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

CMNT_TITLE_CAS

Written information provided by the Government

Regarding further improvement of national legislation to bring it into line with the Convention

In order to modernize the human rights sphere comprehensively, on 9 June 2021, the President of the Republic of Kazakhstan, K.K. Tokayev, signed the Decree on Further Human Rights Measures of the Republic of Kazakhstan. The Decree identified additional new areas of human rights-related government work with a view to ensuring the primacy of the rule of law.

This means that the protection of human rights should be ensured through improvement of the law and existing legal instruments.

On 13 April 2022, the Decree was amended by adding a new area of work – the right to freedom of association.

In order to implement the Decree, the Government has developed a Plan for Further Measures in the Field of Human Rights and the Rule of Law, which provides for “Further improvement of national legislation and law enforcement in relation to trade unions and the resolution of labour disputes, including taking into account the recommendations of the International Labour Organization” (draft Act by the end of 2022, Act by the first quarter of 2023).

In pursuit of this objective, the Ministry of Labour and Social Protection of the Republic of Kazakhstan, together with the social partners, has drafted amendments to a number of legislative acts.

The first is modification of the procedure for state registration of trade unions to the notification procedure.

The notification procedure for registration involves informing the judicial authorities of the commencement of their activities by submitting an electronic notification, which is to be completed on the e-government web portal.

If this rule is adopted, the registering body will not have the right to refuse state registration of the trade union, as stipulated by existing legislation.

The second is to simplify the procedure for putting forward workers’ demands in the event of a collective labour dispute.

It is planned to implement this work by amending the Labour Code of the Republic of Kazakhstan in terms of reducing the number of employees present at a meeting (conference) for it to be recognized as quorate, as well as reducing the required number of votes to make a decision from at least two thirds to more than half.

Simplification of this procedure will facilitate the resolution of collective labour disputes within the legal framework.

The third is holding short-term (one-hour) warning strikes.

Through the introduction of this regulation, employees will be given the right to demonstrate the seriousness of their intentions without harming production processes and causing losses to the employer.

This short-term action is expected to encourage employers to come to the negotiating table with no particular implications for either party.

The fourth is that during a strike, employers have no right to replace striking workers participating in a strike organized in accordance with the established procedure.

This regulation is aimed at increasing employers’ interest in resolving collective labour disputes.

The fifth is assigning to the employer the obligation to provide premises and create the necessary conditions for holding a meeting (conference) of employees.

The proposed amendments are currently in the process of negotiation.

Concerning the ban on Ms Kharkova and Mr Baltabay from engaging in trade union activities

L. Kharkova’s ban on holding leadership positions in public associations and other non-profit organizations expires in November 2022.

L. Kharkova requested the revision of judicial acts by way of cassation.

Her cassation application was initially examined by a Supreme Court judge with a demand to scrutinize the criminal case materials, on the basis of which a ruling was made on 7 November 2018 to refuse to transfer the application of the convicted person for consideration to the court of cassation due to the lack of grounds for reviewing the judicial acts.

On 22 May 2019 and 27 December 2019, L.N. Kharkova’s application on the submission by the Chairperson of the Supreme Court on the review of the cassation sentence was returned because there were no grounds for making a submission.

E. Baltabay’s ban on holding leadership positions in public associations and other non-profit organizations expires in 2026.

E. Baltabay did not appeal the additional punishment.

Concerning the case of Mr D. Senyavsky

It has not been possible to identify the perpetrators of this criminal offence through a series of investigative and operational measures.

On 10 December 2019, the period for conducting pre-trial investigations into the criminal case was cut short due to the failure to identify the perpetrators of the crime in question.

At the same time, officers from the Shakhtinsk City Police Department are conducting operational and investigative work in order to identify the persons who committed this crime.

Upon receipt of positive information, D. Senyavsky will be notified by the criminal prosecution authorities within the time frame prescribed by law.

Concerning the Congress of Free Trade Unions of Kazakhstan National Trade Union Association

The Association submitted registration documents four times (three times in the period from July 2018 to September 2018, and also in November 2019).

Registration was denied due to the similarity of the name to that of the already registered legal entity, the Association of Legal Entities, the Confederation of Free Trade Unions of Kazakhstan Association, and also the fact that the charter made reference to the legal succession of the now liquidated Confederation of Independent Trade Unions of the Republic of Kazakhstan National Trade Union Association.

None of the comments made in the order of 25 July 2018 have been addressed in any of the subsequent registration applications (17 August 2018, 18 September 2018 and 14 November 2019).

To date, no state registration documents have been received.

Concerning the Industrial Union of Employees of the Fuel and Energy Sector

The trade union has submitted applications five times (21 September, 4 October, 3 November and 23 December 2021, and 11 March 2022) for registration of an affiliate in Atyrau region, which was denied on all five occasions (decisions of 28 September, 11 October, and 20 December 2021, and 11 February and 18 March 2022).

The reason for the refusal was the absence of a seal on the application, incomplete payment of the registration fee, inconsistencies between the affiliate’s statutes and the legal entity’s charter, as the statutes did not disclose the legal entity’s full address.

At the same time, on 30 December 2021, an application was filed for registration of an affiliate in Almaty. However, on 10 February 2022, registration of the affiliate was denied.

On 13 April 2022, a second application was submitted for registration of an affiliate in Almaty. The affiliate was denied registration by the decision of the Almaty Department of Justice of 18 May 2022.

We note that the applicant has the right to re-apply for registration of the affiliate when the breaches are addressed.

Between 2021 and 2022 no other problems with the creation of workers’ associations were recorded. The Ministry of Labour has not received any such complaints, including from the social partners.

Concerning the review of article 402 of the Criminal Code

Consideration is currently being given to the decriminalization of article 402(1) of the Criminal Code, which penalizes calls for strike action declared illegal by the court.

It is planned to make article 402(1) of the Criminal Code an administrative rather than a criminal offence. Criminal liability will only apply where incitements to continue a strike declared illegal by the court caused substantial damage to the rights and lawful interests of citizens or organizations, or to the legally protected interests of society or the State or caused mass riots.

The proposed amendments are subject to approval by the public authorities concerned.

Concerning the inclusion of international workers’ and employers’ associations in the list of organizations providing grants

The Ministry of Labour and the Ministry of National Economy are currently considering the inclusion of a number of international organizations in the list.

At the same time, a review of the procedure for drawing up the list is being considered.

Concerning the enforcement of articles 145 and 154 of the Criminal Code and article 97(2) of the Administrative Offences Code

The Ministry of Labour has conducted an analysis of the law enforcement practice of articles 145 (violation of human rights) and 154 (obstruction of the lawful activities of employee representatives) of the Criminal Code.

Statistical data have shown that in the period from 2018 to 2022, under article 154 of the Criminal Code, two pre-trial investigations were registered (in 2018 and 2021), which were discontinued.

During the same period, no pre-trial investigations were registered under article 145 of the Criminal Code.

Likewise, no cases were recorded under article 97(2) of the Administrative Offences Code.

“In this regard, the Committee requests the Government to amend further section 20 of the Labour Code in consultation with the social partners, in order to bring it into line with the Convention and address inconsistencies in the provisions of the Labour Code referred to above. The Committee requests the Government to indicate all steps taken to this end.”

In accordance with labour legislation, workers’ representatives are trade unions and their associations, and in their absence, elected representatives – elected and authorized at a general meeting (conference) of workers by a majority vote of participants in the presence of at least two thirds of the employees (conference delegates).

In order to comply with the provisions of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Workers’ Representatives Convention, 1971 (No. 135), labour legislation was amended accordingly in May 2020.

According to the new provisions of the Labour Code of the Republic of Kazakhstan, if the membership of trade unions is less than half of the organization’s workforce, workers’ interests may be represented by trade unions and elected representatives.

At the same time, collective bargaining between employers and employees without the participation of a trade union is not permitted if a trade union has been established in the organization in question.

The changes have made it possible to strike a balance between the interests of both unionized and non-unionized workers, and to take full account of the views of the entire labour collective, without infringing the rights of trade union members.

In addition, prior to the adoption of these amendments to the Labour Code, their wording was agreed upon with both the social partners and the ILO. The Ministry sent a letter to that effect, to which a positive response was received.

Discussion by the Committee

Interpretation from Russian: Government representative – We have been a Member of the ILO for many years and are fulfilling our obligations and have ratified 25 Conventions. In April 2022, we ratified the Part-Time Work Convention, 1994 (No. 175). We also established a road map for the application of Convention No. 87 and, as a part of that work, in 2020 a number of substantial changes were made to the legislation relating to trade unions, including the Labour and Criminal Codes of our country. At the Conference last year, I informed the Committee about these changes and the work that has been done in Kazakhstan. The 109th Session of the Conference made a number of recommendations. I wanted to update you on those. This work was also carried out taking into account the report of the direct contacts mission, which visited our Republic from 4 to 12 May.

I would like to say thank you to the team of the mission, headed by Niklas Bruun and which visited our Republic and issued a number of recommendations. With regard to the recommendations on our country bringing into line legislation with this Convention, we have carried out work to improve our legislation in this area, improving the registration of trade unions and giving trade unions and workers the full right to freedom of association.

We have modernized the area of rights protection, and the President of Kazakhstan has issued a decree on further measures in the area of human rights in the country, defining additional areas of work for the Government in the area of human rights and particularly with regard to securing the supremacy of law, guaranteeing the protection of human rights through the application of law and existing instruments. One of the key areas of work reflected in the decree of the President is the right to freedom of association.

The Government, on 28 April this year, confirmed measures on human rights and the supremacy of law. The Ministry of Labour worked with the social partners to develop amendments to a number of laws. The term for developing these amendments has been defined as the end of this year, and we hope they will then be put before the Parliament. Allow me to talk in more detail about the changes that we have put together with the social partners.

First is the application of the registration measures. It is worth noting here that issues were raised on the registration of individual trade unions, including as legal persons. So, the system with regard to the registration of trade union requires informing the Ministry of Justice by submitting an electronic notification, and what that means is that the registering body will not be in a position, or have a right, to refuse the registration, as is provided for by the legislation currently in force. We hope that individual trade unions will now be able to go ahead with registration.

Second, there is a system of practice in place relating to the claims or demands of workers and strikes. A number of rules have been proposed to improve this system when there are collective labour disagreements. For example, amendments to the Labour Code, reducing the number of workers necessary and a conference for the recognition of such issues, and changing the majority required from two thirds to one half. We hope that this will enable the improved resolution of collective labour disputes.

Third, the decriminalization of issues that have been criminalized in the past, including matters relating to strikes. We have looked at this issue in the cross-sectoral working group with the Public Prosecutor in May this year. The article criminalizing such activities has been removed, and as we move towards improving legislation, we are looking at the question of transposing certain provisions into the format of administrative issues.

Fourth, with regard to the notification of strikes, the introduction of these rules would allow workers to express their seriously held concerns legitimately. So, we hope that it will be possible to carry out such things without negative consequences for both sides.

Fifth, another provision to be brought in is the prohibition of replacing striking workers with other workers.

Sixth, creating the necessary conditions for unions to be able to organize and meet.

With regard to the recommendations to ensure a better basis for the investigation of accusations against trade union members, the Government is looking at this along with the Public Prosecutor. Individual cases do exist and are under consideration by the Ministry of Internal Affairs. The relevant information is being considered, and obviously all relevant bodies will be kept abreast of developments. With regard to the practice of the prosecution of trade union leaders, and three or four cases were mentioned in the report, all those criminal procedures are not linked to legitimate trade union activities, but rather to actual criminal activities. In 2021–22, there were no criminal cases against trade union leaders.

With regard to recommendations 5 and 6, relating to the registration of trade unions directly, I can say that as things stand today, we have in force a joint working group involving the Ministry of Justice, and all potential problems that might arise when associations are registered, including trade unions. It can be considered that the working group contains representatives of the judicial bodies and representatives of trade unions, so any complaints relating to registration can be looked at in this working group, based on the principle of cooperation. The adoption of amendments to legislation is ongoing, as I have said. A number of sectoral trade unions and grassroots trade unions have been registered, and the continuing work to register trade unions as legal persons will continue along with the changes to the law, which I have already informed you about.

I would like to say that in the individual cases, the rejection of registration as legal persons is something that is being looked at in terms of the basis for such decisions, and, as I have said, the law is being reviewed in this area.

With regard to favouritism, we have confederations covering around 3 million workers, around half of the workers in the Republic. We have 56 trade unions, 35 regional ones and around 400 local grassroots trade unions. In the general agreement between the Government and the associations of workers and employers, we agreed to not allow interference in the affairs of these associations. The trade unions are participating actively in the various forums for discussion. We have clearly established the obligation not to allow legal interference by the Government in civil society associations and organizations.

With regard to the changes to employers’ organizations, the National Chamber of Entrepreneurs is also being affected by the amendments that we have made, which I have already talked about.

I would like to inform you that in our tripartite work, we have agreed that individual bills will be prepared on trade union organizations. We have given our workers’ organizations the mandate to pursue effective social dialogue with employers’ organizations and the Government, and this is work that will continue this year.

With regard to international cooperation, I can inform you that changes that we have made to the Law on Trade Unions and the Labour Code will be contributed to by cooperation with international organizations. We received support through the 109th Session of the Conference and the direct contacts mission in May this year, and we will continue to work on implementing these recommendations. The Government of Kazakhstan will make every effort to further develop social dialogue in the interests of effective labour relations. We will continue with this work and bring our national legislation into line with the provisions of the Convention.

Worker members – Kazakhstan does not seem to have resolved its issues of non-compliance with the Convention, despite the numerous recommendations made and initiatives adopted in an effort to resolve the situation, including the direct contacts mission that was decided upon last year and that took place recently, in May this year.

Once again, we are obliged to note with deep concern that violations of the rights and freedoms enshrined in the Convention remain widespread in practice, despite the legislative amendments made in recent years and the draft amendments announced by the Government.

The time for declarations of intent has passed. The Government of Kazakhstan must now take specific, decisive action to bring a lasting solution to the many problems highlighted; problems that are not minor.

The problems of conformity with the Convention can only be addressed in the light of the country’s political context, which is characterized by a democratic deficit that prevents the full exercise of civil liberties, including freedom of association. Indeed, at the start of the year we witnessed the law enforcement authorities’ massive, very violent repression of peaceful demonstrations to denounce poverty, extreme social inequality and price increases in Kazakhstan.

