Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 329, Novembre 2002

Cas no 2198 (Kazakhstan) - Date de la plainte: 16-AVR. -02 - Clos

Allegations: The complainant alleges that the employer has withdrawn the long tradition of check-off facilities; denies the president of the trade union access to the trade union members’ workplaces and trade union premises; has formed “yellow” trade unions; obstructs trade union meetings; and violates the right to bargain collectively in the Tengizchevroil company (TCO).

1. 653. In a communication dated 16 April 2002, the Federation of Trade Unions of Kazakhstan filed a complaint of violations of freedom of association against the Government of Kazakhstan.
2. 654. The Government forwarded its observations in a communication dated 18 July 2002.
3. 655. Kazakhstan has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). It has also ratified the Workers’ Representatives Convention, 1971 (No. 135).

A. The complainant’s allegations

1. 656. In its communication dated 16 April 2002, the Federation of Trade Unions of Kazakhstan alleges that the administration of the Tengizchevroil company (TCO) has violated the right of the Trade Union of TCO Workers to organize its administration and activities by, inter alia, suspending transfers of trade union dues, denying the trade union president access to the trade union members’ workplaces, obstruction of trade union meetings and forming of “yellow” trade unions. The complainant also alleges violations of the right to bargain collectively in the TCO.
2. 657. In particular, the complainant states that in July 1998, the TCO administration decided to terminate the deduction and transfer of trade union dues from the wages of members of the Trade Union of TCO Workers. The TCO administration based its decision to terminate this five-year practice on section 22 of the Law on Trade Unions, according to which “trade union committees have the right to collect trade union dues at the place of employment and education without detriment to the activity of the enterprise”. The administration justified its decision by arguing that the bookkeeping programme was overloaded. However, according to the complainant, such a justification is doubtful, as the bookkeeping programme used at the enterprise is one of the most sophisticated programmes available on the market. The administration of the TCO failed to respond to the request made by the trade union to demonstrate the basis on which the transfer of dues could be characterized as detrimental to enterprise activity, as well as to provide information about the conditions on which another public organization created at the TCO – Kazakh Language Society – continued to have member dues transferred to it as usual. The complainant adds that as the TCO works are scattered throughout a vast territory where trade union employees are not permitted, it is simply impossible to collect trade union dues directly from the workers. The withdrawing of check-off facilities is causing serious economic damage to the trade union.
3. 658. The complainant further alleges that the TCO management denies the president of the union access to the trade union members’ workplaces and to trade union premises. In July 1998, the management of the TCO rejected the trade union president’s request for an entry pass, which would permit entering the trade union office located in the enterprise township. As a result of the case being brought before the district court in September 1998, the president was later able to obtain the entry pass.
4. 659. Currently, the TCO management – in violation of section 10 of the Law on Trade Unions which provides for the right of workers’ representatives to visit enterprises and places of work of trade union members – prohibits trade union officers who are not TCO employees, from having access to premises of the enterprise township outside working hours (the access to the township premises is allowed only from 6:00 a.m. to 6:00 p.m.). However, during this time, trade union members are at their places of work and not present at the enterprise township. As a result, the trade union president is unable to visit and to communicate with trade union members at their places of work.
5. 660. The complainant also alleges that in 1998, the administration became the initiator of the establishment of the Independent Trade Union of Tengiz Oil and Gas Complex. Some workers were called for talks with the management at the Human Resources Management (HRM) department and forced to sign declarations about entering into the new union. The registration of the new trade union, the preparation of the seal and the publication about a new TCO trade union in the local mass media were all done by the representative of the TCO public relations department. According to the information provided by the administration, this trade union counts 130 members. However, the complainant submits that, besides the president appointed by the administration, there are no real members belonging to this organization.
6. 661. After the introduction of the new Labour Code adopted on 10 December 1999, which stipulates in section 1 that besides trade unions, persons and organizations duly authorized by the workers may act as workers’ representatives, another “yellow” trade union was created. At a meeting held on 7 July 2002 at the initiative of the administration of the TCO, the Association of Tengizchevroil Workers was constituted. In the letter to the president of the Trade Union of TCO Workers, the leader of the Association openly declared that “the administration of the TCO was also interested in the creation of this organization and played the most direct role in the organization of meetings in all subdivisions of the TCO and in the organizational decision-making”.
7. 662. Furthermore, the complainant submits that the TCO administration repeatedly refused to provide the Trade Union of TCO Workers with the premises for holding conferences and obstructed all efforts to organize trade union meetings. For example, the general manager of HRM refused to provide premises for the conference due to take place on 17 July 1998 on the grounds of the administration’s inability to take part in the conference on that day. On many occasions, the managers did not allow workers to leave for meetings despite a longstanding agreement providing for such privileges.
8. 663. Nevertheless, according to the complainant, meetings of workers organized by the administration, including meetings of the association of TCO workers were being held. However, notwithstanding the fact that according to the collective agreement of 1996, the Trade Union of TCO Workers is the sole representative of the TCO workers. The administration repeatedly prevented trade union activists from attending these meetings.
9. 664. Moreover, the administration prepared a special handbook “Manual of the TCO Manager” which stipulates that the application to carry out meetings with the TCO workers must be made no less than ten days in advance and must state the purpose of the meeting and provide the names of the trade union representatives who intend to attend and take part in it. It further states that “meetings between trade union representatives and members of the labour collective, as well as meetings of the trade union committee are normally carried out outside working hours at the office of the trade union committee. Trade union representatives not employed by the TCO must receive permission to be present on the TCO premises outside working hours. The HRM labour relations coordinator is present at all the meetings of the trade union representatives and workers at TCO. The representatives of the administration of TCO may also attend the meetings”.
10. 665. After the creation of “yellow” trade unions, the TCO administration prefers to deal directly with representatives of trade union organizations instead of allowing trade unions to hold meetings. All requests for permission to hold meetings made by the trade unions have remained unanswered. For example, to date, there has been no response to the 26 September 2001 request by the Trade Union of TCO Workers to hold a meeting.
11. 666. The trade union attempted to solve the issue of facilitating trade union activity by means of negotiations with the administration over a new collective agreement in October 2000. The TCO administration agreed to carry on bargaining with the Trade Union of TCO Workers on the condition that a common body including two representatives from each of the three workers’ organizations would be created. As the clause concerning the guarantees of trade union activity proposed by the Trade Union of TCO Workers did not find support from the two other organizations, the administration had refused to include it in the collective agreement and suggested to regulate this issue by a separate agreement. However, when such an agreement drafted by the trade union was submitted to the TCO administration, the administration refused to sign it, preferring to deal with each matter through individual application but even then without their written registration, which means, according to the complainant, that any agreed facility can be terminated at any time.
12. 667. As regards the transfer of trade union dues, the administration declared that this issue could not be settled through an additional agreement, since this would be in contradiction with the Kazakh legislation. On the other hand, the Kazakh legislation makes provision for the resolution of this issue precisely through collective agreement.

