Observation (CEACR) - adoptée 2024, publiée 113ème session CIT (2025)

Convention (n° 111) concernant la discrimination (emploi et profession), 1958 - Kazakhstan (Ratification: 1999)

The Committee notes the observations of Fuel and Energy Workers’ Union (FEWU) received on 30 August 2023, on the notion of discrimination and its legislative ban, discriminatory norms in the world of work, gender equality, worker honour and dignity, migrants and protection from discrimination.

Article 1(1)(a) of the Convention. Prohibited grounds of discrimination. The Committee notes that in response to its previous comment and to the concern expressed by the International Trade Union Confederation (ITUC) in its observation of 2020, that the Labour Code does not provide for the possibility of establishing other grounds for discrimination, and in particular discrimination of the basis of skin colour, the Government states in its report that in 2023, the Labour Code was aligned with article 14(2) of the Constitution of the Republic of Kazakhstan, as part of the Act of 27 June 2022 on Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on Improving the Quality of Life of Persons with Disabilities. Section 6(2) of the Labour Code, which lists the grounds of discrimination that are prohibited by law, was supplemented with the words “or other circumstances” and now stipulates that nobody may be subjected to any discrimination in the exercise of labour rights on the grounds of origin, social, official or property status, sex, race, nationality, language, attitude to religion, beliefs, place of residence, age or physical disabilities, membership of public associations, or other circumstances. The Government further states that “other circumstances” include any other grounds for discrimination, including colour, and that these provisions make it possible to prevent discrimination against employees on the ground of colour while at work. While noting this information, the Committee observes that the ground of “colour” is not explicitly mentioned in the list under section 6(2) of the revised Labour Code. In this regard, the Committee recalls that where legal provisions are adopted to give effect to the principle of the Convention, they should include at least all the grounds of discrimination specified in Article 1(1)(a) of the Convention. The Committee asks the Government to: (i) indicate whether any interpretation concerning colour or the wording “other circumstances” in section 6(2) of the amended Labour Code has been handed down by the judicial authorities and, if so, provide a copy of these decisions; and (ii) provide information on the steps taken to raise awareness of anti-discrimination provisions in the Labour Code – specifically to prevent discrimination on the ground of colour – among workers, employers and their respective organizations, as well as law enforcement officials.

Direct and indirect discrimination. The Committee notes that in its observations, the FEWU emphasizes that the general prohibition of discrimination in employment in the national legal framework is of a declarative nature, and protection against discrimination remains insufficiently effective. The FEWU states that there is no system of anti-discrimination regulation, nor is there any special comprehensive legislation that fully defines the notion of discrimination, bans discrimination and establishes responsibility for it, except for the Law on State Guarantees of Equal Rights and Equal Opportunities for Men and Women, which defines the notion of discrimination in the context of gender only (section 1(3)). While the Code of Administrative Offences and the Criminal Code establish responsibility for discrimination, the FEWU states that the lack of a comprehensive and universal definition of discrimination often leads to a situation where the law enforcement officers dealing with discrimination are unable not only to provide protection but even to identify it. The FEWU indicates that the prospects of establishing discrimination within the framework of criminal, administrative or civil law are therefore extremely meagre, Kazakhstan lacks sufficient institutional and procedural guarantees to protect rights and freedoms in cases of discrimination, and discriminatory actions are treated as offences only in criminal and administrative law. Noting the existence of a constitutional and legislative framework in relation to discrimination, including in employment and occupation, the Committee wishes to draw the attention of the Government to the fact that the full implementation of the Convention usually requires the adoption of comprehensive legislation defining and prohibiting direct and indirect discrimination, and that a number of features in legislation contribute to addressing discrimination and promoting equality in employment and occupation more effectively: coverage of all workers (no exclusions); provision of a clear definition of direct and indirect discrimination, and of sexual harassment; prohibition of discrimination at all stages of the employment process; explicit assignment of supervisory responsibilities to competent national authorities; establishment of accessible dispute resolution procedures; establishment of dissuasive sanctions and appropriate remedies; shifting or reversing of the burden of proof; provision of protection from retaliation; affirmative action measures; and provision for the adoption and implementation of equality policies or plans at the workplace, as well as collection of relevant data at different levels (see the 2012 General Survey on the fundamental Conventions, paragraphs 854–855). The Committee asks the Government to take every necessary step to ensure that workers are protected, in both law and practice, from both direct and indirect discrimination on all the grounds enumerated in Article 1(1)(a) of the Convention. The Committee also requests the Government to provide copies of any judicial or administrative decisions relating to cases of direct and indirect discrimination in violation of section 6 of the Labour Code.

