Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

Kazakhstan

Labour Inspection Convention, 1947 (No. 81) (Ratification: 2001)
Labour Inspection (Agriculture) Convention, 1969 (No. 129) (Ratification: 2001)

In order to provide a comprehensive view of the issues relating to the application of the ratified Conventions on labour inspection, the Committee considers it appropriate to examine Conventions Nos 81 (labour inspection) and 129 (labour inspection in agriculture) together.

The Committee notes the observations of the International Trade Union Confederation (ITUC) on Conventions Nos 81 and 129, received on 1 September 2021.

Articles 12 and 16 of Convention No. 81 and Articles 16 and 21 of Convention No. 129. Limitations and restrictions of labour inspections. Powers of labour inspectors. 1. Moratorium on labour inspections. The Committee notes with deep concern that the Presidential Decree No. 229 “On Introduction of a Moratorium on Inspections and Preventive Monitoring and Oversight with Visits in the Republic of Kazakhstan” of 26 December 2019, introduces a three year moratorium on labour inspection, which applies to private and state-owned enterprises belonging to the categories of small and micro-enterprises, starting from 1 January 2020. According to the Decree, the only exceptions allowing for inspections shall be inspections aimed at the prevention or elimination of violations that potentially bear a major threat to human life and health, to the environment, to law and public order; or a direct or indirect threat to the constitutional order and national security, in addition to inspections performed on the grounds specified by the Law of the Republic of Kazakhstan of 4 July 2003 “On the Governmental Regulation, Control and Oversight of Financial Market and Financial Organisations”. According to the observations submitted by the ITUC: (i) this moratorium is also valid for unscheduled inspections performed by the State Labour Inspectorate following complaints of employees about various labour violations by employers; (ii) between January and September 2020, the provisions on exceptions provided in the Decree were used by state inspectors only three times (in Kostanay Region, East Kazakhstan Region and in the city of Nur-Sultan); and (iii) according to information from the Ministry of Labour and Social Protection, as many as 16,330 complaints were submitted to the State Labour Inspectorate in the first 8 months of 2020. The Committee further notes that section 140(6) of the Entrepreneur Code of the Republic of Kazakhstan of 2015 (No. 375-V ZRK) provides for the possibility of suspending inspections of private business entities for a specific period after a decision by the Government, in coordination with the Administration of the President of the Republic. In this respect, the Committee recalls its General Observation of 2019 on the labour inspection Conventions, expressing concern at reforms that substantially undermine the inherent functioning of labour inspection systems, including moratoria on labour inspections, and urging governments to remove these restrictions, with a view to achieving conformity with the Conventions. Recalling that a moratorium placed on labour inspection is a serious violation of the Conventions, the Committee urges the Government to act promptly to eliminate the temporary ban on inspections and to ensure that labour inspectors are able to undertake labour inspections as often and as thoroughly as is necessary to ensure the effective application of the legal provisions, in compliance with Article 16 of Convention No. 81 and Article 21 of Convention No. 129.

The Committee previously noted that there appeared to be extensive legal and practical restrictions in relation to scheduled inspections concerning inspectors’ access to workplaces and the frequency of inspection visits, resulting in a reduced effectiveness and scope of inspections.

The Committee notes that the Government does not provide in its report information in relation to its previous request on whether Order No. 55-p of 16 February 2011 repeals Order No. 12 of 1 March 2004, and whether the restrictions introduced by the latter Order, especially the prior registration of inspections at the Public Prosecutor’s Office, have been lifted.

In addition, the Committee notes with concern that the Labour Code and the Entrepreneur Code of 2015 contain various limitations on labour inspectors’ powers, including with regard to: (i) the ability of labour inspectors to enter freely any workplace liable to inspection (section 12 of the Entrepreneur Code); (ii) the ability of labour inspectors to undertake inspection visits at any hour of the day or night (sections 197(5) of the Labour Code and 147(2) of the Entrepreneur Code); (iii) the ability of labour inspectors to undertake inspection visits without previous notice (section 147(1) of the Entrepreneur Code); (iv) the free initiative of labour inspectors (section 197(2)(2) of the Labour Code and section 144(10) of the Entrepreneur Code); and (v) the scope of inspections, particularly in terms of the issues that can be examined in the course of inspections (section 151 of the Entrepreneur Code).

The Committee urges the Government to take the necessary legislative measures to ensure that labour inspectors are empowered to make visits to workplaces without previous notice at any hour of the day or night, and to carry out any examination, test or enquiry which they may consider necessary, in conformity with Article 12(1)(a) and (c) of Convention No. 81 and Article 16(1)(a) and (c) of Convention No. 129. In addition, the Committee requests once again the Government to provide information on whether Order No. 55-p of 16 February 2011 repeals Order No. 12 of 1 March 2004, and whether the restrictions introduced by the latter Order, especially the prior registration of inspections at the Public Prosecutor’s Office, have been lifted.

2. Frequency of labour inspections. The Committee previously noted with concern that the number of inspections undertaken had decreased, owing to the discontinuation of inspections of small and medium-sized enterprises starting from 2 April 2014 until 1 January 2015, pursuant to the Presidential Decree on Cardinal Measures to Improve the Conditions for Entrepreneurship in Kazakhstan (Decree No. 757).