B. The Government’s reply

1. 668. In its communication of 18 July 2002, the Government confirms that the TCO management had suspended deduction and bank transfers of trade union membership dues. It states, however, that the TCO administration proposed that a system of collection involving workshop treasurers be instituted instead. The Government further indicates that according to the general agreement for 2002 concluded between the Government, national trade union associations and employer’s organizations, the parties shall “not obstruct bank transfers of membership dues when such a facility is requested by the union members and where appropriate provisions are made in the relevant collective agreement”. The issue of trade union dues is therefore dealt with by a collective agreement. Moreover, under the current legislation, the Government cannot require employers to transfer trade union dues, since the employers and the TCO workers’ representatives did not reach consensus during the collective bargaining negotiations.
2. 669. The Government further confirms that the union president was denied access to workers at their workplaces and indicates that following judicial inquiry, the president was authorized to visit the work premises. According to the Government, the state inspectors have not received any complaints regarding access to workplaces during their inspections of the TCO.
3. 670. The Government denies the allegations concerning the establishment of “yellow” trade unions, and states that all five workers’ organizations operate on an equal footing and that the employer does not interfere in their internal affaires.
4. 671. As concerns the obstruction of trade union meetings, the Government denies this allegation and states, apparently referring to the conference which was due to take place on 17 July 1998, that the employer had suggested changing the time of meeting due to the shift changes.
5. 672. The Government indicates that the TCO administration systematically meets with all the representatives of the workers’ organizations. When the allegation concerning the refusal by the administration to continue talks on working conditions was examined, the administration and the president of the Trade Union of TCO Workers were unable to agree on the matter of the additional allowances for trade union employees with regard to living expenses, transport payments for the union committee accountant and 1.5 paid hours per day demanded for the trade union leaders as well as for their members.
6. 673. The Government adds that the state inspectors, together with the plant management and the chairperson of the Neftegazprom regional council, examined the complaint. In order to reconcile the divergences that have arisen, regularize the records of the union members, and find out the views of the union members on the series of issues raised in the complaint, it has been recommended that the trade union committee should hold a union conference by 1 November 2002.

