Observation (CEACR) - adoptée 2020, publiée 109ème session CIT (2021)

Convention (n° 87) sur la liberté syndicale et la protection du droit syndical, 1948 - Kazakhstan (Ratification: 2000)

Autre commentaire sur C087

Observation

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The Committee takes note of the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th Session (June 2020). The Committee proceeded with the examination of the application of the Convention on the basis of the supplementary information received from the Government and the social partners this year, as well as on the basis of the information at its disposal in 2019.

The Committee notes the observations of the International Trade Union Confederation (ITUC), received on 8 and 16 September 2020, and of the Confederation of Employers of the Republic of Kazakhstan (KRRK), received on 1 October 2020, referring to the issues raised by the Committee below.

The Committee recalls that in their 2019 observations, the ITUC and the Federation of Trade Unions of Kazakhstan (FPRK) denounced the imprisonment, on 16 October 2019, of Mr Erlan Baltabay, the leader of the Independent Oil and Energy Workers’ Union. Expressing its concern over this allegation, the Committee had requested the Government to provide its comments thereon. The Committee notes that in its 2020 observations, the ITUC recalls that Mr Baltabay was sentenced to seven years of imprisonment in July 2019 for the alleged misappropriation of approximately US$28,000 of union dues. According to the ITUC, Mr Baltabay was released in August 2019 after being pardoned by the President and given a fine of US$4,000 in exchange for his remaining prison sentence. Mr Baltabay insisted on his innocence, refused to pay the fine or recognize the presidential pardon, and argued in court that criminal charges of large-scale misappropriation of funds levied against him were politically motivated and unfounded. The ITUC further indicates that on 16 October 2019, Mr Baltabay was given a new prison sentence of five months and eight days imprisonment for union-related activities and for not paying the fine; while Mr Baltabay was released from jail on 20 March 2020, he is still banned from any public activity, including trade union activities, for the next seven years, as per the previous sentence.

The Committee further notes the ITUC indication that 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 and a five-year ban on holding any position in a public or non-governmental organization, continued to serve her sentence.

The Committee notes that the Government does not dispute the facts as outlined by the ITUC, but indicates that judicial decisions in the case of Mr Baltabay were made in respect of ordinary crimes and were not related to his participation in legal trade union activities.

The Committee further notes that the cases of Mr Baltabay and Ms Kharkova continue to be examined by the Committee on Freedom of Association (CFA) in the framework of Case No. 3283 (see 392nd Report, October 2020). The Committee refers to the conclusions and recommendations of the CFA and urges the Government to provide detailed information on the cases of Mr Baltabay and Ms Kharkova.

The Committee recalls that it had previously noted with deep concern the ITUC 2018 allegation of assault and injuries suffered by the chairperson of a trade union of workers of the fuel and energy complex in the Karaganda region and urged the Government to investigate the matter without delay and to bring the perpetrators to justice. The Committee had noted the information provided by the Government confirming the assault of the Chairperson of the Trade Union of Workers in the Fuel and Energy Complex of Shakhtinsk, Mr Dmitry Senyavsky, by unknown persons on 10 November 2018. The Government indicated that pre-trial proceedings were opened under section 293(2)(1) of the Criminal Code (disorderly conduct). According to a forensic medical report, Mr Senyavsky suffered mild damages to his health. The Committee notes that in its 2020 observation, the ITUC indicates that two years after the assault, no suspects have been identified. The Committee notes that the Government reiterates in its supplementary report that the pre-trial investigation has been suspended pursuant to section 45(7)(1) of the Criminal Procedure Code (failure to identify the person who committed a crime) until new circumstances (evidence) come to light. The Committee requests the Government to continue to provide information on the developments in this case.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 108th Session, June 2019)

