Individual Case (CAS) - Discussion: 2017, Publication: 106th ILC session (2017)

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



A Government representative stated the 2015 Law on Trade Unions and the 2015 Labour Code were intended to strengthen the organizational basis of the trade union movement and expand its role in defending the rights and interests of workers. The Constitution and the Law on Trade Unions prohibited both unlawful interference by the State in the affairs of public associations and any acts that prevented a trade union from being founded or carrying out its activities. Discrimination against citizens on the grounds of their membership of a trade union was forbidden in Kazakhstan. Trade unions were founded on the basis of equality among their members. All trade unions were equal before the law. Trade unions operated independently and adopted their own by-laws, decided on their own structure, determined their own priorities for action and formed their own trade union committees. Under the legislation, trade unions acted independently of state bodies at all levels and of employers and their associations, and were neither controlled by nor accountable to them; trade unions had the right to work with international trade unions and other organizations active in defending the rights and freedoms of workers and to conclude cooperation agreements. Today, there were two national trade union centres in the country, with a membership of nearly 3 million workers. This was almost half of all employed workers in the country. In addition, the country had 38 sectoral, 23 regional and 404 local trade unions, and 20,000 first-level trade union organizations. Regarding the work under way to address the observations made by the Committee of Experts in respect of the 2016 conclusions of the Conference Committee, a roadmap on the development of a concept note for a draft law had been adopted; a special working group with the participation of all social partners had been formed to improve legislation on trade union activities; this group had already formulated basic approaches and amendments to current legislation in line with the Committees’ observations and conclusions. In September 2016, Kazakhstan hosted an ILO direct contacts mission (DCM). The mission had welcomed the willingness of Kazakhstan to continue working to bring national legislation into conformity with the Convention and acknowledged the openness and transparency displayed by the Government during the discussion of issues raised. The mission noted the positive progress in relation to the proposed amendments to the Law on Trade Unions and the Labour Code. During the DCM and the subsequent mission by the International Trade Union Confederation (ITUC), national approaches to amending legislation were discussed. To date, the following measures have been taken. First, regarding the procedures for founding trade unions, the working group, taking into account international practice, and the growing number of small and medium-sized enterprises in the country, drafted a bill to reduce the number of founding members from ten to three. Second, in relation to the trade union registration procedure, he recalled that the current legislation provided for a two-step process: (1) primary registration, within two months after the founding; and (2) confirmation of trade union status within six months following registration. The working group proposed to replace the current complicated two-stage registration procedure with just a one-stage procedure. Third, with regard to the restriction on the right to strike, the working group had proposed to amend section 176 of the Labour Code, which established a total ban on strikes at enterprises classified as hazardous production facilities so as to allow strikes at such facilities, provided that minimum service would ensure that the main equipment could continue working uninterrupted, and industrial safety was ensured. The conditions and criteria for classifying an enterprise as a hazardous production facility were set out in sections 70 and 71 of the Law on Civil Protection. All the proposed legislative amendments had been approved by national trade unions and employers’ associations. The concept note for a draft law was examined and approved on 26 May 2017 by the interdepartmental committee on legislative activities that reported to the Government. A draft law was being prepared for submission to Parliament. The Government was also planning to consider amendments to the Law on Trade Unions, with regard to the trade union affiliation system, as well as the Law on the National Chamber of Entrepreneurs (NCE), with regard to the Government’s membership in the NCE. In September 2016, during the DCM, as well as in early 2017, the Government had requested technical assistance of the Office in this regard. It was now awaiting its official reply to begin examining, with the ILO support, the second package of legislative amendments. The Government would take all the necessary steps to ensure that the national legislation met all the requirements of the Convention.

