CMNT_TITLE

Kazakhstan

Labour Inspection Convention, 1947 (No. 81) (RATIFICATION: 2001)
Labour Inspection (Agriculture) Convention, 1969 (No. 129) (RATIFICATION: 2001)

Previous comment

In order to provide a comprehensive view of the issues relating to the application of the ratified Conventions on labour inspection, the Committee considers it appropriate to examine Conventions Nos 81 (labour inspection) and 129 (labour inspection in agriculture) together.

The Committee notes the observations of the Trade Union of Workers in the Fuel and Energy Complex (TUWFEC), received on 26 August 2022 and the observations of the International Trade Union Confederation (ITUC) received on 1 of September 2022, on the Labour Inspection Convention, 1947 (No. 81) and the Labour Inspection (Agriculture) Convention, 1969 (No. 129).

Article 3(1)(a) and (b) of Convention No. 81 and Article 6(1)(a) and (b) of Convention No. 129. Preventive functions of labour inspection and other forms of state control. In reply to the Committee’s previous comment, the Government indicates that in accordance with section 191(5) of the Labour Code and section 137(1) of the Entrepreneur Code, state monitoring of compliance with the labour legislation is carried out in the form of inspections and preventive monitoring. No other forms of control are currently provided for by law. The Government also indicates that, section 197 of the Labour Code, which provided for other forms of state control, is repealed by Act No. 156-VI of 24 May 2018. The Committee takes notes of this information which addresses its previous request.

Article 4 of Convention No. 81 and Article 7 of Convention No. 129.Supervision and control of the labour inspection system by a central authority. Following its previous comment, the Committee notes the Government’s indication that the Committee for Labour and Social Protection (CLSP) of the Ministry of Labour and Social Protection organizes the state monitoring of compliance with labour legislation. It supervises and coordinates the activities of local labour inspection bodies by sending instructions and requests, while local labour inspection bodies present their work to the CLSP by regular periodic reports. Moreover, the CLSP provides methodological support to local labour inspection bodies and clarifies legal matters upon request. The Committee also notes sections 16 and 17 of the Labour Code provide for the competences of the central labour authority and local labour inspection bodies. The Committee takes note of this information which addresses its previous request.

Articles 5(a) and 17 of Convention No.81 and Articles 12(1) and 22 of Convention No. 129. Effective cooperation between the labour inspection services and the justice system. Following its previous comment, the Committee notes the Government’s information, according to which, trainings on the application and enforcement of labour legislation for labour inspectors are planned for the year of 2023, with members of the judiciary and the prosecutor’s office invited as lecturers. Labour inspectors forwarded 1,088 cases to law enforcement agencies on breaches of OSH requirements, and 127 criminal proceedings were initiated as a result. Moreover, 75 cases were sent to the court for administrative prosecution of employers. The Government refers to section 193(11) of the Labour Code, which provides that labour inspectors have the right to send to the relevant law enforcement agencies and courts, information, statement of claims and other materials on violations of labour legislation and non-fulfilment by employers of orders of labour inspectors. While noting this information, the Committee requests the Government to continue to provide statistical information on the number of cases submitted to judicial bodies, as well as the nature and results of such cases, including specific information on any civil or criminal sanctions imposed against employers.

Articles 6 and 7(1) and (2) of Convention No. 81 and Articles 8 and 9(1) and (2) of Convention No.129. Status and conditions of service. Conditions for the recruitment of inspection staff. The Committee notes that, in reply to its previous comment, the Government refers to the Law on Civil Service, indicating that labour inspectors belong to corps “B” civil service positions, for which the following recruitment steps shall apply: (1) testing in the manner determined by the authorized body; (2) assessment of personal qualification with submission of an opinion to the authorized body; and (3) general competition for corps “B” civil service positions. The Government reiterates that candidates for the post of state labour inspector are required to have high legal, economic or technical education qualifications. The Committee also notes sections 27–29 of the Civil Services Act which provide for detailed procedures of competitions for taking up a corps “B” civil service position. In addition, section 17(4) provides that qualification requirements to corps “B” civil service positions are developed with account of main activities and official powers of the relevant state body and its structural units, on the basis of standard qualification requirements approved by the authorized body. The Committee takes note of this information which addresses its previous request.

Articles 10 and 11(1)(b) and (2) of Convention No. 81 and Articles 14 and 15(1)(b) and (2) of Convention No. 129. Human resources and material means of the labour inspectorate. Following its previous comment, the Committee notes the information provided by the Government, according to which, as of 1 August 2022, 258 state labour inspectors are working throughout the country (increased from 242 in 2021), with 38 official vehicles (increased from 33 in 2021). The Government also indicates that provision is made for reimbursement of business travel expenses in case of a need to visit enterprises in other areas. Two or three official vehicles are provided to each territorial subdivision.