C. The Committee’s conclusions

1. 674. The Committee notes that the allegations in this case concern the violation by the administration of Tengizchevroil (TCO) of the right of the Trade Union of TCO Workers to organize its administration and activities by suspending transfers of trade union dues, denying to the trade union president access to the trade union members’ workplaces, obstruction of trade union meetings, the forming of “yellow” trade unions and the violation of the right to bargain collectively in the TCO.
2. 675. First, as concerns the suspension of deduction and transfer of trade union dues, the Committee notes that the complainant alleges that from July 1998 onwards, the TCO administration stopped deducting the trade union dues from the wages of the members of the Trade Union of TCO Workers. The Committee notes that the versions provided by the two parties on this matter are mutually contradictory: while the complainant alleges that check-off withdrawal was carried out as an anti-union measure and that it is practically impossible for the trade union’s president to collect trade union dues in cash, the Government states that the management of the TCO did not act illegally by deciding to stop deducting trade union dues and that the management proposed that a system of collection involving workshop treasurers be instituted instead. The Government states that in the enterprise in question, the TCO administration decided not to deduct trade union dues and that under the current legislation, it cannot require the employer to do so, since the employer’s and workers’ representatives did not reach consensus during their talks.
3. 676. The Committee also notes that under section 22 of the Law on Trade Unions, trade union committees have the right to collect trade union dues at the place of employment and education without detriment to the activity of the enterprise and that in the general agreement for 2002 concluded between the Government, national trade union associations and employers’ organizations, the parties undertook not to obstruct bank transfers of membership dues when requested by the union members concerned and where appropriate provisions are made in collective agreements.
4. 677. The Committee further notes that the Trade Union of TCO Workers attempted to resolve this issue through negotiation over a new collective agreement. However, the TCO administration refused to include in the collective agreement any clause concerning the deduction and transfer of trade union dues and declared that this issue could not be settled in an additional agreement either.
5. 678. The Committee emphasizes that the withdrawal of the check-off facility, which could lead to financial difficulties for trade union organizations, is not conducive to the development of harmonious industrial relations and should therefore be avoided [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 435]. In this regard, the Committee considers that, in the present case, stopping the deduction and transfer of trade union dues could cause serious difficulties for the trade union.
6. 679. Moreover, the clear refusal by the TCO administration to justify the suspension of the check-off facilities and to include a clause concerning the deduction and transfer of trade union dues in the collective agreement and its unwillingness to negotiate a settlement of this issue by an additional agreement leads the Committee to query whether the principle of bargaining in good faith was indeed respected. The Committee recalls the importance which it attaches to the obligation to negotiate in good faith and make every effort to reach an agreement. Moreover, genuine and constructive negotiations are a necessary component to establish and maintain a relationship of confidence between the parties [see Digest, op. cit., paras. 814 and 815]. The Committee therefore requests the Government to adopt the necessary measures to ensure that the company engages in good faith bargaining with the trade union in accordance with the legislation on the deduction of trade union dues and to keep it informed in this regard.
7. 680. Secondly, the Committee notes the complainant’s allegation that trade union officers who are not TCO employees, are not permitted access to workplaces of trade union members and are allowed to enter the premises of the enterprise township only between 6:00 a.m. and 6:00 p.m., the time when trade union members are usually at work. The Government, confirming that in the past the trade union president was denied access to workplaces of its members, states that the problem was resolved following a judicial inquiry. It adds that the state inspectors have not received any complaints regarding access to workplaces during their inspections of the TCO. However, according to the complainant, following the abovementioned court decision, the president of the trade union was able to obtain an entry pass to the trade union office, but the problem of access to trade union members’ workplaces is still not resolved. The Committee also notes that the “Manual of TCO Manager”, to which the complainant refers, stipulates that access to the premises in the TCO enterprise township outside working hours, as well as to the TCO works outside the enterprise township could be obtained upon request to the TCO administration and to the coordinator of the Human Resources Management department (HRM).
8. 681. The Committee notes that, for the right to organize to be meaningful, the relevant workers’ organizations should be able to further and defend the interests of its members, by enjoying such facilities as may be necessary for the proper exercise of their functions as workers’ representatives, including access to the workplace of trade union members. Since, according to the complainant only access to the trade union office and not to workplaces of trade union members was obtained, the Committee requests the Government to ensure that reasonable access to workplaces of trade union members is ensured.
9. 682. Thirdly, concerning the allegation of the creation by the TCO management of “yellow” trade unions, the Committee notes that the Government denies these allegations stating that all five trade unions operate on an equal footing. The Government does not comment on the complainant’s allegation that some workers were called for talks with the management at the HRM and forced to sign declarations about entering into the new union, neither on the declaration of the leader of the allegedly “yellow” trade union, the Association of Tengizchevroil Workers, according to whom the administration of the TCO played the most direct role in the organization of meetings and decision-making. The Committee further notes that during negotiations over a new collective agreement, the clause concerning the guarantees of trade union activity proposed by the Trade Union of TCO Workers did not find support from the two allegedly “yellow” trade unions and consequently, the administration had refused to include it in the collective agreement.
