Observation (CEACR) - adopted 2024, published 113rd ILC session (2025)

Kazakhstan

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

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

The Committee notes the observations of the International Organisation of Employers (IOE) dated 1 September 2024, on Conventions Nos 81 and 129. The Committee also notes the observations on both Conventions of the International Trade Union Confederation (ITUC), received on 17 September 2024, and the Government’s reply thereto. Finally, the Committee notes the observations of the Trade Union of Workers in the Fuel and Energy Complex (TUWFEC) on both Conventions received on 3 September 2024.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 112th Session, June 2024)

The Committee notes the 2024 conclusions of the Committee on the Application of Standards (Conference Committee) on the application of Conventions Nos 81 and 129 by Kazakhstan, which urged the Government to take effective and time-bound measures to:

• recruit a sufficient number of labour inspectors and provide them with sufficient material, financial and operational resources in order to ensure the proper functioning of the labour inspectorate;
• strengthen the role of labour inspection by transferring them to the subordination of the central executive body as recommended by ILO experts in 2018;
• ensure that labour inspectors can carry out labour inspections as often and as carefully as is necessary to ensure the effective application of legal provisions, in line with the Conventions;
• amend sections 144(3) and (4), 156 (2), 144(13), 144–1, 144–2, 145, 146, 143(3) and 151 of the Entrepreneur Code in order to ensure that labour inspectors are empowered to make visits to workplaces without previous notice, and to carry out any examination, test or enquiry which they may consider necessary;
• indicate whether inspectors are now empowered to undertake inspection visits at any time of the day and night following the repealing of section 197 of the Labour Code and section 147(2) of the Entrepreneur Code, in line with the Conventions;
• amend section 141 of the Entrepreneur Code in order to ensure that labour inspectors are able to undertake labour inspections as is necessary to ensure the effective application in line with the Conventions;
• revise section 50(12) of the Law on Civil Service and sections 151 and 156 of the Entrepreneur Code in order to ensure that investigations carried out by labour inspectors are not limited in scope or invalidated, and that no penalties are imposed on labour inspectors authorized by law;
• amend sections 136, 144-1 and 144-2 of the Entrepreneur Code to ensure that labour inspectors are empowered to take measures with immediate executory force and are able to initiate legal proceedings without previous warning, where required;
• ensure that labour inspectors do not encounter undue obstruction while performing their duties, including by amending section 12 of the Entrepreneur Code; and
• ensure the establishment and publication of an annual report on the work of the inspection services containing all the subjects listed under Article 21 of Convention No. 81 and Article 27 of Convention No. 129 and to transmit it to the ILO.

The Committee notes that in its observations, the IOE expresses its hopes that progress will be made in the application of Conventions Nos 81 and 129 in line with the conclusions of the Conference Committee and in close consultations with the most representative employer organizations in Kazakhstan.

Articles 12 and 16 of Convention No. 81 and Articles 16 and 21 of Convention No. 129. Limitations and restrictions of labour inspections. Powers of labour inspectors. 1. Moratorium on labour inspections. The Committee notes with interest that, as indicated by the Government during the discussion at the Conference Committee, the moratorium on inspections ended on 1 January 2024. While taking note of these developments, the Committee notes with concern that section 144(12) of the Entrepreneur Code retains the provision stipulating the possibility to suspend with a Government decision the state control and supervision over private business entities for a certain period of time. The Committee expects that no moratorium will be placed on labour inspection in the future, and in this respect, it requests the Government to take the necessary measures to amend section 144(12) of the Entrepreneur Code.

2. Other restrictions on inspection powers. The Committee notes with deepconcern that the Entrepreneur Code still contains limitations to inspection powers, including with regard to: (i) the ability of labour inspectors to undertake inspection visits without previous notice (sections 144(3) and (4) and 156 (2)); (ii) the free initiative of labour inspectors (sections 144 (5) and (13), 144–1, 144–2, 145, and 146); and (iii) the ability of labour inspectors to carry out any examination, test or enquiry which they may consider necessary in order to satisfy themselves that the legal provisions are being strictly observed (sections 143(3) and 151). The Committee further notes that the Order No. 162 of 25 December 2020 on the implementation of section 146(2) of the Entrepreneur Code, provides for the prior registration of inspections with the Public Prosecutor’s office, who has the power to refuse such registration. In its observations the ITUC indicates that the main obstacle to the proper functioning of the labour inspectorate is the actual absence of unscheduled visits by the labour inspectorate, as the legislation requires labour inspectors to register scheduled inspections 30 days in advance and unscheduled inspections 24 hours in advance with the prosecutor, who has the right to refuse registration. In addition, during scheduled inspections, the inspector is limited to the number of questions included in the checklists. In its reply the Government indicates that unscheduled inspections can be undertaken under specific circumstances indicated in the Entrepreneur Code and that during the inspection, the labour inspector is guided by a checklist, which actually covers all the requirements of labour legislation. With reference to its 2019 general observation on the labour inspection Conventions, the Committee once again urges the Government to take the necessary legislative measures to ensure that labour inspectors are empowered to make visits to workplaces without previous notice, and to carry out any examination, test or enquiry which they may consider necessary, in conformity with Article 12(1)(a) and (c) of Convention No. 81 and Article 16(1)(a) and (c) of Convention No. 129. Noting the absence of information in this respect, the Committee requests the Government to indicate whether inspectors are empowered to undertake inspection visits at any time of the day and night, as provided for in Article 12(1)(a) of Convention No. 81 and Article 16(1)(a) of Convention No. 129. The Committee further requests the Government to indicate the number and nature of cases in which the Prosecutor’s office has refused the registration of inspections.