The Employer members pointed out that despite the very clear direction provided by this Committee in 2016 and the commitment of the Government, and notwithstanding the long-standing concerns expressed by the Committee of Experts in its observations adopted in 2006, 2007, 2008, 2010, 2011, 2014, 2015 and 2016, it appeared that the Government had still not taken action on the serious issues related to the workers’ and employers’ organizations freedom of association, in particular, the freedom to establish and join organizations of their own choosing without prior authorization. They stressed their deep concern at the Government’s continued failure to ensure that the Law on the National Chamber of Entrepreneurs of 2013 provide employers’ organizations full autonomy and independence without the interference of the Government. The establishment of the NCE by this Law constituted a serious obstacle to the employers’ organizations’ freedom of association. They expressed their deep and continued concern that the five-year transitional period provided for by the Law resulted in the interference with the freedom and independence of employers’ organizations, and the broad ranging duties and responsibilities of the NCE. They further noted with deep concern the Government’s failure to amend this Law to ensure that employers’ organizations had full autonomy and independence. Taking into account the findings of the DCM and the Government’s commitment to improve the situation, the Employer members were of the view that the Government needed to take some preliminary steps to remedy the situation immediately. Action to be taken by the Government to remove obstacles to the freedom of association of employers’ organizations could include: (1) removing the all-encompassing mandate of the NCE to represent employers’ needs; and (2) deleting the provision in the Law on the NCE on the accreditation of employers’ organizations by the NCE, which put employers’ organizations in a subordinate position vis-à-vis the NCE and allowed it to arbitrarily refuse accreditation of an employers’ organization. The Employer members also expressed their concern with regard to the barriers to freedom of association of workers’ organizations, namely with respect to their registration. Expressing their deep commitment to the principles of freedom of association and the right of workers and employers to establish and join organizations of their own choosing, they urged the Government to take action, with the ILO assistance, to address the concerns raised by this Committee without any further delay. Finally, in light of the repeated comments of the Committee of Experts on this case, the Employer members recalled their disagreement with the Committee of Experts’ views concerning Convention No. 87 and the right to strike and further recalled that “the scope and conditions of this right were regulated at the national level” and that there was no consensus on this issue in the Conference Committee.

The Worker members recalled the examination of this case at the previous session of the Conference and expressed concern at the constant deterioration of the situation in Kazakhstan in relation to freedom of association. The Government did not seem to have heeded the strong signal sent by the Committee at its previous session. The direct contacts mission that visited the country in September 2016 had not been able to convince the Government to bring an end to the prosecutions that were still being pursued against certain trade union leaders. Although there had been certain positive political signals, they had not been reflected in practice. For example, after agreeing to register the Confederation of Free Trade Unions of Kazakhstan (KNPRK) following an abnormally long registration process, the Government had revoked its registration, which meant that any activity by the union was unlawful and would render it criminally liable. The Government had also ordered the arrest of trade union leaders and initiated legal proceedings, and heavy penalties had been imposed on them. Such intimidatory practices were intended to destroy the capacity of trade unions to take action. These serious issues were the subject of a complaint to the Committee on Freedom of Association and demonstrated the extent of the progress required to defend freedom of association, which was the subject of the Convention that was not respected in the country. The failings in the application of the Convention had mostly been addressed on previous occasions. With reference to the prohibition on prison staff and firefighters from establishing or joining trade unions, the Government claimed that only personnel with military or police status were covered by this prohibition. The Government should not make use of this justification to circumvent or abuse the exception recognized for the police and the armed services in relation to the freedom to establish and join organizations. The duties of firefighting and prison personnel did not justify their exclusion from the rights and guarantees of the Convention in view of the principle of the restrictive interpretation of exceptions to the freedom to establish organizations, as emphasized in the General Survey of 2012 on the fundamental Conventions. Although it was acceptable for the establishment of a trade union to be subject to registration, that could not be a requirement for the exercise of lawful trade union activities. And yet, following the entry into force of the new Trade Union Act, Kazakhstan was requiring the registration or re-registration of trade unions and considered activities by an unregistered trade union to be unlawful. Moreover, registration procedures were often so long that they were prejudicial to freedom of association. The willingness shown by the Government to simplify the registration procedure should nevertheless be welcomed, and it was to be hoped that this simplification would also guarantee real freedom to establish organizations. Turning to the requirement for local and sectoral unions to join higher level organizations, it was essential to recall that workers had the right to decide in complete freedom and independence whether or not to be affiliated with or to join a higher level union structure. The thresholds for the establishment of higher level organizations were currently too high, and amounted to an obstacle to their establishment. To be in conformity with the Convention, such thresholds should be set at a reasonable level. The Act on the National Chamber of Entrepreneurs also contained restrictions on the freedom of association and right to organize of employers’ organizations, which were in violation of the Convention. These violations of freedom of association jeopardized one of the fundamental principles of the International Labour Organization, namely social dialogue. Article 3 of the Convention set out the right of organizations to organize their activities and to formulate their programmes. It was clear that the national legislation restricted this freedom of action for a number of organizations which fell into the category of organizations engaged in “dangerous industrial activities”. The nebulous nature of this concept and the possibility for a large majority of enterprises to declare their work as being “dangerous industrial activities” meant that it was not possible to determine precisely the activities that were covered by this provision. This uncertainty in practice implied that most action carried out by trade unions could be considered unlawful. A trade union leader had been imprisoned and convicted, for the first time, under section 402 of the Criminal Code, which criminalized the continuation of a strike declared unlawful by a court. Strong emphasis should be placed on the fact that workers who participated in peaceful trade union action were only making use of an essential right, and must not therefore be liable to penal sanctions. Such sanctions should only be possible if, during trade union action, violence was committed against persons or property, or other serious violations of criminal law occurred, and only under the laws applicable to such acts. The establishment of a minimum service should be a real and exclusive minimum service, and should not be an obstacle to the freedom to engage in trade union action. It was also essential for the social partners to be able to participate in the definition of the minimum service. However, the legislation was in breach of these principles, and also prohibited trade unions from accepting direct financial assistance from international organizations. It appeared that joint cooperation projects and activities were fully authorized in practice. Yet, the information provided by the ITUC included reports of refusal by the authorities to register trade unions on the sole ground of their affiliation to international trade union organizations, without there being any question of direct financing. The legislation was therefore still not in conformity with Article 5 of the Convention. As noted by the Committee of Experts, requiring the approval of the public authorities to receive funding from abroad was contrary to the freedom of organizations to organize their administration. In the view of the Worker members, purely and simply prohibiting the receipt of financing from international organizations was also contrary to the freedom to organize their activities. In view of the above, they firmly called on the Government to bring an end to any interference in the affairs of representative organizations and to guarantee the independence and autonomy of such organizations so as to ensure harmonious social dialogue in the country.

