Observation (CEACR) - adopted 2014, published 104th ILC session (2015)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Kazakhstan (Ratification: 2000)

The Committee notes the observations of the Confederation of Free Trade Unions of Kazakhstan (CFTUK) and the International Trade Union Confederation (ITUC) received on 3 and 8 September 2014, respectively. The Committee expresses the hope that the Government’s next report will contain detailed observations on the matters raised by these organizations.

The Committee further notes the observations on the application of the Convention by the International Organisation of Employers (IOE) received on 1 September 2014.

The Committee notes the adoption of the Law on the National Chamber of Entrepreneurs (2013) and of the Law on Trade Unions (2014), as well as the amendment of the Labour Code in 2012.

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish and join organizations. The Committee had previously requested the Government to take the necessary measures to amend its legislation so as to ensure the right to organize of judges (article 23(2) of the Constitution and section 11(4) of the Law on Public Associations). The Committee notes that in its report, the Government reiterates that under article 23(1) of the Constitution, judges, like other citizens, have the right to freely associate for the purpose of exercising and defending their collective interests, provided that they do not use such associations to influence the administration of justice or for political purposes. The Government argues that the prohibition under article 23(2) of the Constitution, which prevents judges from forming political parties and trade unions, does not restrict the right of judges to join public non-commercial associations. It refers, in particular, to the existence of the Union of Judges of the Republic of Kazakhstan. The Committee considers that while the Union of Judges acts for the purpose of protection of interests of the judicial community, it is not a workers’ organization in the sense of the Convention. The Committee once again recalls that the only exceptions authorized by the Convention are the members of the police and armed forces and that the functions exercised by judges shall not justify their exclusion from the right to organize. The Committee therefore once again requests the Government to take the necessary measures to amend its legislation so as to ensure that judges, like other workers, can establish organizations for furthering and defending their interests in line with the Convention and to indicate the measures taken in this respect.

The Committee had previously requested the Government to amend its legislation so as to ensure that firefighters and prison staff enjoyed the right to organize. The Committee notes that in its report, the Government reiterates that article 23 of the Constitution and Law No. 380-IV on Law Enforcement Bodies prohibit employees of such bodies, including firefighters and prison staff to establish and join trade unions. The Committee emphasizes that the ratification of a Convention carries with it the obligation to give full effect to the rights and guarantees enshrined therein in national legislation and practice. The Committee recalls that while the armed forces and the police can be excluded from the application of the Convention, the same cannot be said for fire service personnel and prison staff. The Committee therefore once again requests the Government to ensure that these categories of workers are guaranteed the right to establish and join organizations for furthering and defending their interests and requests the Government to indicate the measures taken to that end.

Right to establish organizations without previous authorization. The Committee had previously noted that pursuant to section 10(1) of the Law on Public Associations, applicable to employers’ organizations, a minimum of ten persons is required to establish an employers’ organization, and had requested the Government to amend its legislation so as to lower this requirement. The Committee notes with regret that the Government provides no information on the measures taken to that end. The Committee therefore once again requests the Government to indicate measures taken or envisaged to amend its legislation so as to lower the minimum membership requirement in as far as it applies to employers’ organizations.

Right to establish and join organizations of their own choosing. The Committee notes that sections 11(3), 12(3), 13(3) and 14(4) of the Law on Trade Unions require, under the threat of de-registration pursuant to section 10(3) of that Law, the mandatory affiliation of sector-based, territorial and local trade unions to a national trade union association within six months following their registration. The Committee recalls that the free exercise of the right to establish and join organizations implies the right of workers to freely decide whether they wish to associate or become members of a higher-level trade union structure. In other words, the question as to whether to join a higher-level trade union is a matter which should be determined solely by the workers and their organizations. The Committee therefore requests the Government to take the necessary measures in order to amend the abovementioned legislative provisions accordingly and to provide information on the measures taken to that effect.

Article 3. Right of organizations to organize their activities and to formulate their programmes. Labour Code. The Committee had previously requested the Government to take the necessary measures in order to amend section 298(2) of the Labour Code (according to which a decision to call a strike shall be taken by a meeting (conference) of workers (their representatives) gathering not less than half the total workforce, and the decision was adopted if not less than two-thirds of those present at the meeting (conference) had voted for it), so as to lower the majority required to call a strike. The Committee notes with satisfaction that this provision has been amended so as to require a vote by the majority of the workers present at the meeting (conference). The Committee further notes that the requirement to indicate the duration of the strike (section 299(2)(2) of the Labour Code) has been repealed.

The Committee notes with regret that the Government’s report contains no information on organizations carrying out “dangerous industrial activities” (section 303(1) of the Labour Code) and the categories of workers whose right to strike is restricted accordingly. The Committee therefore once again requests the Government to indicate which organizations fall into this category of organizations by providing concrete examples. It further once again requests the Government to indicate all other categories of workers whose right to strike can be restricted by other legislative texts, as stipulated in section 303(5) of the Labour Code, and to provide copies thereof.