It is clear that strict observance of freedom of association and a commitment to genuine social dialogue will offer the guarantees required to resolve the significant inequality seen in the country.

Violence against trade unionists remains rife in Kazakhstan. The Chairperson of a trade union of workers of the fuel and energy complex in Chakhtinsk, Mr Senyavsky, was a victim of such violence in November 2018. This violence is accompanied by the authorities’ lax approach to conducting investigations and prosecuting and sentencing the perpetrators. Indeed, no significant progress has been made in this case since 2018.

The same observation can be made in relation to the tragic events that took place in Zhanaozen in 2011 and caused the deaths of 17 strikers and injuries to more than 100 others following the extremely violent repression of strike action.

The maintenance of a climate of impunity for the perpetrators of such violence is extremely harmful and constitutes a major obstacle to the free exercise of freedom of association in the country.

Additionally, the Criminal Code allows for bans on the holding of public offices, including trade union offices, in contravention of the Convention. Ms Kharkova, Chairperson of the Confederation of Independent Trade Unions of Kazakhstan (KNPRK), and Mr Baltabay, leader of the Industrial Union of Employees of the Fuel and Energy Sector and who testified before our Committee several years ago, are subject to that sanction, which constitutes a restriction to their freedom of association.

These two examples illustrate the judicial harassment against trade union leaders that continues to occur in the country.

The use of administrative arrest to hinder legitimate industrial actions is also part of this judicial harassment. We have observed such practices, for example, in October 2021 with the administrative detention of Zhenis Orynaliev, a few months after he was elected Chairperson of his trade union and on the same day as planned industrial action by the union, as well as in December 2021 with the administrative detention of Saule Seidakhmetova, leader of the Ymit trade union, for ten days for her participation in legitimate action that had been declared illegal by an administrative court.

Other trade unionists are also prohibited from holding any office in a public or non-governmental organization in retaliation for their trade union activity, including Mr Eleusinov and Mr Kushakbaev, leaders of a trade union of workers in the fuel and energy sector.

The Committee of Experts has also noted that the Criminal Code provides for prison sentences for incitement to continue a strike declared illegal by the court. The Government has announced that an in-depth review of article 402 of the Criminal Code will form part of a plan comprising urgent measures to be adopted in the area of human rights, including freedom of association.

Imposing punishment or sanctions for simply calling for a peaceful strike, even a strike declared illegal by the courts, is contrary to the Convention.

The report of the Committee of Experts once more highlights the recurrent problem in Kazakhstan of the procedures for registering and re-registering trade union organizations. Many trade union organizations encounter serious difficulties in a process that should be a simple formality.

We regret to note that, time and time again, these registration procedures are used to hinder the establishment or operation of free and independent trade union organizations, in total contravention of the Convention.

In 2017, the registration of the KNPRK, now the Congress of Free Trade Unions (KSPRK), was withdrawn in retaliation for the Committee’s discussion of the case. Five years later, and despite the Government’s repeated expressions of commitment to resolving the matter, even before this Committee, that trade union remains unregistered.

The Industrial Union of Employees of the Fuel and Energy Sector was subject to a court decision to suspend its activities, leading to a process to dissolve it. The direct contacts mission was unable to resolve the situation, a fact that it regretted in its report.

Kazakhstan must continue its work, in consultation with the social partners, to ensure the effectiveness, impartiality and independence of these registration procedures.

In that regard, we invite Kazakhstan to review the composition of the permanent working group responsible for examining the issues linked to the registration of trade unions so that independent trade unions may be included.

Lastly, legislation prohibits in principle financial assistance from international organizations of workers. That legislation provides for some exceptions, but under conditions that are much too strict and that greatly hinder freedom of association, in contravention of Article 5 of the Convention.

As we have known and repeated for many years, there is a long-standing failure to recognize fundamental labour rights and freedoms in Kazakhstan.

This is also something that we have witnessed in the events that took place at the start of this year: an environment in which civil liberties, including trade union freedoms, cannot be exercised freely can only give rise to injustice.

It is, therefore, the responsibility of the Government to re-establish an environment conducive to the exercise of these civil liberties and to embark upon a genuine process of dialogue with the social partners that is able to ensure lasting social peace and pave the way for greater social justice for the population of Kazakhstan.

Employer members – We thank the Government for its report here this morning in the Committee, and for the detailed information provided. We also thank the Government for its submission dated 28 May and have carefully considered all of this information.

We note with particular interest the Government representative’s submissions about the changes affecting the National Chamber of Entrepreneurs and its stated commitment to social dialogue.

Our discussion of the case of Kazakhstan in respect of the Convention this year is timely, in order to be able to assess what achievements have been made in the implementation of the Committee‘s conclusions from last June as well as taking into account the ILO direct contacts mission that took place in early May 2022.

It will be remembered, among other things, that the Committee last year had requested the Government to accept an ILO direct contacts mission before this year’s session of the International Labour Conference. The Employer members are pleased that this ILO direct contacts mission to Kazakhstan was accepted and took place at the beginning of May.

We note that the ILO mission was able to meet with all state bodies and persons that it identified as important to meet with. The mission welcomed the Government’s readiness and interest in continuing to engage and cooperate with the ILO.

While the ILO mission also noted progress towards conformity with the Convention in legislation and practice, it was nevertheless not entirely convinced that all steps have been taken in this regard. This coincides with the Employer members’ assessment of the information contained in the Committee of Experts’ report and provided by the Kazakhstani Government. Therefore, I would like to address the outstanding issues from our perspective.

First, a major issue regarding the employers’ freedom of association under the Convention in Kazakhstan relates to the creation, by law, of the National Chamber of Entrepreneurs (NCE). It may be recalled that the NCE has compulsory membership and all-encompassing competencies to represent employers which has had the effect of marginalizing free and independent employers’ organizations.

A positive step taken by the Government was that it repealed section 148(5) of the Labour Code, which provided for the NCE’s authority to represent employers in social dialogue at the national, sectoral and regional levels. So, according to the law, the NCE is not supposed to participate on behalf of employers in social dialogue and collective bargaining.

However, the ILO direct contacts mission found evidence that the Government is still engaging the NCE in social dialogue and that the NCE is still involved in collective bargaining. In other words, legal change has been implemented but this change has not been implemented in practice.

We also note that the issue of the accreditation of employers’ organizations in the NCE has not been satisfactorily addressed. That is not, as the Government seems to suggest, just an internal matter of the NCE, which is a semi-state organization.

Employers’ organizations, through accreditation, become financially dependent on the NCE and are therefore no longer free in the representation of their members’ interests. In our view, the accreditation system should be discontinued. In any case, employers’ organizations accredited with the NCE must be considered as part of the NCE’s structure and therefore cannot be considered eligible for participation in social dialogue and collective bargaining.

To summarize this issue, the Employers’ group calls upon the Government to ensure that the NCE, in line with the law, completely withdraws from social dialogue and collective bargaining and leaves this area of competence to free and independent employers’ organizations. The system of accreditation of employers’ organizations in the NCE should be discontinued. In addition, to further reinforce the recognition of the freedom of association of employers and their organizations, it may be opportune to adopt regulations that set out the independence and autonomy of employers’ organizations and determine the conditions for their eligibility for participation in social dialogue and collective bargaining.

There are also issues of compliance with freedom of association regarding workers’ issues where we have failed to see visible progress. In particular, we note the issue of the right of organizations to receive financial assistance from international organizations of workers and employers which is protected under Article 5 of the Convention. To this effect, we note the intention of the Government to consider the inclusion of a number of international organizations on the list of organizations that can provide grants in Ordinance No. 177 of 9 April 2018, and to review the procedure for drawing up this list. We call upon the Government to amend this list and keep us informed of the outcomes of the review of the procedure for drawing up the list.

We note that with respect to the issue of the registration of the Confederation of Independent Trade Unions of Kazakhstan (KNPRK), things do not seem to have progressed. The Government has indicated that none of the comments made in the order of 25 July 2018 have been addressed in any of the subsequent registration applications by the KNPRK and that, to date, no state registration documents have been received. Concerning the refusal of the registration of the Industrial Union of Employees of the Fuel and Energy Sector, according to the Government on 30 December 2021 an application was filed for the registration of an affiliate which was denied. A second application was recently received on 18 May 2022. We also noted the intention expressed by the Minister of Labour and Social Protection to the ILO direct contacts mission to simplify the present registration procedure by either replacing it with a notification procedure or by allowing trade unions to function without registration. This draft law, we understand, should be developed by the end of 2022.

The Employers welcome this plan and trust that there will be a full consultation with the social partners with respect to this new law, which will hopefully be adopted in short order.

In the meantime, we request the Government to continue to find a solution to the issue of the unresolved status of the registration of the KNPRK and the Industrial Union of Employees of the Fuel and Energy Sector.

Finally, we note that the Committee of Experts has rendered a number of comments on section 402 of the Criminal Code, according to which an incitement to continue a strike declared illegal by the Court is punishable by up to 50 days’ arrest and in certain cases for up to 2 years of imprisonment. We will not address the Worker members’ comments in this regard and we will not comment on the Committee of Experts’ observations in this regard or the Government’s submissions today as, in our view, there is no basis for making any request to the Government in this regard. As is well known, in the view of the Employers and the Government group of the ILO Governing Body, the right to strike is to be regulated at the national level. This Convention does not contain rules on this, and this point can, therefore, neither be addressed in the conclusions of this case or in any substantive way in our discussion.

Interpretation from Russian: Worker member, Kazakhstan – The Federation of Trade Unions of Kazakhstan (FPRK), which is the largest workers’ organization of Kazakhstan, has 23 sectoral trade unions and local trade unions, bringing together more than 2 million members. Alongside our Federation, there are two other republican associations, the Kazakhstan Labour Confederation and Amanat. Together, we are making efforts, and one example of this is a general agreement from 2021–23; all three trade union confederations adopted the same position and submitted/shared a draft to the Committee. The FPRK has always been in favour of unitary action by trade unions and has already supported solidarity programmes for international trade union organizations. We have repeatedly spoken in favour of the position of our colleagues Larisa Kharkova, Dimitri Senyavsky, Erlan Baltabay and others on the overturning of previous convictions and the registration of their respective trade unions. The FPRK is making every effort to apply the principles of the International Labour Organization, including via new legislation.

The Government has drafted and introduced proposals relating to the application of ILO experts and the conclusions of the Committee, and these have been reflected in the law adopted in May. This contains provisions for the members of the trade unions that have been mentioned, ensures international cooperation and support and simplifies the conditions for confirming the status of trade unions when registering with the State.

At the moment, the FPRK is initiating further improvements to these rules, particularly the transition to the notified registration of trade unions, and this is an initiative that is supported by the Government.

Individual national laws have led to improvements in the situation, particularly with regard to article 402 of the Criminal Code. The comments of the Committee of Experts on this issue have certainly been considered. But there is also the issue of the incidents that have led to justified detention. We are looking to further improve the legislation in the country by carrying out, for example, procedures relating to requirements for strikes, strengthening the arbitrational committees’ role and increasing the role of trade unions when discussing labour disputes.

The cross-ministerial committee of the Government is further looking into these issues, and shortly the bill will be appearing before the Parliament in Kazakhstan. Furthermore, representatives of the FPRK have made a number of proposals to the bill on safe conditions of work and the protection of workers’ rights.

One amendment proposed by us relates to the index linking of wages for short-term employment. We are also continuing our work in the area of technical cooperation with the ILO and the International Labour Standards Department.

In conclusion, I would like to reassure you that the FPRK has always been in favour of constructive dialogue between the social partners in the interest of workers. We are entering a new stage of development of our country and we hope that the ILO will support us with technical assistance with regard to the application of the Convention. Expectations in the country are extremely high, and these expectations should not be disappointed.

Interpretation from Russian: Employer member, Kazakhstan – We are aware of the recommendations that have been made last year and this year, and we are seeing certain effects of their application in Kazakhstan. The ILO certainly played a huge role in the improvements that have taken place.

I represent the National Confederation of Employers. Our Confederation underwent fundamental change: strengthening the leadership team; identifying the areas of work; and reviewing short- and long-term objectives.

I would like to say that in these two months the number of members has increased threefold, and work in this area is ongoing. I would also like to thank the direct contacts mission headed by Mr Bruun. All of the issues relating to the legislative changes and other issues raised by the mission are being worked on. We are seeing an independent employers’ organization and new laws going before the Parliament. The direct contacts mission identified a number of areas where there are inconsistencies, and these need further work. However, as the Chairperson of our organization mentioned on the occasion of the visit, it is important to continue building a strong and independent employers’ organization that can effectively defend the interests of employers.

Our Confederation is working actively together with international organizations and will continue cooperation to develop and strengthen social dialogue in Kazakhstan. Our objectives are very much in line with the overriding objectives of our country, and we all see the need for effective reform in Kazakhstan.

Government member, France – I have the honour of speaking on behalf of the European Union (EU) and its Member States. The candidate country Albania, and the European Free Trade Association country, Norway, Member of the European Economic Area, align themselves with this statement.

The EU and its Member States are committed to the promotion, protection, respect and fulfilment of human rights, including labour rights, the right to organize and freedom of association.

We actively promote the universal ratification and implementation of fundamental international labour standards, including the Convention. We support the ILO in its indispensable role in developing, promoting and supervising the application of ratified international labour standards, and the fundamental Conventions in particular.

The relationship between the EU and Kazakhstan is governed by the Enhanced Partnership and Cooperation Agreement, which has enabled us to strengthen our bilateral cooperation. With this Agreement, the parties reaffirm their commitment to effectively implementing ratified ILO Conventions and the fundamental ILO Conventions.

While we acknowledge the progress made by the Government in amending parts of its legislation, we are concerned that Kazakhstan has become a recurrent case at the Committee. Conformity with the Convention, both in law and practice, is now being discussed for the fifth time in the last six years. We encourage the Government to swiftly address the outstanding issues in order to comply fully with the Convention.

We once again urge the Government to repeal article 402 of the Criminal Code, which criminalizes calling on workers to participate in a strike that has been declared illegal by a court. This article is incompatible with freedom of association and the Government’s responsibility to protect the right of workers and employers to organize their activities, including the right to strike.

Beyond legislative amendments, we call on the Government to ensure that freedom of association, the right to establish organizations without previous authorization and the right to organize are fully respected, both in law and practice. This is cause for concern, also given that the limitation of workers’ rights may have been one of the core problems leading to the tragic events of January 2022 that began in the mining town of Zhanaozen.