In its observation ITUC reiterates that the actual number of state labour inspectors is not sufficient for adequate oversight of the observance of labour rights and does not allow for performing preventive activities on a larger scale. In addition, according to TUWFEC, inspectors are mostly based in administrative centres and large cities and there are no local labour inspection bureaus in rural areas. This complicates the work of the inspectorate in these areas since inspectors cannot respond promptly to workers’ appeals. The Committee requests the Government to continue to provide information on the resources allocated to the labour inspection service, including the number of local labour inspection bureaus and the budget for labour inspection functions at the local levels, as well as the number of inspection staff, the transport facilities and office space available to labour inspectors. It also requests the Government to provide its comments with respect to ITUC’s and TUWFEC’s observations.

Articles 12(1)(a) and 15(c) of Convention No. 81 and Articles 16(1)(a) and 20(c) of Convention No. 129. Inspections without previous notice. Duty of confidentiality in relation to complaints. The Committee notes that the Government refers to section 144(4) and (5) of the Entrepreneur Code, which provide that unscheduled inspections can be undertaken on specific grounds such as: (i) when there is a complaint from individuals and legal entities regarding specific violations of the requirements of the legislation which, if not addressed, would entail harm to human life and health; (ii) instructions from the prosecutor’s office concerning specific cases entailing or threatening to cause harm to human life and health, the environment, or the legitimate interests of individuals, legal entities, or the State; and (iii) communications from state bodies concerning specific cases of harm to human life and health, the environment, or the legitimate interests of individuals, legal entities, or the State, and also specific violations of the requirements of the legislation, which, if not addressed, would entail harm to human life and health. The Government indicates that in 2021, 4,727 inspections were carried out on the basis of complaints from individuals. More than 10,000 breaches were identified, while 3,300 orders were issued to remedy these breaches. It indicates that, compared to 2020, the number of inspections following complaints increased by 9 per cent. The Committee recalls the importance of undertaking a sufficient number of inspections that are unannounced to ensure that when inspections are conducted as a result of a complaint without prior notice, the fact of the complaint is kept confidential. With regard to confidentiality of complaints, the Committee notes that according to section 10(10) and (11) of the Civil Service Act, civil servants are obliged to keep confidential state classified information and other secrets protected by law and not to disclose information received in the course of exercising official powers, which affects the privacy, honour and dignity of citizens. The Committee requests the Government to indicate the measures adopted in order to ensure that labour inspectors treat as absolutely confidential the source of any complaint and that no intimation is given to the employer or his representative that a visit of inspection was made in consequence of the receipt of such a complaint. In addition, the Committee requests the Government to indicate whether the source of any complaints indicating a defect or breach of legal provisions falls into the scope of application of section 10(10) and (11) of the Civil Service Act.

Article 15(a) of Convention No. 81 and Article 20(a) of Convention No. 129. Ethical principles of labour inspection. Following its previous comment, the Committee notes the Government’s reference to section 51 of the Law on Civil Service, which prohibits a civil servant from exercising official authority if there is a conflict of interest. The Committee takes note of this information which addresses its previous request.

Matters specifically relating to labour inspection in agriculture

Articles 6(1) and (2) and 18 of Convention No. 129. Activities of the labour inspection services in occupational safety and health in agricultural undertakings. The Committee notes that according to TUWFEC national legislation does not provide labour inspectors with advisory or enforcement functions with reference to legal regulations relating to the living conditions of workers and their families. According to the same trade union and ITUC, the labour inspectorate monitors only formalized labour relations in agriculture, which does not allow it to cover situations where a violation is related to the failure of documentation of various legal requirements. In addition, according to TUWFEC, agriculture in the Akmola region in 2021 had the highest number of occupational accidents, exceeding even the mining and metallurgy industries which are considered as dangerous industries by the Ministry of Labour. The Committee requests the Government to provide information on the activities of labour inspectors in relation to agricultural undertakings, particularly on acts of supervision and prevention with a view to ensuring the protection of workers exposed to risks inherent to the use of chemicals, plant or complex machinery. The Committee also requests the Government to provide information on the number of measures with immediate executory force, such as suspension measures, adopted by labour inspectors in the agricultural sector. It also requests the Government to provide comments with respect to ITUC’s and TUWFEC’s observations.

Article 9(3) of Convention No. 129. Training for labour inspectors in agriculture. In reply to the Committee’s previous comment, the Government indicates that in 2022 training of state labour inspectors in the social and labour sphere has been carried out at the Ministry of Labour and Social Protection’s National Research Institute for Occupational Safety. The Government indicates that a training programme has been developed on applying labour legislation and carrying out state monitoring. While taking note of this information, the Committee requests the Government to provide information on training sessions intended specifically for labour inspectors performing their functions in the agricultural sector, on the number of labour inspectors receiving such training at each session, the subjects covered, and the duration of such sessions.

[ The Government is asked to reply in full to the present comments in 2024.]