The Committee notes the discussion that took place in the Conference Committee in June 2019 concerning the application of the Convention. The Committee observes that the Conference Committee regretted the persistent lack of progress since the last discussion of the case in June 2017, in particular with regard to the serious obstacles to the establishment of trade unions without previous authorization in law and in practice, and the continued interference with the freedom of association of employers’ organizations. The Conference Committee took note of the ILO high-level tripartite mission (HLTM) that took place in May 2018 and the resulting road map. The Committee notes that the Conference Committee called upon the Government to: (i) amend the provisions of the Law on Trade Unions consistent with the Convention, on issues concerning excessive limitations on the structure of trade unions which limit the right of workers to form and join trade unions of their own choosing; (ii) refrain from imposing restrictions on the right to hold elected positions in trade unions and the right to freedom of movement for engaging in legitimate trade union activities; (iii) ensure that the allegations of violence against trade union members are investigated, and where appropriate, impose dissuasive sanctions; (iv) review, in consultation with the social partners, the existing law and practice regarding re registration of trade unions with a view to overcoming the existing obstacles; (v) amend, in consultation with the most representative, free and independent employers’ organizations, the provisions of the Law on the National Chamber of Entrepreneurs (NCE), and related regulations, in a manner that would ensure the full autonomy and independence of free and independent employers’ organizations, without any further delay. In particular remove the provisions on the broad mandate of the NCE to represent employers and accredit employers’ organizations by the NCE; (vi) ensure that the Confederation of Independent Trade Unions of Kazakhstan (KNPRK) and its affiliates enjoy the full autonomy and independence of a free and independent workers’ organization, without any further delay, and are given the autonomy and independence needed to fulfil their mandate and to represent their constituents; (vii) confirm the amendment to legislation to permit judges, firefighters and prison staff, who do not occupy a military rank, to form and join a workers’ organization; (viii) adopt legislation to ensure that national workers’ and employers’ organizations are not prevented from receiving financial assistance or other assistance by international organizations. In this regard, provide information on the legal status and contents of its recommendation regarding the authorization of workers’ and employers’ organizations to receive financial assistance from international organizations; and (ix) implement the 2018 road map in consultation with the social partners as a matter of urgency. The Conference Committee decided to include its conclusions in a special paragraph of the report.

The Committee notes that the Law on Trade Unions, the Labour Code, the Law on the NCE, the Criminal Code, the Code of Criminal Procedure and the Law on Public Associations were amended by virtue of adoption, in May 2020, of the Law on amendments and additions to some legislative acts of the Republic of Kazakhstan on labour issues. The Committee notes that in its conclusions and recommendations in Case No. 3283 (see 392nd Report, October 2020), the Committee on Freedom of Association referred the examination of these legislative amendments to the Committee. The Committee examines them below.

Article 2 of the Convention. Right to establish organizations without previous authorization. The Committee recalls that following the entry into force of the Law on Trade Unions in 2014, all existent unions had to be re-registered. It recalls in this respect that the KNPRK affiliates were denied registration/re-registration, which ultimately led to its liquidation. Recalling the ITUC allegation of denials to register organizations, which previously formed the KNPRK, the Committee requested the Government to provide information on the current status of the KNPRK and to ensure that the KNPRK and its affiliates enjoyed the full autonomy and independence of a free and independent workers’ organization, without any further delay, and were given the autonomy and independence needed to fulfil their mandate and to represent their constituents.

The Committee notes that the ITUC indicates that the Congress of Free Trade Unions (KSPRK) (the name under which the successor of the KNPRK had last tried to re-register) remains unregistered and that the Industrial Trade Union of Employees of the Fuel and Energy Sector is still waiting for its re-registration, while being unable to formally appoint a new chairperson.

The Committee notes the Government’s indication that in the event that the registering authority (Ministry of Justice) identifies shortcomings, it issues a reasoned refusal, citing the applicable legislative provision, as per section 11 of the Law on the State Registration of Legal entities and the Official Registration of Branches and Representative Offices. The Government further indicates that the KSPRK has also received a reasoned refusal and that the Ministry of Labour and Social Protection of the Population (MLSPP) has held a series of meetings with the representatives of the Congress regarding the refusal to register it. The Government points out that if the trade union in question rectifies the indicated shortcomings, the Ministry of Justice stands ready to re-examine the application for registration. The Government further indicates that an explanation was provided to the applicant for registration of the Industrial Trade Union of Employees of the Fuel and Energy Sector as to the body the application for registration and the accompanying documents should be submitted to. However, according to the Government, the applicant is yet to address the relevant registering authority. Having duly noted the information provided by the Government, the Committee requests the Government to continue to provide information on the status of registration of the KSPRK and the Industrial Union of Employees of the Fuel and Energy Sector.