We note with concern that despite the clear conclusions of the Committee’s last discussions, the long-standing issue of the registration of the KSPRK and the Industrial Union of Employees in the Fuel and Energy Sector has still not been resolved to allow them to enjoy the full autonomy and independence of free and independent workers’ organizations to fulfil their mandates and to represent their constituents without further delay. We request that the Government resolve this issue, including through closer engagement with the social partners, in order to find a resolution to the difficulties identified by the trade unions seeking registration, thereby guaranteeing the workers’ right to establish organizations without previous authorization.

We note that the Committee on Freedom of Association continues to examine the cases of Mr Baltabay and Ms Kharkova, as well as the case of Mr Senyavsky. The EU and its Member States deplore any violation of the fundamental rights of trade unionists and any act of harassment, intimidation, aggression or imprisonment against them. The absence of effective investigations and judgments reinforces the climate of insecurity and impunity, which are damaging to freedom of association.

We also reiterate that employers’ and workers’ organizations should not be prevented from receiving financial or other assistance from international organizations of workers and employers, in line with the conclusions adopted last year.

Lastly, the EU and its Member States expect that the concerns raised in this statement will be addressed in the ongoing comprehensive reform processes initiated by the new Administration of President Tokayev. We will continue to follow and analyse the situation and remain committed to our close cooperation and partnership with Kazakhstan.

Interpretation from German: Worker member, Germany – I speak on behalf of workers in Germany and in the Nordic countries. In last year’s conclusions, this Committee formulated precisely what steps the Government must take to bring its legal situation and practice into line with the Convention. Unfortunately, we are not seeing the Government delivering on what it explicitly promised in its final statement given to this Committee. Of particular concern is the continued criminalization of the activities of trade unions and their members. This Convention guarantees that these activities can be carried out in an environment that respects fundamental civil rights and liberties, for, to quote the Committee on Freedom of Association, “the absence of these civil liberties removes all meaning from the concept of trade union rights”. How are trade unions supposed to support workers in dealing with the consequences of the COVID-19 pandemic when their representatives fear arrest and imprisonment at every step!

In October 2021, the police arrested the President of the new Platform Workers’ Union on the very day that the new union was planning a strike. In December 2021, the President of the Crane Operators’ Union was sentenced to ten days in prison for taking part in an allegedly illegal rally. Trade union leaders and representatives sentenced to prison under dubious circumstances are not allowed to resume their activities even after their sentence has expired.

The President of Kazakhstan has signed a Decree on further measures of the Republic of Kazakhstan in the field of human rights, which also aims to protect freedom of association. The UN Committee on Economic, Social and Cultural Rights stated in November 2021 that the Decree has no practical effect.

The Government stated in its written information of 28 May 2022 to the Committee that an action plan should implement the ILO recommendations by the end of 2022 or the first quarter of 2023. This stalling tactic is unacceptable given the fact that for years we have been discussing the violations of the Convention. We therefore call on the Government to submit to this Committee specifically what steps it will take to finally and fully implement the obligations under the Convention.

Government member, Türkiye – We thank the Government of Kazakhstan for the information it provided and welcome its willingness to constructively engage and cooperate with the ILO. The Government of Kazakhstan has demonstrated efforts to strengthen and adapt its current legislative framework to bring it into line with ILO standards. We encourage the Government of Kazakhstan to continue to undertake necessary steps in this regard.

We welcome that a direct contacts mission of the ILO visited Kazakhstan in May this year to discuss the implementation of the Convention, and progress in ensuring trade unions enjoy the right to freedom of association was observed by the ILO mission.

We commend the positive steps taken by the Government of Kazakhstan in consultation with the social partners, including its taking into account the observations of the Committee of Experts to amend its internal laws. Recent amendments, such as the transfer of the state registration of trade unions to a notification procedure and the simplification of the procedure for organizing a strike, made by the Government of Kazakhstan in order to bring its national legislation into accordance with the standards of the Convention should be acknowledged.

It should be emphasized that the Government is determined to work on the issues raised by the ILO and the social partners in a spirit of constructive dialogue and is ready to enter into an open discussion on how to further improve the situation with trade unions.

In addition, we are pleased that significant political reform aimed at the further transformation and modernization of the country, including on the protection of human rights and the rule of law, was initiated by the presidency of Kazakhstan.

We believe that Kazakhstan, which fulfils its obligations in the submission of reports related to the ratified ILO Conventions, will continue to work with the ILO and the social partners in close cooperation.

Worker member, United States of America – Unfortunately, since this body last discussed this case last year, the Government of Kazakhstan has continued to arbitrarily deny registration to independent trade unions. For example, the Government still has not addressed long-standing concerns regarding the registration of the Confederation of Independent Trade Unions of Kazakhstan (KNPRK). Starting in December 2021, the Industrial Trade Union of Fuel and Energy Workers of Almaty has had their registration papers rejected on four separate occasions based on alleged irregularities in the paperwork.

Meanwhile, the trade union of workers of the fuel and energy complex of the Almaty region has been denied registration six times and each time for a new reason. While it is true that the Government has established working groups to reform the Labour Code, independent trade unions have been totally excluded from this process. In addition, the Government has continued its campaign of legal harassment against independent trade union leaders; Larisa Kharkova, the former Chairperson of the KNPRK, remains under modified house arrest and is banned from serving as a trade union leader. Several other independent trade union leaders, including Mr Baltabay, remain subject to similar bans.

Despite the efforts of the Committee of Experts and this Committee, it is unfortunately clear that the Government continues to play politics with the union registration process. We call on the Government of Kazakhstan to end its campaign to squash independent trade union activity and fully implement the recommendations contained in last year’s 2021 Committee report without further delay.

Government member, Canada – Canada considers Kazakhstan an important partner in many areas of international cooperation.

We note that this is the fifth time in six years that the Government of Kazakhstan has been called to appear before this Committee to discuss its implementation of the Convention.

We welcome the progress made by the Government in responding to some of the recommendations made by this Committee.

We also hope that the political reforms announced in March 2022 will strengthen the universality of human and labour rights and reduce the number of reported incidents of harassment of trade unionists and restrictions on the right to freedom of association and peaceful assembly.

We call on the Government to protect effectively, in law and practice, the right of all persons, including trade unionists, to organize and to participate in peaceful demonstrations.

Canada remains concerned that some trade unions continue to encounter obstacles to their establishment and registration, and that the long-standing problem regarding the registration of the FPRK and the Industrial Union of Employees in the Fuel and Energy Sector remains unresolved.

We therefore call on the Government, in consultation with the social partners, to resolve definitively and without delay the difficulties currently hindering the trade union registration process.

Lastly, we encourage the Government to avail itself of the ILO’s technical assistance and to continue to engage with the ILO to ensure full respect for the principles of the Convention.

The Government of Canada remains committed to working with Kazakhstan to that end and as a partner. We support the Kazakh Government’s ambitious programme of political reform, and we commend it for continuing its investigations into the events of January.

Government member, United States of America – This Conference Committee has discussed the Government of Kazakhstan’s lack of progress to address serious issues of non-compliance with the Convention every year since 2015, except in 2018 when a high-level tripartite mission visited the country.

The Decree on further human rights measures was recently amended to include freedom of association, including the development of a work plan to address long-standing issues. We note plans to amend legislation, including the possible decriminalization of article 402(1) of the Criminal Code, which penalizes calls for strike action declared illegal by the court.

However, significant work remains. We note the dissolution of the Industrial Union of Employees in the Fuel and Energy Sector (ITUFEW) following a court decision to suspend its activities in February 2021. We regret the Government’s failure to work with the country’s last remaining independent trade union to allow it to stay operational, as their subsequent attempts to re-register were rejected.

We call on the Government to uphold its commitment to respect and promote freedom of association under the Convention, in both law and practice. This requires: respect for the full autonomy and independence of free and independent trade unions and employers’ organizations, including by immediately ceasing acts of violence, harassment and interference; eliminating practices and vacating existing orders that prohibit or impose restrictions on trade unionists and leaders engaging in legitimate trade union activities, including those against Larisa Kharkova and Erlan Baltabay; continued engagement with the social partners to address obstacles in the union registration process, including the removal of geographic requirements for sectoral unions which, in practice, can limit independent oil sector unions concentrated in the western region; the immediate registration of the ITUFEW and the Confederation of Independent Trade Unions of Kazakhstan (KNPRK); further review of section 402 of the Criminal Code to ensure that penalties for calling strike action are not excessive; continued review of the Law on the National Chamber of Entrepreneurs (NCE) to ensure it does not hinder the rights of employers’ organizations; and inclusion of the ITUC and the IOE in the list of organizations permitted to provide grants to individuals in the country under Ordinance No. 177. We urge immediate and effective action on these long-standing recommendations. We remain committed to engaging with the Government to advance workers’ rights in Kazakhstan.

Observer, IndustriALL Global Union – I am speaking here on behalf of the IndustriALL Global Union that represents more than 50 million workers in the oil, gas, mining, energy and manufacturing sectors throughout the world, including Kazakhstan.

For more than ten years, since the tragedy in Zhanaozen in 2011 where at least 17 people were killed and over 100 injured, without any justice so far, we still do not see any improvement in the situation of trade union rights in the country. And we believe that Kazakhstan continues to avoid fulfilling its obligations under the Convention. And I particularly want to refer to the system of registration procedures which remains complex and serves to prevent the creation of free and independent trade unions.

The Industrial Trade Union of Employees of the Fuel and Energy Sector has reported that its regional branches failed to obtain registration for far-fetched, unfounded reasons on numerous occasions. The registration of the union branch in Atyrau, as was already mentioned, was denied six times and each time with a new reason.

Over 60 large, spontaneous strikes, mainly in the energy and oil sector last year, and the massive protests in January of this year where at least 160 people were killed, clearly demonstrate that the dissolution and oppression of democratic institutions in the society of Kazakhstan leads to tragic consequences.

There is a lesson to be learned from these mass protests. It is the policies and practices, not the external forces, that have provoked the social and labour conflicts strongly suppressed by the police and the security forces. The main lesson is that dialogue with the relevant parties, a commitment to openness and democratic values, social dialogue and collective bargaining at the sector level with trade unions, especially in the sectors which bring Kazakhstan its wealth, are needed to build a sustainable society in the country.

The President of the country has announced steps to strengthen democratic traditions in the country. The referendum on 5 June will consider a vast package of amendments to the Constitution. There is a glimmer of hope; however, all words must be followed by actions.

We once again urge the Government of Kazakhstan to take all the necessary actions to make sure that the country, the Government, complies with the obligations under the Convention.

The union registration procedure must be simplified based on notification by trade unions. Any restriction on union activity must be lifted, and all the charges against union leaders must be dropped, including removing the charges from the records of trade union leaders.

Interpretation from Russian: Observer, International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Associations (IUF) – The issue of freedom of association in Kazakhstan is something that this Committee has returned to numerous times, and the starting point for it was the repressed strike in 2011 in Zhanaozen. A peaceful strike for increased wages took place over a number of months, and it could have finished around the negotiating table with the signing of an agreement or by establishing a list of differences of opinion. That would have been the direct duty of the State – creating the conditions for negotiation as required by the Convention and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). Instead of that, armed troops came into the strikers’ village on 16 December 2011 and received the order to open fire. Since then, the Government has continued along this path, banning independent trade unions, criminalizing strikes or any independent activities of workers and repressing trade union leaders. This deprives trade unions of their right to freedom of association and the right to organize.

Since our last consideration of this issue, the number of strikes has been increasing. They take place in a number of regions and in a number of industries, and it is worth noting two particular characteristics. Firstly, they are all peaceful, they are well-organized, and their participants participate with a high level of discipline and order, not allowing extremism within their ranks. They show that they are ready for civilized and dignified negotiation. In practically all these instances, these workers are demanding the lifting of restrictions on the establishment of trade unions as required by Conventions Nos 87 and 98.

There is an opportunity in the country today. We hope the Government will use this opportunity, lifting restrictions on trade union rights and particularly on the establishment of the KNPRK. But the situation is still particularly worrying and deserves close and concerned attention from the International Labour Organization.

Interpretation from Russian: Observer, International Trade Union Confederation (ITUC) – I represent the Industrial Trade Union of Employees of the Fuel and Energy Sector, which has suffered from the dissolution of the KNPRK. Unfortunately, the Government is ignoring the recommendations of the ILO and dissolving independent trade unions and attempts to register trade unions are not met with success. We are continuing to receive refusals from the Ministry of Justice under false pretexts.

The official registration of trade unions means that if they do not go through that process, it is not possible to participate in collective bargaining, and this leads to social conflicts, including those we saw in January 2022. Protests and gatherings are declared to be illegal, and the dissolution we see of these organizations leads to workers being dismissed if they voice their demands; there is no mechanism to protect their rights, they are denied their rights, there are no collective agreements, and in a sector where profits are high, workers are finding it difficult to make ends meet, particularly in those areas that do produce such high-value, high-profit products. It is necessary to put an end to these attitudes and legalize trade unions, ensuring their protection and giving them rights in the face of their employers, giving my organization, the KNPRK, legal status. All of these are in line with the recommendations of the Committee of Experts and the mission, as well as the provisions of the Convention.

We call on you, members of the Committee, to take the necessary measures to ensure that this happens.

Interpretation from Russian: Government representative – First of all, if you will allow me, I would like to thank all of those who have spoken on behalf of Governments and workers’ and employers’ associations. We welcome your comments with regard to the law and practice in our country.

I would like to say that in order to achieve social peace in our country, the President, in March, addressed a message to the people of Kazakhstan identifying the initiatives for reform with a view to modernizing our country. This reform would establish a basis for a new Kazakhstan. The key elements have already been mentioned, but I think they are worth re-emphasizing. These are political reforms establishing policies through increased democratization and strengthening human rights. In this regard, I would like to say that literally tomorrow a referendum will take place in our country on changes to the Constitution.

The essence of these changes is directed towards the modernizing of the political system and a transition to a presidential Republic with a strong Parliament. This is a system that would strike an optimal balance between the relevant, or relative, institutions in the country and secure the effective governance of Kazakhstan.

In accordance with the instructions of the President, the Government has confirmed the programme for wage increases in the country, and this is a programme that includes a number of systems within the reform, particularly in the social sphere. The Minister has been drafting a social code, including the implementation of a number of initiatives to remove inequality and secure the rights of our citizens. There will be a number of key areas for social protection and it will apply throughout the life cycle of citizens, from birth to old age.

