Report in which the committee requests to be kept informed of development - Report No 300, November 1995

Case No 1799 (Kazakhstan) - Complaint date: 20-SEP-94 - Closed

Allegations: Anti-union discrimination; restrictions on the right to strike

1. 191. In communications dated 20 September and 29 November 1994, the International Confederation of Free Trade Unions (ICFTU) and the Miners International Federation (MIF) submitted a complaint of violations of freedom of association against the Government of Kazakhstan.
2. 192. At its June 1995 meeting, the Committee observed that, although the complaint had been presented or examined some time ago, it had not received the information it had requested from the Government. The Committee drew the Government's attention to the fact that, in accordance with the procedural rules set out in paragraph 17 of its 127th Report, approved by the Governing Body, it could present a report on the substance of these cases even if the observations and information requested had not been received in due time. The Committee accordingly requested the Government to transmit its observations or information as a matter of urgency (see 299th Report of the Committee, para. 8). Since then it has not received any reply from the Government.
3. 193. Kazakhstan has not ratified the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87), or the Right to Organize and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants' allegations

1. 194. The complainants allege that continued discriminatory and repressive actions are taken by the management of the state coal industry and the authorities against the Independent Mineworkers' Union of Kazakhstan (NPG), which comprises more than 6,000 Karaganda coalfield workers. Such actions are aimed at preventing the development of an independent trade union representing effectively the interests of mineworkers.
2. 195. More precisely, NPG leaders and activists have to face continuous hostility and intimidation from mine management. The complainants add that there exists no mechanism that could provide protection against these serious acts of discrimination. They also have to run up against the reality of flagrant subordination of the judiciary to the administration, particularly at the local level.
3. 196. More precisely, discrimination against the NPG is institutionalized in the handling by the authorities of check-off facilities and social security funds. Even when the NPG members have indicated in writing their wish to have union membership dues deducted from their wages and paid directly to the NPG, management has frequently continued to pay those dues to the PRUP, the latter being the branch union for the mining sector in the previous state-sponsored trade union monopoly structure. Newly recruited mineworkers automatically have dues checked-off to the PRUP. The same applies to the administration of social security benefits, the mine management continuing to channel all funds through the PRUP.
4. 197. Repressive measures against the NPG intensified in the context of a strike convened by the union from 18 May to 3 June 1994. The NPG first notified the management of the existence of a dispute on 2 March 1994. The applicable legislation, the Soviet law "on solving labour disputes" requires that both sides must take "exhaustive measures" to resolve disputes before resort to strike action. The union requested that the prescribed machinery be set in motion to this end, and to meet the requirements of the Soviet law. Despite repeated efforts by the NPG to elicit a reaction from management, and to have it engaged in procedures aiming at resolving the dispute, no response was forthcoming. In these circumstances, the NPG announced, on 4 May 1994, that strike action would begin on 18 May, thus complying scrupulously with the legal obligation to give 14 days' notice of a stoppage. It was only shortly before the strike was due to begin that management sought to engage in dispute resolution procedures and to establish a joint grievance committee. Even then, the General Manager made it clear that it would not consider the decisions of such a committee as binding. One thousand five hundred workers stopped work, the majority of them not being NPG members. A court decision of 3 June 1994, however, brought the strike to an abrupt end by declaring it illegal.
5. 198. Referring to the principles of the Committee, the complainants allege that this court decision constitutes a grave violation of the right to strike as guaranteed by freedom of association principles. The NPG took action to challenge the declaration of illegality in higher courts, leading to a Supreme Court ruling on 23 August 1994. The Supreme Court hearing concerning the legality of the strike took place on the same day. Following a peremptory hearing and a short recess, the Supreme Court confirmed that the strike had been illegal.
6. 199. The complainants allege that the legal procedure filed by the NPG exacerbated the anti-union discrimination. For instance, 25 NPG activists from two mines were dismissed because they had refused to leave the NPG. The dismissals were then reversed by court decision. Furthermore, bonus payments were withdrawn to some 650 NPG members for a period up to May 1995.
7. 200. In the complainants' view, the court decision has had a disastrous effect and can be used by the authorities to further their anti-union action. Indeed, on 7 September 1994, law officers acting on instructions from the Karaganda regional court, which had ordered the freezing of the NPG bank account, entered NPG offices in order to distrain its property. The Coal Production Association brought also an action against the NPG for the recovery of alleged damages of 2,796,000 tenge (about $56,000) occasioned by the strike.
8. 201. In the same context of the harmful effects of the June and August 1994 court decisions, the complainants add that on 10 November 1994, the Public Prosecutors' Office for the Karaganda region issued an injunction against the NPG, as it is empowered to do under article 25 of the "Law on the Public Prosecution of the Republic of Kazakhstan", stating that the NPG has conducted its activities in violation of the procedures prescribed in article 14 of the "Law on Trade Unions" of the Republic of Kazakhstan since the strike of May 1994 was illegal.
9. 202. The complainants allege that, in terms of legal procedures, a decision of the court to dissolve an organization must be preceded by the following steps: (a) an official injunction issued by the Public Prosecutors' Office declaring that there has been a case of infringement of the law; and (b) the ordering of financial penalties together with a suspension of all activities of the organization from three to six months, in the event of a repeated infringement of the law. They add that the injunction was issued in violation of the principles of freedom of association since the NPG has only acted in conformity with the applicable legislation concerning labour disputes. Furthermore, they assert that the determination of such an infringement of the law is based on completely arbitrary criteria.
10. 203. Finally, the complainants allege that on one occasion the NPG Deputy Chairman Shumkin was beaten up, and that on another one, an NPG leader at one mine was dismissed for arriving late at work, having missed the company bus.