The Employer member of Kazakhstan recalled that the recommendations of the ILO supervisory bodies were binding on his country as the legislation placed international law above the national legislation. In this respect, he thanked the social partners and this Committee for their common goal of making the world a better place. His organization, the NCE, actively contributed to this endeavour through, for example, developing, in accordance with international standards, a concept for national social corporate responsibility in the sphere of labour, socio-economic development, employment and security. The NCE, one of the social partners, had signed a general tripartite agreement for 2015–17, 16 regional agreements and six branch agreements (14 branch agreements were being drafted). The NCE shared the responsibility for ensuring freedom of labour and productive employment. The issue of compliance with the Convention had been discussed by the NCE. In this respect, he pointed out that there were no cases of Government interference in the activities of the NCE or its member associations, as the legislation in force prohibited all interference in the activities of public organizations. Out of 53 members of the NCE presidium, only three represented the Government. In a way, the Government depended on the NCE as no law could be adopted without its expert opinion. The NCE was created taking into account international experience. Its structure was based on the continental model, in particular, that of France, Germany and other democratic States. In accordance with the Law on the NCE, the Government transferred over 50 of its functions to the NCE and its member associations. Pursuant to the recommendations of the Committee and the 2016 DCM, the NCE advised the Government to repeal the provision allocating three seats to the Government in the presidium of the NCE. To conclude, he underlined that the NCE was an independent and autonomous organization, which strived, with the ILO technical assistance, to become one day an example of full compliance with international standards.

The Worker member of Kazakhstan indicated that work had been carried out to address the comments of the Committee of Experts. In particular, in the framework of consultations with the Government, the social partners, including the Federation of Trade Unions of the Republic of Kazakhstan (FPRK), made proposals for the amendment of the Law on Trade Unions. On this basis, a law to amend certain provisions had been drafted. Pursuant to the draft, the minimum number of founding trade union members would be reduced from ten to three and the second stage of the registration procedure during which the union was required to confirm its status would be repealed. The FPRK was aware that two member organizations of the KNPRK had not been re-registered; three FPRK member organizations had not been re-registered either. Furthermore, taking into account the comments of the Committee of Experts on the right to strike, section 176 of the Labour Code would be amended so as to provide for the minimum services at the enterprises classified as hazardous to ensure the safety and to maintain the functioning of the main equipment. The speaker recalled that the FPRK, together with the Confederation of Labour (KTK), had taken an active part in the development of the Labour Code and the Law on Trade Unions. The legislation allowed for systemic reform of trade unions, and strengthening and expansion of the social partnership framework. Collective agreements and the sectoral agreements, having the status of legal acts, played a key role in regulating labour relations, determining decent wages, ensuring safe working conditions and increasing social benefits and guarantees. The FPRK was grateful to the ILO for the technical assistance provided so far in the form of seminars, conferences and summer schools. The FPRK was concerned at the situation of trade union leaders, Mr Eleusinov and Mr Kushakbaev, who had received harsh penal sentences and, together with the KTK, called on the Government to demonstrate lenience in their respect.

