Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

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

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish and join organizations. The Committee had previously requested the Government to take the necessary measures to amend its legislation so as to ensure the right to organize of judges (article 23(2) of the Constitution and section 11(4) of the Law on Public Associations). The Committee notes that in its report, the Government indicates that under article 23(1) of the Constitution, judges, like other citizens, have the right to freely associate for the purpose of exercising and defending their collective interests, provided that they do not use such associations to influence the administration of justice or for political purposes. The Government argues that the prohibition under article 23(2) of the Constitution, which prevents judges from forming political parties and trade unions, does not restrict the right of judges to join public non commercial associations. It refers, in particular, to the existence of the Union of Judges of the Republic of Kazakhstan. The Committee notes from the information available to it that this organization pursues such objectives as: strengthening of the judicial independence; provision of social security system and development of judicial self-administration; participation in discussions on court practice and improvement of legislation, etc. The Committee considers that while the Union of Judges acts for the purpose of protection of interests of the judicial community, it is not a workers’ organization in the sense of Convention No. 87. The Committee once again recalls that the only exceptions authorized by the Convention are the members of the police and armed forces and that the functions exercised by judges shall not justify their exclusion from the right to organize. It therefore once again requests the Government to take the necessary measures to amend its legislation so as to ensure that judges, like other workers, can establish organizations for furthering and defending their interests in line with the Convention and to indicate the measures taken or envisaged in this respect.

The Committee had previously requested the Government to specify the categories of workers covered by the term “law enforcement bodies” whose right to organize is restricted under article 23(2) of the Constitution. The Committee had also requested the Government to ensure that fire service personnel and prison staff enjoy the right to organize. The Committee notes the Government’s indication that the term “law enforcement bodies” includes employees of home affairs bodies, the criminal justice system, financial police, the state fire service, customs and the Public Prosecution’s Office. The Government clarifies, however, that civilians working in the law enforcement bodies enjoy all the rights guaranteed by the Convention. While noting this information, the Committee once again recalls that firefighters and prison staff should enjoy the right to organize. It therefore once again requests the Government to ensure that these categories of workers are guaranteed the right to establish and join organizations for furthering and defending their interests and requests the Government to indicate the measures taken or envisaged in this respect.

Right to establish organizations without previous authorization. The Committee had previously noted that pursuant to section 10(1) of the Law on Public Associations, applicable to employers’ organizations, a minimum of ten persons is required to establish an employers’ organization, and had requested the Government to amend its legislation so as to lower this requirement. The Committee notes that the Government reiterates that a public association may be established at the initiative of no less than ten citizens. It therefore once again requests the Government to indicate measures taken or envisaged to amend its legislation so as to lower this minimum membership requirement in as far as it applies to employers’ organizations.

With regard to the Committee’s previous request to provide observations on comments of the International Trade Union Confederation referring to the allegedly high trade union registration cost, the Committee notes the Government’s indication that the cost of registration of a trade union in 2010 was 9,184 tenge (KZT) (US$62).

Article 3. Right of organizations to organize their activities and to formulate their programmes. The Committee had previously requested the Government to take the necessary measures in order to amend section 289 of the Labour Code so as to ensure the right of trade unions to submit claims to employers without their prior approval by a general meeting of workers. It further requested the Government to amend section 298(2) of the Code (according to which, a decision to call a strike was taken by a meeting (conference) of workers (their representatives) gathering not less than half the total workforce, and the decision was adopted if not less than two-thirds of those present at the meeting (conference) had voted for it) so as to lower the majority required to call a strike. The Committee notes with regret that the Government’s report provides no information in this respect. It therefore reiterates its previous requests and expresses the hope that the Government will provide in its next report information on all measures taken or envisaged to amend the above sections of the Labour Code. The Committee also once again requests the Government to indicate whether under section 299(2)(2) of the Code, workers or their organizations can declare a strike for an indefinite period of time.

The Committee had previously requested the Government to take the necessary measures, including through amendment of the relevant legislative provisions, in order to ensure that the prohibition of the right to strike is limited only to civil servants exercising authority in the name of the State. The Committee notes that, in its report, the Government provides clarification on the distinction between “civil service” (“civil servant”) and “public service” (“public employee”). Pursuant to the Law on Civil Service, civil servants are employees of state bodies who exercise their official powers for the purpose of implementing the tasks and functions of the State. The Government adds that under section 10(6) of the Law on Civil Service, civil servants may not take part in activities that would hinder the normal functioning of the State, including strike action. Public service, on the other hand, in accordance with section 1 of the Labour Code, is the professional activity of public employees in the exercise of their official powers for the purpose of implementing the tasks and functions of state enterprises and establishments, and providing technical services. The Government adds that while under section 23 of the Labour Code, public employees do not have the right to participate in activities which impede the normal functioning of the public service, this provision does not impose a prohibition of strikes on public servants. The Government emphasizes that the prohibition of strikes applies only to civil servants and not to public servants. The Committee notes that the Law on Civil Service makes a distinction between “political” civil servants and “administrative” civil servants. Recalling that the prohibition of the right to strike should be limited to civil servants exercising authority in the name of the State, the Committee requests the Government to indicate whether “administrative” civil servants can exercise the right to strike.

The Committee notes with regret that the Government’s report contains no information on organizations carrying out “dangerous industrial activities” pursuant to section 303(1) of the Labour Code and the categories of workers whose right to strike is restricted accordingly. The Committee therefore once again requests the Government to indicate which organizations fall into this category of organizations by providing concrete examples. It further once again requests the Government to indicate all other categories of workers whose right to strike can be restricted by other legislative texts, as stipulated in section 303(5) of the Labour Code, and to provide copies thereof.

With regard to rail and public transport, the Committee had previously noted that according to section 303(2) of the Labour Code, a strike may be held if the necessary range of services, as determined on the basis of a prior agreement with the local executive authorities, is maintained so as the users’ basic needs were met or that facilities operated safely or without interruption. In this respect, the Committee had requested the Government to amend section 303(2) of the Labour Code so as to ensure that any minimum service is a genuinely and exclusively minimum one and that workers’ organizations could participate in its definition. The Committee regrets that the Government’s report contains no information in this respect. It therefore once again requests the Government to take the necessary measures in order to amend section 303(2) of the Labour Code so as to ensure the application of this principle and to indicate in its next report all measures taken or envisaged in this respect.

Article 5. Right of organizations to establish federations and confederations and to affiliate with international organizations. The Committee had previously requested the Government to take steps to amend section 106 of the Civil Code, as well as article 5 of the Constitution, so as to lift the ban on financial assistance to national trade unions by an international organization. The Committee notes that according to the Government, political parties and trade unions are associations which have a capacity to influence political opinion of the public and state policy in various areas of public life. The Government argues that for this reason, article 5(4) of the Constitution prohibits foreign persons, including international organizations, from funding political parties and trade unions. The Government considers that this provision guards the State’s interest’s values and security. The Committee recalls that legislation prohibiting the acceptance by a national trade union of financial assistance from an international organization of workers to which it is affiliated infringes the principles concerning the right to affiliate with international organizations of workers, and that all national organizations of workers and employers should have the right to receive financial assistance from international organizations of workers and employers, respectively, whether they are affiliated or not to the latter. The Committee therefore once again requests the Government to take the necessary steps to amend section 106 of the Civil Code, as well as article 5 of the Constitution, so as to lift this prohibition, and to indicate the measures taken or envisaged in this respect.