3. Frequency of labour inspections. The Committee notes with concern that section 141 of the Entrepreneur Code still provides that the frequency of inspections shall be no more than once a year for entities classified as high-risk, no more than once every two years for those of medium risk and no more than once every three years for those of low-risk. The Committee also notes the Government’s indication in its report that as of 1 August 2024, 4,245 inspections had been conducted, which represents an increase of 7.8 per cent in comparison to 2023. It its observations, the ITUC indicates that restrictions on the frequency and types of labour inspections are still in force. Under the current legislation, the frequency of scheduled inspections depends on the risk category assigned to employers and, as a consequence, there is no set frequency of inspections for low-risk employers who are therefore not subject to scheduled monitoring and inspection activities. The procedure for assessing the risk category assigned to an employer depends, among other criteria, on the number of employees: the higher the number of employees, the higher the probability of increasing the risk category. This reduces the likelihood of inspections of small and medium-sized enterprises, which have a significant risk of abuse by employers. In its reply, the Government: (i) refers to the possibility of labour inspectors to conduct unscheduled inspections in the cases set out in the Entrepreneur Code and indicates that the legislation does not limit the number of unscheduled inspections; and (ii) indicates that the basis for the appointment of preventive control and supervision with a visit to the subject of control is a semi-annual list of preventive control. In accordance with paragraph 6 of the criteria for assessing the degree of risk for compliance with labour legislation of the Republic of Kazakhstan, the frequency of preventive control with a visit to the subject of control is determined by the control bodies in respect of control subjects classified as high and medium risk, not more than twice a year. The Committee recalls that in its general observation of 2019 on the labour inspection Conventions it emphasized that a risk-based approach to labour inspection planning is perfectly compatible with Conventions Nos 81 and 129 but that limiting by law the possible frequency of inspections raises issues of conformity with Article 16 of Convention No. 81 and Article 21 of Convention No. 129. Therefore, the Committee once again urges the Government to take the necessary measures to revise the Entrepreneur Code, to ensure that labour inspectors are able to undertake labour inspections as often and as thoroughly as is necessary to ensure the effective application of relevant legal provisions. In addition, the Committee once again requests that the Government take the necessary measures to ensure that risk assessment criteria do not limit the powers of labour inspectors or the undertaking of labour inspections. The Committee also requests the Government to continue to provide information on inspections in practice, indicating the total number of workplaces liable to inspection, the number of scheduled and unscheduled inspections, specifying on-site inspection and inspection without a visit to the workplace, as well as the number of inspections conducted in response to a complaint, and the results of all such inspections.

Article 6 of Convention No. 81 and Article 8 of Convention No.129. Disciplinary sanctions. The Committee notes that according to the written information submitted to the Conference Committee by the Government in May 2024, since the beginning of 2023, there have been no disciplinary cases against labour inspectors under section 50(12) of the Law on Civil Service. While taking note of this information, the Committee notes with concern that this provision of the Law still provides that the violation of the requirement to conduct inspections in accordance with the elements included in the inspection checklist (section 151(1) of the Entrepreneur Code) and the violation of the requirement of prior notification of inspections (section 156(2) of the Entrepreneur Code) are considered as gross violations by labour inspectors which result in disciplinary offenses. In its observations, the ITUC indicates that any labour inspector who takes initiative beyond the provisions of the law is liable to disciplinary action and inspections carried out without prior warning and without observing the prescribed notice period are considered invalid. Therefore, the Committee urges the Government totake the necessary measure to revise sections 50(12) of the Law on Civil Service and sections 151 and 156 of the Entrepreneur Code. The Committee also requests once again that the Government provide information on the number and nature of disciplinary sanctions imposed on labour inspectors in accordance with section 50(12) of the Law on Civil Service.

Article 13 of Convention No. 81 and Article 18 of Convention No. 129. Measures with immediate executory force in the event of imminent danger to the health or safety of the workers. The Committee notes that section 193 of the Labour Code provides that labour inspectors have the power to prohibit activities in case of danger to the health and life of workers for a period of five days. The Committee further notes that, according to section 136 of the Entrepreneur Code, rapid response measures can be adopted by labour inspectors only in cases identified by the law and in relation to violations of items included in the inspection checklist. The Committee also notes the Government’s indication that in 2023, at the request of labour inspectors, the operation of 17 pieces of equipment and nine production facilities was prohibited due to non-compliance with labour safety requirements and that in the first six months of 2024, such measures were adopted for two pieces of equipment and two production facilities. The Committee requests the Government to adopt the necessary measures to ensure that labour inspectors are empowered to make or have made orders requiring measures with immediate executory force in the event of imminent danger to the health or safety of the workers in accordance with Article 13 of Convention No. 81 and Article 18 of Convention No. 129. The Committee also requests the Government to indicate the measures adopted by labour inspectors in cases where, after the five days deadline provided in section 193 of the Labour Code, the violation identified has not been rectified. The Committee further requests the Government to continue to provide information on the number of prohibition orders adopted by labour inspectors.

