indication that applications for the registration of the affiliates of the Sectoral Trade Union of TEK Workers in Atyrau and Almaty were turned down on five and two occasions, respectively, and that the shortcomings have been explained to the unions concerned. The Government indicates that once these are addressed, the unions can re-apply for registration.

The Committee notes that the DCM raised the issue of registration of trade unions in the oil sector in all its meetings with State bodies. While the Commissioner for Human Rights alluded to the fact that the oil sector was of national security importance, other responsible Ministries, as well as the Deputy Prime Minister, indicated that the only reason for the denial of registration was failure to respect legislative requirements set out for the registration of trade unions, despite the explanations provided during a workshop organized in March 2021 to assist the union in understanding the procedures. The DCM noted, however, that the requests for registration of these trade unions were systematically refused on the basis of technicalities, which could have been easily remedied on the spot at the registration office instead of a refusal followed by another one-month long application process, and further noted that with each refusal the registering authority referred to a wholly new inconsistency with the legislation, i.e. one to which it did not refer to in its previous motivated refusal. The impossibility to register the two trade union structures precludes the Sectoral Trade Union of TEK Workers from confirming its status. The Committee notes the Government’s indication that under the Plan of Action, the composition of the working group set up to consider problems encountered in the registration procedure will be reviewed. Expressing deep concern at this course of events, the Committee urges the Governmentto take additional steps to resolve the issue of registration of the affiliates of the Sectoral Trade Union of TEK Workers so as to allow them to enjoy the full autonomy and independence of a free and independent workers’ organization, to fulfil their mandate and to represent their constituents without further delay. The Committee requests the Government to inform it of all developments in this regard.

Further in this connection, the Committee notes from the DCM report that with the recent decision to establish additional regions in the country, a requirement to have affiliated organizations and/or structures in over 50 per cent of the regions/cities of regional importance/capital, as currently provided for the establishment of a sectoral trade union, appeared to be too high and needed to be reduced, in particular, when a sector or industry covers only a few regions, such as oil sector, for example. The Committee notes that according to the Sectoral Trade Union of TEK Workers, in the new circumstances, it will be more difficult, if not impossible, for it to confirm its sectoral status. The Committee notes that the national Commissioner for Human Rights considered that the Law on Trade Unions should be amended in this regard so as to represent the reality of certain sectors. The Committee requests the Government to amend the Law on Trade Unions accordingly so as to ensure that the establishment of sectoral trade unions is not impeded. The Committee requests the Government to inform it of all measures taken in this respect.

The Committee further notes from the DCM report a proposal to amend the national legislation in order to simplify registration by replacing it with a notification procedure for trade unions wishing to acquire a legal personality or allowing trade unions to function without registering and thus without obtaining legal personality. The draft amendments were to be developed by the end of 2022 for adoption in the first quarter of 2023. Welcoming this information, the Committee requests the Government to provide information on developments in this regard, including a copy of the amendments once adopted.

Following up on conclusions of the 2021 Committee on the Application of Standards, this Committee had previously encouraged the Government to continue reviewing the application of the Law on the National Chamber of Entrepreneurs (NCE) in practice to ensure that its provisions on accreditation of employers’ organizations with the NCE did not hinder the exercise of the right of employers’ organizations to organize their administration and activities and to formulate their programmes. The Committee notes from the DCM report that the role of employers’ organizations was not always understood by all State actors and needed to be clarified with a view to ensuring that participation in social dialogue, and in particular in collective bargaining, was a prerogative of employers’ organizations. The DCM further noted that the accreditation system was voluntary; that the Confederation of Employers was not accredited with the NCE; and that the former did not consider that the accreditation or the lack thereof restricted its rights. The Committee notes the Government’s indication that the idea of a separate law on employers’ organizations is being considered as a means of improving social partnership and dialogue and enforcing employers’ organizations’ rights under the Convention. The Committee welcomes this information and requests the Government to report on all developments in this regard.

Article 3. Right of organizations to organize their activities and to formulate their programmes. The Committee recalls that it had previously requested the Government to amend section 402 of the Criminal Code (2016), according to which an incitement to continue a strike declared illegal by the court was punishable by arrest for the duration of up to 50 days and in certain cases (substantial damage to rights and interest of citizens, mass riots, etc.) up to two years of imprisonment. In the absence of any further specific information in this regard, the Committee once againrequests the Government to provide information on all steps taken or envisaged in order to review section 402 of the Criminal Code so as to ensure that simply calling for a strike action, even one declared illegal by the courts, does not result in detention or imprisonment.

Article 5. Right of organizations to receive financial assistance from international organizations of workers and employers. The Committee had previously noted the Government’s reference to its Ordinance No. 177 of 9 April 2018 “On the adoption of a list of international and state organizations, foreign and Kazakhstani non-governmental organizations and funds which can provide grants”, which determined 98 international organizations allowed to provide grants to physical and legal persons in Kazakhstan. The Committee trusted that the list contained in the Ordinance would be amended to include international workers’ and employers’ organizations. The Committee notes that as per the Plan of Action, this issue is to be examined before the end of 2022. The Committee expects that necessary measures will be taken without delay to ensure that workers’ and employers’ organizations are not prevented from receiving financial or other assistance from international workers’ and employers’ organizations. The Committee requeststhe Government to provide information on all developments in this regard.