Demande directe (CEACR) - adoptée 2004, publiée 93ème session CIT (2005)

The Committee notes 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. Right of workers and employers, without distinction whatsoever, to establish and join organizations. The Committee notes with interest that under the Kazakh legislation, foreigners and stateless persons enjoy the rights and freedoms provided for the citizens, unless otherwise stipulated by legislation and international treaties. The Committee notes, however, that section 10(1) of the Law on Social Associations and section 8 of the Law on Trade Unions stipulate that a social association is formed on the initiative of no less than ten individuals who are citizens of Kazakhstan. The Committee recalls in this respect, that no distinction based on nationality should be made as concerns the workers’ right to establish trade unions and requests the Government to indicate whether there are any specific regulations restricting trade union rights of non-citizens and to amend the Law on Trade Unions and the Law on Social Associations so that at least after a reasonable period of residency, non-citizens have the right to found a trade union.

The Committee further notes that employees of law-enforcement bodies and judges are prohibited from forming and joining trade unions (article 23(2) of the Constitution and section 11(4) of the Law on Social Associations) and that section 3(1) of the Law on Trade Unions stipulates that "the particulars of the applications of this law in railway forces will be defined by legislation". The Committee recalls in this respect, that the only exceptions authorized by the Convention are the members of the police and armed forces. However, civilians working in military installations or in the service of the army or police, as well as prison staff, should enjoy the rights provided for in the Convention. The Committee therefore requests the Government to amend its legislation so as to ensure the right to organize of judges and to indicate whether railway workers enjoy the right to form and join organizations to defend their social and occupational interests. It further requests the Government to specify the categories of workers covered by the term "law-enforcement bodies".

Article 3. Right to strike. The Committee notes section 10(6) of the Law on Civil Service which provides that "a civil servant has no right to participate in actions interfering with the normal functioning of state bodies and the fulfilment of official duties, including strikes". The Committee recalls, in this regard, that the prohibition of the right to strike in the public service should be limited to public servants exercising authority in the name of the State. Being aware of the fact that, except for the groups falling clearly into one category or another, the matter will frequently be one of degree, the Committee considers that a solution might be not to impose a total prohibition of strikes, but rather to provide for the maintaining by a defined and limited category of staff of a negotiated minimum service when a total and prolonged stoppage might result in serious consequences for the public (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 158). The Committee therefore requests the Government to clarify the categories of public servants covered by the Law and if this would include those who are not exercising authority in the name of the State, such as those working in public institutions, bank employees, teachers, etc., to modify this provision accordingly.

The Committee further notes that according to section 8(1)(6) of the Labour Code, the employer has a right to dismiss workers in the event of organization of and participation in a strike found illegal by the court. The Committee notes, however, that the Labour Code does not contain specific provisions on strikes. While considering that sanctions for strike action, including dismissals, should be possible only where strike prohibitions are in conformity with the principles of freedom of association, the Committee requests the Government to indicate the regulations, court judgements or other texts, which establish the basis for determining the legality of strike actions, and to provide a copy of the Law on collective disputes and strikes.

Article 5. Right of organizations to establish federations and confederations and to affiliate with international organizations. The Committee notes that according to section 106 of the Civil Code, "it is forbidden for political parties, non-governmental organizations with political goals and trade unions to receive any kind of foreign financial assistance from any foreign countries, foreign organizations, foreign citizens and international organizations". This prohibition is reinforced by the constitutional provision contained in article 5, paragraph 4, which provides that "activities of trade unions of other states, as well as financial assistance to trade unions by foreign legal governments, foreign citizens, foreign companies, foreign NGOs, and international organizations is forbidden in the Republic". The Committee further notes that in Case No. 1834 concerning Kazakhstan (see 305th Report, paragraphs 372-382), the Committee on Freedom of Association considered that legislation prohibiting the acceptance by a national trade union of financial assistance from an international organization of workers to which it is affiliated infringes the principles concerning the right to affiliate with international organizations of workers and that all national organizations of workers and employers should have the right to receive financial assistance from international organizations of workers and employers respectively, whether they are affiliated or not to the latter. The Committee therefore requests the Government to take steps to amend section 106 of the Civil Code, as well as article 5 of the Constitution, so as to lift the prohibition on the acceptance by national trade unions of financial assistance from international organizations of workers and to keep it informed of the measures taken or envisaged in this respect.

As concerns the activities of international organizations in Kazakhstan, the Committee notes that although article 5 of the Constitution and section 5(4) of the Law on Social Associations seem to forbid them, section 9 of the Law on Social Associations provides that the subordinate structures (affiliates and representatives) of international and foreign non-commercial and non-governmental associations may form and operate in the Republic of Kazakhstan. The Committee therefore requests the Government to clarify the meaning of article 5 of the Constitution and section 5(4) of the Law on Social Associations as concerns the activities of international organizations within Kazakhstan, especially for those who have affiliates in the country (particularly in the light of section 9 of the Law on Social Associations).

The Committee also requests the Government to provide a copy of the Law on non-commercial organizations to which the Government refers in its report.