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

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

Scope of the Convention. The Committee had previously requested 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. The Committee takes due note of the Government’s indication that all civilian staff engaged in the above-mentioned services enjoy the rights set out in the Convention.

Article 2 of the Convention. Adequate protection against acts of interference. In its previous direct request, the Committee had requested the Government to provide information on the application in practice of sections 145 and 154 of the Criminal Code (2014), pursuant to which cases of interference in the functioning of social organizations and/or trade unions are punishable by a fine or imprisonment. In the absence of the Government’s reply, the Committee once again requests the Government to provide information on the application of the abovementioned legislative provisions in practice.

Article 4. Right to collective bargaining. In its previous comments, the Committee had recalled 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. The Committee had therefore requested the Government to clarify whether under the model of collective bargaining provided for by the Labour Code other representatives can bargain collectively alongside an existing trade union. The Committee notes that sections 1(44) and 20(1) of the Labour Code were amended in 2020 to provide that workers are represented by trade unions or, in absence thereof, by other elected representatives. The Committee further notes that according to paragraph 3 of section 20(1) of the Labour Code, however, should workers’ membership in trade unions constitute less than half of an organization’s staff, the workers’ interests can be represented by trade unions and by elected representatives. The Committee notes that pursuant to section 20 of the Labour Code, as amended, if a trade union exists at the organization/enterprise, no collective bargaining can take place without the participation of that union. According to the Government, the amendments have made it possible to maintain a balance between the interests of workers who are union members and those who have not joined a union, and to take into account the opinions of the entire workforce without infringing the rights of union members. While taking due note of the amendments, the Committee recalls that in the collective bargaining process the position of a representative union, even if it does not represent 50 per cent of the workforce, should not be undermined by elected representatives. The Committee therefore requests the Government to further amend section 20 of the Labour Code in consultation with the social partners in order to bring it into conformity with the Convention and so as to eliminate the contradiction within the above-mentioned provisions of the Labour Code. The Committee requests the Government to indicate all steps taken to that end.

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. The Committee had recalled 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 thus requested the Government to repeal the mentioned provision. The Committee notes in this respect the Government’s indication that under article 158(5) of the Labour Code, any unjustified refusal to conclude a collective agreement by those authorized to conclude it renders them liable, under article 97(2) of the Code on Administrative Breaches, to a fine of 400 monthly calculation index (MCI). The Government provides detailed information on the procedure to follow prior to the conclusion of a collective agreement as set out in article 156 of the Labour Code. The Government points out that once all the procedures have been followed, any unjustified refusal to conclude the collective agreement is deemed unlawful. The Government further explains that the sanctions provided for in article 97(2) of the Code on Administrative Breaches are designed to protect the right to conclude a collective agreement and to avoid any forced conclusion thereof. While taking notes of this explanation, the Committee requests the Government to take the necessary measures in order to ensure the full conformity of the legislation with the principle of free and voluntary negotiation. The Committee also requests the Government to provide information on the application of the above-mentioned provisions in practice, in particular on the offences committed and the sanctions applied.

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

Article 2 of the Convention. Adequate protection against acts of interference. The Committee had previously requested the Government to provide information on the application in practice of sections 145 and 154 of the Criminal Code (2014), pursuant to which cases of interference in the functioning of social organizations and/or trade unions are punishable by a fine or imprisonment. The Committee notes that the Government once again refers to section 25 of the Law on Trade Unions (2014), which prohibits interference in trade union internal affairs, and to sections 77 and 97 of the Code on Administrative Breaches, setting up penalties for interference in the activities of social organizations and trade unions, but provides no information on their application in practice. The Committee therefore once again requests the Government to provide information on the application of the abovementioned legislative provisions in practice.

Article 4. Promotion of collective bargaining. The Committee had previously requested the Government to amend section 289 of the Labour Code (2007), which provided that demands of workers concerning the establishment (or change) of labour conditions and wages, the conclusion, modification and implementation of collective agreements are formulated and approved by a general meeting (or conference) of employees, as it considered that such a requirement may constitute an obstacle to the exercise of collective bargaining rights by trade unions and that a representative union should have the right to present its demands to the employer without prior approval by an enterprise workforce. The Committee notes that according to section 156(5) of the new Labour Code, which entered into force on 1 January 2016, a draft collective agreement prepared by the commission set up for the purpose of collective bargaining shall be subject to mandatory discussion by workers, following which, on the basis of comments and proposals, the draft collective agreement shall be refined.

