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

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

Scope of the Convention. 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 that in its report, the Government indicates that the term “law enforcement bodies” includes employees of home affairs bodies, the criminal justice system, financial police, state fire service, customs and the Public Prosecution Office. The Government clarifies, however, that civilians working in the law enforcement bodies enjoy all the rights contained in the Convention. While noting this information, the Committee once again recalls that firefighters and prison staff should enjoy the rights afforded by the Convention. The Committee therefore once again requests the Government to ensure that these categories of workers are guaranteed the right to organize and to bargain collectively and requests the Government to indicate the measures taken or envisaged in this respect.

Article 2 of the Convention. Protection against acts of interference. The Committee had previously requested the Government to clarify whether sections 150 and 151 of the Criminal Code, providing that cases of interference in the activities of social organizations and interference in the legitimate activities of workers’ representatives which are punishable by a penalty equivalent to up to five times monthly wage or imprisonment, applied both the public and private sectors. The Committee notes the Government’s indication that sections 150 and 151 of the Code, apply to both sectors. The Committee requests the Government to provide information on the application of abovementioned legislative provisions in practice, including copies of the relevant court decisions.

Article 4. Right to collective bargaining. In its previous comments, the Committee noted that section 282(2) of the Labour Code, regulating collective bargaining procedure at the enterprise level, stipulates that “employees who are not members of a trade union have the right to be represented by either a trade union body or other representatives” and that “when several employees’ representatives exist at the undertaking, they may establish a joint representative body” for the purpose of collective bargaining. The Committee requested the Government to amend its legislation so as to ensure that where there exist in the same undertaking both a trade union representative and another representative elected by workers who are not members of any trade union, the existence of the latter is not used to undermine the position of the union in the collective bargaining process. The Committee notes the Government’s indication that collective agreements are negotiated by a negotiating commission. The Government explains that worker members of such commissions are designated by a decision of a trade union committee or a meeting (conference) of workers when they are represented by other workers’ representatives. The Committee therefore recalls that allowing other workers’ representatives to bargain collectively, when there is a representative trade union in the undertaking, 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 reiterates its previous request and expresses the hope that the Government’s next report will contain information on the measures taken in this respect.

The Committee had previously requested the Government to provide information on the application in practice of section 91 of the Code on Administrative Breaches (2001), under which, unfounded refusal to conclude a collective agreement is punished by a fine. The Committee notes that the Government confirms that this legislative provision is in force. Recalling that 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 negotiation, the Committee once again requests the Government to provide information on the application of section 91 of the Code in practice.