Articles 17 and 18 of Conventions Nos 81 and 22 and Article 24 of Convention No. 129. Prompt legal proceedings. Adequate penalties. The Committee notes the Government’s indication that based on the inspection results, depending on the violations identified, and taking into account the gravity of the offence, labour inspectors have the right to bring the inspected entities to administrative responsibility in the form of a warning, fine or suspension of work. The Government also indicates that at present, the issue of replacing administrative responsibility in the form of a warning with fines, as well as increasing the amounts of fines, is under consideration and that the appropriate amendments to the legislation are in the process of approval by the state bodies. The Government further indicates that in the first seven months of 2024 employers had been issued with 2,552 orders and 2,931 administrative fines, amounting to more than 321.9 million Kazakhstani tenge (approximately US$665,580). The Committee further notes with concern that sections 144–1 and 144–2 of the Entrepreneur Code, still provide that in case of violations identified in the course of preventive inspections, the inspectors are obliged to issue a warning without the possibility of initiating proceedings. In its observations, the ITUC indicates that labour inspectors are not allowed to impose immediate sanctions if they find violations during routine inspections. In such cases, they can only issue a warning. Similarly, rapid response measures can only be taken in cases provided for by law and for violations of items on the inspection checklist. In its reply the Government indicates that the main requirements of scheduled inspections are to carry out preventive work in order to prevent or eliminate violations of labour legislation. At the same time, as a result of each scheduled inspection, labour inspectors issue a corresponding prescription with specific deadlines for elimination. However, the Government indicates that paragraph 3 of section 462 of the Code of the Republic of Kazakhstan on administrative offences, provides for fines in case of failure or improper implementation of legal requirements or prescriptions, submissions or orders issued by labour inspectors. The Committee once again requests the Government to take the necessary measures to revise the Entrepreneur Code to ensure that labour inspectors are able to initiate legal proceedings without previous warning, where required, in conformity with Article 17 of Convention No. 81 and Article 22 of Convention No. 129. The Committee also requests the Government to provide information on any progress made in the amendment of the legislation. The Committee further requests the Government to provide detailed information on the number and nature of violations identified, the number of warnings and fines issued and the amount of fines collected.

With respect to the penalties imposed in case of obstruction to labour inspectors, the Committee notes the Government’s indication that in 2023, 56 cases of obstruction of state labour inspectors were identified during the implementation of state monitoring. These resulted in administrative fines amounting to a total of 12.8 million tenge (approximately US$26,460) while in the first seven months of 2024, 17 similar cases were identified, resulting in administrative fines of 4 million tenge (approximately US$8,270) being imposed on employers. In this respect, the Committee notes with concern that section 12 of the Entrepreneur Code still provides for the right of employers to deny the inspection by officials of state control and supervision bodies. It its observations, ITUC indicates that this provision is likely to render ineffective the provisions on penalties for obstructing the work of officials of the State Inspectorate and other State control and supervisory bodies. The Committee urges the Government to take the necessary measures to ensure that labour inspectors do not encounter undue obstruction while performing their duties. It also requests the Government to provide information on the number of cases in which inspectors are denied access to workplaces by employers and the grounds of such denial, and on the number of cases in which penalties are imposed on employers who obstruct labour inspectors in performing their duties and the nature of such penalties.

Articles 19, 20 and 21 of Convention No. 81 and Articles 25, 26 and 27 of Convention No. 129. Annual report on the work of the labour inspection services. The Committee notes the Government’s indication that it is working to ensure that labour inspection reports are compiled and published on a regular basis. The Government also indicates that the Ministry of Labour and Social Protection publishes information in the media on an ongoing basis on the labour inspectorate’s work and regularly prepares the National Review of Occupational Safety in the Republic of Kazakhstan in accordance with the Methodological Guide for Compiling the National Review of Occupational Safety. The Government indicates that the last National Review, covering statistical information for 2020–22, was published in 2023. The Committee further notes that a 2024 amendment of the Labour Code repealed paragraph 11 of section 17 of the Code, which provided for the duty of the inspectors to submits periodic reports to the authorized state body. The Committee requests the Government to continue to pursue its effortsto ensure the establishment and publication of an annual report on the work of the inspection services and to transmit it to the ILO, in accordance with Article 20 of Convention No. 81 and Article 26 of Convention No. 129, and to ensure that it contains all the subjects listed under Article 21 of Convention No. 81 and Article 27 of Convention No. 129. The Committee also requests the Government to transmit a copy of the National Review of Occupational Safety. The Committee further requests the Government to indicate whether, in law and in practice, labour inspectors or local inspection offices are required to submit to the central inspection authority periodical reports on the results of their activities.

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