B. The Committee's conclusions

1. 204. The Committee observes that the allegations in the present case refer to limitations imposed on the right to strike, numerous acts of anti-trade union discrimination and to interference in the functioning of trade union organizations.
2. 205. To begin with, the Committee cannot but deplore the fact that the Government has not responded to the allegations despite repeated invitations to it to send its observations, including an urgent appeal by the Committee at its June 1995 meeting (see 299th Report, para. 8). This being so, and in accordance with the relevant procedure (see para. 17 of the 127th Report of the Committee, approved by the Governing Body at its 184th Session), the Committee finds itself obliged to submit a report on the substance of the matter since it does not possess the information that it hoped to receive from the Government. In this connection, the Committee reminds the Government that the purpose of the whole procedure is to promote respect for trade union rights in law and in fact, and the Committee is confident that, if it protects the government against unreasonable accusations, governments on their side will recognize the importance for their credibility of formulating for objective examination detailed factual replies to such detailed factual charges as may be put forward (see First Report, para. 31, approved by the Governing Body in March 1952).
3. 206. The Committee notes that the measures taken against the trade unionists were mainly in the context of the strike called by the NPG. Even though, according to the complainant, the NPG respected the principles concerning collective labour disputes, the supreme court declared the strike illegal in an expedited procedure.
4. 207. In this regard, the Committee recalls that the right to strike is one of the essential means available to workers and their organizations to promote and defend their economic and social interests (see Digest of decisions and principles of the Freedom of Association Committee, 3rd edition, 1985, paragraph 363). Furthermore, the conditions that have to be fulfilled under law to render a strike lawful should be reasonable and in any event not such as to place a substantial limitation on the means of action open to trade union organizations (see Digest, para. 37). In this case, the Committee points out that the NPG respected the obligation to give notice of the strike and was attempting to use the procedures available for dispute resolution. In these circumstances, the Committee is of the opinion that the declaration of the strike as illegal is contrary to the principles of freedom of association.
5. 208. Furthermore, the Committee notes that, according to the complaints, anti-union discrimination had been exacerbated following the strike and that 25 NPG activists had been dismissed. These dismissals were declared illegal by a court decision. While noting this favourable development, the Committee points out that the available information does not indicate whether the persons concerned were reinstated in their jobs. In this regard, the Committee must emphasize that the dismissal of workers for taking part in legitimate strike action constitutes anti-union discrimination in employment and therefore the necessary measures should be taken by the Government for the reinstatement of the dismissed workers in their jobs.
6. 209. As regards the absence in law and practice of adequate protection against acts of anti-union discrimination, the Committee cannot but recall that no person should be prejudiced in his employment by reason of his trade union membership or legitimate trade union activities (see Digest, para. 538). In this regard, as the bonus payments to the 650 NPG members apparently were withdrawn following the Supreme Court decision of August 1994, because of their trade union activities, the Committee requests the Government to take the necessary measures to ensure to these workers the full payment of their salaries, including their bonus payments. The Committee requests the Government to keep it informed of the steps taken in this regard. Furthermore, the Committee recalls that legislation should lay down explicitly remedies and penalties against acts of anti-union discrimination by employers against workers' organizations in order to ensure the effective application of the principles of freedom of association (see Digest, op. cit., para. 543).
7. 210. With regard to the alleged interference of the authorities in the functioning of trade unions in the sense that no account has been taken of the will of the workers in the handling of check-off facilities and social security funds, the Committee insists on the fact that such intervention could jeopardize the mere existence of the trade union freely chosen by the workers and therefore is contrary to freedom of association. The Committee requests the Government to respect the wishes of the NPG members as concerns the check-off facilities for trade union dues and for social security funds and to take the necessary steps immediately to ensure the transfer to the NPG of the dues deducted from the salaries of the trade union members and meant to be paid to the NPG. The Committee requests the Government to keep it informed in this respect.
8. 211. Furthermore, as regards the alleged entering of law officers into the NPG offices in order to distrain its properties, the Committee notes that this intrusion was one of the sanctions following the strike. It strongly recalls that such an entry by police into trade union premises can constitute a serious and unjustifiable interference in trade union activities (see 284th Report, Case No. 1642, para. 987), and that the right to adequate protection of trade union property is one of those civil liberties which are essential for the normal exercise of trade union rights (see Digest, op. cit., para. 204). The Committee urges the Government to refrain in future from having recourse to such action.
9. 212. With regard to the belief of the complainants that there exists a great risk for the NPG to be suspended, the Committee notes with concern that the various measures taken by the authorities, particularly after the strike, tend to prove that there has been a concerted effort to weaken the NPG such as to result even in the dissolution of this organization. In this context, the Committee recalls that the administrative suspension of trade union organizations constitutes a serious violation of the right of workers' organizations to organize their administration and their activities (see Digest, op. cit., paras. 487 and 491). Given the situation, the Committee considers it useful to refer to the General Survey of the Committee of Experts on the Application of Conventions and Recommendations which provides that: All the measures of dissolution by administrative authority involve a serious risk of interference by the authorities in the very existence of organizations and should therefore be accompanied by all of the necessary guarantees, in particular due judicial safeguards, in order to avoid the risk of arbitrary action. It is preferable for legislation not to allow dissolution or suspension of workers' and employers' organizations by administrative authority, but if it does, the organization affected by such measures must have the right of appeal to an independent and impartial judicial body which is competent to examine the substance of the case, to study the grounds for the administrative measure and, where appropriate, to rescind such measure; moreover, the administrative decision should not take effect until a final decision is handed down. Measures of dissolution or suspension taken during an emergency situation should also be accompanied by normal judicial safeguards, including the right of appeal to the courts against such dissolution or suspension (see General Survey, Freedom of association and collective bargaining, 1994, para. 185).
10. 213. Finally, with regard to the allegations of the beating of NPG Deputy Chairman Shumkin and the anti-union dismissal of another NPG leader, the Committee is of the opinion that even though the allegations are not precise, they are so serious that they justify the Committee to call on the Government to take the necessary steps, as quickly as possible, to initiate procedures to clarify the facts, determine responsibilities, punish the guilty parties and, if it is proven that it was in fact an anti-union dismissal, to take the necessary measures to ensure that the NPG leader be reinstated in his post. The Committee requests the Government to keep it informed of the measures taken in this regard.

