Observation (CEACR) - adopted 2018, published 108th ILC session (2019)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Kazakhstan (Ratification: 2000)

Other comments on C087

Observation

Direct Request

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The Committee notes the observations of the International Trade Union Confederation (ITUC), received on 1 September, 12 October and 15 November 2018, referring to the issues raised by the Committee below, as well as allegations of violations of fundamental human rights, including the physical assault on the chairperson of a trade union of workers of the fuel and energy complex in the Karaganda region. The Committee notes with deep concern the alleged beating and injuries suffered by the trade union leader and urges the Government to investigate the matter without delay and to bring the perpetrators to justice. It requests the Government to inform of any developments in this regard.

The Committee notes the observations of the Confederation of Employers of Republic of Kazakhstan (KRRK) to which it refers below. The Committee recalls that in June 2017, the Conference Committee on the Application of Standards considered that the Government should accept a high level tripartite mission (HLTM) before the 2018 International Labour Conference in order to assess progress towards compliance with its conclusions. The Committee notes the mission report of the HLTM, which took place in May 2018. The Committee notes, in particular, the road map to implement the recommendations of the Committee of Experts in relation to the application of the Convention, prepared by the Government and presented at the tripartite meeting with the HLTM.

The Committee had previously noted cases of Ms Larisa Kharkova, the Chairperson of the now liquidated Confederation of Independent Trade Unions of Kazakhstan (KNPRK), who was sentenced to four years of restriction on her freedom of movement, 100 days of compulsory labour and a five-year ban on holding any position in a public or non-governmental organization and of Mr Amin Eleusinov, the Chairperson of a union affiliated to the KNPRK, and Mr Nurbek Kushakbaev, the Vice-President of the KNPRK, who were sentenced to two and two-and-a-half years in prison, respectively and prohibited from engaging in trade union activities after their release. The Committee notes that the three cases have been examined in detail by the Committee on Freedom of Association (CFA) in the framework of Case No. 3283 (see Report No. 386, June 2018, paragraphs 424–474). It further notes from the HLTM report and the Government’s indication that Mr Eleusinov and Mr Kushakbaev have been released.

Article 2 of the Convention. Right of workers, without distinction whatsoever, to establish and join organizations. Prison staff and firefighters. The Committee notes the information provided by the Government regarding the right to unionize of firefighters and prison staff as well as the information thereon contained in the HLTM report. It notes, in particular, that prison staff, as part of the law enforcement bodies, are placed under the responsibility of the Ministry of Interior and as such are prohibited from establishing and joining trade unions. However, among the employees of the law enforcement bodies (which include prison staff and firefighters), only employees who have a military or police rank are prohibited from establishing and joining trade unions; all civilian staff engaged in the law enforcement bodies can establish and join trade unions. The Committee notes that the HLTM met with the leadership of the Trade Union of Workers of Defence Forces as well as with the chairpersons of the primary trade union organizations of penitentiary systems for two regions. It further notes from the report that similarly, all civilians working in firefighting serves enjoyed the right to establish and join trade unions.

Right to establish organizations without previous authorization. The Committee recalls that following the entry into force of the Law on Trade Unions, all existent unions had to be re-registered. It further recalls that it had previously noted with concern that the KNPRK affiliates were denied registration/re registration, which ultimately led to its liquidation. The Committee recalls that this was despite the assurances given in 2016 to the ILO direct contacts mission by the Ministry of Justice and the Ministry of Labour and Social Development (MLSD) that they would look into this matter and assist the unions, as relevant. The Committee notes the Government’s indication that a helpline regarding the issues of trade union registration and activities had been established at the level of the MLSD on 29 June 2018 as per the road map. The Committee notes however the ITUC allegation that the helpline lacks the capacity and mandate to fulfil its role. The ITUC refers in this respect to the recent denials to register organizations on the basis of the previous KNPRK. The Committee requests the Government to provide its comments thereon. The Committee further notes the conclusions of the CFA, which drew the legislative aspects of Case No. 3283 to the attention of the Committee. It notes, in particular, that several pieces of legislation regulate registration and that some trade unions were denied re-registration because their by-laws were found not to be in conformity with either one or all of the applicable laws. The Committee therefore requests the Government to engage with the social partners to review the difficulties identified by trade unions seeking registration with a view to finding appropriate measures, including legislative, to fully give effect to the Article 2 of the Convention and to ensure the right of workers to establish organizations without previous authorization. It requests the Government to provide information on all developments in this regard.

Right to establish and join organizations of their own choosing. The Committee had previously requested the Government to amend the following sections of the Law on Trade Unions so as to ensure the right of workers to freely decide whether they wish to associate or become members of a higher-level trade union structure and to lower thresholds requirements to establish higher-level organizations:

-sections 11(3), 12(3), 13(3) and 14(4), which require, under the threat of deregistration pursuant to section 10(3), the mandatory affiliation of sector-based, territorial and local trade unions to a national trade union association within six months following their registration, so as to ensure the right of workers to freely decide whether they wish to associate or become members of a higher level trade union structure; and
-section 13(2), which requires a sector-based trade union to represent no less than half of the total workforce of the sector or related sectors, or organizations of the sector or related sectors, or to have structural subdivisions and member organizations on the territory of more than half of all regions, cities of national significance and the capital, with a view to lowering this threshold requirement.

