Cas individuel (CAS) - Discussion : 2015, Publication : 104ème session CIT (2015)

Convention (n° 87) sur la liberté syndicale et la protection du droit syndical, 1948 - Kazakhstan (Ratification: 2000)



The Worker members deplored the fact that the Government had not felt the need to appear before the Committee on the Application of Standards, even though Convention No. 87 was not only one of the eight fundamental ILO Conventions but also the cornerstone of collective bargaining, social dialogue and the ILO itself. In its 2012 observation, the Committee of Experts had already formulated a series of comments to the Government regarding the application of the Convention. The Government had then sent copies of two draft laws on trade unions and employers’ organizations to the Office for technical guidance. Despite several minor changes, the new Law on Trade Unions had entered into force in July 2014 without taking into account the key changes proposed by the Office, thus prompting several comments from the Committee of Experts. They maintained, in this connection, that the application of the Convention could be summarized as comprising seven principal issues. First, trade unions were not authorized until they had been registered and, in order to remain registered, local and regional trade unions had to affiliate to a national confederation within six months. That registration procedure could seriously restrict freedom of association, as demonstrated by the refusal of the Ministry of Justice to register the Confederation of Free Trade Unions of Kazakhstan (CFTUK) on 25 May 2015. Second, the new law established strict rules concerning the establishment of sectoral and territorial trade unions. Sectoral trade unions had to include at least half of the workers in the sector or half of the trade unions in the sector. Such thresholds were, according to the Committee of Experts, contrary to Article 5 of the Convention. Moreover, all enterprise unions were required to be affiliated to a sectoral trade union and all sectoral trade unions had to belong to a national trade union. It was furthermore mandatory for territorial trade unions to join territorial organizations created by national trade unions. That complex and compulsory structure made it impossible to establish independent trade unions, thereby undermining the very essence of freedom of association, which presupposed the freedom to choose the structure of organizations. Third, judges did not always have the right to form trade unions and, according to the Committee of Experts, the present union, the Union of Judges of the Republic of Kazakhstan, did not constitute a workers’ organization within the meaning of the Convention. Fourth, neither firefighters nor prison staff could establish trade unions, whereas the only exclusions from the right to organize authorized by the Convention were members of the police and the armed forces. Fifth, the right to strike of numerous categories of workers was severely restricted. This was the case with workers in “dangerous industrial activities” (concept that was not defined by the legislation), and with workers in round-the-clock industries and industries providing various public services. In those various cases, the legislation provided that strikes should not jeopardize the maintenance of services or the meeting of users’ essential needs, which was why it was necessary to remind the Government that a minimum service should remain a minimum service and that workers’ organizations should be able to participate in defining it. With regard to the prohibition of the right to strike in the public service, even though the Government had made it clear to the Committee of Experts that it did not cover certain categories, such as teachers, doctors or bank employees, it should be recalled that the ban on the right to strike should be limited to civil servants exercising authority in the name of the State. On account of their scope, the abovementioned prohibitions and restrictions on the right to strike constituted a significant infringement on trade unions’ right to collective action. Sixth, the legislation still forbade trade unions from receiving assistance from international organizations, which was a clear violation of the Convention. Seventh, since the start of the year, trade union activities were even more threatened by the entry into force of a new Code on Administrative Violations and a new Penal Code whose provisions were sufficiently vague to allow them to be applied selectively. The new Administrative Code reinforced the responsibility of the leaders and members of public associations in the event of actions not provided for by their constitutions, without specifying which actions would thus be covered by the law. The new Penal Code reaffirmed that foreign funding of trade union organizations and calls for illegal strikes constituted criminal acts. The new Penal Code also introduced the concept of leader of a public association and provided that the latter could be held criminally liable in the event of violation of various existing laws. The arbitrariness made possible by the abovementioned new provisions inevitably evoked the Zanaozen tragedy of 2011 and the resultant plight of the strikers who had been sentenced to several years in prison or in a penal colony.