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

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.

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

Article 2 of the Convention. Protection against acts of interference. The Committee had previously requested the Government to provide information on the application in practice of sections 150 and 151 of the Criminal Code, providing that cases of interference in the activities of social organizations and interference in the legitimate activities of workers’ representatives are punishable by a penalty equivalent to up to five times the monthly wage or imprisonment. The Committee notes that a new Criminal Code was adopted in July 2014 and that it will enter into force on 1 January 2015. Sections 145 and 154 of the new Code provide for even harsher penalties for acts of interference. It further notes that section 25 of the Law on Trade Unions of 2014 prohibits interference in trade union internal affairs. The Committee requests the Government to provide information on the application of the abovementioned legislative provisions in practice, including copies of the relevant court decisions.

Article 4. Collective bargaining. The Committee notes that in its observations on the application of the Convention received on 3 September 2014, the Confederation of Free Trade Unions of Kazakhstan (CFTUK) considers that section 289 of the Labour Code, as amended in 2012, impedes the exercise by trade unions of their right to present demands to employers. The Committee notes that in terms of this provision, demands of workers concerning the establishment (or change) of labour conditions and wages, the conclusion, modification and implementation of collective agreements, are formulated and approved by a general meeting (or conference) of employees; the general meeting should be attended by more than half of workers of an undertaking; the conference should be attended by at least two-thirds of delegates elected by workers; decisions of the meeting (or conference) of employees should be accepted by the majority of those present; and if it is impossible to organize a meeting (or conference), the workers’ representative body has the right to adopt its decision by gathering signatures of more than half of employees in support of its demands. The Committee considers that the requirements of section 289 of the Labour Code may constitute an obstacle to the exercise of collective bargaining rights by trade unions. It further considers that a representative union should have the right to present its demands to the employer without prior approval by an enterprise workforce. The Committee therefore requests the Government to amend section 289 of the Labour Code accordingly and to indicate all measures taken to that end.

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

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.

Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

Scope of the Convention. The Committee had previously requested the Government to specify the categories of workers covered by the term “law enforcement bodies” whose right to organize is restricted under article 23(2) of the Constitution. The Committee had also requested the Government to ensure that fire service personnel and prison staff enjoy the right to organize. The Committee notes that in its report, the Government indicates that the term “law enforcement bodies” includes employees of home affairs bodies, the criminal justice system, financial police, state fire service, customs and the Public Prosecution Office. The Government clarifies, however, that civilians working in the law enforcement bodies enjoy all the rights contained in the Convention. While noting this information, the Committee once again recalls that firefighters and prison staff should enjoy the rights afforded by the Convention. The Committee therefore once again requests the Government 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 or envisaged in this respect.

Article 2 of the Convention. Protection against acts of interference. The Committee had previously requested the Government to clarify whether sections 150 and 151 of the Criminal Code, providing that cases of interference in the activities of social organizations and interference in the legitimate activities of workers’ representatives which are punishable by a penalty equivalent to up to five times monthly wage or imprisonment, applied both the public and private sectors. The Committee notes the Government’s indication that sections 150 and 151 of the Code, apply to both sectors. The Committee requests the Government to provide information on the application of abovementioned legislative provisions in practice, including copies of the relevant court decisions.

Article 4. Right to collective bargaining. In its previous comments, the Committee noted that section 282(2) of the Labour Code, regulating collective bargaining procedure at the enterprise level, stipulates 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 requested the Government to amend its legislation 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 the Government’s indication that collective agreements are negotiated by a negotiating commission. The Government explains that worker members of such commissions are designated by a decision of a trade union committee or a meeting (conference) of workers when they are represented by other workers’ representatives. The Committee therefore 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 the Government confirms that this legislative provision is in force. 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 once again requests the Government to provide information on the application of section 91 of the Code in practice.

Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

The Committee notes that the Government’s report has not been received. It must therefore repeat its previous observation which read as follows:

The Committee recalls that in its previous comments it had requested the Government to institute an independent investigation into the comments concerning interference by the employer in trade unions’ internal affairs and activities and refusals to bargain collectively submitted by the International Confederation of Free Trade Unions (ICFTU) (now the International Trade Union Confederation (ITUC)). The Committee regrets that no information has been provided by the Government in this respect. The Committee reiterates its request and trusts that the Government will be more cooperative in the future.