The Government member of Malta speaking on behalf of the European Union (EU) and its Member States, as well as Montenegro, Bosnia and Herzegovina and Norway, firmly believed that compliance with ILO Conventions was essential for social and economic stability in any country and that an environment conducive to dialogue and trust between employers, workers and governments contributed to the creation of ? basis for solid and sustainable growth and inclusive societies. The EU was actively engaged in the promotion of universal ratification and implementation of the core labour standards, as part of the Action Plan on Human Rights and Democracy, adopted in July 2015. The speaker welcomed the EU–Kazakhstan Enhanced Partnership and Cooperation Agreement, which included commitments to effectively implement the ILO fundamental Conventions. The Committee had discussed this case in 2016 and, on that occasion, had made ? series of requests to the Government to amend the Law on Trade Unions, which limited the rights of workers to form and join trade unions of their own choosing, as well as provisions of the Labour Code, the Constitution and the Penal Code. The speaker welcomed the fact that an ILO DCM had visited the country. However, he expressed deep concern over recent developments in the country related to trade unions, notably the cancellation of the registration of the KNPRK, as well as the imprisonment of two trade union leaders. His group called on the Government to ensure that trade unionists could exercise their rights without impairment as guaranteed by the Convention. In this regard, Kazakhstan needed to take effective measures to ensure that the workers’ right to establish and join organizations of their own choosing was fully respected, and notably to amend the Law on Trade Unions. The speaker encouraged the Government to consider suspending any delisting procedures until the Law had been amended and to ensure that trade unionists could exercise their rights without any hindrances. The Government’s intention to amend the Labour Code regarding the right to strike was noted with interest and it was hoped that the Government would take the necessary measures to amend the Labour Code and the Penal Code in consultation with the social partners, so as to ensure that the right to strike was also fully respected in the country. The Government was also encouraged to take the necessary measures in line with the Committee of Experts’ comments to: (1) authorize workers’ and employers’ organizations to receive financial assistance from international organizations of workers and employers; (2) ensure the autonomy and independence of free and independent employers’ organizations in Kazakhstan, by amending the Law on the National Chamber of Entrepreneurs. The Government was further encouraged to continue to cooperate with the ILO in order to proceed with the reforms needed and to comply with ILO Conventions. He finally expressed his group’s full commitment to cooperation and partnership with Kazakhstan.

An observer representing the International Trade Union Confederation (ITUC) said that he represented the KNPRK, which had been recently liquidated, in spite of a two-week hunger strike by some of its members which was found to be illegal by the court and stopped by the police. Fines of €12,000 were imposed for the damage caused by the strike and, on 20 January 2017, Mr Amin Eleusinov, Chairperson of the Union of Oil Workers of the Oil Construction Company (OCC), and Mr Nurbek Kushakbaev, Vice-President of the KNPRK, were detained and taken under arrest on criminal charges. Both leaders had been sentenced to two and two-and-a-half years in prison and prohibited from engaging in trade union activities after their release. Mr Kushakbaev was convicted for having called for an illegal strike. Ms Larisa Kharkova, the Chairperson of the KNPRK, was also subject to criminal prosecution with the threat of imprisonment. The Committee needed to adopt conclusions on the basis of which work could be undertaken to restore the fundamental rights in the world of work for each employee and each organization in Kazakhstan.

The Government member of the United States recalled that in the last two years, this Committee reviewed Kazakhstan’s implementation of the Convention and urged the Government to amend its legislation, including specific provisions that set onerous registration rules on unions and inhibited the freedom and functioning of independent trade unions. While positive steps had been taken by the Government to heighten its engagement with the ILO and welcoming the 2016 DCM, he notes that serious failure to comply with the Convention continued. In this regard, he recalled that in January 2017, the Committee of Experts reiterated the need to modify certain provisions of the Law on Trade Unions and the Law on the NCE to ensure the full autonomy and independence of employers’ organizations. He expressed deep concern at the dissolution of the country’s largest independent trade union, the KNPRK; the lodging of charges against Ms Kharkova, the KNPRK Chairperson, and the imprisonment of two labour activists, Mr Eleusinov and Mr Kushakbaev, both of whom had been imprisoned apparently for exercising their basic worker rights. He urged the Government to take steps to support freedom of association and specifically to: (1) make the necessary changes in the labour legislation in accordance with the recommendations of the ILO supervisory bodies; (2) allow all workers’ and employers’ organizations, and in particular the KNPRK, to register and operate in a manner that is consistent with Kazakhstan’s international obligations; and (3) drop the charges and release those labour officials and activists who had been arrested and imprisoned for exercising their right to freedom of association. He looked forward to the swift resolution of these issues and encouraged the Government to expeditiously avail itself of ILO technical cooperation to that end.

