Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

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

The Committee notes that the Government’s report has not been received. It must therefore repeat its previous observation which read as follows:

The Committee recalls that in its previous comments it had requested the Government to institute an independent investigation into the comments concerning interference by the employer in trade unions’ internal affairs and activities and refusals to bargain collectively submitted by the International Confederation of Free Trade Unions (ICFTU) (now the International Trade Union Confederation (ITUC)). The Committee regrets that no information has been provided by the Government in this respect. The Committee reiterates its request and trusts that the Government will be more cooperative in the future.

Articles 1, 2 and 4 of the Convention. The Committee had previously requested the Government to specify the categories of worker covered by the term “law enforcement bodies” whose right to organize is restricted under article 23(2) of the Constitution and section 11(4) of the Law on Social Associations. The Committee had noted from the Government’s report, as well as from the definition provided for in section 256(2) of the Labour Code (2007), that firefighting and prison services are included in the definition of the “law enforcement bodies” and therefore excluded from the right to organize and to bargain collectively. The Committee considers that while the armed forces and the police can be excluded from the application of the Convention, the same cannot be said for fire service personnel and prison staff. The Committee therefore requests the Government to take the necessary measures to ensure that these categories of worker enjoy the rights afforded by the Convention.

Article 2. The Committee had previously noted that sections 4(4) and 18(2) of the Law on Trade Unions prohibited acts of interference in the affairs of workers’ organizations and requested the Government to provide details on the procedures available to trade unions in cases of infringement, as well as the specific sanctions provided by the legislation. The Committee had noted sections 150 and 150-1 of the Criminal Code concerning interference in the activities of social organizations and interference in the legitimate activities of workers’ representatives, respectively, and providing for a penalty equivalent to up to five times the monthly wage or imprisonment to be imposed on an “official” found guilty of committing the offence using his or her position. The Committee requests the Government to clarify whether this provision applies in both the public and the private sectors.

Article 4. The Committee had noted that according to section 282(2) of the Labour Code, workers who are not members of any trade union may either authorize an existing trade union or choose another representative for the purposes of collective bargaining. If several workers’ representatives exist at the enterprise, they can establish a joint representative body to negotiate a collective agreement. The Committee considers that when a representative trade union exists and functions at the enterprise, allowing other workers’ representatives to bargain collectively could not only undermine the position of the trade union concerned, but also infringe upon the rights guaranteed under Article 4 of the Convention. The Committee therefore requests the Government to amend its legislation so as to ensure that where there exist in the same undertaking both a trade union representative and an elected representative, the existence of the latter is not used to undermine the position of the union in the collective bargaining process. It requests the Government to indicate the measures taken or envisaged in this respect.

The Committee had noted that the obligation imposed on the employer to conclude a collective agreement was repealed (once the Law on Collective Agreements was repealed) and that section 281 of the Labour Code enshrines the principle of free and voluntary negotiations. The Committee notes, however, that under section 91 of the Code on Administrative Breaches (2001), an unfounded refusal to conclude a collective agreement is punished by a fine. The Committee recalls 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 the principle of free and voluntary negotiations. The Committee therefore requests the Government to provide information on the application of section 91 of the Code in practice.

The Committee hopes that the Government will make every effort to take the necessary action in the near future.