Observation (CEACR) - adopted 2017, published 107th ILC session (2018)

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 take the necessary measures to amend its legislation so as to ensure that firefighters and prison staff enjoy the right to organize and to bargain collectively. In this respect, with reference to its observation on the application of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Committee notes the Government’s indication that prison staff, as part of the law enforcement bodies, are placed under the responsibility of the Ministry of Interior and as such are prohibited from establishing and joining trade unions. The Committee had previously noted from the report of the direct contacts mission (DCM), which visited the country in September 2016 following a request to that effect by the Conference Committee on the Application of Standards in the framework of the application of Convention No. 87, that among the employees of the law enforcement bodies (which include prison staff and firefighters), only employees who have a military or police rank are prohibited from establishing and joining trade unions. The Committee notes that according to the Government and the information contained in the DCM report, all civilian staff engaged in law enforcement bodies can establish and join trade unions and that there are currently two sectoral trade unions representing their interests that can, according to the Government, exercise their right to collective bargaining. The Committee requests the Government to provide clarification on the trade union rights and rights to collective bargaining of prison staff and firefighters who have no military or police rank and to inform about any collective agreement covering them.

Article 4 of the Convention. Right to collective bargaining. In its previous comments, the Committee had requested the Government to amend the Labour Code 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 while it would appear that pursuant to the new Labour Code, which entered into force on 1 January 2016, other representatives are elected only in the absence of a trade union (sections 1(44) and 20(1)), the Government indicates in its report that workers who are not members of a trade union can either authorize a trade union to represent their interests in collective bargaining or elect other representatives to that effect. The Committee recalls that under the terms of the Convention, the right of collective bargaining lies with workers’ organizations of whatever level, and with employers and their organizations, collective bargaining with representatives of non-unionized workers should only be possible when there are no trade unions at the respective level. Indeed, the Committee considers that direct bargaining between the enterprise and its employees with a view to avoiding sufficiently representative organizations, where they exist, may undermine the principle of the promotion of collective bargaining set out in the Convention (see the 2012 General Survey on the Fundamental Conventions, paragraph 239). The Committee requests the Government to clarify whether under the new model of collective bargaining provided for by the new Labour Code other representatives can bargain collectively alongside an existing trade union and, if this is the case, to amend the Labour Code so as to bring it into conformity with the Convention.

The Committee had previously noted that pursuant to section 97(2) of the Code on Administrative Breaches (2014), an unfounded refusal to conclude a collective agreement is punishable by a fine and recalled in this respect 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 had requested the Government to repeal this provision and to indicate the measures taken in this respect. The Committee notes with regret that no information has been provided by the Government in this respect. The Committee therefore reiterates its previous request and expresses the hope that the Government’s next report will contain information on the measures taken in this respect as well as information on the application of this provision in practice.

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