With regard to the questions relating to the criminal prosecutions – once again, I would emphasize that all questions relating to the criminal prosecutions are under the authority of the Public Prosecutor. Such criminal prosecutions are not related to trade union activities. Over the last two years, there have not been any criminal prosecutions with regard to trade union activists. With regard to the Criminal Code and additional penalties relating to specific activities, I would like to say that these additional sanctions are ruled upon by the courts. This is governed by the decree from April this year. At the moment, the format of the cross-departmental committees considering this issue and a number of rules is being proposed to improve the Criminal Administrative Code. This work is being carried out in our Ministry as well; we are making our contribution and are preparing to contribute to it more, contribute to the cross-departmental group on the possible changes to the Criminal Code with the participation of the Public Prosecutor.

With regard to the registration issue, as I have said, there are a number of changes under way which have allowed for an improved capacity for trade unions to represent the interests of their work. There have been no complications that have arisen in these processes. There are individual complications in registering trade unions, and these are looked at on a case-by-case basis, particularly in the working group that we have in the Ministry of Justice, so any complications arising can be looked at, and we can broaden the working group to include representatives of workers and employers.

The changes which will be proposed this year will move towards improving existing legislation on the registration of legal persons, and we hope very much that individual difficulties, of a technical and legal nature, can be resolved and their status as legal persons can be confirmed. We consider the links between employers’ and workers’ organizations and the ILO. I think it is worth stating here that they are assigned tasks both in the Constitution and within their organizations. The rules that do exist are not obstacles to their participation in international organizations, whether we are talking about training or other activities. There is a list of organizations which carry out beneficial work and all of them are included on this list, and it will be possible to extend this list in order to include further organizations which benefit the interests of workers and employers. The issue of financing from abroad and a ban on that for workers’ and employers’ organizations is not something that is under consideration.

Allow me, once again, to emphasize that during the direct contacts mission, we informed our international partners that the National Chamber of Entrepreneurs (NCE) does not represent the interests of the employers’ organizations. We have been quite clear in this area. The representatives of the NCE have been excluded. We are working exclusively with employers’ organizations representing the interests of employers and will continue to raise awareness about the way that the representation of employers’ interests works, effectively representing the interests of business, including small business. So, we have worked with our social partners to say that we will be working on a separate bill on employer associations, and this is something that we will be beginning very soon so that we can clearly establish the role and tasks of our employers’ organizations.

Once again, allow me to reaffirm my Government’s commitment to observing international standards, and we are undertaking all possible efforts to ensure that our law and practice is in line with the provisions of the Convention.

Worker members – We have noted the written and oral information provided by the Government of Kazakhstan, and we thank the speakers for their contributions.

We fear that the Government’s stated intentions are not always translated concretely in practice.

Genuine social dialogue is required to remove the obstacles, both legal and practical, faced by trade union organizations in the exercise of their freedom of association.

With regard to the registration and re-registration procedures, we invite the Government to review the composition of the permanent working group responsible for examining the issues linked to the registration of trade unions so that independent trade unions may be included.

In this context, the Government will guarantee the effectiveness, impartiality and independence of these registration procedures and examine, in consultation with the social partners, the actions to be taken to permanently remove the legal and practical obstacles to trade union registration.

In particular, it will also remove the arbitrary obstacles hindering the registration of the KSPRK and the Industrial Union of Employees of the Fuel and Energy Sector.

The reclassification of the formerly criminal act of incitement to a strike declared illegal as an administrative offence does not bring Kazakh legislation into line with the Convention.

The simple act of calling for a peaceful strike should not be subject to sanctions of any kind, whether criminal or administrative, and we call for all sanctions provided for in legislation in that regard to be abrogated.

The Government will also ensure that the criminal sanction that deprives trade unionists of the right to hold any trade union office is abrogated. Moreover, we request that this sanction as imposed upon Ms Kharkova and Mr Baltabay is lifted as soon as possible.

We call on the Government to strengthen its efforts to undertake serious investigations into acts of violence against trade unionists and to prosecute and sentence the perpetrators by means of dissuasive sanctions, particularly in the case of Mr Senyavsky.

Lastly, we call on the Government to lift the ban on receiving financial assistance from international organizations of workers and employers and not to impose any condition that hinders the right to such assistance as set out in Article 5 of the Convention.

It is our understanding that the country is engaged in a process of reform following the tragic events of January this year. The time has come to respond to the root causes of these social tensions in the country. In our view, those causes relate in particular to the serious limitations on freedom of association, the absence of collective bargaining on socio-economic matters and, more generally, the lack of genuine social dialogue.

We would therefore like our Committee to repeat all the recommendations made in previous years, and we call on the Government to implement, as soon as possible, all of those recommendations, as well as the recommendations that we make this year, so that Kazakhstan does not remain a recurrent case.

We encourage the Government to draw up a time-bound plan of action with a view to ensuring that all of these recommendations are implemented. To that end, we encourage the Government to avail itself of ILO technical assistance in drawing up, implementing and evaluating that plan of action, in consultation with all trade union organizations.

In particular, we call on the Government to draw on, in a systematic and ongoing manner, ILO technical assistance in relation to the work of the permanent working group responsible for examining the issues linked to the registration of trade unions.

The Government will submit a full report to the Committee of Experts before its next session and before its March 2023 session on the initiatives adopted to implement the recommendations that it will receive from our Committee.

Employer members – We have listened very carefully to the Government’s submissions and all of the interventions that followed.

Taking all of the submissions into account, the Employer members urge the Government as follows: first, we urge the Government to take appropriate measures to resolve the registration of the KNPRK and the Industrial Union of Employees of the Fuel and Energy Sector. We urge the Government to engage with the social partners on issues concerning the registration of trade unions and the challenges faced in this regard. We take special note of the Government’s submissions on the issue of the NCE as well as its indication of the intention to create a draft bill regarding employer associations.

We call on the Government therefore to ensure that the NCE, in line with the law, completely withdraws from social dialogue and collective bargaining and leaves this area of competence to free and independent employers’ organizations. This system of accreditation of employers’ organizations in the NCE should also be discontinued.

In addition, taking into account the Government’s submission on its intention to create a bill on employers’ associations, we note that to further reinforce the recognition of the freedom of association of employers and their organizations, it would be most opportune to adopt a law or regulation that sets out the independence and autonomy of employers’ organizations and sets out the conditions for their eligibility for participation in social dialogue and collective bargaining at the various levels.

Furthermore, the Employer members note that any such drafting of such legislation should be done in consultation with the most representative employers’ and workers’ organizations.

Furthermore, we urge the Government to consider extending the list in Ordinance No. 177 of 9 April 2018 to cover international workers’ and employers’ organizations such as the ITUC and the IOE.

Finally, we request the Government to provide its report on the developments in this regard and the measures taken to respond to the issues raised in our discussion today by 1 September 2022.

Conclusions of the Committee

The Committee took note of the oral and written information provided by the Government and the discussion that followed.

The Committee noted the long-standing and persistent nature of the issues and the prior discussion of this case in the Committee, most recently in 2021.

The Committee regretted that the previous recommendations of the Committee had not been fully addressed.

Taking into account the discussion, the Committee urges the Government, in consultation with the social partners, to:

- ensure that the allegations of violence against trade union members are thoroughly investigated, notably in the case of Mr Senyavsky;

- allow an independent investigation of the Zhanaozen events of 2011;

- stop practices of judicial harassment of trade union leaders and members conducting lawful trade union activities and drop all unjustified charges, including the ban preventing trade unionists from holding any position in a public or non-governmental organization;

- resolve the registration of KSPRK and the Industrial Union of Employees of the Fuel and Energy Sector (STUFECE) so as to allow them to enjoy the full autonomy and independence of a free and independent workers’ organization, to fulfil their mandate and to represent their constituents without further delay;

- engage with the free and independent employers’ and workers’ organizations to review issues concerning their registration in law and practice with a view to overcoming existing obstacles;

- review the composition of the permanent working group that assesses areas of concern involving the registration of trade unions, so as to ensure the full involvement of independent workers’ and employers’ organizations in this working group;

- refrain from showing preference towards a particular trade union and stop the interference in the establishment and functioning of trade union organizations;

- remove any existing obstacles in law and practice to the operation of free and independent employers’ organizations in the country;

- remove any existing obstacles in law and practice to the operation of free and independent employers’ and workers’ organizations in the country, in particular repeal provisions in the Law on the National Chamber of Entrepreneurs (NCE) on accreditation of employers’ organizations with the NCE;

- ensure that workers’ and employers’ organizations are not prevented from receiving financial or other assistance by international workers’ and employers’ organizations and extend the list in Ordinance No. 177 of 9 April 2018 to cover international workers’ and employers’ organizations, such as the ITUC and IOE; and

- fully implement the 2018 road map.

The Committee requests the Government to develop, in consultation with the social partners, a time-bound action plan in order to implement all these conclusions. In order to elaborate, implement and evaluate this action plan, the Committee urges the Government to avail itself of technical assistance from the Office on an ongoing basis in this regard.

The Committee requests the Government to submit a report to the Committee of Experts by 1 September 2022 providing information on the application of the Convention in law and practice, in consultation with the social partners.

CMNT_TITLE_CAS

Written information provided by the Government

Concerning Mr E. Baltabay’s and Ms L. Kharkova’s criminal cases

The criminal cases against Mr Baltabay and Ms Kharkova are not caused by “participation in lawful trade union activities”, but initiated due to common crimes.

Currently, Mr Baltabay and Ms Kharkova enjoy freedom.

Mr Baltabay, Local Trade Union, Decent Work of Petrochemical Industry Employees, NGO Chairman, misappropriated 10,800,000 Kazakhstani tenge entrusted to him through abuse of his official position.

On 17 July 2019, Mr Baltabay was found guilty by the verdict of the Enbekshi District Court of Shymkent, under paragraph 2, part 4, of article 189 of Kazakhstan’s Criminal Code (hereinafter the CC) (misappropriation or embezzlement of entrusted property) and sentenced to seven years imprisonment and deprived of the right to hold senior positions in public associations and other non-profit organizations for seven years. The sentence shall be served in a medium security penal system institution.

The verdict has not been appealed within the established deadlines.

On 2 August 2019, Mr Baltabay admitted guilt and filed a petition for a pardon to Mr Kassym-Jomart Tokayev, the President of Kazakhstan.

Mr Baltabay was pardoned on 9 August 2019, by Presidential Decree, and the unserved part of the sentence was replaced by a fine.

According to the decision of the Al-Farabi District Court of Shymkent, adopted on the same day, the unserved 2,528 days of imprisonment were recalculated as a fine amounting to 1,595,800 tenge, which Mr Baltabay is obliged to pay within a month of the decision date.

At the same time, Mr Baltabay was released from the Shymkent IS-167/11 Department of Criminal Justice Institution of the Ministry of Internal Affairs.

On 11 September 2019, enforcement proceedings were initiated against Mr Baltabay to recover the 1,595,800 tenge fine owed to the State, which he had failed to pay.

On 1 October 2019, a submission was made to the Al-Farabi District Court of Shymkent to replace the fine imposed on Mr Baltabay by the court verdict with another punishment, due to the failure to pay the fine.

For reference: Under paragraph 3, part 6, of article 41 of the CC, the sentence (verdict) shall be enforced subject to the failure to pay the fine within the prescribed period, the pending amount of the fine shall be replaced by a term of imprisonment, calculated as one imprisonment day equal to four MCIs to be paid by the person convicted of a grievous crime.

The above sanction was replaced by five months and eight days of imprisonment by decision of the Al-Farabi District Court of Shymkent (court decision of 16 October 2019). The court sentenced Mr Baltabay to be taken back into custody in the courtroom.

Mr Baltabay was released from IS-167/3 on 20 March 2020, upon the expiry of the sentence and filed a petition to the court requesting the restoration of the appeal deadlines, two months after the date of the entry into legal force of the verdict (7 October 2019).

The Enbekshi District Court of Shymkent denied the request to restore the missed deadline in its decision dated 31 October 2019.

On 24 September 2020, Mr Baltabay, with Mr Abishev representing him, appealed once again to the court against the court verdict of 17 July 2019.

The Enbekshi District Court of Shymkent dismissed the appeal due to the missed deadline to appeal the verdict in a decision dated 28 September 2020.

The additional sanction depriving him of the right to hold senior positions in public associations and non-profit organizations was not appealed by Mr Baltabay.

Moreover, until today, no petition challenging the lawfulness and validity of the trial court verdict has been filed with the Supreme Court by him or his defence.

Ms Kharkova, former leader of the Confederation of Independent Trade Unions of Kazakhstan (CITUK).

On 25 July 2017, she was sentenced to four years of restriction of liberty, confiscation of property and five-years deprivation of the right to hold senior positions in public associations and non-profit organizations due to abuse of office (Part 1 of CC, article 250), resulting in damage exceeding 12,000,000 tenge.

According to the CITUK Chapter, the organization was non-profit, it did not pursue profit. Despite this, Ms Kharkova, abusing her powers, concluded contracts with third-party organizations in order to extract benefits.

The funds were illegally accrued to herself and her closest employees as “bonuses”, causing the union 2,500,000 tenge damage.

Moreover, she placed 5,000,000 tenge in her bank deposit at 13.2 per cent per annum, having withdrawn the amount from the union’s account.

During the accounting audit, she failed to present documents to support the 8,000,000 tenge transfer.

Investigation and forensic inquiry findings proved Ms Kharkova’s guilt (accounting examinations confirming the transfer of funds, bank documents, witness statements, constituent documents of the trade union movement limiting the convict’s authority to disburse funds).

On 29 September 2017, the South Kazakhstan Regional Court Appeal Panel found the verdict lawful and justified, and left it unchanged. The Appeal Panel concluded that the trial court’s assessment of each piece of evidence and of the case materials was correct and reliable. The court observed the general principles of sentencing and considered mitigating circumstances for guilt and punishment.

The appeal decision indicates the court’s verdict, reflecting the court’s conclusions on the alleged reports on the work done in 2009–15, as submitted by the defence to the court, which were not signed or approved, nor were the minutes of their discussions submitted to the court, so the reports could not be regarded as evidence. In addition, the court noted that, during the investigation, Ms Kharkova always rejected the repeated questions on the availability of the documents pertaining to the activities of the organizations she led, and provided no reports or documents for audit and expert checks.

