Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

Labour Inspection Convention, 1947 (No. 81) - Kazakhstan (Ratification: 2001)

The Committee notes the Government’s reports communicated in 2006 and 2007 and the detailed statistics that they contain. It also notes the adoption of the new Labour Code on 15 March 2007, certain provisions of which appear to cover matters raised in its previous comment and which it will examine in depth at its next session when a translation is available. However, the Committee requests the Government to supply detailed information in its next report on the content of the provisions of the new Code giving effect to the Convention and any implementing regulations. The information should cover the following points.

Article 3 of the Convention. Duties of labour inspectors. In its previous comment, the Committee requested the Government to supply information on the “other duties” which were provided for by Decree No. 983 of 20 July 2001, the content of which was not stated. According to the Government, following the adoption of the new Labour Code, this Decree and Decree No. 1132 of 29 October 2004 on the work of labour inspectors have been repealed and the Code does not provide for any “other duties”. The Committee would be grateful if the Government would specify all the duties assigned to inspectors by the Labour Code and send copies, if applicable, of all implementing texts concerning the performance of these duties.

Article 5(a). Cooperation in relation to labour inspection. With reference to its previous comment, the Committee requests the Government once again to provide examples of all legal and practical measures adopted to promote cooperation between the labour inspectorate and other government services (for example, social insurance institutions, judicial bodies, tax authorities, immigration authorities, etc.).

Article 5(b). Collaboration with the social partners. In reply to the Committee’s previous comment concerning collaboration between the labour inspection services and employers, workers and their organizations, the Government points out that employers’ and workers’ representatives took part in inspections in the road transport and engineering industries, in the context of the inspection programme for 2006. Moreover, the Committee notes with interest the reference to an annual evaluation of the results of inspection activities by the National Tripartite Commission for Social Partnership and Labour Relations. It would be grateful if the Government would continue giving details of examples of cooperation between the inspectorate and the social partners, and also on their impact on the achievement of the objective assigned to the labour inspectorate, namely improving conditions of work and the level of protection of workers while engaged in their work.

Article 7, paragraphs 1 and 2. Conditions for the recruitment of inspection staff. The Committee notes that inspectors are recruited and appointed by means of a competition, in accordance with the Public Service Act. It requests the Government to state the level of education, qualifications and skills required of candidates for these competitions.

Articles 10 and 21(c). Distribution of labour inspectors in relation to needs. The Committee notes with interest the detailed information for 2005 and 2006 sent by the Government concerning the geographical distribution of labour inspectors by to region and city, and on the number of workplaces liable to inspection and the number of workers employed therein. It would be grateful if the Government would continue supplying information on these subjects.

Articles 6 and 11, paragraphs 1(b) and 2. Transport facilities available to labour inspectors. According to the Government, the audit of the labour inspection system, which was conducted at the end of 2004 by an ILO group of experts at the request of the Ministry of Labour and Social Security, underlined the fact that certain inspection services in the major regions lacked adequate transport facilities for long journeys and that inspectors were reduced to depending on enterprises for this purpose. Noting the Government’s declaration that efforts are being made to rectify this situation, the Committee 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 to indicate the legal provisions and the applicable procedure regarding the reimbursement of any travel costs covered in advance by inspectors in the performance of their duties.

Article 12, paragraph 1(a). Right of inspectors to enter freely workplaces liable to inspection. The Government refers to the conclusions of the 2004 audit highlighting extensive legal and practical restrictions on inspectors’ access to workplaces in relation to planned inspections (Order No. 12 of 1 March 2004 providing for the prior registration of the inspection at the Public Prosecutor’s Office, preparation of numerous documents, etc.) and the reduced effectiveness and scope of inspections as a result of these restrictions. Noting the Government’s statements that it is seeking to take the necessary steps to bring its legislation into conformity as regards the principle of free access of inspectors, without previous notice, to any workplace liable to inspection, the Committee requests the Government to do so as soon as possible and to keep the Office informed of all progress made in this respect.

Article 12, paragraph 2. Notification of presence. The Committee requests the Government to indicate whether the labour inspector is obliged to notify the employer or his representative of his presence on the occasion of an inspection visit, unless he considers that such a notification may be prejudicial to the effectiveness of the inspection. If not, it would be grateful if the Government would ensure that measures are taken to this end and keep the Office informed.

