Suites données aux recommandations du comité et du Conseil d’administration - Rapport No. 392, Octobre 2020

Cas no 3283 (Kazakhstan) - Date de la plainte: 17-MAI -17 - En suivi

Effect given to the recommendations of the committee and the Governing Body

1. 76. The Committee last examined this case in which the complainant, the International Trade Union Confederation (ITUC), alleged obstacles to registration created by the 2014 Law on Trade Unions, ensuing dissolution of trade unions, as well as intimidation and prosecution of trade union leaders, at its June 2018 meeting [see 386th Report, paras 424–474]. On that occasion, the Committee made the following recommendations:
   • (a) The Committee expects that sections 11(3), 12(3), 13(2) and (3), and 14(4) the Law on Trade Unions would be amended without further delay in consultations with the social partners so as to ensure the right of workers to freely decide whether they wish to associate with or become members of a higher-level trade union structure and to lower thresholds requirements to establish higher-level organizations. It requests the Government to keep it informed of all progress made in this respect.
   • (b) The Committee requests the Government to keep it informed of any developments regarding the case of Ms Kharkova and to indicate, should she decide to compensate 6 million tenge, how and to which entity these funds will be devolved.
   • (c) The Committee draws the legislative aspects of this case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.
2. 77. By its communications dated 12 October 2018 and 14 November 2019, the ITUC submits the following information. Following its de-registration on 28 March 2017, the Confederation of Independent Trade Unions of Kazakhstan (KNPRK) undertook several attempts to register under a new name. All these attempts were unsuccessful as public authorities continued to block the registration. On 4 September 2018, following yet another attempt, the authorities approved the proposed name for the organization – Confederation of Free Trade Unions – but denied registration because one of the founding members was subject to court proceedings concerning an unpaid utility bill. This new objection was based on the provisions of Law No. 2198 of 17 April 1995 on State Registration of Legal Entities and Record Registration of Branches and Representatives, as amended on 30 August 2018. On 18 September 2018, the union once again attempted to register but the application was rejected once more due to the previously uncontested absence of indication of a full postal address of the union in its by-laws and the presence of a clause stating that the new organization is a legal successor of the dissolved KNPRK. According to the ITUC, the Law of 17 April 1995, as currently in force, provides for vague and broad grounds for denial of registration, which enables arbitrariness and creates additional obstacles to the registration of trade unions. According to section 11(6) of the Law, the registration of a legal entity can be denied in case of “existence of court acts and regulations (prohibitions, arrests) by officers of justice and law enforcement bodies”. The ITUC considers that the continued refusal to register trade unions based on any small formal mistakes exposes the fact that public authorities enjoy in practice discretionary powers when it comes to union registration. On 17 September 2018, the union of the Mangistau Region of Kazakhstan, a former affiliate of the KNPRK, was denied registration based on the lack of stipulation of certain (unspecified) trade union responsibilities in its by-laws, lack of terms of reference for the union’s internal audit reports and a spelling mistake in the union’s name.
3. 78. According to the complainant, the helpline that the Government set up to facilitate the trade union registration process lacks the capacity and the mandate to fulfil its role. Prior to its attempts to re-register and after receiving negative decisions from the Ministry of Justice, the KNPRK contacted the helpline several times. The staff of the helpline was not prepared to give any guidance as to the registration procedure or interpretation of the applicable legislation. Instead, the staff of the helpline directed KNRPK back to the Ministry of Justice.
4. 79. The complainant further alleges the lack of protection against acts of interference in the internal trade union matters. In this respect, it alleges that following the removal by the management of the Oil Construction Company of the democratically elected chairperson of the enterprise union, Mr Amin Eleusinov, the authorities blocked several attempts of the leadership of the union to elect a new chairperson. Instead, according to the ITUC, the authorities recognized the election of another, management-designated candidate, despite the evidence of direct interference, through threats and extortion, to force a favourable vote. On 1 March 2018, the union board elected Mr Kuspan Kosshygulow, the acting chairperson of the union. On 2 March 2018, the management retroactively dismissed Mr Kosshygulow for having violated safety and health regulations by taking part in a hunger strike in January 2017. At the same time, the management organized a week-long conference during which the union board members were threatened until they signed forged minutes, endorsing the election of the management-designated chairperson. Subsequently, the new chair collaborated with the management in the application for dissolution of the union. The union board attempted to re-elect Mr Kosshygulow by organizing another board session on 3 March 2018, but the Justice Department of the Mangistau Region refused to recognize the new chairperson. The attempt by the union to challenge the leadership of the management-designated chairperson in court was not successful. On 18 April 2018, the Aktau Court validated the election, despite the evidence given by a number of members of the union board that the employer used threats and extortion in order to force the vote in favour of the management-designated candidate and despite the role played by the chair in the application for dissolution of the union.
5. 80. The ITUC further alleges that trade union leaders continue to face various court proceedings. Ms Larisa Kharkova, the leader of the KNPRK, who was found guilty of misappropriation of union funds, is now facing a tort claim lawsuit. In July 2017, Ms Kharkova was found guilty of inflicting material damages in the amount of KZT2,560,394 (around €6,019.05). In September 2018, Ms Kharkova was sued for recovery of these damages by the Local Union of Ambulance Workers (LPSRMP), one of the organizations that participated in the criminal proceedings against her. Ms Kharkova appealed her criminal convictions to the Supreme Court on 21 September 2018. If found liable for payment of tort damages, Ms Kharkova will need to pay the sum equal to more than one hundred times the minimum monthly wage. The ITUC points out that the minimum monthly wage in Kazakhstan is estimated at KZT22,859 (around €53.74). The absence of due process in the criminal case against Ms Kharkova, which has now made her vulnerable to an exorbitant tort claim lawsuit, is, in the view of the ITUC, a clear attempt to prevent all possibility of her engagement in trade union activities in the future and is a part of the concerted effort against the existence of the KNPRK.