The Worker member of France said that independent trade union activists in Kazakhstan were constantly harassed, intimidated and persecuted. They were subjected to police interrogations, placed under surveillance and arrested on the grounds of their trade union activity. In 2011, the police had brought a bloody end to a strike lasting several months in Zhanaozen, leaving 17 dead and many injured. Seven independent trade unionists had been imprisoned for having exercised their fundamental right to strike. Dozens of people had been charged and their trials had taken place in extremely tense conditions. Since then, the repressive atmosphere had intensified and an organized and systematic attack on trade unionists had been observed. Trade union leaders in the oil sector, including Amin Eleusinov, a trade union representative in the LLL oil company, and Nurbek Kushakbaev, vice-president of the Confederation of Free Trade Unions of Kazakhstan (KNPRK) had recently been arrested for having merely mentioned the possibility of a strike in a speech. Article 24 of the National Constitution, however, recognized the right to strike. Journalists had been refused access to the trial, and there had appeared to be no formal investigation under way. It had subsequently emerged that the alleged culprits had been under telephone surveillance since 2015. They were detained in inhumane conditions: placed in quarantine for an entire month; and forbidden from sitting on their beds or lying down, so as to wear them down psychologically in the hope of obtaining a false confession and quashing the trade union movement. The president of the KNPRK, Larisa Kharkova, had been questioned daily by police and had been placed under surveillance on spurious grounds, which had a de facto impact on the time she was able to spend on trade union activities and on her freedom of movement. On 7 April 2017, the vice-president of the KNPRK had been sentenced to two and a half years in prison and banned from any public activity for a further two years following his release, as well as being fined the equivalent of €75,000 on top of some €2,400 in court costs. Such cases were unfortunately far from isolated examples. The Committee on Freedom of Association had drawn attention to the fact that such methods constituted a serious attack on trade union rights and a grave breach of freedom of association. Kazakhstan must immediately put an end to the anti-union climate, meet its international commitments and apply the ILO’s recommendations on freedom of association. She concluded by demanding the immediate release of the trade unionists arrested for their trade union activities, calling for judicial proceedings against them to be halted and for their sentences to be set aside. The case was very serious and required special attention.

The Government member of Cuba welcomed the information supplied by the Government and observed that the report of the Committee of Experts had mentioned the development of a draft law which sought to better regulate social relationships in the sphere of trade union activities, in compliance with the Convention. She highlighted the fact that the report had confirmed the existence of union pluralism in the country, demonstrating the Government’s willingness to comply with the Convention. Likewise, she emphasized that the technical assistance required by the Government should be provided, as had been suggested by the direct contacts mission.

An observer representing IndustriALL Global Union indicated that Kazakhstan remained a country with a very poor record of trade union and human rights. The recent developments in the country showed how the authorities of the country undermined the ability of workers to organize and collectively bargain for their rights, despite the fact that in addition to ratification of the ILO Conventions, the Constitution of Kazakhstan recognized the right to freedom of association and the right to strike. After the Zhanaozen massacre in 2014, Kazakhstan had adopted a new Law on Trade Unions. The Committee of Experts had commented repeatedly that this Law limited the free exercise of the right to establish and join organizations and the right of workers to freely decide whether they wish to associate or become members of a higher level trade union structure. After the adoption of this Law, the registration of the KNPRK had been revoked and workers had seen their organizations dismantled for unclear and unjustified reasons. Trade unions at the sectoral level had faced similarly lengthy and burdensome registration procedures. When trade union activists and workers from the Oil Construction Company had organized a peaceful mass protest, including a hunger strike, against the dissolution of the union of their choice, the local authorities and management had suppressed the protest. The Chairperson of the Oil Construction Company Workers’ Trade Union, Mr Eleusinov, and one labour inspector, Mr Kushakbaev had been arrested on 20 January 2017. On 7 April, Mr Kushakbaev had been sentenced to two-and-a-half years in a corrective labour colony for his appeals to strike. The judge had also satisfied the Oil Construction Company’s demand to collect 25 million Kazakhstani Tenge (KZT) (US$80,000) from Mr Kushakbaev for alleged harm caused to the company by workers’ hunger strikes, although there was no disruption of work. Mr Eleusinov had been sentenced to two years of imprisonment and would have to reimburse KZT8 million (over US$25,000). Upon his release, he would be forbidden to conduct any civil or union activity for five years. At the same time, the Oil Construction Company management had started massive layoffs of employees who had participated in the protests. This company formed part of KazMunaiGas, the largest state oil and gas company in Kazakhstan, infamous for their involvement in Zhanaozen massacre. The speaker expressed her deep concern about the repression of trade union activists. These were blatant violations of the ILO Conventions on freedom of association. The abovementioned Court decisions based on employers’ lawsuits represented a dangerous precedent of a further criminalization of trade union work in Kazakhstan. The escalating crack-down on trade unions called for special attention from the ILO and the international community.