The Committee's recommendations

1. 214. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee regrets that the Government has not replied to the allegations brought by the complainant organizations, despite the fact it had been invited to do so on several occasions.
   • (b) The Committee notes with concern that the various measures taken by the authorities, in particular following the strike, tend to prove that concerted action has been taken to weaken the NPG, such as to result even in the dissolution of this organization.
   • (c) Considering that the declaration of the strike as illegal constitutes a violation of the principles of freedom of association, the Committee requests the Government to take the necessary measures for the reinstatement in their jobs of the workers who were dismissed following the strike.
   • (d) As regards the withdrawal of bonus payments to 650 NPG members, the Committee requests the Government, as those workers apparently were deprived of these bonuses because of their trade union activities, to take the necessary measures to ensure to these workers the full payment of their salaries and to keep it informed in this regard.
   • (e) As regards the interference of the authorities in the handling of check-off facilities and social security funds, the Committee requests the Government to respect the wishes of the NPG members concerning check-off facilities for trade union dues and social security funds and to take the necessary steps immediately to ensure the transfer to the NPG of the dues deducted from the salaries of the trade union members and meant to be paid to the NPG. The Committee requests the Government to keep it informed in this respect.
   • (f) Recalling that the entry by police into trade union premises can constitute a serious and unjustifiable interference in trade union activities and that the right to adequate protection of trade union property is one of those civil liberties which are essential for the normal exercise of trade union rights, the Committee urges the Government to refrain in future from having recourse to such action.
   • (g) With regard to the beating of NPG Deputy Chairman Shumkin and the anti-union dismissal of another NPG leader, the Committee calls on the Government to take the necessary steps, as quickly as possible, to initiate procedures to clarify the facts, determine responsibilities, punish the guilty parties and, if it is proven that it was in fact an anti-union dismissal, to take the necessary measures to ensure that the NPG leader be reinstated in his post. The Committee requests the Government to keep it informed of the measures taken in this regard.