The Committee notes the Government’s indication that: (i) the risk management system is currently the main tool for determining the frequency of inspections; (ii) the joint Decree of the Ministry of Health and Social Development (No. 1022 of 25 December 2015) and the Ministry for the National Economy (No. 801 of 28 December 2015) established the risk assessment and checklist criteria for inspecting compliance with national labour legislation; and (iii) the risk management system has made it possible to regulate the controls carried out by state labour inspection bodies, to reduce the administrative pressure on employers in the context of their due diligence, and to improve the quality of the work performed by state labour inspectors. According to the ITUC: (i) the risk management system determines the frequency of scheduled inspections depending on the risk category assigned to the employer; (ii) in these conditions, no frequency of inspections is established for low-risk employers, meaning that the employers classified under such risk category are not covered by any scheduled monitoring activities; (iii) the procedure for the assessment of the risk category assigned to the employer depends, among other criteria, on the number of employees, with higher risk categories being assigned to enterprises with a greater numbers of employees; (iv) there is a decreasing probability of inspections of small and medium-sized businesses that carry a significant risk of abuses by employers; and (v) during scheduled inspections, an inspector is limited to the number of questions included in the checklists.

The Committee notes with concern that the Labour Code, as well as the Entrepreneur Code of 2015, which uses risk assessment criteria for classifying inspections and their frequency, contain various limitations on the frequency and duration of labour inspections (sections 140(8), 141, 148 and 151(6) of the Entrepreneur Code and section 197(6) of the Labour Code). Referring to its general observation of 2019 on the labour inspection Conventions, the Committee urges the Government to take the necessary measures, including the revision of the Entrepreneur Code and the Labour Code, to ensure that labour inspectors are able to undertake labour inspections as often and as thoroughly as is necessary to ensure the effective application of relevant legal provisions. In addition, the Committee requests the Government to take the necessary measures to ensure that risk assessment criteria do not limit the powers of labour inspectors or the undertaking of labour inspections. The Committee also requests the Government to continue to provide information on the undertaking of inspections in practice, indicating the number of scheduled and unscheduled inspections, as well as the total number of workplaces liable to inspection. With regard to inspections conducted without prior notice, the Committee requests the Government to indicate the number of such inspections, whether they are conducted on-site or without a visit to the workplace, as well as the number of inspections conducted in response to a complaint, and the results of all such inspections.

Articles 13, 17 and 18 of Convention No. 81 and Articles 18, 22 and 24 of Convention No. 129. Powers of labour inspectors to ensure the effective application of legal provisions concerning conditions of work and the protection of workers. Further to its previous request, the Committee notes that the Government does not provide information on the penalties imposed for violating labour legislation and for obstructing labour inspectors in the performance of their duties. In this regard, the Committee notes with concern, that section 12 of the Entrepreneur Code of 2015 provides that enterprises may deny the inspection by officials of state control and supervision bodies in cases where they fail to comply with the requirements for inspections established by the Code.

The Committee notes that various legal provisions, such as sections 136 and 153 of the Entrepreneur Code of 2015, appear to limit the powers of labour inspectors to take steps with a view to remedying defects observed in plant, layout or working methods and to order measures with immediate executory force in the event of imminent danger to the health or safety of the workers.

The Committee further notes the Government’s indication, in reply to its previous request, that in order to prevent violations of labour law, section 197 of the Labour Code provides for a new form of monitoring of preventive visits to enterprises, following which the state labour inspector issues the employer with an improvement notice only, with no imposition of administrative penalties.

The Committee recalls that Article 17 of Convention No. 81 and Article 22 of Convention No. 129 provide that, with certain exceptions, persons who violate or neglect to observe legal provisions enforceable by labour inspectors shall be liable to prompt legal proceedings without previous warning, and that it must be left to the discretion of labour inspectors to give a warning or provide advice instead of instituting or recommending proceedings. The Committee requests the Government to take the necessary measures, including the revision of the Entrepreneur Code and the Labour Code, to ensure that labour inspectors are able to initiate legal proceedings without previous warning, where required, in conformity with Article 17 of Convention No. 81 and Article 22 of Convention No. 129. The Committee further requests the Government to take the necessary measures to empower labour inspectors to take steps with a view to remedying defects observed in plant layout or working methods, or to order measures with immediate executory force in the event of imminent danger to the health or safety of the workers. In addition, the Committee once again requests the Government to indicate the penalties for violations of the legal provisions enforceable by labour inspectors, and for obstructing labour inspectors in the performance of their duties, to provide a copy of the relevant provisions, and to indicate how often such penalties have been assessed, as well as the amounts of sanctions imposed and collected.

Articles 20 and 21 of Convention No. 81 and Articles 26 and 27 of Convention No. 129. Annual report on the work of the labour inspection services. The Committee notes that since the ratification of the Conventions in 2001, an annual report on the activities of the labour inspection services has never been received by the Office. However, the Committee notes that the Government provides statistics on the number of inspectors, the number of inspections carried out, the number of industrial workplaces inspected, the number of industrial accidents, the number of accidents investigated, and the number of violations detected and penalties imposed. The Committee notes that the statistics sent by the Government on the activities of the labour inspectorate do not identify the specific data relating to the agricultural sector, so as to allow the Committee to assess the level of application of Convention No. 129. The Committee once again requests the Government to take the necessary measures to ensure the establishment and publication of an annual report on the work of the inspection services and to transmit it to the ILO, in accordance with Article 20 of Convention No. 81 and Article 26 of Convention No. 129, and to ensure that it contains the subjects listed under Article 21 of Convention No. 81, including in particular Article 21(a), (c) and (g). It also requests the Government to take the necessary measures to ensure that the annual reports contain information specific to the agricultural sector, as required by Article 27 of Convention No. 129.

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

[The Government is asked to reply in full to the present comments in 2022.]