Observation (CEACR) - adoptée 2007, publiée 97ème session CIT (2008)

The Committee notes the Government’s report.

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish and join organizations. In its previous observations, the Committee had requested the Government to indicate whether there were any regulations restricting trade union rights of non-citizens. The Committee notes the Government’s statement that the Law on Trade Unions applies to foreign citizens, as well as to stateless persons living and working in Kazakhstan and that, by virtue of section 11 of the Law on Social Associations, all public associations, other than political parties, are allowed to open their membership to foreign citizens and stateless persons.

The Committee had further requested the Government to indicate whether there were any regulations restricting trade union rights of railway workers. The Committee notes the Government’s indication that under the Law on Trade Unions, railway workers enjoy the same rights with regard to the establishment, operation and dissolution of their organizations as other trade union associations. The Government explains that workers of the railway sector are members of the Trade Union of Railway Workers of the Republic of Kazakhstan.

Article 5. Right of organizations to establish federations and confederations and to affiliate with international organizations. The Committee had previously noted the ban on financial assistance to national trade unions by an international organization (section 106 of the Civil Code and article 5(4) of the Constitution) and requested the Government to amend the legislation so as to lift this prohibition. The Committee notes the Government’s indication that other than monetary, the financial assistance also includes such forms of support as property, equipment, motorized transport, communications, printing equipment, etc. The Government explains that the reason behind such a prohibition is dictated by the need to protect the constitutional structure, independence and territorial integrity of the State; and that trade unions, by their very nature, possess a well-organized solidarity and have the capacity to influence the public political view and the policy of the State in various areas of public life. The Government further indicates that in order to protect trade unions from external influence and to ensure their independence and self-sufficiency, the State may adopt a legislation to prohibit other assistance to trade unions from foreign entities. The Committee considers 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 once again 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 this prohibition and to keep it informed of the measures taken or envisaged in this respect.

The Committee had previously requested the Government to clarify the meaning of article 5 of the Constitution and section 5(4) of the Law on Social Associations, which seemed to forbid the activities of international organizations within Kazakhstan, particularly in the light of section 9 of the Law on Social Associations, which 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 notes the Government’s indication that, while no foreign trade unions may operate in Kazakhstan, section 6 of the Law on Trade Unions entitles trade unions to cooperate with trade union organizations based abroad, join international trade union associations and organizations and conclude agreements.

Finally, the Committee notes the adoption, in May 2007, of the Labour Code. The Committee recalls that in its previous observations it had raised the following issues, which now seem to be covered by the new Code:

–      the right to establish and join organizations of employees of law enforcement bodies and judges;

–      the right to strike in civil service;

–      the basis for determining the legality of strikes; and

–      sanctions against strikes.

The Committee will examine these issues once the translation of the Labour Code becomes available.

The Committee further once again requests the Government to provide its observations on the comments of the International Confederation of Free Trade Unions (ICFTU, now ITUC – International Trade Union Confederation) dated 10 August 2006, alleging violations of trade union rights in practice, in particular, high registration cost, which makes registration of trade unions almost impossible and interference by employers in trade unions’ internal affairs.