Demande directe (CEACR) - adoptée 2015, publiée 105ème session CIT (2016)

Convention (n° 81) sur l'inspection du travail, 1947 - Kazakhstan (Ratification: 2001)

Autre commentaire sur C081

Observation

Demande directe

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Legislative reforms. The Committee notes the Government’s indications that supervision and control are carried out in accordance with Law No. 378 IV ZRK of 6 January 2011 on state control and supervision (Law on State Control). The Committee notes from information available on the Internet that this Law has recently been amended by Law No. 269-V of 29 December 2014 on issues of fundamental improvement of the conditions for entrepreneurial activity, and that these amendments provide for major modifications to the system of labour inspection. It further notes that the Government requested ILO technical assistance in the form of legislative comments on the 2015 draft Labour Code and that the Office transmitted its comments to the Government in September 2015. The Committee requests the Government to provide a copy of the Law on State Control as amended, if possible in one of the ILO working languages. The Committee hopes that the Government will continue to avail itself of the technical assistance of the Office in the current review of the Labour Code, and requests it to ensure that full effect is given to the Convention. Please also communicate a copy of the Labour Code, once adopted, if possible in one of the working languages of the ILO.

Articles 3(1)(a) and (b), 17 and 18 of the Convention. Preventive and enforcement functions of labour inspection. The Committee previously noted that a risk management system was developed by the Ministry of Labour and Social Protection to enable the labour inspectorate to plan inspections, while focusing on its preventive and advisory functions. The Committee notes that the Government has not provided a reply in relation to its previous request made in this regard.

The Committee further notes the Government’s indications that the Labour Code was amended to provide for state control “in other forms” based on criteria jointly approved by the labour inspectorate and a body representing employers which the Committee understands are solely preventive in nature. The Committee once again requests the Government to provide detailed information on the implementation and functioning in practice of the abovementioned risk management system, including a copy of the applicable legal provisions.

It requests the Government to: (i) indicate the provisions in the Labour Code providing for “other forms” of state control; (ii) specify whether labour inspectors are free to institute or recommend proceedings when deemed necessary to ensure the application of the legal provisions; and (iii) to provide, where applicable, a copy of any internal instructions provided to labour inspectors in this regard.

Article 4. Supervision and control of the labour inspection system by a central authority. The Committee notes from the Government’s indications that, under Law No. 102 – VRK on the division of power between state bodies of 13 June 2013, the functions of the state labour inspectorate have been transferred to the executive bodies at the local level. In this regard, the Committee would like to refer to its observations made in paragraph 140 of its 2006 General Survey on labour inspection according to which, attaching the labour inspectorate to a central authority facilitates the establishment and application of a single policy throughout the territory covered, and makes it possible to use available resources in a rational way by, for example, eliminating duplication of effort. In this regard, the Committee also considered that, in order to comply with the requirements of the Convention, the decentralization of labour inspection should be accompanied by the obligation placed on decentralized regional or local administrative authorities, to introduce a system for its functioning and to assign sufficient budgetary resources to it. The Committee requests the Government to describe, with reference to the applicable legal provisions, the organization and functioning of the labour inspection system following the transfer of labour inspection functions to the executive bodies at the local level, and to indicate the central authority exercising supervision and control over this system. Please also provide information on the resource situation throughout the services of labour inspection, i.e. the budget allocated for labour inspection functions at the local levels, as well as the number of inspection staff, the transport facilities and office space available to labour inspectors.