6. 81. The ITUC also alleges that Mr Erlan Baltabay, the leader of the Independent Oil and Energy Workers’ Union, one of the founding unions of KNPRK and of the Independent Union of the Petrochemical Company Petro Kazakhstan Workers “Decent Work”, has been a subject to criminal investigation for allegedly embezzling union funds amounting to KZT10,800,000 (around €26,000). The decision to launch a criminal investigation, similarly to Ms Kharkova’s criminal case, was taken regardless of the lack of proof of any pecuniary damage to the union. Soon after that, the offices of the Independent Union of the Petrochemical Company Petro Kazakhstan Workers “Decent Work” were searched and all internal union documentation was seized. The ITUC expresses its concern at the targeted attacks against Mr Baltabay in an attempt to intimidate workers from engaging with the KNPRK. The ITUC indicates that on 16 October 2019, Mr Baltabay was jailed once again for five months, as a penalty for refusing to pay the fine imposed on him under a Presidential Decree. According to the Decree Mr Baltabay’s prison sentence of seven years was replaced with a fine of around US$4,000. However, the prohibition of exercising his civil rights for the next seven years remained intact preventing him from fulfilling his trade union functions. The ITUC alleges that Mr Baltabay’s case had not been reviewed by the appellate court, therefore his right of access to justice has been effectively denied to him; the criminal charges levied against him were unfounded and the proceedings were flawed in a number of respects, including the fact that Mr Baltabay was found guilty of embezzlement in absence of any proof of intent to use the funds for his personal enrichment.
7. 82. In its communication dated 10 May 2020, the Government informs that on 4 May 2020, the President of the Republic of Kazakhstan signed the Law “On amendments and additions to some legislative acts of the Republic of Kazakhstan on labour issues”. By virtue of this Law, some legislative acts concerning trade union activities were amended. The Government points out that the legislative amendments in question are the result of the work carried out to implement the recommendations of the ILO, as reflected in the “road map” of 14 May 2018, and the decisions of the June 2019 session of the International Labour Conference. The Government refers, in particular, to the following key points deriving from the adoption of the amending legislation: the principle of mandatory vertical association of trade unions has been eliminated and the procedure for the registration of trade unions was streamlined. The Governments points out that these amendments, prepared in consultation with the ILO, were discussed and agreed with the trade unions.
8. 83. The Committee notes with interest the adoption of amendments to the Law on Trade Unions, which take into account its previous conclusions and draws the attention of the Committee of Experts on the Application of Conventions and Recommendations (CEACR) to the legislative aspects of this case.
9. 84. Regarding the issue of registration, the Committee notes the detailed allegations from the ITUC as to the arbitrary and discretionary use of rules and regulations with a view to delaying or denying registration for independent trade unions. It further notes the information provided by the Government to the CEACR for its November–December 2019 session detailing the guidance and advice given to trade unions to assist in this process. The Committee regrets to note however that the Government has not provided any information regarding the various obstacles described by the complainant in relation to the request for registration of the KNPRK. It urges the Government to take the necessary steps to ensure that the KNPRK or its successor organization and its affiliates are registered without delay and are guaranteed full autonomy and independence in their exercise of trade union activity. It requests the Government to provide information on all developments in this respect and to reply fully to the complainants allegations.
10. 85. The Committee further regrets that the Government provides no information on the developments regarding the case of Ms Kharkova. The Committee recalls that Ms Kharkova, the chairperson of the now liquidated KNPRK, was sentenced to four years of restriction on her freedom of movement, 100 days of compulsory labour and a five-year ban on holding any position in a public or non-governmental organization. The Committee had previously taken note of the visit of a tripartite high-level mission to Kazakhstan in May 2018, which met with Ms Kharkova. The Committee also noted the Government’s indication that the decision in her case was final, but that the court had granted Ms Kharkova’s petition to exempt her from the community service (100 hours per year). Ms Kharkova could also apply for conditional release on or after 9 February 2019 and that as from 9 November 2018, she could petition for the replacement of her restriction of freedom sentence by the payment of a fine. To that end, it was necessary that Ms Kharkova fully compensate the amount of damages (6 million tenge). Noting with concern the latest allegations submitted by the ITUC regarding a new case pending against Ms Kharkova for damages of over 2.5 million tenge, the Committee urges the Government to provide detailed information on the situation of Ms Kharkova, including on the status of the alleged new case against her.
11. 86. The Committee notes with concern the allegation of the imprisonment, on 16 October 2019, of Mr Erlan Baltabay, the leader of the Independent Oil and Energy Workers’ Union. The Committee regrets the absence of a Government reply in this regard. The Committee understands that he was released from prison on 20 March 2020, but that while he served his new prison term in full, he is still banned from any public activity, including trade union activities, for the next seven years, as per the previous sentence. The Committee urges the Government to provide its detailed observations in this regard as a matter of urgency.
12. 87. The Committee notes the allegation of interference in the trade union election at an oil company and requests the Government to provide its observations thereon.