Equality of opportunity and treatment for national, ethnic and religious minorities. The Committee notes that in response to its previous request, the Government indicates that in accordance with article 33(4) of the Constitution, citizens of the Republic of Kazakhstan shall have an equal right to serve in public office. The Government also states that pursuant to section 15(1) of the Civil Service Act, admission to a civil service position is based on a competition, and that under section 17(1) of the same Act, citizens applying for civil service positions shall meet the established qualification requirements. It indicates that citizens are entitled to participate in competitions for vacant positions if they have the appropriate education, competence and work experience, and therefore selection for public service is carried out solely on a competitive basis and does not provide for any form of privileges or quotas in the selection procedure. While noting this information, the Committee observes that the Government has not provided data with respect to the distribution of various minorities in the public and private sector. In that regard, the Committee wishes to recall that in the absence of collection and publication of employment statistics disaggregated by national, ethnic and religious origin, the impact of measures taken to address the inequalities disproportionately affecting certain groups and members of those groups (because of their race, colour, national extraction, social origin, religion, and so on) remains uncertain in most cases (2018 general observation on discrimination based on race, colour and national extraction). The Committee wishes to point out that qualitative research on the nature and extent of labour inequalities, including their underlying causes, is crucial in order to design and implement a relevant and effective national equality policy under Articles 2 and 3 of the Convention, and to monitor and evaluate its results. The Committee urges the Government to: (i) take the necessary measures to collect and analyse data, disaggregated by sector and occupation, illustrating the distribution of men and women belonging to various minorities in the public and private sectors, as well as their participation in the various levels of vocational training and education; (ii) provide information on the measures taken to ensure equal opportunities and treatment for national, ethnic and religious minorities in employment and occupation, including awareness-raising measures and measures to address stereotypes; and (iii) provide information on any cases of ethnic discrimination in the field of employment and occupation reported to the labour inspectorates or dealt with by the courts.

Articles 2 and 3. National equality policy. In reply to its previous request, the Committee notes the Government’s indication that all men and women have equal rights to participate in active employment promotion measures and that, at present, employment creation is being implemented within the framework of the National Entrepreneurship Development Project for 2021–2025 (hereinafter the National Project). As of 1 September 2023, 278,100 women were participants in the National Project. The Government also indicates that in July 2021, a single portal of short-term online training in skills in demand in the labour market was launched (https://skills.enbek.kz) and is available to any citizen of the Republic wishing to learn in-demand skills or improve their qualifications. As of 1 September 2023, 21,900 women were engaged in online training, of whom 19,900 received the certification. Since 2022, training with respect to the basics of entrepreneurship under the Bastau Business project has been automated and implemented through the skills portal. With respect to the professional situation of people with disabilities, the Government indicates that three mechanisms are currently being implemented. First, job quotas for persons with disabilities have been established. In accordance with the Social Code of the Republic of Kazakhstan, local executive authorities ensure the implementation of the state employment promotion policy by setting job quotas for persons with disabilities (2 to 4 per cent of the total number of jobs, excluding jobs in heavy work or with harmful or hazardous working conditions). At the end of the second quarter of 2023, 7,900 people were employed under this framework. Secondly, a procedure for subsidizing employers’ costs associated with equipping a special workplace for the employment of persons with disabilities has been introduced, and the wages for these employees are subsidized for three years. Thirdly, active measures to promote employment as part of the National Project benefit job seekers, the unemployed and other categories of citizens, including persons with disabilities, who may undergo short-term training courses on specializations and qualifications in demand in the labour market, on-the-job training, and online training on the basis of the Electronic Labour Exchange; and obtain state grants for the realization of business ideas. Young people may also participate in the Youth Internships, First Job and Contract of Generations projects to gain initial work experience in their specialization. The Government indicates that since 2023, grants of up to 400 times the Monthly Calculation Index (MCI – 1 million Kazakhstan tenge for business development have been provided to socially vulnerable groups, which include recipients of targeted social assistance and benefits for their spouses and/or large families; social benefits for loss of a breadwinner; migrants; Kandases; persons with disabilities whose ability to work is not contraindicated; persons raising a child with a disability (children with disabilities), and/or their spouses. The Government states that as of 1 September 2023, 34,316 people had applied to participate in the National Project, and employment promotion measures covered 24,866 persons with disabilities. The Committee notes that in its concluding observations of 2024, the United Nations Committee on the Rights of Persons with Disabilities (CRPD) welcomed the measures taken by the State Party to implement the Convention after its ratification in 2015, notably the 2019 National Plan to ensure the rights and improve the quality of life of persons with disabilities, which includes measures to render the physical environment and education accessible, and improve economic self-sufficiency, quality employment and social services. However, the Committee notes the concerns expressed by the CRPD with regard to: (1) unemployment among persons with disabilities, which is particularly pronounced for persons with disabilities facing multiple and/or intersectional discrimination; limited access of persons with disabilities to jobs in the private sector; and barriers to accessibility in the workplace; and (2) insufficient vocational training and retraining for persons with disabilities in employment (CRPD/C/KAZ/CO/1, 19 April 2024, paragraphs 5 and 57). The Committee requests the Government to: (i) continue providing information on any legal and practical measures adopted to promote equality of opportunity and treatment of persons with disabilities and address the remaining barriers they face in accessing training and employment in both the public and private sectors, as well as provide any assessment made of the impact of these measures; and (ii) provide information on measures taken in relation to the professional situation of rural women, and their impact, as previously requested.