Article 15. Ethical principles of labour inspection. The Committee requests the Government to send all available information on how effect is given to Article 15(a), (b) and (c) and to send copies of all relevant texts, including with regard to penalties incurred by labour inspectors if they violate the ethical principles established by these provisions.

Articles 13, 15(c), 16 and 17. Criteria and objectives related to the frequency of inspection visits. In its previous comment, the Committee noted that labour inspectors were not authorized to conduct more than one visit per year in the same enterprise, which, in the Government’s own opinion, was insufficient to ensure the protection of workers. It therefore requested the Government to take the necessary steps to remove this limitation. In its 2007 report, the Government states that the Occupational Safety and Health Act and also the draft Labour Code also provide that planned inspections may not be carried out more than once a year with respect to natural and legal persons, and once every three years in small enterprises. Unplanned visits are also conducted in cases where inspectors discover circumstances which constitute a threat to the lives or health of workers and require the immediate elimination of the causes of danger, in cases where they receive a complaint alleging violations of labour legislation, or as a result of their own investigations into industrial accidents. According to the Government, these unplanned visits somewhat reduce the limitations on the number of inspections of enterprises. The Committee draws the Government’s attention to the need to allow labour inspectors to decide on the number of visits necessary in the same workplace and to ensure that this freedom is guaranteed by legislation. Indeed, it is essential that employers realize that an inspector may conduct a visit on a random basis and without prior notification, so that they have an incentive to execute as quickly as possible any orders imposed upon them and also so that they are not inclined to systematically associate any unplanned visit with the existence of a complaint and to seek the author of the complaint. It is on this condition that inspectors can guarantee absolute confidentiality with regard to the source of complaints and regarding any connection between a complaint and an inspection visit, thereby preventing the workers concerned from being exposed to possible reprisals (Article 15(c)). In paragraph 266 of its General Survey of 2006 on labour inspection, the Committee considers that the different restrictions placed in law or in practice on inspectors’ right of entry into workplaces can only stand in the way of achieving the objectives of labour inspection as set out in the instrument. It therefore requests the Government once again to ensure that the law and practice are modified in such a way as to ensure that labour inspectors have the freedom to assess how frequently visits to the same workplace are required, in conformity with Article 16. It would be grateful if the Government would supply detailed information on all measures taken to this end and on their results.

Article 17, paragraph 2. Discretion of labour inspectors as to the action to be taken. The Committee would be grateful if the Government would specify:

–      whether the legislation provides that persons who violate or neglect to observe legal provisions enforceable by labour inspectors are liable to prompt legal proceedings without previous warning;

–      if the legislation provides for cases in which a prior warning shall be given so that the situation can be rectified or preventive measures taken;

–      whether it is left to the discretion of labour inspectors to give warning and advice instead of instituting or recommending proceedings.

The Government is requested to provide copies of all relevant texts and state the content thereof.

Article 18. Penalties for obstructing labour inspectors in the performance of their duties. The Committee requests the Government to indicate in its next report the provisions establishing the penalties for obstructing labour inspectors in the performance of their duties and to indicate the content thereof.

Articles 20 and 21. Annual report on the work of the inspection services. The Committee notes the detailed statistics supplied by the Government in its report on each of the subjects covered by Article 21 of the Convention. The Government also indicates that the Ministry of Labour and Social Security submits information annually on compliance with the labour legislation and on industrial accidents, and that it prepares a quarterly information sheet for internal use on the work of the labour inspectorate, on the basis of quarterly reports supplied by the local inspection services. In this respect, the Committee reminds the Government that not only must the above data appear in an annual report but the latter must also be published by the central authority and duly forwarded to the ILO. In its General Survey of 2006 on labour inspection, it emphasizes that the preparation of an annual report is not an end in itself but enables the authorities to have an overview of the working of the inspection system and that the publication of such a report is intended to provide transparency on the resources, activities and results of the inspection services. The Committee therefore requests the Government to take the necessary steps to ensure that the central inspection authority discharges its obligation to publish an annual report and forward it to the ILO, in conformity with the requirements of Article 20 regarding its form and the requirements of Article 21 regarding its content. In addition, with reference to its previous comment, the Committee requests the Government once again to ensure that information on the work of the inspection services in the field of child labour and on the results thereof appear regularly in the annual report published by the central inspection authority.