The Committee notes that the road map provides for a number of steps to be taken in consultation with the interested trade unions to address this issue and ultimately to achieve a common proposal for the amendment of the Law for its submission to Parliament in November 2018. The Committee notes the Government’s indication that the MLSD was in the process of collecting proposals from the relevant state bodies and the social partners. While noting that two activities aimed at discussing possible amendments to the Law on Trade Unions with the trade unions were conducted with the support of the Office, the Committee notes with regret the lack of progress in discussing the unions’ proposals and coming to a common position. The Committee urges the Government to take the necessary measures in order to amend sections 11(3), 12(3), 13(2) and (3), and 14(4) of the Law on Trade Unions without further delay in consultations with the social partners so as to ensure the right of workers to freely decide whether they wish to associate with or become members of a higher-level trade union structure and to lower thresholds requirements to establish higher-level organizations. It requests the Government to provide information on all progress made in this respect.

Law on the National Chamber of Entrepreneurs (NCE). The Committee had previously urged the Government to amend the Law on the NCE, so as to eliminate all possible interference by the Government in the functioning of the Chamber and so as to ensure the full autonomy and independence of the free and independent employers’ organizations in Kazakhstan. The Committee recalls that the Law calls for the mandatory affiliation to the NCE (section 4(2)), and, during the transitional period to last until July 2018, for the Government’s participation therein and its right to veto the NCE’s decisions (sections 19(2) and 21(1)). The Committee had noted the difficulties encountered by the KRRK in practice, which stem from the mandatory membership and the NCE monopoly, and in particular, that the accreditation of employers’ organizations by the NCE and the obligation imposed in practice on employers’ organizations to conclude an annual agreement (a model contract) with the NCE, meant, for all intents and purposes, that the latter approved and formulated the programmes of employers’ organizations and thus intervened in their internal affairs. The Committee notes from the HLTM report and the Government’s information in its report that there is an agreement to amend section 148(5) of the Labour Code so as to delete reference to the NCE’s authority to represent employers at the national, sectoral and regional levels. The Committee further notes that the road map provides for the measures to be taken to address the above concerns culminating with the submission of the draft law to amend various pieces of legislation, including the Law on the NCE to Parliament in November 2018. The Committee notes with regret the lack of information on progress in amending the legislation. The Committee urges the Government to take the necessary measures without further delay to amend the Law on the National Chamber of Entrepreneurs and any other relevant legislation so as to ensure the full autonomy and independence of the free and independent employers’ organizations. It requests the Government to provide information on all developments in this regard.

The Committee further notes the observations of the KRRK received on 17 November 2018 regarding the road map. The Committee requests the Government to provide its comments thereon.

Article 3. Right of organizations to organize their activities and to formulate their programmes. The Committee had previously welcomed the Government’s intention to amend the Labour Code regarding the right to strike by making section 176(1)(1), pursuant to which strikes shall be deemed illegal when they take place at entities operating hazardous production facilities, more explicit as to which facilities were considered to be hazardous. Currently, “hazardous production facilities” are listed in sections 70 and 71 of the Law on Civil Protection, and can be further determined, pursuant to Order No. 353 of the Minister of Investment and Development (2014), by the enterprise in question. While noting the information provided by the Government regarding the procedure to follow to declare a strike, the Committee requests the Government to provide information on the status of the previously proposed Labour Code amendment.

The Committee had previously noted with concern that trade union leaders have been convicted and sentenced in application of section 402 of the Criminal Code (2016), according to which an incitement to continue a strike declared illegal by the court was punishable by up to one year of imprisonment and in certain cases (substantial damage to rights and interest of citizens, etc.), up to three years of imprisonment. It recalled that no penal sanctions should be imposed against a worker for having carried out a peaceful strike and thus for merely exercising an essential right, and therefore that measures of imprisonment or fines should not be imposed on any account. Such sanctions could be envisaged only where, during a strike, violence against persons or property, or other serious infringements of penal law have been committed, and can be imposed exclusively pursuant to legislation punishing such acts (see the 2012 General Survey on the fundamental Conventions, paragraph 158). The Committee requested the Government to take the necessary measures to amend section 402 of the Criminal Code so as to bring it into line with this principle. The Committee notes the Government’s indication that on 17 August 2018 it had conducted a meeting on the application of this provision with all relevant state bodies. It was decided that this issue should be examined by the inter-agency working group of the Prosecutor’s Office which is considering amending various pieces of legislation with a view to reforming criminal law and procedure. The Committee requests the Government to provide information on all developments in this regard.

Article 5. Right of organizations to receive financial assistance from international organizations of workers and employers. The Committee had previously requested the Government to adopt, in consultation with the social partners, specific legislative provisions which clearly authorize workers’ and employers’ organizations to benefit, for normal and lawful purposes, from the financial or other assistance of international workers’ and employers’ organizations. The Committee notes that the road map provides for the drafting of an explanatory note on this issue and on the procedure to follow for public distribution. The Committee notes the Government’s indication that a Recommendation on receiving financial assistance from international organizations has been drafted. The Committee requests the Government to provide a copy thereof, and to provide information on steps taken to adopt this Recommendation as a matter of law.

[The Government is asked to reply in full to the present comments in 2019.]