Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Kazakhstan (Ratification: 2001)

The Committee notes with regret that the information contained in the Government’s report is limited to the information provided in its report of 2003. The Committee regrets that, for three consecutive years, the Government has failed to reply to the specific comments and questions concerning the application of the Convention made by the Committee in its previous comments. It trusts that the Government will be more cooperative in the future.

The Committee further notes the observations submitted by the International Confederation of Free Trade Unions (ICFTU), which address several legislative issues previously raised by the Committee and violations of trade union rights in practice, in particular, interference by the employer in trade unions’ internal affairs and activities and refusals to bargain collectively. The Committee requests the Government to communicate its observations on these comments in its next report.

The Committee notes the Law of 23 December 2004 amending the Labour Law of 10 December 1999.

Articles 1, 2 and 4 of the Convention. The Committee notes that employees of national security and law enforcement bodies are prohibited from forming and joining trade unions (article 23(2) of the Constitution and section 11(4) of the Law on social associations). The Committee further notes 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”. While recalling that civilian staff working in the service of the army or police as well as prison staff should enjoy the rights provided for in the Convention, the Committee requests the Government to specify the categories of workers covered by the term “law enforcement bodies” and to indicate whether railway workers enjoy the rights afforded by Convention No. 98.

Article 1. In its previous comments, the Committee had noted that the Labour Law provides for reinstatement of workers in the event of dismissal without lawful grounds, or in the event of unlawful transfer to another job and that persons who consider that they have been discriminated against in the sphere of labour may petition to the court, and that section 109 of the Labour Law as amended provides that persons found guilty of violation of labour legislation bear responsibility under the legislation of the Republic of Kazakhstan. The Committee requests the Government to specify sanctions which could be imposed in cases of acts of anti-union discrimination and to indicate relevant legislative provisions.

Article 2. While noting that sections 4(4) and 18(2) of the Law on trade unions prohibit acts of interference in the affairs of workers’ organizations, the Committee requests the Government to provide details on the procedures available to trade unions and employers’ organizations in cases of infringement, as well as the specific sanctions provided by the legislation.

Article 4. The Committee notes that it follows from the definition of the terms “collective agreement” and “representative of workers” provided for in section 1 of the Labour Law as amended, and section 32(1) of the same law, that the parties to collective bargaining are, on the one hand, one or several employers and, on the other, one or several trade unions or other persons or organizations authorized by workers. The Committee notes that section 32(2) of the Labour Law, not amended under the new Amendment Law, provides that the employer shall bargain with all representatives of the parties concluding a collective agreement and that section 32(3), as amended, provides that workers who are not members of a trade union have a right to authorize either a trade union body or other representatives to represent their interests in relations with an employer. Furthermore, section 3 of the Law on collective agreements provides that, in collective bargaining, workers are represented by general assembly (conference), trade union or other “authorized bodies” and sections 4(1) and 6(1) stipulate that the draft agreement is prepared by the labour collective with a large participation of its members, trade union organizations and other public workers’ associations existing at the enterprise. The Committee notes that the ICFTU raises the issue of the presence of other workers’ representatives or “authorized bodies” besides trade union organizations in the collective bargaining process. The Committee requests the Government to clarify the procedure of elaboration and conclusion of a collective agreement by specifying, in particular, whether in the presence of a trade union and other workers’ associations representing non-unionized workers, the collective agreement is negotiated with both organizations. Moreover, the Committee also requests the Government to indicate whether direct negotiation between the enterprise and its employees (in particular, through other representative bodies referred to by the legislation as “authorized bodies), bypassing representative organizations where these exist, are allowed by the legislation.

The Committee further notes that under section 8(2) of the Labour Law, the employer is obliged to conclude a collective agreement. Section 4(2) of the Law on collective agreements prohibits the parties from refusing to sign the collective agreement. Section 10 of this Law further provides that refusal to conclude a collective agreement is punishable by a fine of up to 1,000 rubles. The Committee recalls in this respect that Article 4 of the Convention embodies the principle of free and voluntary negotiation and that the legislation, which imposes an obligation to achieve a result (particularly when sanctions are used in order to ensure that an agreement is concluded), is contrary to this principle. The Committee therefore requests the Government to take the necessary measures to amend its legislation so as to guarantee the voluntary nature of collective bargaining.

As concerns the settlement of labour disputes in the framework of the establishment of collective agreements, the Committee requests the Government to indicate whether the legislation allows compulsory arbitration at the request of one party or on the initiative of the authorities. The Committee further requests the Government to provide a copy of the Law on labour disputes and strikes.

Article 6. The Committee requests the Government to indicate whether public servants are granted collective bargaining rights and to specify the relevant legislative provisions.