Article 5. Special protection measures. Restrictions on the employment of women. The Committee notes with interest the Government’s indication that the Act of 12 October 2021 on Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on the Social Protection of Certain Categories of Citizens abolished the list of jobs in which women’s labour are restricted. It further adds that this was confirmed by Order of the Ministry of Labour and Social Protection of the Republic of Kazakhstan No. 464 of 10 December 2021. The Committee welcomes the Government’s indication that the Ministry of Labour and Social Protection together with the National Commission on Women’s Affairs and Family and Demographic Policy (hereinafter, “the National Commission”) organized a meeting on 4 June 2021 with the participation of the Human Rights Ombudsman, international experts, and representatives of trade unions and the business community in order to publicly discuss the abolition of the list with target groups, as well as to explain the rights and obligations of both employers and female workers. In addition, territorial labour inspectors organized awareness-raising activities with the public and employers. The Government indicates that 1,171 seminars were held and more than 660 media appearances were made to explain labour legislation and the abolition of the list. A press release on the abolition of the list was posted on the official website and social media networks of the Ministry of Labour and Social Protection and was sent to the media. The Committee welcomes this information and asks the Government to provide information on the number of women who have accessed the jobs on the recently abolished list.

Enforcement and access to legal remedies for victims of discrimination. The Committee notes the ITUC’s statement that employees face discrimination when they attempt to protect their rights by filing a complaint or lawsuit, organize collective action, etc., resulting in dismissal or other repressive or retaliatory action by the employer, and that protection against victimization should therefore be ensured. The Committee also notes that the FEWU raises similar concerns regarding the risk to whistleblowers who might be held responsible, which remains a significant barrier for public disclosure of violations, and the lack of effective legal remedies safeguarding rights in cases of workplace harassment. The Committee notes the Government’s reply that matters relating to sexual harassment, including accusations, investigation, establishment of facts, and determination of guilt and liability, are the prerogative and obligation of the law enforcement and judicial authorities, and not of employers, who do not possess the qualifications, experience and powers to conduct the above procedures in a lawful, qualitative and effective manner. It further indicates that a group of experts comprising representatives of state authorities, social partners, scientific and public organizations, and major companies, has been set up, attached to the Ministry of Labour and Social Protection, to analyse existing labour legislation enforcement, and provide comprehensive examination and consideration of the views of social partners and the business community. The Government adds that proposed standards require detailed preliminary analysis of international experience in this area and the organization of public hearings. The Committee requests the Government to: (i) provide information on the development of provisions providing for sanctions and remedies, and protecting against victimization; (ii) take measures to increase the capacity of the competent authorities, including labour inspectors, to prevent, identify and address cases of discrimination in employment and occupation, including sexual harassment; and (iii) take the necessary steps to prevent sexual harassment in the workplace, including measures to raise awareness of workers, employers and their organizations regarding available remedies.