The Employer members joined the Worker members in deploring the Government’s failure to appear before the Committee. Such failures prevented the Committee from exercising a key part of its mandate, which was the evaluation of the information and views supplied by governments. They regretted that the Government was unable to indicate whether it had amended the minimum membership requirement laid down in section 10(1) of the Law on Public Associations, in line with the request of the Committee of Experts. As concerned the Law on the National Chamber of Entrepreneurs, she recalled the various concerns the Committee of Experts had raised with respect to a number of its provisions, including: section 5, which empowered the Government to approve the maximum membership fees to be paid by members of the Chamber; section 9, which apparently granted the Chamber the exclusive right to represent the employers of Kazakhstan in international bodies; and section 19, which empowered the Government to participate in the Chamber and veto its decisions. These provisions, which collectively infringed upon the freedom of association rights of employers’ organizations and threatened their independence from the Government, were deeply problematic. They called on the Government to take all measures requested by the Committee of Experts regarding the Law’s amendment, so as to guarantee the full autonomy and free functioning of employers’ organizations, and to consider accepting the technical assistance of the Office in this regard. With regard to section 106 of the Civil Code and article 5 of the Constitution, which prohibited the receipt of financial assistance to national trade unions from international organizations, they emphasized that these provisions violated the rights enshrined in the Convention and urged the Government to remove this prohibition, as per the Committee of Experts’ request. With respect to the strike provisions laid down in section 303 of the Labour Code, they recalled that their views on this particular issue diverged from those of the Worker members and referred to their explanation of their views during the discussion on the General Report. They reiterated that, in their opinion, the right to strike was not regulated by Convention No. 87 and that the parameters of the right to strike were to be regulated at the national level. They concluded by again expressing their disappointment at the Government’s failure to appear before the Committee.

The Worker member of Norway, speaking on behalf of the trade unions in the Nordic countries and Estonia, expressed deep concern over recent developments in the country that limited freedom of trade union activities and allowed the Government to interfere with trade union activities. The recently adopted law seriously limited the ability to freely define trade unions’ structure, put forward demands and realize the right to strike. The provisions hampered the procedures for the registration, reorganization and liquidation of trade unions. Pursuant to the new law, sector trade unions should be established by at least half of the total number of employees or organizations in the industry, or should have structural subdivisions in more than half of the regions, cities of national significance and in the capital. Similarly, it was almost impossible to form trade union confederations because of the high legal thresholds. These requirements hindered the free establishment of trade unions and could lead to trade union monopoly. The obligation to re-register created risks for existing trade union, of not fulfilling the new requirements, as observed by the International Trade Union Confederation (ITUC) and the CFTUK. Indeed, the Government refused the registration of CFTUK on 25 May 2015 based on a number of reasons concerning the charter of the organization. The requirements were in clear violation of the Convention which provided workers with the right to formulate charters and decide freely on the structures of the unions. She urged the Government to remedy this situation and allow for the registration of CFTUK, which otherwise would be illegal starting from 1 July 2015. She finally called on the Government to enforce the recommendations of the Conference Committee and ensure compliance with the Convention as well as to ensure in law and in practice the right of workers to freely join and establish trade union organizations and to organize their activities free from any interference by public authorities as well as to allow for the trade unions to represent and protect the rights of their members.

The Worker member of the United States recalled that the Government had started introducing changes to its labour legislation in 2011, following a seven-month strike that year by workers in the oil sector that had ended in the deaths of 17 of them, and injuries to dozens more. The Law on Trade Unions was passed in 2014, and although the Government had requested and received the Office’s technical comments on the draft of the said legislation in 2013, several recommendations set out in those comments were not reflected in the adopted version. Several of the latter’s provisions consequently contravened the Convention, particularly those minutely regulating the structure of the trade union movement. She expressed concern that the registration application of the CFTUK was denied on 25 May 2015. This denial of registration to an established and well-recognized union, one that had previously been recognized as a participant in the tripartite structure, suggested that the Government’s position vis-à-vis trade unions had become more restrictive with the legislative reforms. Moreover, amendments to both the Civil and Penal Codes introduced further restrictions on the exercise of the right to strike. The definition of illegal strikes had been amended under the former law, whereas the latter imposed penalties of up to three years in prison for issuing calls to continue a strike that had been declared illegal. She noted with concern that developments following the strike of 2011 reflected a deterioration in the trade union rights situation, and urged the Government to undertake the legislative reforms necessary to ensure full compliance with the Convention.