Articles 1, 2 and 4 of the Convention. The Committee had previously requested the Government to specify the categories of worker covered by the term “law enforcement bodies” whose right to organize is restricted under article 23(2) of the Constitution and section 11(4) of the Law on Social Associations. The Committee had noted from the Government’s report, as well as from the definition provided for in section 256(2) of the Labour Code (2007), that firefighting and prison services are included in the definition of the “law enforcement bodies” and therefore excluded from the right to organize and to bargain collectively. The Committee considers 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 worker enjoy the rights afforded by the Convention.

Article 2. The Committee had previously noted that sections 4(4) and 18(2) of the Law on Trade Unions prohibited acts of interference in the affairs of workers’ organizations and requested the Government to provide details on the procedures available to trade unions in cases of infringement, as well as the specific sanctions provided by the legislation. The Committee had noted sections 150 and 150-1 of the Criminal Code concerning interference in the activities of social organizations and interference in the legitimate activities of workers’ representatives, respectively, and providing for a penalty equivalent to up to five times the monthly wage or imprisonment to be imposed on an “official” found guilty of committing the offence using his or her position. The Committee requests the Government to clarify whether this provision applies in both the public and the private sectors.

Article 4. The Committee had noted that according to section 282(2) of the Labour Code, workers who are not members of any trade union may either authorize an existing trade union or choose another representative for the purposes of collective bargaining. If several workers’ representatives exist at the enterprise, they can establish a joint representative body to negotiate a collective agreement. The Committee considers that when a representative trade union exists and functions at the enterprise, allowing other workers’ representatives to bargain collectively 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 therefore requests the Government to amend its legislation so as to ensure that where there exist in the same undertaking both a trade union representative and an elected representative, the existence of the latter is not used to undermine the position of the union in the collective bargaining process. It requests the Government to indicate the measures taken or envisaged in this respect.

The Committee had noted that the obligation imposed on the employer to conclude a collective agreement was repealed (once the Law on Collective Agreements was repealed) and that section 281 of the Labour Code enshrines the principle of free and voluntary negotiations. The Committee notes, however, that under section 91 of the Code on Administrative Breaches (2001), an unfounded refusal to conclude a collective agreement is punished by a fine. The Committee recalls that the 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 negotiations. The Committee therefore requests the Government to provide information on the application of section 91 of the Code in practice.

The Committee hopes that the Government will make every effort to take the necessary action in the near future.

Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

The Committee recalls that in its previous comments it had requested the Government to institute an independent investigation into the comments concerning interference by the employer in trade unions’ internal affairs and activities and refusals to bargain collectively submitted by the International Confederation of Free Trade Unions (ICFTU). The Committee regrets that no information has been provided by the Government in this respect. The Committee reiterates its request and trusts that the Government will be more cooperative in the future.

Articles 1, 2 and 4 of the Convention. The Committee had previously requested the Government to specify the categories of worker covered by the term “law enforcement bodies” whose right to organize is restricted under article 23(2) of the Constitution and section 11(4) of the Law on Social Associations. The Committee notes from the Government’s report, as well as from the definition provided for in section 256(2) of the Labour Code (2007), that fire-fighting and prison services are included in the definition of the “law enforcement bodies” and therefore excluded from the right to organize and to bargain collectively. The Committee considers 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 worker enjoy the rights afforded by the Convention.

Article 1. The Committee notes sections 14, 170 and 177 of the Labour Code, as well as section 141 of the Criminal Code (1997) which provide for an adequate protection against anti-union discrimination.

Article 2. The Committee had previously noted that sections 4(4) and 18(2) of the Law on Trade Unions prohibited acts of interference in the affairs of workers’ organizations and requested the Government to provide details on the procedures available to trade unions in cases of infringement, as well as the specific sanctions provided by the legislation. The Committee notes sections 150 and 150-1 of the Criminal Code concerning interference in the activities of social organizations and interference in the legitimate activities of workers’ representatives, respectively, and providing for a penalty equivalent to up to five times the monthly wage or imprisonment to be imposed on an “official” found guilty of committing the offence using his or her position. The Committee requests the Government to clarify whether this provision applies in both the public and the private sectors.