The Government member of Turkmenistan welcomed the legislative measures taken by the Government with a view to fulfilling its international obligations under ratified Conventions. The Government collaborated with the ILO in a constructive manner, including through consultations with ILO experts with a view to creating the conditions for complying with the provisions of the Convention.

The Worker member of the United States recalled that thousands of workers in Kazakhstan’s oil and gas industry went on strike to protest unsafe work conditions and low pay. In December 2011, the country’s law enforcement forces brutally repressed the strikes by opening fire on unarmed protesters and criminally prosecuting strikers. Six years later, exercising the right to strike in Kazakhstan, a right guaranteed by the Constitution, remained extremely dangerous. The 2015 Labour Code, while recognizing the right to strike, sharply circumscribed it. Workers in a number of industries were prohibited from striking. A recent Human Rights Watch report had found that Kazakhstan courts routinely declared strikes illegal and that it was extremely difficult, if not impossible, for workers to meet the onerous requirements in order to strike legally. For example, before striking, workers must engage in cumbersome mediation procedures with their employer. In at least one instance, a company had unilaterally terminated the mediation process and faced no liability, despite the union’s complaints to the authorities. Workers and union leaders faced serious liability for engaging in an illegal strike. The 2014 Penal Code criminalized “calls to continue a strike that had been ruled illegal by a court”. This offence carried a maximum prison sentence of three years. Courts had also subjected strikers to significant administrative fines of up to 33 per cent of an average worker’s annual salary. In addition, the Labour Code allowed employers to discipline workers who participated in an illegal strike, even before the declaration of the strike illegal by a court. In January 2017, about 300 employees of an oil company began a hunger strike to protest the court mandated liquidation of the KNPRK. The workers notified municipal authorities in advance and continued to perform their jobs. Still, the company petitioned a court to declare the strike illegal. The court took advantage of the 2016 amendments to the Code of Civil Procedure which had established extremely short time frames for the consideration of illegal strike cases. In just two days, the court declared the hunger strike illegal. The strikers were detained and imposed significant fines. The court subsequently found that the strikers must reimburse the company for supposed losses from the strike, resulting in additional hefty fines. Union leaders were also arrested, convicted and imprisoned in connection with the strike. These leaders were still in prison. Kazakhstan’s current limitation on strikes and criminalization of participation in strikes was in violation of the Convention, and must be remedied.

The Government member of Switzerland said that her Government supported the statement made by the European Union and recalled that the independence, autonomy and freedom of the social partners were essential to achieving effective social dialogue and contributing to economic and social development. In law and in practice, any restriction on the right of workers and employers to establish and join organizations of their own choosing was a cause for concern. The right to organize and to join unions applied at all levels of the union structure, and Switzerland encouraged the Government to follow the Committee’s recommendations in order to guarantee freedom of association in law and in practice.

An observer representing the International Union of Food, Agriculture, Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Associations (IUF) recalled that the issue of freedom of association in Kazakhstan had been acute for several years and needed to be considered in the context of the general atmosphere that existed in the country since 2011 when the longest labour conflict in the post-Soviet era had ended in the city of Zhanaozen, resulting in many injured and fatal cases amongst the oil workers claiming increments to their wages. Had the Government complied with the Convention, this strike would not have ended with acts of provocation and the use of armed force but with signing an agreement. The General Prosecutor’s Office recognized that the police forces exceeded their authority and illegally used weapons, which resulted in the deaths and injuries of people. An investigation had found that a number of police officers were found guilty of beatings and brought to justice. There could not be freedom of association in Kazakhstan until these events were given a clear assessment by the State; until the legitimacy of the demands and actions of oil workers were recognized; and until the verdicts against trade unionists were dropped. The establishment of the principle of freedom of association was not only a means to improve working conditions, but also a means of ensuring peace and was a prerequisite for continued progress. However, the Government refused to comply with the provisions of the Convention. The reform of the labour legislation that followed the Zhanaozen events was designed to further restrict the rights of workers, and to destroy any opportunities for the activities of independent trade unions that were not under the control of the State. One should not forget about those who tried to realize this right in Zhanaozen during seven long months in 2011, those who died for this right and those who were still waiting for the cancellation of sentences and the restoration of justice. The recently opened criminal cases; the recent arrests of trade union leaders; and the unprecedented pressure on them and their families to obtain confessions on trumped-up charges was a continuation of the general course chosen by the authorities back in 2011. The speaker concluded by indicating that these constituted systematic and large-scale repressions, which had been going on for more than six years and affected thousands and tens of thousands of workers.