10. 683. The Committee considers that situations where the management of the enterprise, by establishing alternative workers’ organizations, interferes in the activities of a freely constituted trade union create an environment in which it becomes more difficult to bargain collectively. In this respect, the Committee recalls that Article 2 of Convention No. 98 establishes the total independence of workers’ organizations from employers in exercising their activities [see Digest, op. cit., para. 759]. Recalling the importance of the independence of the parties in collective bargaining, negotiations should not be conducted on behalf of employees by bargaining representatives appointed by or under the domination of employers or their organizations [see Digest, op. cit., para. 771]. The Committee therefore requests the Government to initiate inquiries into the allegations made in this respect and to keep it informed of the outcome.
11. 684. Finally, concerning the allegations of obstruction of trade union meetings, the Committee notes that, referring to the workers’ conference which was due to take place on 17 July 1998, the Government states that the TCO management had suggested changing the date of the meeting due to shift changes. However, the Committee notes from the letter of the general manager of HRM, attached to the complaint, that the refusal to provide premises for the conference was indicated as being due to the unavailability of members of the TCO administration to be present at the conference on that day. Moreover, the Committee notes that the “Manual of the TCO Manager” prepared by the TCO administration, which regulates in detail the organization of meetings with TCO workers, provides that the HRM labour relations coordinator shall be present at all meetings of trade union representatives and workers at TCO and that the representatives of the administration of TCO may also attend these meetings. The Committee also notes the complainant’s statement that the TCO administration repeatedly prevented trade union activists from attending collective meetings of TCO workers and that all requests for permission to hold meetings have remained unanswered, as is the case, for example, with the written request of 26 September 2001.
12. 685. The Committee expresses its concern in relation to the administration’s actions to obstruct trade union meetings – refusal to provide premises, refusal of trade union’s requests to be present at the meetings of the labour collective or to hold trade union meetings, and the instructions contained in the Manual. In this context, the Committee considers that the right of workers’ organizations to hold meetings to discuss occupational questions, without prior authorization and interference by the employer, is an essential element of freedom of association and the employer should refrain from any interference which would restrict this right or impede its exercise [see Digest, op. cit., para. 130]. It recalls that respect for the principle of freedom of association requires that the public authorities exercise great restraint in relation to intervention in the internal affairs of trade unions. It is even more important that employers exercise restraint in the same regard [see Digest, op. cit., para. 761]. The Committee urges the Government to take all the necessary measures without delay to ensure that the TCO administration withdraws the above-noted instructions in the Manual and that the Trade Union of TCO Workers be guaranteed the right to carry out its legitimate trade union activities, in particular the right to hold meetings without interference from the management. The Committee requests the Government to keep it informed of any measures taken to that end.
13. 686. The Committee notes the Government’s statement according to which after the examination of the complaint by the state inspectors together with the plant management and the chairperson of the Neftegazprom regional council, it has been recommended that the trade union committee holds a union conference by 1 November 2002 in order to reconcile the divergences that have arisen, regularize the records of the union members, and find out the views of the union members on the series of issues raised in the complaint. The Committee requests the Government and the complainant to keep it informed in this respect.

The Committee's recommendations

1. 687. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) Recalling the importance which it attaches to the obligation for all parties to negotiate in good faith, the Committee requests the Government to adopt the necessary measures to ensure that the Tengizchevroil company bargains in good faith with the Trade Union of TCO Workers in accordance with the legislation on the deduction of trade union dues and to keep it informed in this regard.
   • (b) The Committee requests the Government to ensure that reasonable access to workplaces of trade union members at Tengizchevroil is ensured.
   • (c) Regarding the allegations of the forming of “yellow” trade unions at Tengizchevroil, the Committee requests the Government to initiate the relevant inquiries into these allegations and to keep it informed of the outcome.
   • (d) The Committee urges the Government to take all the necessary measures without delay to ensure that the TCO administration withdraws the instructions contained in the Manual, which provide that the HRM labour relations coordinator shall be present at all meetings of trade union representatives and workers at TCO and that representatives of the administration of TCO may also attend these meetings, and that the Trade Union of TCO Workers be guaranteed the right to carry out its legitimate trade union activities, in particular the right to hold meetings without interference from the management. The Committee requests the Government to keep it informed of any measures taken to that end.
   • (e) The Committee requests the Government and the complainant organization to keep it informed of the outcome of the proposed trade union conference.