Article 4. The Committee notes that according to section 282(2) of the Labour Code, workers who are not members of any trade union may either authorize an existing trade union or choose another representative for the purposes of collective bargaining. If several workers’ representatives exist at the enterprise, they can establish a joint representative body to negotiate a collective agreement. The Committee considers that when a representative trade union exists and functions at the enterprise, allowing other workers’ representatives to bargain collectively 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 therefore requests the Government to amend its legislation so as to ensure that where there exist in the same undertaking both a trade union representative and an elected representative, the existence of the latter is not used to undermine the position of the union in the collective bargaining process. It requests the Government to indicate the measures taken or envisaged in this respect.

The Committee notes that the obligation imposed on the employer to conclude a collective agreement was repealed (once the Law on Collective Agreements was repealed) and that section 281 of the Labour Code enshrines the principle of free and voluntary negotiations. The Committee notes, however, that under section 91 of the Code on Administrative Breaches (2001), an unfounded refusal to conclude a collective agreement is punished by a fine. The Committee recalls that the 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 negotiations. The Committee therefore requests the Government to provide information on the application of section 91 of the Code in practice.

Article 6. The Committee notes that civil and public servants enjoy collective bargaining rights under section 8 of the Law on Civil Service and section 236 of the Labour Code, respectively. It notes, in this respect, the list of collective agreements concluded in the civil service between various trade unions and the relevant ministries.

Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee notes the Government’s report.

New Labour Code. The Committee notes the adoption, in May 2007, of the Labour Code which seems to regulate the issues previously raised by the Committee. The Committee will examine the conformity of the new Code with the Convention next year, once its translation becomes available.

Comments of the International Trade Union Confederation (ITUC). The Committee regrets that the Government provides no reply to the previous comments of the ITUC, alleging violations of trade union rights in practice, in particular interference by employers in trade unions’ internal affairs and activities, and refusals to bargain collectively. The Committee requests the Government to institute an independent investigation into these allegations and to keep it informed in this respect.

Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes with regret that the information contained in the Government’s report is limited to the information provided in its report of 2003. The Committee regrets that, for three consecutive years, the Government has failed to reply to the specific comments and questions concerning the application of the Convention made by the Committee in its previous comments. It trusts that the Government will be more cooperative in the future.

The Committee further notes the observations submitted by the International Confederation of Free Trade Unions (ICFTU), which address several legislative issues previously raised by the Committee and violations of trade union rights in practice, in particular, interference by the employer in trade unions’ internal affairs and activities and refusals to bargain collectively. The Committee requests the Government to communicate its observations on these comments in its next report.

The Committee notes the Law of 23 December 2004 amending the Labour Law of 10 December 1999.

Articles 1, 2 and 4 of the Convention. The Committee notes that employees of national security and law enforcement bodies are prohibited from forming and joining trade unions (article 23(2) of the Constitution and section 11(4) of the Law on social associations). The Committee further notes that section 3(1) of the Law on trade unions stipulates that “the particulars of the applications of this law in railway forces will be defined by legislation”. While recalling that civilian staff working in the service of the army or police as well as prison staff should enjoy the rights provided for in the Convention, the Committee requests the Government to specify the categories of workers covered by the term “law enforcement bodies” and to indicate whether railway workers enjoy the rights afforded by Convention No. 98.

Article 1. In its previous comments, the Committee had noted that the Labour Law provides for reinstatement of workers in the event of dismissal without lawful grounds, or in the event of unlawful transfer to another job and that persons who consider that they have been discriminated against in the sphere of labour may petition to the court, and that section 109 of the Labour Law as amended provides that persons found guilty of violation of labour legislation bear responsibility under the legislation of the Republic of Kazakhstan. The Committee requests the Government to specify sanctions which could be imposed in cases of acts of anti-union discrimination and to indicate relevant legislative provisions.

Article 2. While noting that sections 4(4) and 18(2) of the Law on trade unions prohibit acts of interference in the affairs of workers’ organizations, the Committee requests the Government to provide details on the procedures available to trade unions and employers’ organizations in cases of infringement, as well as the specific sanctions provided by the legislation.

