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

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Kazakhstan (Ratification: 1999)

Article 1(1)(a) of the Convention. Discrimination based on sex. Job advertisements. The Committee notes that, in its 2020 observations, the International Trade Union Confederation (ITUC) indicates that despite section 28 of the Law on Employment of the Population prescribing that employers are required to ensure that their job advertisements contain no discriminatory requirements for job applicants, job advertisements published in the media and in open sources show that employers stipulate gender, age and physical requirements. The ITUC also indicates that young women may be denied employment if they are pregnant, and are asked during job interviews whether they are married and intend to have children in the near future, and that there are no legal restrictions on obtaining such information. The Committee notes the Government’s indication, in its report, that in accordance with section 3(2) of the Law on Employment of the Population, state policy in the employment sphere aims to ensure equal opportunity - irrespective of nationality, sex, age, social position, political beliefs, religious faith and any other circumstances - in the exercise of the right to free employment and the free choice of type of activity and profession. Based on section 23 of the Labour Code (fundamental rights and obligations of employers), employers are granted the right to decide for themselves on the recruitment of a candidate, in accordance with his or her qualifications, skills, work experience and the complexity of the work, while employment centres do not have the right to exercise any influence over employers’ recruitment decisions. The Government states that on the Electronic Labour Exchange portal, vacancy notices are published directly by employers and through the system of employment centres which only provide assistance in the search for employment (employment mediation), while the final decision on recruitment is taken by an employer independently. With respect to women, the Government indicates that section 25 of the Labour Code ensures that pregnancy, the existence of children up to the age of three, the fact that a person has not reached the age of majority, or disability, may not restrict the right to conclude an employment contract, excluding the cases provided for by the Labour Code. The Committee asks the Government to provide information on: (i) the application in practice of section28 of the Law on Employment of the Population and section 25 of the Labour Code, and on the obstacles encountered in their implementation; (ii) any awareness-raising activities carried out for employers, workers and their organizations regarding the prohibition of discrimination in job advertising; and(iii) any claims filed with the courts or administrative authorities concerning cases of discrimination regarding these provisions, including court cases of discriminatory recruitment practices, the penalties applied and remedies granted.

Harassment and violence in the workplace. The Committee notes the concerns expressed by the ITUC regarding the lack of specific legislation in Kazakhstan to protect workers from violence and harassment in the workplace, including sexual harassment. It indicates that violence and harassment in the workplace is widespread in various fields of employment and provides concrete examples of incidents that that took place. It calls for the need to introduce and apply, in accordance with national legislation, an integrated and gender-sensitive approach to preventing and addressing violence and harassment in the workplace, including violence and harassment by third parties. The Committee notes that the FEWU also raises concerns regarding the fact that the national legislation has no special regulation protecting from violence and harassment in the world of work, and does not take into account the psychological component of the working environment. The Committee requests the Government to provide information on: (i) the measures taken through legislation and policies to prevent and address harassment and violence in the workplace, as well as awareness-raising activities carried out among workers and employers; and (ii) the procedures in place, or envisaged in practice, in cases of workplace violence, and the actions taken in respect of allegations of sexual harassment at work, including penalties imposed and compensation awarded.

Article 1(2). Inherent job requirements. The Committee notes that the ITUC indicates that certain provisions of the legislation reflect patriarchal and paternalistic norms which regard women as needing protection by men, therefore perpetuating gender stereotypes and leading to direct discrimination in the process of employment. The ITUC refers in particular to section 6(3) of the Labour Code which provides that distinctions, exceptions, preferences and restrictions established for relevant types of labour activity in accordance with the law or as a result of the special care of the state for persons in need of increased social and legal protection — such as women — do not constitute discrimination. This leads to the deterioration of potential opportunities for women as well as to their economic dependence. The Committee notes the Government’s reply that the Republic of Kazakhstan acceded to the United Nations Convention on the Elimination of All Forms of Discrimination against Women in 1998 and that since then, the concept of “discrimination” has been applied in legal practice and is widely used in the texts of the Constitution, adopted laws and regulations, such as per section 1(3) of the State Guarantees of Equal Rights and Equal Opportunities for Men and Women Act, and section 6(2) of the Labour Code. The Government indicates that persons who consider that they have been subject to labour discrimination may refer the matter to a court or other authorities following the established procedures in accordance with section 6(4) of the Labour Code. The Committee recalls that Article 1(2) of the Convention, which provides that a distinction, exclusion or preference in respect of a particular job based on the inherent requirements thereof shall not be deemed to be discrimination, is to be interpreted restrictively and on a case-by-case basis, and that any limitation must be required by the characteristics of the particular job, in proportion to its inherent requirements (see the General Survey of 2012 on the fundamental Conventions, paragraphs 827 and 828). The Committee asks the Government to provide information on the application of section 6(3) of the Labour Code in practice, including providing concrete examples of cases where it has been considered that a differentiation, exclusion or preference based on qualifications required to access or perform a certain task did not constitute discrimination.