On 9 November 2017, Ms Kharkova was registered with probation service No. 1 of the Enbekshi District of the Department of Criminal Justice of Shymkent.

For reference: Restriction of liberty consists of probation control over the convict for six months to seven years and performance by the convict of 100 hours of compulsory labour annually during the term of the sentence. The restriction on freedom shall be served at the convict’s place of residence without isolation from the community.

Probation control shall be performed by the competent authority and, if the court so decides, include the convict’s duties: avoidance of changing the place of permanent residence, work or study, without notification to the competent authority; monitoring of the convict’s behaviour; avoidance of visiting certain places; treatment for mental and behavioural disorders (diseases) associated with abuse of psychoactive substances, and sexually transmitted diseases; provision of financial support to the family; other duties contributing to the convict’s correction and preventing the convict from committing new criminal offences.

The convict petitioned for a review of the judicial acts in cassation.

The cassation petition was subject to preliminary examination by a Supreme Court judge, who requested and studied the criminal case files and rejected the referral of the convict’s petition for reconsideration to the court of cassation due to the lack of grounds for review of the judicial decisions.

Ms Kharkova’s petition to the Supreme Court Chairman for the submission of the verdict for a cassation review was rejected due to the absence of grounds for such submission.

It has been possible to file a conditional early release petition since 9 November 2018. Subject to Ms Kharkova’s application, the restriction of freedom could be replaced by a fine (approx. 800,000 tenge). To allow the above, complete compensation for the damage (approx. 5,000,000 tenge) is required, but this right has not been exercised.

The deadline to file the conditional early release petition expired on 9 February 2019, and according to the Prosecutor General’s Office, no application was submitted.

The term of Ms Kharkova’s restriction of freedom expires on 9 November 2021.

With regard to the criminal case of Mr Dmitry Senyavsky, who suffered injuries, criminal intelligence measures were taken to investigate the offence.

On 15 February 2019, the criminal case was suspended due to the failure to identify the person who committed the crime.

Efforts to investigate the crime continue.

Regarding the registration of the Congress of Free Trade Unions of the Republic of Kazakhstan (CFTU)

As reported earlier, the judicial authorities refused to register the national association of trade unions “CFTU” on four occasions.

The first registration of CFTU was rejected due to the similarity to the already registered legal entity the “Confederation of Free Trade Unions of Kazakhstan”. Moreover, the Charter provisions indicated its succession to the forcibly liquidated republican association of trade unions “CITUK”.

According to article 38 of Kazakhstan’s Civil Code, “The title of a legal entity may not fully or substantially duplicate the title of legal entities registered in the Republic of Kazakhstan.”

The deficiencies specified in the initial rejection were not remedied in the subsequent applications for registration (on 17 August 2018, 18 September 2018 and 14 November 2019). At the same time, all the irregularities are of a remediable nature.

However, to date, the violations identified have not been eliminated and the reapplication for state registration has not been submitted to the judicial authorities.

On the suspension of the activities of the Sectoral trade union of fuel and energy complex employees (STUFECE)

In accordance with the decision of the specialized inter-district economic court of Shymkent on 5 February 2021, the activities of STUFECE were suspended for six months due to the trade union’s failure to confirm its status.

For reference: According to paragraph 2 of article 13 of the Law on Trade Unions (hereinafter the Law), a sectoral trade union shall have structural units and (or) affiliated organizations in the territory covering more than one half of the total number of regions, cities of national status and the capital.

Under article 10, paragraph 2, of the Law, sectoral trade unions must submit their registration authority with the copies of the documents certifying their compliance with the requirements of article 13, paragraph 2, of the Law before the end of the year following registration.

Under article 10, paragraph 3, of the Law, failure to certify a sectoral trade union’s status within one year of its registration results in the suspension of its activities by judicial procedure upon application by the local executive authorities.

In March 2021, the Ministry of Labour and Social Protection of the Population of Kazakhstan (MLSPP) and the representatives of the Ministry of Justice, the national trade union associations, the Federation of Trade Unions, the Kazakhstan Confederation of Labour, and the Commonwealth of Trade Unions “Amanat”, organized a meeting with the head of STUFECE, Mr Kosshygulov, and its representatives Ms Kharkova and T. Erdenov, to provide practical assistance on trade union registration procedures in a working group on problematic issues in trade union registration.

On 25 March 2021, STUFECE filed an appeal with the Shymkent Appeal Panel.

The session of the court of appeal was scheduled for 21 April 2021, and postponed until 29 April 2021.

The court session rescheduled for 29 April 2021 was also postponed due to the request from the representatives of the STUFECE for the recusal of the judge.

For information, on 13 January 2021, Mr Kosshygulov was appointed STUFECE Chairman according to the application made to the state service for the registration of the constituent documents, amendments and additions of legal entities.

Moreover, a working group on trade union registration issues comprising the MLSPP, the Ministry of Justice and representatives of national trade union associations has been active since 2019.

To date, problems relating to the registration of trade unions have not been reported or written or verbal complaints received.

Should complaints on trade union registration arrive, they will be duly addressed by the working group.

Concerning the activities of national associations of employers

The General Agreement for 2021–23 (hereinafter the General Agreement) was signed by the Government, national associations (associations or unions) of employers and national associations of trade unions on 12 March 2021.

The National Confederation of Employers (Entrepreneurs) of the Republic of Kazakhstan (hereinafter the Confederation) was among the signatories of the General Agreement.

The Confederation is making efforts to sign sectoral and regional social partnership agreements and its representatives are also members of national, sectoral and regional tripartite social partnership and social and labour regulation commissions.

As reported earlier, the National Chamber of Entrepreneurs “Atameken” lost its right to participate in the social partnership system as an employers’ representative and did not participate in the development and adoption of the General Agreement.

Concerning article 402 of the Criminal Code of Kazakhstan

Amendments to article 402 of the Criminal Code were adopted in May 2020 to reduce the liability for encouraging participation in strikes declared unlawful by the courts.

The current provisions comply with article 21 of the International Covenant on Civil and Political Rights, ratified by Kazakhstan in 2005, which provides that the exercise of the right of peaceful assembly shall not be subject to any restrictions other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or protection of the rights and freedoms of others.

In addition, MLSPP Order No. 89 of 29 March 2021 establishes a working group for analysis of the enforcement of labour legislation (hereinafter the Working Group), which includes representatives of state bodies, trade union associations and employers’ associations, and various experts and academics in the area of labour relations.

The Working Group shall discuss the improvement of the labour legislation, the Law on Trade Unions, and the revision of article 402 of the Criminal Code.

Concerning the inclusion of international workers’ and employers’ organizations in the list of international and state organizations providing grants

As reported earlier, the MLSPP is prepared to consider the possibility of including the International Trade Union Confederation and the International Organisation of Employers on the list.

This issue will be considered subject to the relevant letters from these organizations, indicating the specific goals and areas covered by their grants.

Discussion by the Committee

Interpretation from Russian: Government representative, First Vice-Minister of Labour and Social Protection of Population – In 2019, at the 108th Session of the Conference, we informed this Committee about the implementation of a road map which was developed as the outcome of a visit by an ILO high-level mission to Kazakhstan. In the last two years, we have completed all activities provided for in that road map. That means that we have carried out an analysis of the way in which trade union law is applied in Kazakhstan, in consultation with trade unions at all levels (including unions at the national, sectoral and regional levels). We have also worked out recommendations to improve the procedures on the basis of which employers’ and workers’ organizations are able to operate and receive aid from international employers’ and workers’ organizations abroad.

Consultations have been held with trade unions at the national level and representatives of the Ministry of Justice regarding the issue of registration of trade unions. As a result of the work referred to above, the “Law on amendments and additions to some legislative acts of the Republic of Kazakhstan on labour issues” was adopted in May 2020. By virtue of this law and in order to implement the Convention, the Labour Code, the Criminal Code, the Law on Trade Unions, the Law on the National Chamber of Entrepreneurs (NCE) (Law on the NCE) and the Law on Public Associations were amended. Regarding the Law on Trade Unions, the compulsory affiliation by lower-level trade unions to higher-level trade unions has been repealed (sections 12, 13 and 14 of the Law); thus, trade unions can autonomously decide on their trade union affiliation and membership. Secondly, provisions regarding international cooperation with trade unions have been included in the law. As a result of that change, trade unions can affiliate to international trade union organizations and organize and conduct activities together with international trade union confederations. Thirdly, the procedure of confirmation of status of unions at the sectoral, national and regional levels has been simplified. The requirement to have half the workers in a branch or in an enterprise to actually be registered as an operating trade union has been repealed. Fourthly, the rules for registration of trade unions have been simplified. Now, in order to fulfil the requirements for the minimum number of affiliated organizations in a certain region, in addition to the affiliated organizations, structural subdivisions (branches, representative offices) of this trade union will be taken into account. At the same time, in 2020, new rules of public services concerning state registration of legal entities and registration of branches and representative offices were approved, where the period of state registration was reduced from ten to five working days. The time for unions to confirm their status has been extended from six months to a year following their registration. In the event of non-compliance with the deadline set for the confirmation of their status, the dissolution procedure has been replaced by a suspension of trade union activity from three to six months.

We have made changes to the Labour Code and the Law on the NCE so as to abolish the role of the NCE as an employer representative in social dialogue. A separate provision of the Code provides for the rights of employers’ organizations. In addition, the grounds for recognizing strikes as illegal set forth by the Labour Code were revised, and strikes at hazardous production facilities are now allowed, provided that the uninterrupted operation of the main equipment and mechanisms is ensured. In organizations providing services ensuring the livelihood of the population, strikes can be carried out if the volume of relevant necessary services for the population is preserved, that is, without causing harm to the entire population of the relevant area.

Under the amended Criminal Code, calling for a strike which is declared illegal is now no longer a criminal offence. We have also lowered the amount of the fine which may be imposed for infringing the law. Sentences of deprivation of freedom and imprisonment which existed previously have now been replaced by other forms of sanction.

Currently, there are three national trade union organizations in Kazakhstan and 53 sectoral, 34 regional and 357 local trade unions, representing some 3 million workers. When these changes started to be brought into our legislation last year, new trade unions were set up: 1 sectoral trade union, 25 local and 6 affiliates of sectoral trade unions. So you can see the law is operating, the unions are operating, and we do not feel that there are any problems with Kazakhstan’s law or practice with respect to the Convention.

In addition, on 12 March 2021, we and our social partners signed a new General Agreement for 2021–23 (General Agreement) between the Government of Kazakhstan, the national trade union organizations and the national employers’ organizations. The Agreement contains provisions prohibiting the parties from interfering in each other’s affairs and activities.

I would also like to say that Kazakhstan is the only country in Central Asia where all three national trade union organizations are signatories of the General Agreement. This underlines that there is active cooperation between the unions.

As to practical assistance regarding registration procedures, there is a working group in the Ministry of Labour which includes officials from the Ministry of Justice, as well as representatives of trade unions, including the Federation of Trade Unions of Kazakhstan, the Kazakhstan Confederation of Labour and the Commonwealth of Trade Unions “Amanat”, to offer practical assistance with registration. I would like to assure you that the Government of Kazakhstan is planning to do further work in order to ensure that its labour legislation is fully in compliance with international labour standards and guarantees protection of the work of unions and employers’ organizations in Kazakhstan, thus promoting social dialogue.

On 9 June this year, President Tokayev signed a decree on further measures to be taken by the Republic of Kazakhstan in the area of human rights. In accordance with that, the Government of our country will be developing a plan of human rights-related measures which will affect several key areas of the world of work.

They will touch upon, inter alia, freedom of association, freedom of expression, the right to integrity of life, the rights of victims of trafficking in persons, the human rights of citizens with disabilities, the rights of women, and the eradication of discrimination. At the same time, the aim is to improve work between the Government and NGOs, make the legal system more effective and prevent torture. The plan is to improve Kazakhstan’s cooperation with various international organizations, including the United Nations Human Rights Council. As part of this plan, we will be working to improve our legislation further, including the legislation which governs the operation of trade unions in Kazakhstan, simplifying the procedures for membership, for settling labour disputes, and for operating in general. This will be part of Kazakhstan’s approach to overhauling and modernizing its legal system, and the state apparatus in general.

In conclusion, I would like to request the ILO to note the measures we have taken, and to support us in our plans outlined above by providing further technical consultations.

Worker members – The case of Kazakhstan is a recurrent case within our Committee. Indeed, we have discussed this case four times in the past and each time we have been bound to express regret at the serious violations of the Convention in the country. As we once again address this case, we are obliged to note the same situation as in previous discussions within our Committee. Even though the legal amendments made to respond to the recommendations made in the past constitute a first step in the right direction, there is still a long way to go for Kazakhstan’s legislation to achieve full conformity with the Convention. Other aspects of Kazakhstani legislation have not been amended despite the fact that they also have an impact on the exercise of freedom of association.

Even longer than the distance to be covered by Kazakhstani legislation to achieve conformity with the Convention is the way that Kazakhstan still has to go to ensure the effective application of the Convention in practice in the country. Even though legal amendments have been introduced, their effects are not visible in practice since the problems remain the same.

As reflected by the observations of the Committee of Experts, numerous trade union organizations are still experiencing many difficulties in securing their registration. Recalling that this registration should be a mere formality, we can only regret that these registration procedures are exploited to obstruct the process of establishment or the smooth running of free and independent trade union organizations, in violation of the Convention.

After several attempts, the members of the Confederation of Independent Trade Unions of Kazakhstan (KNPRK) even tried to register their organization under the name “Congress of Free Trade Unions” (KSPRK/CFTU) but this was once again refused. The Industrial Union of Employees of the Fuel and Energy Sector is currently under a suspension order, issued on 5 February 2021 for six months, and is also subject to a dissolution process. The Government’s explanation that trade unions do not have to be registered to exist is not satisfactory in that the obstacles that they face in the absence of registration prevent them in practice from being able to function effectively as trade unions.

Kazakhstan should pursue its efforts in consultation with the social partners, including independent social partners, in order to guarantee the impartiality and independence of these registration procedures, which even now are still too often being used politically to discourage the continuing existence or the establishment of independent trade unions.

Moreover, judicial harassment of trade union leaders is still going on in the country. Two enlightening examples are mentioned in the Committee of Experts’ observation. These relate to Mr Baltabay and Ms Kharkova, to whose cases the Workers’ group wishes to give its full support. Mr Baltabay has suffered imprisonment and Ms Kharkova has suffered restrictions on her freedom of movement.