Article 4. The Committee notes that it follows from the definition of the terms “collective agreement” and “representative of workers” provided for in section 1 of the Labour Law as amended, and section 32(1) of the same law, that the parties to collective bargaining are, on the one hand, one or several employers and, on the other, one or several trade unions or other persons or organizations authorized by workers. The Committee notes that section 32(2) of the Labour Law, not amended under the new Amendment Law, provides that the employer shall bargain with all representatives of the parties concluding a collective agreement and that section 32(3), as amended, provides that workers who are not members of a trade union have a right to authorize either a trade union body or other representatives to represent their interests in relations with an employer. Furthermore, section 3 of the Law on collective agreements provides that, in collective bargaining, workers are represented by general assembly (conference), trade union or other “authorized bodies” and sections 4(1) and 6(1) stipulate that the draft agreement is prepared by the labour collective with a large participation of its members, trade union organizations and other public workers’ associations existing at the enterprise. The Committee notes that the ICFTU raises the issue of the presence of other workers’ representatives or “authorized bodies” besides trade union organizations in the collective bargaining process. The Committee requests the Government to clarify the procedure of elaboration and conclusion of a collective agreement by specifying, in particular, whether in the presence of a trade union and other workers’ associations representing non-unionized workers, the collective agreement is negotiated with both organizations. Moreover, the Committee also requests the Government to indicate whether direct negotiation between the enterprise and its employees (in particular, through other representative bodies referred to by the legislation as “authorized bodies), bypassing representative organizations where these exist, are allowed by the legislation.

The Committee further notes that under section 8(2) of the Labour Law, the employer is obliged to conclude a collective agreement. Section 4(2) of the Law on collective agreements prohibits the parties from refusing to sign the collective agreement. Section 10 of this Law further provides that refusal to conclude a collective agreement is punishable by a fine of up to 1,000 rubles. The Committee recalls in this respect that Article 4 of the Convention embodies the principle of free and voluntary negotiation and that the 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 this principle. The Committee therefore requests the Government to take the necessary measures to amend its legislation so as to guarantee the voluntary nature of collective bargaining.

As concerns the settlement of labour disputes in the framework of the establishment of collective agreements, the Committee requests the Government to indicate whether the legislation allows compulsory arbitration at the request of one party or on the initiative of the authorities. The Committee further requests the Government to provide a copy of the Law on labour disputes and strikes.

Article 6. The Committee requests the Government to indicate whether public servants are granted collective bargaining rights and to specify the relevant legislative provisions.

Direct Request (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee notes with regret that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

Articles 1, 2 and 4 of the Convention. The Committee notes that employees of national security and law-enforcement bodies are prohibited from forming and joining trade unions (article 23(2) of the Constitution and section 11(4) of the Law on Social Associations). The Committee further notes that section 3(1) of the Law on Trade Unions stipulates that "the particulars of the applications of this law in railway forces will be defined by legislation". While recalling that civilian staff working in the service of the army or police as well as prison staff should enjoy the rights provided for in the Convention, the Committee requests the Government to specify the categories of workers covered by the term "law-enforcement bodies" and to indicate whether railway workers enjoy the rights afforded by Convention No. 98.

Article 1. While noting with interest that the Labour Code provides for reinstatement of workers in the event of dismissal without lawful grounds, or in the event of unlawful transfer to another job and that persons who consider that they have been discriminated in the sphere of labour may petition to the court, the Committee requests the Government to indicate whether the legislation provides for sanctions to be imposed in cases of acts of anti-union discrimination.

Article 2. While noting that sections 4(4) and 18(2) of the Law on Trade Unions prohibit acts of interference in the affairs of worker’s organizations, the Committee requests the Government to provide details on the procedures available to trade unions and employers’ organizations in cases of infringement, as well as the specific sanctions provided by the legislation.

Article 4. The Committee notes that according to the definition of "collective bargaining" provided for in section 1 of the Labour Code and section 32(1) of the Code, the parties to collective bargaining are, on the one hand, one or several employers and, on the other, one or several trade unions or workers who are not members of any trade union but who formed their association for bargaining purposes. The Committee notes that section 32(2) provides that the employer shall bargain with all representatives of the parties concluding the collective agreement. Furthermore, section 3 of the Law on Collective Agreements provides that, in collective bargaining, workers are represented by general assembly (conference), trade union or other authorized bodies and sections 4(1) and 6(1) stipulate that the draft agreement is prepared by the labour collective with a large participation of its members, trade union organizations and other public workers’ associations existing at the enterprise. The Committee requests the Government to clarify the procedure of elaboration and conclusion of a collective agreement by specifying, in particular, whether in the presence of a trade union and other workers’ association representing non-unionized workers, the collective agreement is negotiated with both organizations. Moreover, the Committee also requests the Government to indicate whether direct negotiation between the undertaking and its employees, by-passing representative organizations where these exist, are allowed by the legislation.