The Committee further recalls that it had previously noted that several pieces of legislation regulated 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 had therefore requested 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 Article 2 of the Convention and to ensure the right of workers to establish organizations without previous authorization.

The Committee notes the Government’s explanation that trade unions may be established without previous authorization. Primary trade unions do not need to register. However, if a trade union wishes to become a legal entity (which entitles it to open a bank account), it must register with the justice authorities. The latter have the following powers to determine the status of trade unions: (1) to verify compliance with the legislation of documents submitted for registration; and (2) to issue certificates of state registration. In the case of refusal to register a trade union, the registering authority identifies shortcomings and issues a reasoned refusal. If the trade union in question rectifies these shortcomings, it may re-submit its application for registration, appending all necessary documents. The Government points out that the documents can be re-submitted an unlimited number of times. The Government indicates that it has made every effort to provide guidance on registration to all trade unions and informs that it has developed a step-by-step algorithm outlining the procedure for registration of trade unions (from the moment of preparing the necessary paperwork to the moment of registration). Furthermore, new rules of state services concerning state registration of entities with and without legal personality were approved in May 2020. The Committee welcomes that by virtue of the new rules the time frame for registration by the authority was reduced from 10 to five business days. The Committee notes the Government’s indication that there are currently three national associations of trade unions in the country, 49 sectoral, 44 territorial and 348 local trade union organizations, which bring together around 3 million workers - or half of all employees in Kazakhstan. The Government points out that following the amendment of the Law on Trade Unions, one sectoral, nine local trade unions and six structures of sectoral trade unions were established in the country, and that there have been no reported problems with registration of trade unions. The Government further indicates that the new general agreement for 2021–23 will provide for protection against acts of interference in internal affairs of organizations. The Committee requests the Government to continue engaging with the social partners on the issues concerning the registration process.

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 threshold requirements to establish higher-level organizations:

-sections 11(3), 12(3), 13(3) and 14(4), which required, 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 required 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 with satisfaction that sections 11, 12, 13 and 14 of the Law on Trade Unions were amended so as to remove the mandatory affiliation of trade unions to a higher-level association of trade unions. The Committee further notes that section 10 of the Law on Trade Unions was amended so as to extend the time limit for the confirmation of a trade union status as a national, sectoral or regional organization from six months to one year. If, after the expiration of one year, the organization has not confirmed it status, its functioning can be suspended for a period of three to six months so as to give it additional time to confirm its status, whereas previously, it was subject to liquidation.

Law on the National Chamber of Entrepreneurs (NCE). The Committee had previously urged the Government to amend the Law on the NCE and any other relevant legislation so as to ensure the full autonomy and independence of the free and independent employers’ organizations. The Committee recalls, in particular, that the Law calls for the mandatory affiliation to the NCE (section 4(2)). The Committee had further 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. In this respect, the Committee had noted that there was an agreement to amend section 148(5) of the Labour Code so as to delete reference to the NCE’s authority to represent employers in the social dialogue at the national, sectoral and regional levels and that the road map provided 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. In this respect, the Committee had noted the Government’s indication that the accreditation by the NCE was an internal procedure, which took place on a voluntary basis. The Government stressed that this procedure was not an authorization procedure and did not prevent employers’ organizations from operating. Moreover, the compulsory NCE membership was not imposed on associations. The Government reiterated that following the amendment of the Labour Code, as outlined above, the NCE would withdraw from the National Tripartite Commission on Social Partnership and the Regulation of Social and Labour Relations, sectoral commissions (20 sectors) and regional commissions (16 regions). Accordingly, the NCE would no longer be a signatory to the General Agreement between the Government and national associations of employers and workers, sectoral agreements and regional agreements. The Committee had further noted the proposed amendment to section 9 of the Law on the NCE, which would exclude explicitly from the definition of the representative functions of the NCE the right to represent entrepreneurs in the system of social partnership as set out in the Labour Code. The Committee expected that section 148(5) of the Labour Code as well as section 9 of the Law on the NCE would be amended without further delay thereby ensuring that the NCE and its structures at the national, sectoral and regional levels were no longer employers’ representatives in social dialogue.