Mr Baltabay, leader of the Industrial Union of Employees of the Fuel and Energy Sector, which is currently in the process of being dissolved, has been released in the meantime but is still prohibited from exercising any public activity, including trade union activity, for the next seven years. Further to this conviction, Mr Baltabay was forced to resign from office. We express the firm hope that Mr Baltabay’s situation is not the consequence of his testimony during the discussion of the case of Kazakhstan in our Committee in 2017.

With regard to Ms Kharkova, who was President of the KNPRK, she still has restrictions on her freedom of movement for four years and is barred from office in any public or non-governmental organization for five years, as from July 2017.

We also recall that other trade unionists are still barred from exercising any office in a public or non-governmental organization in reprisal for their trade union activities. The persons concerned are Mr Eleusinov and Mr Kushakbaev, for whom we reiterate our full support.

These are clearly blatant attempts to deny them any possibility of engaging in trade union activities in the future, and this is part of a concerted effort to undermine the existence of their trade union movement. These practices of judicial harassment constitute serious violations of the Convention and must cease immediately and the sentences imposed on these trade union members must be annulled.

Apart from the judicial harassment, trade union representatives are still all too often victims of violence in the exercise of their trade union activities. The report refers to the assault suffered on 10 November 2018 by the President of the Trade Union of Workers in the Fuel and Energy Complex of Shakhtinsk, Mr Senyavsky. The violence against trade union representatives must be condemned with the utmost severity. Kazakhstan must shed all possible light on these facts, conduct an active search for the perpetrators of the acts, bring them to justice and impose penalties that act as a deterrent.

With regard to the legislation in Kazakhstan, the Committee of Experts notes that incitement to engage in a strike that is declared illegal by the court is still liable to incur imprisonment. The Government declares its intention to reduce these sentences. It should be recalled that the mere fact of calling a strike, even if it is declared illegal by the courts, should not incur any sentence or penalty. Providing for such sentences or penalties is contrary to the Convention. These penalties should quite simply be abolished.

Lastly, independent trade unions in Kazakhstan have always been able to count on the support of the international trade union community to defend the exercise of their freedom of association. This support is nevertheless seriously obstructed by the Government of Kazakhstan, which considers the involvement of these international actors as interference in the country’s internal affairs. Although we do not doubt the commendable intentions of the Government’s proposal to include the International Trade Union Confederation (ITUC) on the list of international organizations authorized to support national trade unions, we consider above all that such an authorization by the authorities simply should not be required. This is yet another example of the endless obstructions to the exercise of freedom of association enshrined by the Convention.

Kazakhstan has a long history of serious violations of freedom of association and we fear that the restoration of an environment conducive to the effective exercise of this freedom will still take many years. Despite the legal amendments introduced in Kazakhstan, we are bound to express regret that we cannot see any real impact in practice so far, since judicial harassment, violence and obstacles to the establishment of trade unions through a registration procedure are still continuing today.

We will continue to monitor the situation in Kazakhstan closely and hope that the intentions declared by the Government for many years will one day actually be reflected in practice.

Employer members – The Government of Kazakhstan ratified Convention No. 87 in 2000 and, as the Worker members have explained, the Committee of Experts has issued 12 observations in this case and the Conference Committee has discussed this case four times, most recently in 2019.

From the outset, we, the Employer members, would like to express our gratitude to the Government representative for the comprehensive oral and written information shared with the Committee. We take note of the Committee of Experts’ observations concerning the imprisonment of trade unionists and the alleged assault on the President of the Trade Union of Workers in the Fuel and Energy Complex of Shakhtinsk. The Committee of Experts’ observations requested the Government to provide information on the development of these cases.

The Employer members take note of the written information provided by the Government on 13 May regarding the criminal cases involving these trade unionists and the Employers ask the Government to continue to provide information on the status of these cases, as requested.

In respect of the conclusions of the Conference Committee adopted in 2019, the Employers’ group would like to highlight five points raised by the Committee of Experts.

The first is in respect of Article 2 of the Convention. The Employer members note that the Committee of Experts requested the Government to provide information on the current status of the Confederation of Independent Trade Unions of Kazakhstan (KNPRK) and to ensure that the KNPRK and its affiliates enjoy full autonomy and independence as a free, independent workers’ organization without further delay. In addition, the Committee of Experts requested the Government to continue engaging with the social partners on the issues concerning the registration process. We observe that the Government provided in its submission to the Conference Committee on 13 May information on the registration of the Congress of Free Trade Unions (KSPRK/CFTU) and the suspension of the Industrial Union of Employees of the Fuel and Energy Sector. In light of this, the Employer members must echo the Committee of Experts’ request to the Government to continue to provide information on the still unresolved status of the KSPRK/CFTU and the Industrial Union of Employees of the Fuel and Energy Sector, and to engage with the social partners on issues concerning barriers to the registration of trade unions.

Second, the Employer members note that the Committee of Experts previously requested the Government to amend specific sections on the Law on Trade Unions to ensure the right of workers to freely decide whether they wish to become members or associate with a higher-level trade union organization. We are pleased to see that the Committee of Experts noted with satisfaction that sections 11–14 of the Law on Trade Unions were amended accordingly, as requested.

Turning now to the Law on the National Chamber of Entrepreneurs (NCE). The Employer members note that the Committee of Experts previously urged the Government to amend the Law on the NCE and any other relevant legislation to ensure full autonomy and independence of free and independent employer organizations. The Government indicated in its written submissions to this Committee that the General Agreement for 2021–23 was signed by the Government and national associations of employers and workers on 12 March 2021. The Employer members thank the Government for finally amending section 148(5) of the Labour Code and section 9 of the Law on the NCE, thus ensuring that no longer the NCE, of which membership is compulsory, but rather free and independent employers’ organizations may represent employers in social dialogue at all levels. In this way, in line with Article 2 of the Convention, employers now have a choice to decide what organization should represent them in social dialogue efforts and related social and economic matters.

The Employer members also noted with satisfaction that the Confederation of Employers of the Republic of Kazakhstan (KRRK), which is the most important employers’ organization at national level, has been the signatory of the new General Agreement, and KRRK representatives have been involved in social dialogue institutions at sectoral and regional levels. The Employers consider these developments as steps in the right direction and trust that free and independent employers’ organizations will continue to be able to represent the needs and interests of their members in all matters of relevance within their sphere of competence. The Employer members, however, still have concerns as regards the potential impact that the procedure for accreditation with the NCE may have on the independence of employers’ organizations and will keep this issue under close review. Therefore, the Employer members request the Government to continue to further promote and facilitate the activities of independent employers’ organizations in the country and provide information in this respect in its regular reports on the application of the Convention.

However, concerning the issue of the right to strike in the Committee of Experts’ observations, the Employer members would like to reiterate that the Convention does not contain rules regarding the right to strike to be regulated at national level. Therefore, in the Employer members’ view, as well as in the view of some governments, the request of the Committee of Experts to the Government to amend the law regarding strike issues has no basis or foundation or place in the Convention. Therefore, in our view, the Government is not obliged to consider this request.

Finally, in respect of the right of organizations to receive financial assistance from international organizations of workers and employers, the Employer members express appreciation at the amendment of section 6 of the Law on Trade Unions. We trust that the list in Ordinance No. 177 of 9 April 2018 will be extended to include international workers’ and employers’ organizations, such as the ITUC and the International Organisation of Employers (IOE). The Employer members request the Government to continue to provide information on the measures taken in respect of all of these issues.

Interpretation from Russian: Worker member, Kazakhstan – We are the biggest workers’ organization in Kazakhstan, with approximately 12 million trade union members from across the country. In addition to our federation in the country, we have two national union organizations. The federation has always spoken in favour of solidarity among trade unions and has also supported solidarity campaigns among international trade union organizations.

We have appealed in favour of Larisa Kharkova, Amin Eleusinov, Nurbek Kushakbaev, Dmitry Senyavsky and Erlan Baltabay, to get their sentences lifted and to help deal with the issue of trade union registration.

In the past, we have agreed with complaints sent by the ITUC to the ILO. We support the position of international trade union organizations, particularly in terms of requiring strict compliance with international labour Conventions by the Government of Kazakhstan, and its taking of measures to bring its law and practice into line with the Conventions.

At the union’s initiative in Kazakhstan, proposals have been sent to the Labour Ministry concerning comments made by the Committee of Experts in the past. On 4 May last year, the President of Kazakhstan signed off a new “Law on amendments and additions to some legislative acts of the Republic of Kazakhstan on labour issues”. The law now excludes the compulsory affiliation of unions to higher-level union organizations, which means that the right of unions to operate freely is now guaranteed. Furthermore, conditions for confirming the status of unions as national, sectoral or regional have been simplified. The requirement to have half the number of workers in a given branch to be recognized as a sectoral trade union has also been removed. Turning to section 402 of the Criminal Code, which was mentioned by the Committee of Experts, this provision has not been removed entirely, but the provision has been rendered less strict.

Our federation is preparing a package of proposals on further improvement of union and labour legislation in Kazakhstan, including on bringing in guarantees for union activity and the simplification of procedures to handle issues such as strikes and labour disputes. We have always supported constructive dialogue, with social partners, national union organizations and others, on defending the interests and rights of individual workers and unions, and in promoting social justice and the principles of decent work.

As you have heard, a new General Agreement has been signed this year between the Government and the social partners. For the first time, national unions have worked out a joint consolidated approach to ensuring the protection of the labour and economic rights of workers and guaranteeing wage levels. Our initiatives have been supported, as have the efforts of the social partners to prepare a road map based on the principles of the Decent Work Agenda, promoting social partnership and decent jobs.

We continue to work with technical assistance from the ILO and specifically from the Bureau for Workers’ Activities to improve our cooperation with the Organization and promote further ratification of international labour standards, and to provide better and decent work to all people.

Employer member, Kazakhstan –The Confederation of Employers of the Republic of Kazakhstan (KRRK) expresses its deep recognition to the Committee for considering the application of Convention No. 87 by Kazakhstan.

As already noted in the speech of the Government representative, in May 2020, the “Law on amendments and additions to some legislative acts of the Republic of Kazakhstan on labour issues” was issued, in which independent employer organizations at various levels became a party to social partnership. In particular, this law removed the powers of the NCE to represent the interests of employers’ organizations on social partnership issues, and it was excluded from the list of signatories to the tripartite General Agreement.

Kazakhstan’s violation of the Convention occurred back in 2013 with the release of the Law on the NCE. Despite the objections voiced by the Confederation of Employers in the working groups of the Government and Parliament when creating the NCE, the law was adopted. The Ministry of Justice and the country’s Parliament ignored the Articles of the Convention ratified by Kazakhstan in 1999.

This led to a monopolization of the management of entrepreneurial structures, practically eliminating employer organizations from working with them. Employers’ organizations became elements (members) of the National Chamber, which subordinated them to themselves, by introducing a procedure for their accreditation on a legislative basis.

It took five years, starting in 2014, for the Committee of Experts to convince the Government of the need to amend the Labour Code and other related laws in accordance with the Convention. We believe that the Government has not fully implemented this work – the first steps have been taken, but the second steps have not been taken yet. Not everything has yet been brought into line with the Convention, namely employers’ organizations (industry associations and unions) accredited in the National Chamber of Entrepreneurs remain part of the NCE system, therefore they cannot be independent representatives of employers’ organizations and enter into the membership of the Confederation of Employers. This also applies to financing the activities of industry associations (unions) through the conclusion of agreements with them to perform the functions of the National Chamber of Entrepreneurs of the Republic of Kazakhstan “Atameken”.

Therefore, we believe that the Government needs to make appropriate additional amendments to the Law on the NCE in line with the principles of freedom of association. An administrative approach on the part of the authorities led to the development and adoption of this Law in violation of the Convention.

We think that the Committee will point out the still existing violations in the observance of the Convention and will accept the recommendations according to which the Government and the Parliament of the country should eliminate those violations.

Government member, Portugal – I have the honour to speak on behalf of the European Union (EU) and its Member States. The Candidate Countries, the Republic of North Macedonia, Montenegro and Albania, the EFTA country, Norway, member of the European Economic Area, as well as the Republic of Moldova, align themselves with this statement.

The EU and its Member States are committed to the promotion, protection, respect and fulfilment of human rights, including labour rights and the right to organize and freedom of association.

We actively promote the universal ratification and implementation of fundamental international labour standards, including Convention No. 87. We support the ILO in its indispensable role to develop, promote and supervise the application of international labour standards and of fundamental Conventions in particular.

The EU–Kazakhstan relationship is governed by the Enhanced Partnership and Cooperation Agreement, which has enabled us to strengthen our bilateral cooperation. This Agreement includes commitments to effectively implement the fundamental ILO Conventions. While we acknowledge the progress made by the Government in amending parts of its legislation, we are concerned that Kazakhstan has become a recurrent case in the Committee. Conformity with the Convention, both in law and in practice, is now being discussed for the fourth time in the last five years. We encourage the Government to address the outstanding issues to fully comply with the Convention.

Following the ILO high-level tripartite mission of May 2018 and the resulting road map, the EU and its Member States note with satisfaction the amendments, in May 2020, of several legislative acts, including the Law on Trade Unions, the Law on the National Chamber of Entrepreneurs and the Labour Code.

We urge the Government to repeal section 402 of the Criminal Code which criminalizes calling on workers to participate in a strike that has been found illegal by a court. This section is incompatible with freedom of association and a union’s right to organize its activities, including the right to strike, without interference from the public authorities.

Beyond legislative amendments, we call on the Government to ensure that freedom of association, the right to establish organizations without prior authorization and the right to organize, both in law and in practice, are respected.

We note the information submitted by the Government regarding the refusal to register the Congress of Free Trade Unions and the Industrial Union of Employees of the Fuel and Energy Sector, as requested by the Committee. We regret that both trade unions remain unregistered. We also regret the suspension of the operations of the Industrial Union of Employees of the Fuel and Energy Sector. We stress the importance of ensuring that independent trade unions are able to register and carry out their activity without interference and strongly encourage the Government to continue engaging with the social partners in addressing the issues concerning the registration and suspension processes.

We note that the Committee on Freedom of Association continues to examine the cases of Mr Baltabay and Ms Kharkova and take note of the Government’s submission of written information on their cases, as well as on the case of Mr Senyavsky. The EU and its Member States deplore any violation of fundamental rights and any act of harassment, intimidation, assault or imprisonment against trade unionists.