With regard to rail and public transport, the Committee had previously noted that according to section 303(2) of the Labour Code, a strike may be held if the necessary range of services, as determined on the basis of a prior agreement with the local executive authorities, is maintained so that the users’ basic needs were met or that facilities operated safely or without interruption. In this respect, the Committee had requested the Government to amend section 303(2) of the Labour Code so as to ensure that any minimum service is a genuinely and exclusively minimum one and that workers’ organizations can participate in its definition. The Committee notes with regret that the Government’s report contains no information on the measures taken to that effect. The Committee therefore reiterates its previous request and asks the Government to indicate in its next report all measures taken or envisaged to that end.

Recalling that the prohibition of the right to strike should be limited to civil servants exercising authority in the name of the State, the Committee had previously requested the Government to indicate whether “administrative” civil servants can exercise the right to strike. The Committee notes the Government’s indication that the prohibition to strike concerns only “civil servants” and excludes the “administrative civil servants” and “public servants” (teachers, doctors, bank employees, etc.).

Law on the National Chamber of Entrepreneurs. The Committee notes that pursuant to section 3(2) of the Law, the main aim of the Chamber is to consolidate the action of entrepreneurs in the country. Through the Chamber, entrepreneurs further and defend their rights and interests, including by engaging with various state bodies and participating in the development and drafting of the legislation affecting their interests. Pursuant to section 9(1) of the Law, the Chamber represents the interests and rights of entrepreneurs in the various state bodies and international organizations. The Committee requests the Government to clarify whether this latter provision implies that only representatives of the Chamber are entitled to represent employers of Kazakhstan in the ILO and if that is the case, to take the necessary measures to amend section 9(1) of the Law so as to bring them in line with Articles 2 and 3 of the Convention.

The Committee further notes that according to section 5(1)(1) and (2) of the Law, the Government approves the maximum membership fees to be paid by the members of the Chamber, and establishes the procedure therefore. Pursuant to sections 19(2) of the Law, the Government participates in the work of the congress (supreme governing body) of the Chamber and has the right to veto its decisions. Furthermore, pursuant to section 21(1) of the Law, the presidium (governing body) of the Chamber is composed, among others, of the government representatives and 16 parliamentarians. If the Chamber of Entrepreneurs, as appears to be the case, is an employers’ organization in the sense of the Convention, the Committee considers that the abovementioned provisions restrict its freedom, as well as the freedom of its member organizations to administer the funds and establish overall control over the internal acts and decisions of the Chamber, thereby calling into question the independence of that structure from the Government and its capacity to effectively represent the interests of their members free from the Government’s interference. In light of the above, the Committee requests the Government to provide detailed comments on the matters raised with regard to the Law on the National Chamber of Entrepreneurs and take measures to amend the Law so as to bring it into conformity with the Convention. It reminds the Government that it may avail itself of the technical assistance of the Office if it so wishes.

Article 5. Right of organizations to establish federations and confederations and to affiliate with international organizations. The Committee had previously requested the Government to take steps to amend section 106 of the Civil Code, as well as article 5 of the Constitution, so as to lift the ban on financial assistance to national trade unions by an international organization. The Committee notes that according to the Government, political parties and trade unions are associations which have a capacity to influence political opinion, the public and government policy in various areas of public life. The Government reiterates that for this reason, article 5(4) of the Constitution prohibits foreign persons, including international organizations, from funding political parties and trade unions. The Government considers that this provision guards the State’s interest’s values and security. The Committee recalls that legislation prohibiting the acceptance by a national trade union of financial assistance from an international organization of workers to which it is affiliated infringes the principles concerning the right to affiliate with international organizations of workers, and that all national organizations of workers and employers should have the right to receive financial assistance from international organizations of workers and employers, respectively, whether they are affiliated or not to the latter. The Committee therefore once again requests the Government to take the necessary steps to amend section 106 of the Civil Code, as well as article 5 of the Constitution, so as to lift this prohibition, and to indicate the measures taken or envisaged in this respect.

The Committee notes that pursuant to section 13(2) of the Law on Trade Unions, a sector-based trade union must include no less than half of the total workforce of the sector or related sectors; or organizations of the sector or related sectors; or shall have structural subdivisions and members organizations on the territory of more than half of all regions, cities of national significance and the capital. The Committee considers that the requirement of excessively high thresholds to establish a higher-level organization (e.g. a sector-based trade union) conflicts with Article 5 of the Convention. Noting the CFTUK and ITUC observations in this respect, the Committee requests the Government to engage with the relevant trade union organizations, including the CFTUK, with a view to review and lower the thresholds set by section 13(2) of the Law on Trade Unions. It requests the Government to provide information on the measures taken to that end.