Direct Request (CEACR) - adopted 2003, published 92nd ILC session (2004)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Kazakhstan (Ratification: 2001)

The Committee notes the information provided in the Government’s first report.

Articles 1, 2 and 4 of the Convention. The Committee notes that employees of national security and law-enforcement bodies are prohibited from forming and joining trade unions (article 23(2) of the Constitution and section 11(4) of the Law on Social Associations). The Committee further notes that section 3(1) of the Law on Trade Unions stipulates that "the particulars of the applications of this law in railway forces will be defined by legislation". While recalling that civilian staff working in the service of the army or police as well as prison staff should enjoy the rights provided for in the Convention, the Committee requests the Government to specify the categories of workers covered by the term "law-enforcement bodies" and to indicate whether railway workers enjoy the rights afforded by Convention No. 98.

Article 1. While noting with interest that the Labour Code provides for reinstatement of workers in the event of dismissal without lawful grounds, or in the event of unlawful transfer to another job and that persons who consider that they have been discriminated in the sphere of labour may petition to the court, the Committee requests the Government to indicate whether the legislation provides for sanctions to be imposed in cases of acts of anti-union discrimination.

Article 2. While noting that sections 4(4) and 18(2) of the Law on Trade Unions prohibit acts of interference in the affairs of worker’s organizations, the Committee requests the Government to provide details on the procedures available to trade unions and employers’ organizations in cases of infringement, as well as the specific sanctions provided by the legislation.

Article 4. The Committee notes that according to the definition of "collective bargaining" provided for in section 1 of the Labour Code and section 32(1) of the Code, the parties to collective bargaining are, on the one hand, one or several employers and, on the other, one or several trade unions or workers who are not members of any trade union but who formed their association for bargaining purposes. The Committee notes that section 32(2) provides that the employer shall bargain with all representatives of the parties concluding the collective agreement. Furthermore, section 3 of the Law on Collective Agreements provides that, in collective bargaining, workers are represented by general assembly (conference), trade union or other authorized bodies and sections 4(1) and 6(1) stipulate that the draft agreement is prepared by the labour collective with a large participation of its members, trade union organizations and other public workers’ associations existing at the enterprise. The Committee requests the Government to clarify the procedure of elaboration and conclusion of a collective agreement by specifying, in particular, whether in the presence of a trade union and other workers’ association representing non-unionized workers, the collective agreement is negotiated with both organizations. Moreover, the Committee also requests the Government to indicate whether direct negotiation between the undertaking and its employees, by-passing representative organizations where these exist, are allowed by the legislation.

The Committee further notes that under section 8(2) of the Labour Code, the employer is obliged to conclude a collective agreement. Section 4(2) of the Law on Collective Agreements prohibits the parties from refusing to sign the collective agreement. Section 10 of this Law further provides that refusal to conclude a collective agreement is punishable by a fine of up to 1,000 rubles. The Committee recalls in this respect that Article 4 of the Convention embodies the principle of free and voluntary negotiation and that the legislation, which imposes an obligation to achieve a result, particularly when sanctions are used in order to ensure that agreement is concluded, is contrary to this principle. The Committee therefore requests the Government to take the necessary measures to amend its legislation so as to guarantee the voluntary nature of collective bargaining.

As concerns the settlement of labour disputes in the framework of the establishment of collective agreements, the Committee requests the Government to indicate whether the legislation allows compulsory arbitration at the request of one party or on the initiative of the authorities. The Committee further requests the Government to provide the copy of the Law on Labour Disputes and Strikes.

Article 6. The Committee requests the Government to indicate whether public servants are granted collective bargaining rights and to specify the relevant legislative provisions.