The EU and its Member States will continue to follow and analyse the situation. We remain committed to our close cooperation and partnership with Kazakhstan.

Interpretation from Russian: Government member, Russian Federation – The Russian Federation fully supports the points made by the distinguished Minister of Labour of Kazakhstan on compliance by his country with Convention No. 87.

We believe that criticism of Kazakhstan, on the grounds that it allegedly violates the provisions of the Convention, from the ILO, international union organizations and human rights bodies is unfounded. In May 2018, an ILO high-level mission visited Kazakhstan. As a result, a road map was adopted on the implementation of recommendations made by the Conference Committee and the Committee of Experts concerning the Convention. On the basis of this document, the Kazakhstan authorities did a lot of work to amend their national legislation. In May 2020, President Tokayev signed a “Law on amendments and additions to some legislative acts of the Republic of Kazakhstan on labour issues”. This was to further improve the legal governance of social and labour relations, including the activity of trade unions and the development of dialogue with trade unions at all levels of social partnership. Therefore, the national legislation has been brought fully into accordance with international labour standards and that, we hope, will be reflected in the Committee’s report on this case so that consideration of the case is brought to an end. I would like to take this opportunity once again to call upon the ILO and all Members of the Organization, when looking at such cases, to stick strictly to the principles of neutrality and objectivity in not bringing issues which go beyond their purview and have nothing to do with the implementation of ILO labour Conventions.

Interpretation from Russian: Worker member, Russian Federation – The delegation of Workers of the Russian Federation has not seen any real progress in this situation with respect to the application of the Convention in Kazakhstan. The changes mentioned by the Government to their legislation do not really change the situation in any substantive way. Leaders of independent trade unions have been found guilty of criminal offences, they may be in freedom at the moment thanks to the efforts of the ILO and the international community, but they are still considered criminals and they cannot engage in trade union activity. On the basis of the Law on Trade Unions, the KNPRK, despite the fact that the reasons for refusal of registration are no longer in force, was dissolved legally and efforts to re-register the Confederation have been a failure. When the Confederation was dissolved, pressure was put on its activists and there are virtually no trade unions left now that were part of the Confederation.

Kazakhstan’s Law on Trade Unions in its new wording looks at the obligatory registration of trade union organizations as legal entities and the procedure for that is very complicated. Trade unions cannot set up in ways which are not provided for by law. They are limited in receiving financial assistance, they cannot have members from certain categories of workers, and they still have to comply with other provisions.

When an amendment was made to section 402 of the Criminal Code, it still made the calling of a strike an offence. Punishment for doing that is provided for even when, in the course of the strike, there have not been any serious violations of law and order. It seems therefore that freedom of association continues to be violated in Kazakhstan. We urge the Committee to take real measures to ensure that proper and substantive rather than cosmetic changes are made to law and practice in this respect in Kazakhstan.

Government member, India – India welcomes the delegation of the Government of Kazakhstan and thanks it for providing the latest update on the issue under consideration. The delegation of India has gone through the findings of the Committee of Experts and the responses thereto furnished by the Government of Kazakhstan. India appreciates the commitment of the Government of Kazakhstan to fulfil its international labour obligations including those related to the Convention through progressive implementation of the relevant recommendations of the ILO and the willingness to constructively work with it.

India takes positive note of recent legislative amendments enacted by Kazakhstan to bring the national trade union legislation into conformity with ILO standards. India also notes with appreciation the signing of the General Agreement for 2021–23 by the Government and the social partners. We believe that this Agreement pertaining to the activities of national associations will provide due protection to them in the conduct of their internal affairs. We also look forward to the continued engagement of the Government of Kazakhstan with the social partners in this regard.

We request the ILO and its constituents to fully support the Government of Kazakhstan and provide all necessary technical assistance that it may seek in fulfilling its labour-related obligations. We take this opportunity to wish the Government of Kazakhstan all success in its future endeavours.

Worker member, Germany – I speak on behalf of the German Confederation of Trade Unions (DGB), the Netherlands Trade Union Confederation (FNV) and the Nordic trade unions. Over the last days, some delegates said that demanding respect for civil liberties falls outside the scope of the Convention. The ILO supervisory bodies have, however, on numerous occasions emphasized that the rights under the Convention can only be exercised within a system that respects fundamental rights.

In Kazakhstan, workers, independent unions and their members face repression and systematic state obstruction in exercising their civil liberties in general and the right to organize in particular. The right to strike forms part of the right to organize as the ILO supervisory bodies have rightly pointed out over decades.

Trust, cooperation and solidarity are essential but being able to use industrial action in the last resort is a crucial prerequisite for the negotiating power of a united workforce.

The Labour Code and Criminal Code of Kazakhstan still provide broad gateways for the infringement of the right to strike and the freedom of assembly. In its written statement to the Committee, the Government indicates that the amended section 402 of the Criminal Code complies with Article 21 of the International Covenant on Civil and Political Rights and hence respects the rights protected under Convention No. 87. According to the UN Human Rights Committee, any restrictions of Article 21 must be necessary and proportionate in a society based on democracy, the rule of law, political pluralism and human rights.

In 2016, the Committee called on the Government to refrain from criminalizing public associations for their legitimate activities under criminal law provisions that are broadly defined and do not comply with the principle of legal certainty. An assessment of the amended section 402 of the Criminal Code shows that nothing has changed since, as is the case with section 174 of the Criminal Code, under which the incitement of social discord can be punished with imprisonment for two to seven years.

We therefore call on the Government to immediately bring its law not only into line with the Convention but also with the international human rights conventions which Kazakhstan has ratified and hence pledged to respect, promote and fulfil.

Government member, Turkey – We thank the Government of Kazakhstan for the information it has provided and welcome its willingness and commitment to constructively engage and cooperate with the ILO.

On 4 May 2020, legislative amendments were enacted to bring Kazakhstan’s trade union legislation into conformity with ILO requirements and an inter-agency working group was established to ensure full and proper implementation of the new legislation and address issues raised in the report of the Committee of Experts. We encourage the Government of Kazakhstan to continue to take the necessary steps in this regard.

We commend the positive and significant steps, such as: the elimination of the principle of mandatory vertical association of trade unions; the introduction of rules on international cooperation for trade unions; the exclusion of the National Chamber of Entrepreneurs “Atameken” from the social partnership system; the mitigation of liability for calls to participate in illegal strikes; the clarification of the conditions for holding strikes at certain facilities (in sectors such as energy and heat supply, transportation, communications and healthcare); and the facilitation of the procedure for registration of trade unions undertaken by the Government. Recent amendments made by the Government with a view to the implementation of the road map, resulting from the ILO mission in May 2018, in order to bring the national legislation into line with the standards of the Convention should be acknowledged.

We welcome the fact that the Government has expressed its willingness to continue engaging in social dialogue with the social partners. The Kazakhstani Government is determined to work on issues raised by the ILO and social partners in a spirit of constructive dialogue. We believe that Kazakhstan will continue to work with the ILO and social partners in a spirit of constructive cooperation.

Worker member, United States of America – Unfortunately, since this body last discussed this case in 2019, the Government of Kazakhstan has continued its campaign to undermine independent trade union activity. Since the Law on Trade Unions was adopted in 2014, local advocates estimate that at least 600 union bodies at different levels have lost their status in clear violation of their right to free association. This includes the KNPRK, which has made at least three attempts to re-register since it was dissolved in March of 2017, all of which were denied.

In May 2020, the Government passed amendments to the Law that appear to address some of the concerns raised by the Committee of Experts. However, in practice, the campaign of state repression of independent trade unions continues unabated. Since those amendments, global labour allies note only one successful registration of an independent union at the local level. Meanwhile, another sectoral trade union body was suspended as recently as February 2021.

Larisa Kharkova, the former President of the KNPRK, remains under modified house arrest, and Erlan Baltabay, Nurbek Kushakbaev and Amin Eleusinov, trade union leaders who were imprisoned for their work, are now banned from trade union activities.

The Government of Kazakhstan must fully implement the recommendations made by the Committee in 2019, including ensuring that the KNPRK or its successor is registered, that registration procedures are not used to close out unions, and that charges and sentences against union leaders are dropped.

Government member, Azerbaijan – My delegation thanks the delegation of Kazakhstan for providing the latest update on the application of the Convention to the Committee. Azerbaijan appreciates the efforts and the progress made by the Government of Kazakhstan in fulfilling its obligations concerning this fundamental Convention, including the positive steps taken by the Government to implement the recommendations of the Committee of Experts.

We recognize that the Government of Kazakhstan has continued the important legislative and institutional reforms to ensure compliance with all its obligations under the Convention. Legislative amendments were introduced to bring Kazakhstan’s trade union legislation into conformity with ILO requirements, and an inter-agency working group was established to address the issues raised in the report of the Committee of Experts. These actions by the Government of Kazakhstan demonstrate its commitment and willingness to address the concerns raised on the basis of the tripartite consultative process and with the active engagement of the ILO. We encourage the Government of Kazakhstan to continue working closely with the ILO and increase its efforts to implement ILO standards. At the same time, in fulfilling its labour-related obligations, we invite the ILO to fully support the Government of Kazakhstan and provide any technical and consultative assistance that it may seek in this regard.

Government member, United States of America – This Committee has discussed the Government of Kazakhstan’s lack of progress to address serious issues of non-compliance with the Convention every year since 2015, except in 2018 when a high-level tripartite mission visited the country.

We welcome progress on recommendations to amend the Law on Trade Unions, the Labour Code, the Law on the NCE, the Criminal Code, the Code of Criminal Procedure, and the Law on Public Associations in May 2020. However, significant work remains. In February 2021, a court ordered the Industrial Union of Employees of the Fuel and Energy Sector to suspend operations for six months for allegedly failing to maintain the minimum number of branches as currently required under trade union law.

We are encouraged by the Government’s recent commitment to work with this union to remain operational, as this suspension would effectively dissolve the last remaining independent trade union in Kazakhstan. We call on the Government to make good on its commitment to respect and promote workers’ rights under this Convention. To that end, we strongly urge the Government to ensure freedom of association in both law and practice. This requires:

• respect for the full autonomy and independence of free and independent trade unions by immediately ceasing acts of violence, harassment and interference;
• vacating the suspension order against the Industrial Union of Employees of the Fuel and Energy Sector;
• immediate and full implementation of the recent amendments, as well as further amendments to restrictive provisions under the Law on Trade Unions, including the minimum branch requirement for sectoral unions under section 13(2);
• continued engagement with the social partners on issues concerning the registration process, including to re-register the KNPRK;
• eliminating practices and vacating existing orders that prohibit or impose restrictions on trade unionists and leaders from engaging in legitimate trade union activities; and
• further review of section 402 of the Criminal Code, in consultation with the social partners and the ILO, to ensure that penalties for calling strike action are not excessive.

We urge the Government to take all necessary measures to address these long-standing issues and recommendations. The United States remains committed to engaging with the Government to advance workers’ rights in Kazakhstan.

Government member, United Kingdom of Great Britain and Northern Ireland – I am speaking on behalf of the Government of the United Kingdom of Great Britain and Northern Ireland and Canada. The United Kingdom and Canada support the role of the ILO in developing, promoting and supervising the application of international labour standards and of fundamental Conventions in particular. We are committed to the promotion, protection and respect of human rights and labour rights, as safeguarded by the ILO fundamental Conventions and other human rights instruments and to the ratification, effective implementation and enforcement of the core labour standards.

The United Kingdom and Canada support Kazakhstan in its economic and social reform ambitions. Through our close partnership, we seek to ensure that adherence to a rule-based international system, good governance, the rule of law and universal human rights are promoted and enhanced.

We are pleased to hear about the May 2020 amendments to the 2014 Law on Trade Unions, as well as the recent amendments to the Labour Code and the Law on the National Chamber of Entrepreneurs, to address many of the concerns raised by this Committee since 2015.

However, we also note the various and important concerns raised by the Committee of Experts, and note with regret its remarks on the lack of meaningful progress with regard to the obstacles to the establishment and registration of trade unions, and the continued interference with the freedom of association of employers’ organizations. We also note the concerning downward trend with regard to the human rights situation in the country, including incidents of intimidation and harassment against trade unionists and restrictions on the right to peaceful assembly. We therefore urge and encourage the Government of Kazakhstan to: first, protect the right of all persons, including trade unionists, to express their opinions and engage in peaceful protest, in both law and in practice; second, effectively address the current difficulties in the trade union registration process and ensure an enabling environment for trade union registration; third, continue to work to ensure that workers’ and employers’ organizations can function independently and autonomously, in line with the views of the Committee of Experts; and finally, continue to engage closely, openly and transparently with the ILO in the future.

The United Kingdom and Canada will continue to support the Government of Kazakhstan in this endeavour.

Interpretation from Russian: Observer, International Trade Union Confederation (ITUC) – I represent workers who set up the Congress of Free Trade Unions of Kazakhstan. We were dissolved in 2017 for allegedly not meeting the requirements to be a trade union organization. Despite clear recommendations from the ILO, the Law on Trade Unions, which contradicts Convention No. 87, is still being used in practice and many trade unions have been unable to re-register. They have effectively been legally dissolved, and that includes us and our member organizations. Union leaders were brought to trial on fabricated charges and four of them were convicted. The Government says there is no connection between the cases against Mr Eleusinov, Mr Kushakbaev, Ms Kharkova and Mr Baltabay. In fact there is: their sentence, and the fact that they are members of our union. They may be in freedom but they cannot engage in trade union activity. We have made efforts under the new law to register a new organization, the Congress of Free Trade Unions of Kazakhstan, but the Ministry of Justice has refused registration and says it considers the reason for registration not being allowed last time remains valid: namely, the activity of unions in the petrochemical industry, which I heard was stopped at the beginning of this year. Legal proceedings are in hand to dissolve our affiliates. The whole process has been ridiculous. I was not even informed about it. Employers have pulled out of collective agreements and they no longer recognize our representatives.

We urge the Government to firstly register the union; to withdraw the legal procedure for dissolving it; to pardon the activists and leaders who have been sentenced; and to investigate and to call to account those who have abused their legal position. We only want to protect and represent the interests of our members in accordance with the Constitution and the principles of freedom of association. We are grateful to the ILO, the ITUC and other organizations for their support.

Observer, IndustriALL Global Union – This is a joint statement made on behalf of the global union federations IndustriALL, the International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Associations (IUF), Building and Wood Workers’ International (BWI) and Public Services International (PSI), representing workers in different sectors of the economy worldwide, including Kazakhstan.