The Committee further notes that under section 8(2) of the Labour Code, the employer is obliged to conclude a collective agreement. Section 4(2) of the Law on Collective Agreements prohibits the parties from refusing to sign the collective agreement. Section 10 of this Law further provides that refusal to conclude a collective agreement is punishable by a fine of up to 1,000 rubles. The Committee recalls in this respect that Article 4 of the Convention embodies the principle of free and voluntary negotiation and that the legislation, which imposes an obligation to achieve a result, particularly when sanctions are used in order to ensure that agreement is concluded, is contrary to this principle. The Committee therefore requests the Government to take the necessary measures to amend its legislation so as to guarantee the voluntary nature of collective bargaining.

As concerns the settlement of labour disputes in the framework of the establishment of collective agreements, the Committee requests the Government to indicate whether the legislation allows compulsory arbitration at the request of one party or on the initiative of the authorities. The Committee further requests the Government to provide the copy of the Law on Labour Disputes and Strikes.

Article 6. The Committee requests the Government to indicate whether public servants are granted collective bargaining rights and to specify the relevant legislative provisions.

Direct Request (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

The Committee notes the information provided in the Government’s first report.

Articles 1, 2 and 4 of the Convention. The Committee notes that employees of national security and law-enforcement bodies are prohibited from forming and joining trade unions (article 23(2) of the Constitution and section 11(4) of the Law on Social Associations). The Committee further notes that section 3(1) of the Law on Trade Unions stipulates that "the particulars of the applications of this law in railway forces will be defined by legislation". While recalling that civilian staff working in the service of the army or police as well as prison staff should enjoy the rights provided for in the Convention, the Committee requests the Government to specify the categories of workers covered by the term "law-enforcement bodies" and to indicate whether railway workers enjoy the rights afforded by Convention No. 98.

Article 1. While noting with interest that the Labour Code provides for reinstatement of workers in the event of dismissal without lawful grounds, or in the event of unlawful transfer to another job and that persons who consider that they have been discriminated in the sphere of labour may petition to the court, the Committee requests the Government to indicate whether the legislation provides for sanctions to be imposed in cases of acts of anti-union discrimination.

Article 2. While noting that sections 4(4) and 18(2) of the Law on Trade Unions prohibit acts of interference in the affairs of worker’s organizations, the Committee requests the Government to provide details on the procedures available to trade unions and employers’ organizations in cases of infringement, as well as the specific sanctions provided by the legislation.

Article 4. The Committee notes that according to the definition of "collective bargaining" provided for in section 1 of the Labour Code and section 32(1) of the Code, the parties to collective bargaining are, on the one hand, one or several employers and, on the other, one or several trade unions or workers who are not members of any trade union but who formed their association for bargaining purposes. The Committee notes that section 32(2) provides that the employer shall bargain with all representatives of the parties concluding the collective agreement. Furthermore, section 3 of the Law on Collective Agreements provides that, in collective bargaining, workers are represented by general assembly (conference), trade union or other authorized bodies and sections 4(1) and 6(1) stipulate that the draft agreement is prepared by the labour collective with a large participation of its members, trade union organizations and other public workers’ associations existing at the enterprise. The Committee requests the Government to clarify the procedure of elaboration and conclusion of a collective agreement by specifying, in particular, whether in the presence of a trade union and other workers’ association representing non-unionized workers, the collective agreement is negotiated with both organizations. Moreover, the Committee also requests the Government to indicate whether direct negotiation between the undertaking and its employees, by-passing representative organizations where these exist, are allowed by the legislation.