Articles 5(a) and 17. Effective cooperation between the labour inspection services and the justice system. The Committee notes from the information provided by the Government that in 2013, on the basis of 13,152 inspections carried out, 2,089 cases were referred to the law enforcement authorities and 155 criminal proceedings were instituted against persons who had committed serious breaches of labour legislation. The Committee notes that the number of proceedings instituted appears to be low in relation to the number of cases reported, and that the Government has not provided the requested information in relation to cooperation with the judicial authorities. The Committee also notes the Government’s indications concerning the reporting obligation of the state labour inspectorate to the competent public prosecutor’s offices. The Committee once again requests the Government to indicate the measures taken or envisaged to enhance effective cooperation between the labour inspection services and the judicial authorities (such as joint meetings to discuss practical aspects of cooperation, joint trainings on the procedural and material aspects of labour law and inspection procedures, the establishment of a system for the recording of judicial decisions accessible to labour inspectors, etc.). Please provide any explanations for the low number of proceedings instituted in relation to the cases reported, and any measures taken to overcome them, including in the framework of cooperation with the judicial authorities.

Articles 6 and 11(1)(b) and (2). Transport facilities available to labour inspectors. The Committee notes that the Government’s report once again 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 statement 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 incurred 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 12(1)(a) and (b) and 16. Right of inspectors to freely enter workplaces liable to inspection, and coverage of workplaces by labour inspections. The Committee previously noted that there appeared to be extensive legal and practical restrictions in relation to scheduled inspections concerning inspectors’ access to workplaces and the frequency of inspection visits, resulting in a reduced effectiveness and scope of inspections. In this regard, the Committee noted that: (i) section 330(1) of the Labour Code does not specify whether visits can take place at any hour of the day or night as required by Article 12(1)(a); (ii) Order No. 12 of March 2004 provides for the prior registration of the inspection at the Public Prosecutor’s Office which raises issues in relation to Article 12(1)(a) and (b); and (iii) section 334(2) of the Labour Code provides that 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 which is incompatible with Article 16.

While the Government has not provided specific information in reply to the questions raised, the Committee notes from the information in the Government’s report that: (i) the Labour Code was amended to enhance state control; (ii) Order No. 55-p of 16 February 2011 on the procedure for scheduled inspections in private enterprises was issued; and (iii) the number of labour inspections decreased from 23,060 inspections in 2008 to 13,152 in 2013. The Committee also notes the Government’s statement under the Occupational Safety and Health Convention, 1981 (No. 155), that the number of inspections undertaken has decreased, owing to the discontinuation of inspections of small and medium-sized businesses since 1 April 2014, pursuant to Presidential Decree on Cardinal Measures to Improve the Conditions for Entrepreneurship in Kazakhstan (Decree No. 757). The Committee notes with concern the Government’s indication regarding a decrease in the number of inspection visits and the cessation of such inspections in small and medium-sized enterprises. The Committee requests the Government to provide information on the measures taken to amend the Labour Code so as to bring it into compliance with the requirements of the Articles 12(1)(a) and 16 of the Convention (i.e. to provide for the free entry to workplaces at any hour of the day or night, and the lifting of any restrictions to carrying out of inspections as often and as thoroughly as is necessary to ensure the effective application of the relevant legal provisions). The Committee also asks the Government to provide information on whether Order No. 55-p of 16 February 2011 repeals Order No. 12 of 1 March 2004, and whether the restrictions introduced by the latter Order, especially the prior registration at the Public Prosecutor’s Office have been lifted.

Article 15. Ethical principles of labour inspection. The Committee notes the Government’s indications that the main obligations of labour inspectors are regulated by the Civil Service Act, and that labour inspectors are bound not to reveal any commercial secrets or other confidential issues under the law which may come to their knowledge in the course of their duties. The Committee requests the Government to provide further information on the effect given to Article 15(a) and (c) and to send copies of the relevant legal provisions, if possible in one of the ILO working languages.

Article 18. Penalties for labour law violations and for obstructing labour inspectors in the performance of their duties. The Committee notes the Government’s indications that, under the new Administrative and Criminal Code that entered into force in January 2015, the penalties for violating labour legislation have been strengthened. Noting that the Government has not provided a reply in relation to its previous demand in this regard, the Committee once again requests the Government to indicate the penalties for obstructing labour inspectors in the performance of their duties and specify the relevant provisions.