The Committee notes with satisfaction that section 148 (5) of the Labour Code and section 9 of the Law on the NCE have been amended as previously indicated. The Committee further notes the Government’s indication that currently there are 120 employers’ associations operating in the country and that at the September 2020 meeting of the Republican tripartite commission on social partnership and regulation of social and labour relations, the employers’ associations at all levels were asked to decide on their representatives to the social dialogue bodies at various levels, as well as on the signatories to the tripartite agreements.

Further in this respect, the Committee notes the KRRK’s indication that the NCE no longer participates in the social dialogue and will not be signing the 2021–23 national tripartite agreement as this became a prerogative of employers’ organizations and that the agreement will be signed by the KRRK. The KRRK indicates that it is being invited by the MLSPP to meetings addressing issues of social dialogue and expresses its trust that the dialogue will be further enhanced in the future. The KRRK provides detailed information on the relationship between the NCE and employers’ organizations following legislative amendments and queries about the impact of the accreditation system on the independence of employers’ organizations and their right to participate in the social dialogue processes. The Committee takes due note of the Government’s detailed reply on the KRRK observations. The Committee notes, in particular, the Government’s detailed explanation of the aims and functioning of the NCE as compared to the role of employers’ organizations. The Government stresses that the role of the NCE is linked to business development and promotion of entrepreneurship, whereas the purpose of employers’ organizations is to further and defend the rights of their members in the labour and social spheres through the participation in various social dialogue mechanisms, collective bargaining and consultations regarding labour legislation. The Government points out that despite the fact that some of the employers’ organizations are accredited in the NCE, they remain independent of each other in their respective roles.

Article 3. Right of organizations to organize their activities and to formulate their programmes. The Committee had previously requested the Government to provide information on the status of its proposal to amend section 176(1)(1) of the Labour Code regarding the right to strike. The Committee notes with interest that the above provision has been amended so as to provide that a strike remains possible with respect to certain “vital” services (electricity, heating, water and gas supply services; aviation, railway, automobile, public and water transport; communication and health services) so long as the necessary minimum level of services, previously agreed upon by the workers’ representatives and the local executive authorities, is maintained during the strike.

The Committee recalls that it 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, mass riots, etc.), up to three years of imprisonment. The Committee notes that this provision has been amended so as to categorize the deeds described in section 402 as delinquent acts (and no longer as criminal acts), and to lower the penalties (both fines and imprisonments) accordingly. The Committee notes, in particular, that the imprisonment for up to one year, and three years in specific cases described above, is to be replaced by an arrest for the duration of up to 50 days and two years of imprisonment, respectively. While welcoming the proposed amendments aimed at reducing the penalties, the Committee is nevertheless of the opinion that simply calling for a strike action, even one declared illegal by the courts, should not result in arrest for up to 50 days and that in general, sanctions should be envisaged only where, during a strike, violence against persons or property, or other serious infringements of penal law have been committed. The Committee requests the Government to further review section 402 of the Criminal Code taking into account the above and 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 welcomed the intention to amend the Law on Trade Unions by adding provisions on the right of trade unions to cooperate with international trade union organizations and, jointly with international organizations, to organize and conduct activities, as well as to carry out projects aimed at defending the rights and interests of workers in accordance with the legislation of Kazakhstan. The Committee notes with interest that section 6 of the Law on Trade Union has been amended to that effect. The Committee notes 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 determines 98 international organizations allowed to provide grants to physical and legal persons in Kazakhstan. The Committee welcomes the Government’s indication that the MLSPP is ready to examine the possibility of including in that list the ITUC and the International Organisation of Employers if a request to that effect is made. The Committee trusts that the list contained in the Ordinance will be amended to include international workers’ and employers’ organizations and requests the Government to provide information on the measures taken to that end.