The Employer member of Germany regretted that, pursuant to the Law on the National Chamber of Entrepreneurs, the membership to the Chamber was mandatory, maximum membership fees were established, and the Government participated in the work of the Chamber with compulsory competencies. She noted that the Confederation of Employers of the Republic of Kazakhstan, recognized by European and International organizations, embraced a system of democratic governance based on voluntary membership. She emphasized that the mandatory structure hampered the role of the Chamber and was incompatible with the definition of social partners and with the principle of freedom of association.

The Worker member of Poland said that the case of Kazakhstan was a source of concern, as the issues raised by the Committee of Experts were of great importance for the workers. She recalled the different points highlighted by the Worker members. That situation was all the more worrying given that the Committee of Experts had repeatedly requested the Government to amend the national legislation, with a view to bringing it into line with the Convention. Worse still, the Government had completely ignored the technical comments of the ILO regarding the draft Law on Trade Unions. She reminded the Government that: all workers, without distinction, including judges, firefighters and prison staff, had the right to establish organizations of their choice without previous authorization; the free exercise of the right to establish trade unions presupposed the free determination of their structure, composition and affiliation to a higher level organization; the legislative provisions governing the internal functioning of workers’ organizations implied serious interference by the public authorities; the right to strike was an essential means by which workers could promote and defend their economic and social interests, and it was therefore crucial that national legislation did not deprive workers of that right or restrict the exercise thereof; and that the right to receive financial assistance from international organizations was legitimate, particularly for unions that required advice and support from other firmly established organizations. She therefore urged the Government to make the necessary amendments to the national legislation to bring it into conformity with the provisions and principles established under Articles 2, 3 and 5 of the Convention, and thereby put an end to the violations of workers’ basic rights.

The Worker member of Germany expressed the support of the Confederation of German Trade Unions (DGB) for its colleagues in Kazakhstan. The problems relating to freedom of association in Kazakhstan affected workers and employers, taking into account especially the serious events surrounding the strikes that had taken place in the oil sector. They expressed disbelief that the delegation had failed to come before the Committee, given that the ILO had helped to set up bases for social dialogue in the country. The Law on Trade Unions of 2014 imposed many restrictions to the establishment of trade unions, particularly regarding registration. Within six months following their registration, trade unions had to mandatorily join a higher level trade union organization and if they did not fulfil this requirement they were struck off the register. The risks of this principle of prior agreement imposed by law had been highlighted by the ITUC and the CFTUK. The DGB considered that these restrictive provisions constituted a violation of Articles 3 and 4 of the Convention. Trade unions should be able to choose their structures, regulations and operating rules without interference from the authorities. Furthermore, a legislative provision prevented trade unions from seeking financial assistance from other international trade union organizations, which was a violation of Article 5 of the Convention. Trade unions were a fundamental part of a democratic society. He therefore invited the Government to bring legislation into line with the Convention and to guarantee the free exercise of freedom of association.

The Worker members pointed out that the various statements made on the case all tended in the same direction. They underlined the fact that, since the Committee’s last meeting, a new trade union act had been adopted. It provided for compulsory registration of trade unions and established a highly restrictive structure under which organizations appeared to be obliged to join higher level unions, which was a violation of the Convention. Moreover, setting very high thresholds for forming higher level trade unions so as to restrict trade union pluralism was also contrary to the Convention. Furthermore, since the beginning of the year, a new Penal Code and a new Code on Administrative Violations had imposed restrictions on trade union activity. In the light of the Committee’s discussions, the Worker members requested the Government to: amend its legislation to recognize the rights of judges, firefighters and prison staff to form trade unions; remove the restrictive conditions and procedures for registering trade union organizations; re-register the CFTUK immediately; put an end to the obligation for local, sectoral and regional trade unions to join a national organization within six months of their registration; amend legislation to lower the thresholds required to form a sectoral trade union; lift the prohibition on receiving financial aid from international employers’ and workers’ organizations; and amend the new Penal Code and the new Code on Administrative Violations to clarify vague notions such as “civil society leader” or “social discord”. Lastly, the Worker members urged the Government to request technical assistance from the Office. Given the Government’s attitude towards the Committee, they considered that it would be appropriate to include the Committee’s conclusions on the case in a special paragraph.

