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

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

The Committee notes the observations of the International Organisation of Employers (IOE), received on 2 September 2017, containing the Employers’ statements made before the 2017 Conference Committee on the Application of Standards (hereinafter, the Conference Committee).

The Committee further notes the observations on the application of the Convention by the International Trade Union Confederation (ITUC), received on 1 September 2017, referring to issues raised by the Committee below, as well as informing that, on 25 July 2017, Ms Larisa Kharkova, the Chairperson of the now liquidated Confederation of Independent Trade Unions of Kazakhstan (KNPRK) was sentenced to four years of restriction on her freedom of movement, 100 days of compulsory labour and a five-year ban on holding any position in a public or non-governmental organization. The ITUC indicates that earlier in 2017, Mr Amin Eleusinov, the Chairperson of a union affiliated to the KNPRK, and Mr Nurbek Kushakbaev, the Vice-President of the KNPRK, were sentenced to two and two-and-a-half years in prison, respectively and prohibited from engaging in trade union activities after their release. Both were convicted for having called for a strike in response to a court decision to deregister the KNPRK due to its failure to re register provincial branches in at least nine of the country’s 16 regions. Noting that these cases have been discussed by the Conference Committee in June 2017, the Committee urges the Government to provide its comments thereon without delay.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 106th Session, June 2017)

The Committee notes the discussion that took place in the Conference Committee in June 2017 concerning the application of the Convention. The Committee observes that the Conference Committee noted the grave issues raised, which refer, 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 Conference Committee also noted the serious obstacles to the establishment of trade unions without previous authorization in law and in practice. The Conference Committee was concerned over the persistent lack of progress since the discussion of the case in June 2016 despite an ILO direct contacts mission (DCM) visiting the country in September 2016. The Committee notes that the Conference Committee called upon the Government to: (i) 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; (ii) 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; (iii) allow trade unions and employers’ organizations to benefit from and participate in joint cooperation projects and activities with international organizations; (iv) amend legislation to lift the ban on financial assistance to national trade unions and employers’ organizations by international organizations; (v) 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; (vi) amend legislation to permit judges, firefighters and prison staff to form and join a workers’ organization; and (vii) 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 Conference Committee considered that 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.

Article 2 of the Convention. Right of workers, without distinction whatsoever, to establish and join organizations. Judges, firefighters and prison staff. With reference to the conclusions of the Conference Committee, the Committee notes that the Government indicates in its report that the prohibition imposed on judges to become members of trade unions (article 23(2) of the Constitution) does not imply the restriction on their right to establish and join associations of judges. Pursuant to article 23(2) of the Constitution, judges, like all citizens of the State, have the right to freedom of association to further and defend their professional interests, as long as they do not use the associations to influence the administration of justice and to pursue political goals. The Government points out that the Union of Judges is an organization which represents the interests of judges. The Committee recalls that the DCM had noted that the Union can raise, and has raised in the past, issues relating to working conditions and pensions of judges.

Regarding prison staff and firefighters, 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 DCM’s report 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 the Government reiterates that all civilian staff engaged in the law enforcement bodies can establish and join trade unions and recalls in this respect that it had previously noted that these workers were represented by two sectoral trade unions. According to the Government, the Trade Union of Workers of Defence Forces of Kazakhstan represents 11,610 members and a trade union active in the Ministry of Interior, represents 3,970 members. While taking due note of this information, the Committee requests the Government to provide further clarification on the trade union rights of prison staff and firefighters who have no military or police rank.

Right to establish organizations without previous authorization. The Committee recalls that following the entry into force of the Law on Trade Unions, all existent unions had to be re-registered. It further recalls that it had previously noted with concern that KNPRK affiliates were denied registration/re-registration. The Committee notes with deep concern, from the Conference Committee discussion and the ITUC’s 2017 observations, that the KNPRK registration has been revoked despite the assurances given to the DCM by the Ministry of Justice and the Ministry of Labour and Social Development that they would look into this matter and assist the unions, as relevant. The Committee urges the Government to 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. It requests the Government to provide information on all developments in this regard.

Right to establish and join organizations of their own choosing. The Committee had previously requested the Government to amend the following sections of the Law on Trade Unions so as to ensure the right of workers to freely decide whether they wish to associate or become members of a higher level trade union structure and to lower thresholds requirements to establish higher level organizations:

• -sections 11(3), 12(3), 13(3) and 14(4), which require, under the threat of deregistration pursuant to section 10(3), the mandatory affiliation of sector-based, territorial and local trade unions to a national trade union association within six months following their registration, so as to ensure the right of workers to freely decide whether they wish to associate or become members of a higher level trade union structure; and
• -section 13(2), which requires a sector-based trade union to represent no less than half of the total workforce of the sector or related sectors, or organizations of the sector or related sectors, or to have structural subdivisions and member organizations on the territory of more than half of all regions, cities of national significance and the capital, with a view to lowering this threshold requirement.