The Worker member of Norway, speaking on behalf of trade unions in the Nordic countries, expressed his deep concern at the lack of progress on amending the Law on Trade Unions, despite the fact that the Committee had urged the Government to bring it into full conformity with the Convention in 2015 and 2016. In that regard, he recalled that certain provisions of the Law made it difficult to exercise trade union rights, and that formalities prescribed in the Law were applied to delay and discourage the establishment of trade unions. He urged the Government to ensure, both in law and in practice, that workers had the right to freely join and establish trade union organizations and to organize their activities free of interference by the public authorities. He further urged the Government to enforce the Committee’s recommendations to amend the Law to ensure its conformity with the Convention.

The Government member of Canada, while acknowledging the strides Kazakhstan had made since independence in developing its economy and improving the standard of living of its people, noted with significant concern the observations of the Committee of Experts. This was the third consecutive year that the Government had been called to appear before the Conference Committee to discuss its implementation of the Convention. In view of the considerable challenges regarding the exercise of freedom of association rights, including difficulties with the trade union registration process, she urged the Government to resist pressure to restrict personal rights and freedoms, and to take concrete measures to protect labour rights by amending and enforcing labour legislation in line with ILO labour standards, including Convention No. 87. She encouraged the Government to seek technical assistance from the Office in this respect. Canada remained committed to working with the Government towards these ends as a partner.

The Worker member of Honduras expressed concern about what was going on in Kazakhstan in terms of continuing violations of the Convention and, in particular, the criminalization of the right to strike. He stressed that the ILO should fix its gaze on the country so that it did not continue violating workers’ rights and encouraged the Government to conclude agreements in all sectors in order to restore peace and harmony.

The Worker member of the Russian Federation indicated that the worsening of the situation of workers in neighbouring countries sometimes constituted an example for his Government. Many of those States, including the Republic of Kazakhstan, were, together with the Russian Federation, part of the Single Eurasian Economic Community, where the harmonization of the legislations of the participating countries was in progress. In 2016, concerns had been voiced about the deliberately complicated procedure for registering trade unions in Kazakhstan. The attention of this Committee had been drawn to the inconsistency of certain provisions of the national legislation with the ILO fundamental Conventions. He also called on the Government to make efforts to bring the legislation regulating the activities of trade unions into line with the requirements of the Convention. Regretfully, those concerns were justified. The situation over the past year had deteriorated significantly. In fact, one of the national trade union centres, affiliated to the ITUC, the KNPRK, had already been dismantled. State bodies had exerted direct and systematic pressure on trade unionists and leaders, including through arrests and imprisonment for the exercise of their legitimate trade union activities. Mr Eleusinov and Mr Kushakbaev had been arrested and brought to justice. Despite the content of official accusations, their imprisonment was in fact directly related to their legitimate trade union activities. Ms Kharkova was under criminal prosecution on far-fetched grounds and faced imprisonment. Such measures were used to prevent the development of an independent trade union movement in Kazakhstan so as to stop workers from trying to collectively defend their labour, social and economic rights. In 2011, the authorities of Kazakhstan had shot at a peaceful protest action by the workers of the transnational oil and gas company in Zhanaozen, killing 16 people and imprisoning dozens of participants. The speaker deeply regretted that the Government had not assumed its responsibility for this event and continued to show disdain for its own international obligations, and called on the Committee to consider including this case in a special paragraph of its report.

The Government representative thanked the delegates for the attention paid to the Government’s statement, the comments made, and calls and wishes expressed. The Government regretted that the events many speakers referred to had taken place and understood the concerns expressed in this regard. In replying to questions raised during the discussion, he indicated that, unfortunately, six trade union associations saw their registration withdrawn by the decisions of the courts: the KNPRK, headed by Ms Kharkova, its two branch trade unions, one branch trade union of the FPRK, one branch trade union of the KTK; and an independent trade union “Decent Work”. The reason for the delisting of all six unions was the same: they all had failed to confirm their status within the allocated six-month period. All they needed to do was to involve in their ranks at least one affiliate organization in nine of the country’s 16 regions. Unfortunately, they could not get such support from the workers. While the Government was working on abolishing the “two-step” registration procedure, 467 trade union associations had successfully passed this procedure. The Government and the Ministry of Labour had always had good working relations with the KNPRK. The latter actively participated in all working groups on the development of the current Law on Trade Unions and its amendments. Its Chairperson, Ms Kharkova, had regularly participated in the meetings of the Republican Tripartite Commission, the highest tripartite body in the country, and was a signatory of the General Agreement on Social Partnership between the Government, trade unions and employers’ associations for 2015–17. Moreover, during the ITUC mission to Kazakhstan in August 2016 to discuss the KNPRK ITUC membership, the Government supported the KNPRK. Thus, the Ministry of Labour regretted the situation and conducted a number of consultations with the justice authorities in this respect. The Ministry of Labour was ready to assist, together with the justice authorities, in the re-registration of the abovementioned trade unions, should they so desire. To date, two of the six abovementioned trade unions had passed the first stage of registration. Concerning the financing of trade unions, while the Constitution forbade direct financing of trade unions by international organizations (for example, by paying salaries, purchasing cars and offices), there were no prohibitions for trade unions to participate and carry out international projects and activities (such as seminars, conferences, etc.) jointly or with the assistance of international workers’ organizations. All trade union associations had always received such help. Regarding the cases of prosecution of three trade union leaders, while understanding the concern expressed, as a representative of the executive branch of the Government, he could not comment on the decisions of the judiciary. He assured that his Government would continue its work to improve the legislation and practice on the basis of the comments and requests expressed during the discussion.