Article 2. Equality of opportunity and treatment for men and women. The Committee takes note of the data provided by the Government, which indicates the ratio of men and women who benefited from employment creation measures within the framework of the National Entrepreneurship Development Project for 2021–2025, short-term vocational training, and microcredit loans to start their own businesses. The share of employed women within the employment structure is increasing, according to the data provided by the Statistics Committee of the Ministry of National Economy — in the third quarter of 2023 the economically active population included 4.5 million women, while in the third quarter of 2020, it was 3.2 million. The data specifies the number of women who benefited from programmes to promote employment such as the State Programme of Development of Productive Employment and Mass Entrepreneurship, 2017–2021 “Еңбек” (“Labour”) (as of 1 November 2020, the number of women concerned was 246,100, including 122,900 in agriculture, among a total of 580,100 persons), and enterprise initiatives such as the granting of preferential micro-loans and interest-free grants (as of 1 November 2020, about 4,400 women obtained micro-loans, of whom 2,700 opened their own businesses). The Government indicates that 12,300 women participated in the “Bastau Business” project studying the fundamentals of business, 17,700 women obtained grants, 117,200 women were given temporary employment positions (in social employment and public works, or through youth traineeships), and 108,300 women were given permanent employment. Since the inception of the programme, a total of 103,400 women have received support under enterprise initiatives (including 55,700 studying the fundamentals of business, 15,200 obtaining micro-loans, and 32,500 benefiting from interest-free grants). The number of civil servants as of 1 January 2023 was 90,053, the proportion of women in the civil service has remained stable at 55.5 per cent, and 39.2 per cent of managerial positions are held by women. The Government indicates that 97,600 women were employed in subsidized jobs, and specifies the employment rate by sector. The Committee requests the Government to provide: (i) information on the measures taken or envisaged to improve the participation rates of women in those economic sectors and occupations in which they are under-represented, including by encouraging girls and young women to choose non-traditional fields of studies and career paths, and enhancing women’s participation in vocational training courses leading to employment, with opportunities for advancement and promotion; and (ii) statistical data on the impact of such measures.

Enforcement. The Committee recalls that previously, the ITUC submitted observations alleging that the law on gender equality does not provide for sanctions for violations of its provisions nor for a sufficiently effective mechanism for monitoring its implementation. While section 6 of the Labour Code provides that persons who believe that they have been discriminated against in the field of employment have the right to apply to the court or other authorities, the ITUC indicates that there are no other authorities, including specialized bodies, to which a person can apply for protection from discrimination, nor any other bodies that would consider complaints or help change the prevailing discriminatory practices. Furthermore, the ITUC indicates that the issue of reversing the burden of proof in cases of discrimination has not been yet resolved in Kazakhstan legislation and that, as a result, in cases arising from labour relations, disputes in court are considered on the basis of section 72 of the Civil Procedure Code, which establishes that each party must prove the circumstances to which it refers as the basis for its claims. In addition, the weak legal framework for protection against discrimination is compounded by poor enforcement. In its response, the Government indicates that the Ministry of Labour and Social Protection of Kazakhstan constantly monitors the situation in the labour sphere in enterprises throughout the country, including as regards discrimination in payment for work, recruitment, etc. The Committee notes the Government’s indication that as of 1 September 2023, no violations of the requirements of the Gender Equality Act had been registered by labour inspectors while carrying out state-level monitoring. In this regard, the Committee recalls that where no cases or complaints, or very few, are being lodged, this is likely to indicate a lack of an appropriate legal framework, lack of awareness of rights, lack of confidence in or absence of practical access to procedures, or fear of reprisals. The lack of complaints or cases could also indicate that the system of recording violations is insufficiently developed (see the General Survey of 2012 on the fundamental Conventions, paragraphs 870 and 871). The Committee asks the Government to: (i) provide information on any specific measures taken or envisaged to raise awareness of the relevant legislation, to enhance the capacity of the competent authorities, including judges, labour inspectors and other public officials, and to identify and address cases of discrimination; (ii) examine whether the applicable substantive and procedural provisions allow claims to be brought successfully in practice; and (iii) indicate the number of inspections carried out and violations detected by, or reported to, the labour inspectors and dealt with by the courts, identifying if possible the grounds of discrimination concerned and the outcome of the case.