The Committee notes the Government’s indication that a working group to improve trade union legislation was established under the auspices of the Ministry of Labour and Social Development. It met in March and April 2017 to discuss the proposed amendments. In May 2017, an interagency commission approved a Concept Draft Law on the amendment of the legislation. In this regard, the Committee notes the intention to amend the Law on Trade Unions so as to: (i) lower the minimum membership requirement from ten to three people in order to establish a trade union; and (ii) simplify the registration procedure. While welcoming this information, the Committee notes that the proposed amendments do not address the Committee’s concerns described above. The Committee once again recalls that the free exercise of the right to establish and join organizations implies the right of workers to freely decide whether they wish to associate or become members of a higher level trade union structure and that the thresholds requirements to establish higher level organizations should not be excessively high. The Committee therefore requests the Government to engage with the social partners in order to review sections 11(3), 12(3), 13(2) and (3), and 14(4) of the Law on Trade Unions so as to bring it into full conformity with the Convention. It requests the Government to provide information on all measures taken or envisaged in this regard.

Law on the National Chamber of Entrepreneurs. The Committee had previously urged the Government to amend the Law on the National Chamber of Entrepreneurs, so as to eliminate all possible interference by the Government in the functioning of the Chamber and so as to ensure the full autonomy and independence of the free and independent employers’ organizations in Kazakhstan. The Committee recalls that the Law calls for the mandatory affiliation to the NCE (section 4(2)), and, during the transitional period to last until July 2018, for the Government’s participation therein and its right to veto the NCE’s decisions (sections 19(2) and 21(1)). The Committee further recalls from the DCM’s report the difficulties encountered by the Confederation of Employers of Kazakhstan (KRRK) in practice, which stem from the mandatory membership and the NCE monopoly. The DCM noted in particular that the KRRK considered that the accreditation of employers’ organizations by the NCE and the obligation imposed in practice on employers’ organizations to conclude an annual agreement (a model contract) with the NCE, meant, for all intents and purposes, that the latter approved and formulated the programmes of employers’ organizations and thus intervened in their internal affairs. While noting with regret that there are no immediate plans to amend the Law, the Committee welcomes the Government’s request for the technical assistance of the Office in this respect. In light of the above, and bearing in mind the serious concerns raised during the discussion of the application of this Convention in the Conference Committee, the Committee urges the Government to take measures without further delay to amend the Law on the National Chamber of Entrepreneurs with the technical assistance of the Office.

Article 3. Right of organizations to organize their activities and to formulate their programmes. Labour Code. The Committee had previously welcomed the intention of the Government to amend the Labour Code regarding the right to strike by making section 176(1)(1), pursuant to which, strikes shall be deemed illegal when they take place at entities operating hazardous production facilities, more explicit as to which facilities were considered to be hazardous. Currently, “hazardous production facilities” are listed in sections 70 and 71 of the Law on Civil Protection, and can be further determined, pursuant to Order No. 353 of the Minister of Investment and Development (2014), by the enterprise in question. The Committee had noted from the DCM’s report that the KNPRK had pointed out that legal strikes did not take place in Kazakhstan as: (i) almost any enterprise could be declared hazardous and the strike therein illegal; and (ii) requests to conduct a strike were submitted to the executive bodies and were denied in practice. The Committee notes that according to the Government, the abovementioned Concept Draft Legislation contains a provision aimed at making the Labour Code more explicit as to the situations where the strike is prohibited. The Committee expects that the necessary legislative amendments will be made in the near future, in consultation with the social partners and technical assistance of the Office, so as to address the outstanding concerns of the Committee regarding the right to strike. The Committee requests the Government to provide information on all measures taken or envisaged in this respect.

The Committee notes with concern from the Conference Committee discussions and the information provided by the ITUC that trade union leaders have been convicted and sentenced in application of section 402 of the Criminal Code (2016), according to which an incitement to continue a strike declared illegal by the court was punishable by up to one year of imprisonment and in certain cases (substantial damage to rights and interest of citizens, etc.), up to three years of imprisonment. The Committee requests the Government to provide its comments thereon. It recalls that no penal sanctions should be imposed against a worker for having carried out a peaceful strike and thus for merely exercising an essential right, and therefore that measures of imprisonment or fines should not be imposed on any account. Such sanctions could be envisaged only where, during a strike, violence against persons or property, or other serious infringements of penal law have been committed, and can be imposed exclusively pursuant to legislation punishing such acts (see the 2012 General Survey on the fundamental Conventions, paragraph 158). The Committee requests the Government to take the necessary measures to amend section 402 of the Criminal Code so as to bring it into line with this principle. It requests the Government to indicate all measures taken or envisaged in this respect.

Article 5. Right of organizations to receive financial assistance from international organizations of workers and employers. The Committee had previously requested the Government 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 and employers’ organizations by an international organization. The Committee notes the Government’s indication that the ban encompasses all financial and material assistance (cars, furniture, etc.) and is needed to safeguard the constitutional order, independence and territorial integrity of the country. The Committee recalls that while the DCM had noted there was no prohibition imposed on trade unions to participate in and carry out international projects and activities (seminars, conferences, etc.) together or with the assistance of international workers’ organizations, it had considered that the legislation could be amended so as to make it clear that joint cooperation projects and activities could be freely carried out. The Committee therefore once again requests the Government to adopt, in consultation with the social partners, specific legislative provisions which clearly authorize workers’ and employers’ organizations to benefit, for normal and lawful purposes, from the financial or other assistance of international workers’ and employers’ organizations. It requests the Government to provide information on all measures taken or envisaged in this regard.

[The Government is asked to reply in full to the present comments in 2018.]