The Employer members concurred with the Worker members that both groups agreed upon a number of points, while holding divergent views on others, particularly as concerned the exercise of the right to strike. They stressed that the Law on the National Chamber of Entrepreneurs substantially infringed upon the freedom and independence of Kazakhstan’s employers’ organizations. Legislative reforms urgently needed to be introduced to bring about an environment where employers’ organizations could freely exercise all rights guaranteed under the Convention. They urged the Government to fully comply with the Committee of Experts’ requests to amend those sections of the Law representing undue Government interference in the functioning of employers’ organizations, as well as to clarify whether the Law indeed provided that only members of the Chamber could represent the interests of employers’ organizations in international bodies. Expressing once again their disappointment with the Government’s failure to appear before the Committee, they concluded by calling for the Committee’s conclusions on the case to be included in a special paragraph of the report.

Conclusions

The Committee deplored the total absence of a Government representative during the discussion of this case, despite its accreditation and presence at the International Labour Conference.

The Committee observed that the pending matters raised by the Committee of Experts concerned both restrictions on workers’ freedom of association (including the right to organize of judges, firefighters and prison staff, the mandatory affiliation of sector, territorial and local trade unions to a national trade union association, the excessively high minimum membership requirement for higher-level organizations and the ban on receiving financial assistance from an international organization) and on employers’ organizations (an excessive minimum membership requirement for employers’ organizations and the adoption in 2013 of the Law on the National Chamber of Entrepreneurs which undermined free and independent employers’ organizations and gave the Government significant authority over internal matters of the Chamber of Entrepreneurs).

The Committee noted the actions of the Government that had infringed both the freedom of association rights of workers’ and of employers’ organizations in violation of the Convention.

Taking into account the discussion and the failure of the Government to attend before the Committee, the Committee required that the Government:

• amend the provisions of the Law on the National Chamber of Entrepreneurs in a manner that would ensure the full autonomy and independence of the free and independent employers’ organizations in Kazakhstan. The Committee requested the Office to offer, and urged the Government to accept, technical assistance in this regard;
• amend the provisions of the Trade Union Law of 2014 consistent with the Convention, including issues concerning excessive limitations on the structure of trade unions found in Articles 10 to 15 which limit the right of workers to form and join trade unions of their own choosing;
• amend the Constitution and appropriate legislation to permit judges, firefighters and prison staff to form and join a trade union; and
• amend the Constitution and appropriate legislation to lift the ban on financial assistance to national trade unions by an international organization.

As a result of the Government’s failure to attend, the Committee decided to include its conclusions in a special paragraph of the report.

A Government representative apologized for the absence of the Government delegation during the discussion and informed that the delegation had only arrived in Geneva on 9 June 2015. He nevertheless wanted to express the Government’s view on the case. Article 23 of the Constitution guaranteed freedom of association and the national legislation governed the activities of trade unions. In accordance with the national legislation, members of the armed forces, the judiciary and the police did not have the right to establish and join organizations. Civil servants, including those within the police, the armed forces and the judiciary, had a specific status under the law, since they had to ensure the proper functioning of the State. However, civilian workers in the armed forces and the police had the right to establish and join organizations. There were several trade unions of civilian workers, including staff working in the armed forces and the police. There was no impediment for the creation of new trade unions. In fact, section 14 of the Law on Public Associations only required a membership of three persons to form a first-level trade union. However, it was true that not many first-level unions had been established yet. In relation to the comments of the Committee of Experts about the requirements for the creation of local and regional trade unions, he indicated that a new law specifically provided that it was essential that trade unions were represented at the regional, local and enterprise levels. While a great number of trade unions existed in the country, there was no trade union unity, with trade unions being rather dispersed. Only branch and sectorial trade unions were able to conclude collective agreements, and over 600 trade unions at the local and regional level were not associated to them. However, at the national level there was no problem in this regard. Kazakhstan was a young country and needed more time to implement the internationally recognized principles. While the existing laws did not provide for impediments to constitute trade unions, new laws could be adopted where necessary, in accordance with international standards and international best practice. The Government was committed to improve the situation and would take into account the discussions in, and the conclusions of, the Committee.