The Committee further notes that under section 8(2) of the Labour Code, the employer is obliged to conclude a collective agreement. Section 4(2) of the Law on Collective Agreements prohibits the parties from refusing to sign the collective agreement. Section 10 of this Law further provides that refusal to conclude a collective agreement is punishable by a fine of up to 1,000 rubles. The Committee recalls in this respect that Article 4 of the Convention embodies the principle of free and voluntary negotiation and that the legislation, which imposes an obligation to achieve a result, particularly when sanctions are used in order to ensure that agreement is concluded, is contrary to this principle. The Committee therefore requests the Government to take the necessary measures to amend its legislation so as to guarantee the voluntary nature of collective bargaining.

As concerns the settlement of labour disputes in the framework of the establishment of collective agreements, the Committee requests the Government to indicate whether the legislation allows compulsory arbitration at the request of one party or on the initiative of the authorities. The Committee further requests the Government to provide the copy of the Law on Labour Disputes and Strikes.

Article 6. The Committee requests the Government to indicate whether public servants are granted collective bargaining rights and to specify the relevant legislative provisions.

Direct Request (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee notes the information provided in the Government’s first report.

Articles 1, 2 and 4 of the Convention. The Committee notes that employees of national security and law-enforcement bodies are prohibited from forming and joining trade unions (article 23(2) of the Constitution and section 11(4) of the Law on Social Associations). The Committee further notes that section 3(1) of the Law on Trade Unions stipulates that "the particulars of the applications of this law in railway forces will be defined by legislation". While recalling that civilian staff working in the service of the army or police as well as prison staff should enjoy the rights provided for in the Convention, the Committee requests the Government to specify the categories of workers covered by the term "law-enforcement bodies" and to indicate whether railway workers enjoy the rights afforded by Convention No. 98.

Article 1. While noting with interest that the Labour Code provides for reinstatement of workers in the event of dismissal without lawful grounds, or in the event of unlawful transfer to another job and that persons who consider that they have been discriminated in the sphere of labour may petition to the court, the Committee requests the Government to indicate whether the legislation provides for sanctions to be imposed in cases of acts of anti-union discrimination.

Article 2. While noting that sections 4(4) and 18(2) of the Law on Trade Unions prohibit acts of interference in the affairs of worker’s organizations, the Committee requests the Government to provide details on the procedures available to trade unions and employers’ organizations in cases of infringement, as well as the specific sanctions provided by the legislation.

Article 4. The Committee notes that according to the definition of "collective bargaining" provided for in section 1 of the Labour Code and section 32(1) of the Code, the parties to collective bargaining are, on the one hand, one or several employers and, on the other, one or several trade unions or workers who are not members of any trade union but who formed their association for bargaining purposes. The Committee notes that section 32(2) provides that the employer shall bargain with all representatives of the parties concluding the collective agreement. Furthermore, section 3 of the Law on Collective Agreements provides that, in collective bargaining, workers are represented by general assembly (conference), trade union or other authorized bodies and sections 4(1) and 6(1) stipulate that the draft agreement is prepared by the labour collective with a large participation of its members, trade union organizations and other public workers’ associations existing at the enterprise. The Committee requests the Government to clarify the procedure of elaboration and conclusion of a collective agreement by specifying, in particular, whether in the presence of a trade union and other workers’ association representing non-unionized workers, the collective agreement is negotiated with both organizations. Moreover, the Committee also requests the Government to indicate whether direct negotiation between the undertaking and its employees, by-passing representative organizations where these exist, are allowed by the legislation.

The Committee further notes that under section 8(2) of the Labour Code, the employer is obliged to conclude a collective agreement. Section 4(2) of the Law on Collective Agreements prohibits the parties from refusing to sign the collective agreement. Section 10 of this Law further provides that refusal to conclude a collective agreement is punishable by a fine of up to 1,000 rubles. The Committee recalls in this respect that Article 4 of the Convention embodies the principle of free and voluntary negotiation and that the legislation, which imposes an obligation to achieve a result, particularly when sanctions are used in order to ensure that agreement is concluded, is contrary to this principle. The Committee therefore requests the Government to take the necessary measures to amend its legislation so as to guarantee the voluntary nature of collective bargaining.

As concerns the settlement of labour disputes in the framework of the establishment of collective agreements, the Committee requests the Government to indicate whether the legislation allows compulsory arbitration at the request of one party or on the initiative of the authorities. The Committee further requests the Government to provide the copy of the Law on Labour Disputes and Strikes.

Article 6. The Committee requests the Government to indicate whether public servants are granted collective bargaining rights and to specify the relevant legislative provisions.