Observation (CEACR) - adopted 2014, published 104th ILC session (2015)

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

The Committee notes the observations of the Confederation of Free Trade Unions of Kazakhstan (CFTUK) and the International Trade Union Confederation (ITUC) received on 3 and 8 September 2014, respectively.

Scope of the Convention. The Committee had previously requested the Government to amend its legislation so as to ensure that firefighters and prison staff enjoyed the right to organize and to bargain collectively. The Committee notes that in its 2012 report, the Government indicates that amending the legislation in this regard would be unconstitutional, as its article 23 of the Constitution prohibits those employed in “law enforcement bodies” to establish and join trade unions. The Committee emphasizes that ratification of a Convention carries with it the obligation to give full effect to the rights and guarantees enshrined therein in national legislation and practice. The Committee recalls 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 workers are guaranteed the right to organize and to bargain collectively and requests the Government to indicate the measures taken to that end.

Article 4 of the Convention. Right to collective bargaining. In its previous comments, the Committee requested the Government to amend section 282(2) of the Labour Code (2007), concerning collective bargaining procedure, 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 that despite the amendment of the Labour Code in 2012, this provision maintains 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 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 a new Code on Administrative Breaches was adopted in July 2014 and will enter into force on 1 January 2015. Pursuant to its section 97(2), a fine of up to 300 units of monthly calculation index is imposed for an unfounded refusal to conclude a collective agreement. 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 requests the Government to repeal this provision and to indicate the measures taken in this respect.

The Committee is raising other matters in a request addressed directly to the Government.