The Worker members firmly encouraged the Government to address the various failures in how the Convention was being applied, such as denying trade unions the choice of structure that they could adopt. The Government should amend its legislation and practice, with a view to: proceeding with the registration of the KNPRK and its member organizations without delay; withdrawing unconditionally all charges against trade union leaders and members who organized and participated in peaceful trade union activities; respecting the narrow interpretation of exemptions from the freedom to establish and join trade union organizations and allowing judges, firefighters and prison staff to establish and join a trade union organization; removing restrictive criteria and registration procedures which limited freedom of association; respecting the independence and autonomy of trade unions and abolishing the requirement for sectoral, territorial and local trade unions to be affiliated to a higher level trade union; reducing the membership threshold for the establishment of a representative organization; respecting the freedom to manage representative organizations and lifting the prohibition on financial assistance from international workers’ or employers’ organizations; ensuring that a minimum service was genuinely and exclusively a minimum service and that workers’ organizations could participate in defining that service; and specifying the organizations that carried out “dangerous industrial activities”, for which strikes were illegal. The Worker members strongly urged the Government to receive a high-level tripartite mission in order to implement those recommendations.

The Employer members expressed their appreciation for the information provided by the Government and urged it to: (1) ensure that in the new legislation, workers had the right to join and establish organizations and that trade union registration procedures were simplified; (2) in an effort to make progress to ensure that employers’ organizations’ freedom of association rights were respected, remove the all-encompassing mandate of the NCE to represent all employers’ interests and delete the provisions in the Law on the NCE regarding the accreditation of employer organizations by the NCE; and (3) allow trade union and employers’ organizations to benefit freely from and participate in joint cooperation projects and activities with international organizations. Finally, they encouraged the Government to welcome a high-level tripartite mission in order to ensure that those goals were met.

Conclusions

The Committee took note of the oral statements made by the Government representative and the discussion that followed.

The Committee noted the grave issues in this case concerning this fundamental Convention referring in particular to the revocation of the registration of the voluntarily unified KNPRK, as well as the infringement of the employers’ freedom of association by the Law on the National Chamber of Entrepreneurs (NCE). The Committee also noted the serious obstacles to the establishment of trade unions without previous authorization in law and in practice. The Committee was concerned over the persistent lack of progress since the last discussion of the case by the Committee in June 2016 despite an ILO direct contacts mission visiting the country in September 2016.

Taking into account the discussion, the Committee called upon the Government of Kazakhstan to:

- amend the provisions of the Trade Union Law of 2014 consistent with the Convention, on issues concerning excessive limitations on the structure of trade unions which limit the right of workers to form and join trade unions of their own choosing;

- amend the provisions of the Law on the National Chamber of Entrepreneurs in a manner that would ensure the full autonomy and independence of free and independent employers’ organizations, without any further delay. In particular remove the provisions on the broad mandate of the NCE to represent employers and accredit employers’ organizations by the NCE;

- allow trade unions and employers’ organizations to benefit from and participate in joint cooperation projects and activities with international organizations;

- amend legislation to lift the ban on financial assistance to national trade unions and employers’ organizations by international organizations;

- take all necessary measures to ensure that the KNPRK and its affiliates are able to fully exercise their trade union rights and are given the autonomy and independence needed to fulfil their mandate and to represent their constituents;

- amend legislation to permit judges, firefighters and prison staff to form and join a workers’ organization;

- ensure that applications for union registration are acted upon expeditiously and are not denied unless they fail to meet clear and objective criteria set forth in the law.

The Committee calls on the Government to effectively pursue ILO technical assistance to address these matters.

The Government should accept a high-level tripartite mission before the next International Labour Conference in order to assess progress towards compliance with these conclusions.