Kazakhstan continues to avoid fulfilling its obligations under Conventions Nos 87 and 98. The repressive Law on Trade Unions was adopted in 2014, after which the KNPRK was dissolved. In 2017, Erlan Baltabay, head of the “Decent Work for petrochemical industry workers” local trade union, attended the International Labour Conference and spoke about the union rights violations in his country. He was later put on trial, imprisoned and fined. To date, the Kazakhstani Government continues to use stalling tactics to discourage and avoid the registration of new trade unions. With this, the Government has paralysed the activities of all unions belonging to the Independent Confederation (KNPRK), which leaves many workers totally unprotected over their free union choice.

As we speak, pressure and intimidation continues against the Industrial Union of Employees of the Fuel and Energy Sector, which is the last remaining and functioning affiliated trade union of the Independent Confederation. State authorities continue to deny registration of the said union, alleging that it twice failed to submit relevant papers for registration in 2020. In fact, some employers have already started to take advantage of this state behaviour, refusing to deliver their obligations under the collective agreement in force.

Along with this, the repressive Criminal Code is systematically used in a way to prosecute rank and file members and activists who are faced with imprisonment and/or sizeable fines, for no other reason than performing their union tasks. At the same time, members and activists of independent unions are physically attacked. For example, a trade union leader, Mr Dmitry Senyavsky, was brutally beaten in 2018 in the Karaganda Region by unidentified people.

Taking into consideration the total absence of improvement, the further deterioration of workers’ rights and the refusal to register new unions, we urge the Government to take the necessary steps to make sure that Kazakhstan respects its international obligations.

Interpretation from Russian: Government representative – I would like once again to express my thanks to everybody who has spoken in the course of the debate this afternoon, my government colleagues and the social partners for having made a contribution and spoken about what the Government of Kazakhstan has been doing. All the comments, all the recommendations, all the desiderata and all the good wishes expressed will of course be taken into account when we plan our future work. I described that in my previous introductory statement.

I did mention that we have signed a new General Agreement, and that this includes a commitment on the part of the Government and the social partners not to interfere in each other’s activities in any way but to continue to work together in order to address any infringements or violations of the rights of either employers or workers and their organizations.

In May this year, as I mentioned, we did set up a special expert working group that is going to be tripartite. Most of the work we are going to do to overhaul and review the things that are needed to ensure we are in full compliance with our commitments towards the ILO and its Conventions will be done there.

The working group will also take into account the Government’s instructions that a plan be developed to deal with wider human rights issues, as I mentioned earlier. Now, some people in the course of the debate, have referred to certain procedural issues. In accordance with national law, all unions can be set up and organized without prior authorization, which is precisely what I believe Convention No. 87 stipulates.

Receiving state registration and a registration number is something that can be done fairly straightforwardly and through the legal system. The status of a union is then recognized once those procedures have been completed. In this connection, I would like to say that, yes, the working group that we have between the Ministry of Labour and the Justice Ministry is operational. It includes unions, and its responsibilities include dealing with problematic issues.

In March this year, we already looked at the issue of the union to which several speakers have referred and recommendations have been made that the registration process be simplified. We are keeping an eye on this situation, we are monitoring this situation through the working group, and the work will continue from here onwards.

Turning to the registration of the Congress of Free Trade Unions of Kazakhstan, we have repeatedly said that we are willing to proceed with the registration of these unions, like other unions, but I think what has been said about the activity or actions of the legal system in Kazakhstan in this respect is rather beside the point and not particularly accurate either. Of course the Labour Ministry is the coordinating body for promoting social dialogue, we promoted it in the past and we shall continue to do so now and in the future and, as I said, we will also involve the expert working group to which I referred several times.

I would once again like to say that, as far as we are concerned, we will continue to work to improve our labour legislation. We will make it easier for unions to operate to promote collective bargaining and to engage in the settlement of labour disputes. This work, which will be done by the Government together with our social partners, will, we hope, allow us to reach agreements and make sure that what we do is in step with our obligations towards the ILO.

Employer members – We have listened carefully to this discussion today. We would like to begin by thanking the Government for the written information and the detailed oral presentation provided to the Committee. This has been very helpful for a deeper and up-to-date understanding of the situation in Kazakhstan. Based on the discussion, we invite the Government to continue to review developments in the cases of Mr Baltabay and Ms Kharkova.

The Employer members also invite the Government to take appropriate measures to resolve the registration of the KSPRK/CFTU and the Industrial Union of Employees of the Fuel and Energy Sector.

The Employer members also invite the Government to continue to engage with the social partners on issues concerning the registration of trade unions and those existing barriers.

The Employer members also invite the Government to continue to facilitate and remove obstacles regarding the operation of free and independent employers’ organizations in the country, and to do so without delay.

The Employers’ group also invites the Government to consider extending the list in Ordinance No. 177 of 9 April 2018 to cover international workers’ and employers’ organizations such as the ITUC and the IOE.

The Employer members also request the Government to provide information on developments and the measures taken in its next regular report on the Convention under article 22 of the ILO Constitution.

Worker members – We thank the representative of the Government of Kazakhstan for the information that he has provided during the discussion and we also thank the speakers for their contributions.

As we have already said, the legal amendments that have been made are a first step in the right direction. But these legal amendments have not solved all the problems of the conformity of Kazakhstani legislation with the Convention since other legal aspects should be brought into line with the Convention to fully ensure freedom of association.

In particular, the legislation of Kazakhstan still subjects the cooperation of trade unions with international organizations to prior authorization under Ordinance No. 177 of 9 April 2018. Such a practice appears to us to be contrary to the Convention and the Government should take all possible steps, in law and in practice, to guarantee that national organizations of workers and employers are not prevented from receiving financial or other assistance from international organizations, particularly by removing the need for prior authorization to be able to cooperate with international organizations.

It is vitally important that the Government undertake serious investigations into the acts of violence perpetrated against trade unionists, in particular Mr Senyavsky, and that it prosecute and convict the perpetrators with penalties that act as a deterrent.

The Government must take action to stop the abuses of the registration procedure which seek to disrupt the functioning of free and independent trade union organizations, obstruct their registration and give preferential treatment to certain trade unions to the detriment of others.

The Government should also refrain from calling into question the registration of free and independent trade unions and stop the judicial proceedings under way which seek to dissolve the Industrial Union of Employees of the Fuel and Energy Sector.

The Government must also review, in consultation with the social partners, existing law and practice with respect to the registration and re-registration of trade unions in order to guarantee that the registration process is just a formality.

In particular, all necessary steps must be taken, in law and in practice, to ensure that the KNPRK and the Industrial Union of Employees of the Fuel and Energy Sector enjoy without further delay full autonomy and full independence as a free and independent workers’ organization and enjoy the autonomy and independence needed to fulfil their mandate and represent their constituents.

The Government must also stop the systematic judicial harassment of certain trade unionists aimed at preventing them from engaging in or continuing trade union activities. The sentences imposed on these trade unionists must also be annulled; here we are thinking in particular of Ms Kharkova, Mr Baltabay, Mr Eleusinov and Mr Kushakbaev.

The Government must also ensure that it implements all the recommendations made by our Committee in the past, including the road map of 2018.

With a view to the implementation of all these recommendations, we invite the Government to accept the visit of a direct contacts mission before the next session of our Committee, a mission which could also make contact with the organizations and individuals that are the subject of the Committee of Experts’ observations. The Government should also ensure that it provides all the information requested by the Committee of Experts for its next session.

Conclusions of the Committee

The Committee took note of the written and oral information presented by the Government representative and the discussion that followed.

The Committee noted the long-standing and persistent nature of the issues and the prior discussion of this case in the Committee, most recently in 2019.

The Committee welcomed that further steps towards implementing the 2018 road map were made, in particular amendments to the law, however regretted that not all previous recommendations have been fully addressed so far.

In this regard, the Committee took note of the continuing restrictions in practice on the right of workers to form organizations of their own choosing, in particular the unduly difficult re-registration and deregistration processes which undermine the exercise of freedom of association.

The Committee also noted with concern the numerous allegations of violations of the basic civil liberties of trade unionists, including violence, intimidation and harassment.

Having examined the matter and taking into account the Government’s submissions and the discussion that followed, the Committee requests the Government of Kazakhstan to take all necessary measures to:

• bring all national legislation into line with the Convention to guarantee full enjoyment of freedom of association to workers’ and employers’ organizations;
• ensure that the allegations of violence against trade union members are completely investigated, notably in the case of Mr Senyavsky;
• stop judicial harassment practices of trade union leaders and members conducting lawful trade union activities and drop all unjustified charges, including the ban for trade unionists to hold any position in a public or non-governmental organization;
• continue to review developments in the cases of Mr Baltabay and Ms Kharkova;
• resolve the registration of the KSPRK and the Industrial Union of Employees of the Fuel and Energy Sector (STUFECE) so as to allow them to enjoy the full autonomy and independence of a free and independent workers’ organization, to fulfil their mandate and to represent their constituents without further delay;
• review with the social partners the law and practice concerning the registration of trade unions with a view to overcoming existing obstacles;
• refrain from showing favouritism towards any given trade union and put an immediate stop to the interference in the establishment and functioning of trade union organizations;
• remove any existing obstacles in law and in practice to the operation of free and independent employers’ organizations in the country, in particular repeal in the Law on the NCE the provisions on accreditation of employers’ organizations with the NCE;
• ensure that workers’ and employers’ organizations are not prevented from receiving financial or other assistance by international workers’ and employers’ organizations; and
• fully implement the previous recommendations of the Committee and the 2018 road map.

The Committee requests the Government to accept a direct contacts mission of the International Labour Office before the next session of the International Labour Conference with full access to the organizations and individuals mentioned in the observations of the Committee of Experts.

The Committee requests that the Government provide to the Committee of Experts before its 2021 session full information on developments and measures taken in consultation with the social partners to comply with the Convention.

CMNT_TITLE_CAS



Written information provided by the Government

The Ministry of Labour and Social Protection of Population of the Republic of Kazakhstan (hereinafter – the Ministry) takes the opportunity to express its respect and gratitude to the International Labour Organization (hereinafter – the ILO) and has the honour to extend its congratulations on the Centenary of the ILO.

From the perspective of long-term close cooperation with the ILO on 16 May 2019, under the aegis of the XII Astana Economic Forum (hereinafter – the AEF), an international conference in observance of the Centenary of the ILO (hereinafter – the Conference) to discuss the report of the Global Commission on the Future of Work (hereinafter – the Report) was held in Nur-Sultan.

The AEF is one of the largest and most important international forums held annually with participation of the President of the Republic of Kazakhstan and global leaders, international experts, representatives of governments, business and scientific communities, media, etc. Within the AEF, the most important socio-economic issues, global trends, new challenges and ways to address them are discussed.

More than 200 delegates attended the Conference, among which the main speakers were the Deputy Prime Minister of the Republic of Kazakhstan, Ms Gulshara Abdykalikova, the Minister of Employment and Labour Relations of the Republic of Uzbekistan, Mr Sherzod Kudbiyev, and the representative of the International Social Security Association, as well as other international organizations, foreign government officials, diplomats, national and foreign associations of workers and employers.

During the Conference, a comprehensive and constructive exchange of views took place on the various aspects outlined in the Report. Following the Conference the fundamental recommendations of the Report were adopted.

In addition, on 20 May 2019, in compliance with the road map for the implementation of the ILO recommendations, the Ministry submitted to the Government of the Republic of Kazakhstan the Draft Law “On amendments and additions to some, legislative acts of the Republic of Kazakhstan on labour issues” (hereinafter – the Draft Law).

The Draft Law involves the exclusion of the mandatory vertical of trade unions, simplification of registration, empowerment of trade unions with the right to organize, conduct events with international organizations and implement projects aimed at protecting the rights and interests of employees in accordance with the legislation of the Republic of Kazakhstan, as well as the exclusion from the national legislation the rules regulating participation of the National Chamber of Entrepreneurs of the Republic of Kazakhstan “Atameken” in social and labour relations.

The Ministry will continue to work on the further promotion of the Draft Law with the subsequent submission to the Majilis of the Parliament of the Republic of Kazakhstan.

We highly appreciate the ILO’s activities for its invaluable contribution and assistance in improving the legislation in labour and social issues, employment, occupational safety and social dialogue, technical assistance by providing consultations, recommendations and other training programmes.

In this regard, we hope for further constructive cooperation aimed at the development of international partnership in the labour sphere.

The Ministry avails itself of the opportunity to renew to the ILO assurances of its highest consideration.

Discussion by the Committee

Government representative – Kazakhstan is a member of the ILO since 1992 and is striving to fulfil its commitments in accordance with the national standards and practices. In our years of working with the ILO, Kazakhstan has ratified 24 Conventions which have been implemented by the legislation of the country. The ILO, through providing technical consultation and assistance, has supported the country. The work of the high-level mission which visited the country in May 2018 resulted in a road map to implement the recommendations of the Committee and the Committee of Experts with regard to the Convention. In the framework of the road map implementation, an analysis has been carried out on the application of the Law on Trade Unions and the National Chamber of Entrepreneurs (NCE) in consultation with the employers’ and workers’ organizations at all levels, including national, territorial, and the local level.

A number of recommendations have been prepared on the assistance and procedures to follow to receive financial assistance from international workers’ and employers’ organizations. Information has been sent to the Committee of Experts on the judges’ associations, prison staff and firefighters’ unions, and on collective agreements covering these categories of workers.

The road map has been developed in light of that. A draft law on changes to labour legislation has been developed and I would like to inform you that on 20 May of this year the draft law was submitted to the Office of the Prime Minister and the President’s Administration. Once again, we would reaffirm Kazakhstan’s commitment to the ILO in the area of social and labour relations. In this regard, allow me to report on the measures taken in response to the comments that we have received from the Committee.

Firstly, with regard to the right to establish organizations without prior authorization (refusal of registration, re-registration and liquidation of organizations). Currently, there are three national trade union organizations representing around 3 million workers (or practically half of the wage workers in our country). There are 39 sectoral, 19 regional, 439 local, and more than 20,000 primary trade union organizations.

By virtue of an Order of the Ministry of Labour and Social Protection of Population, adopted on 29 June 2018, expert advice was provided on the question of registration and activities of trade unions to more than 100 trade unions. According to the legislation, all trade unions of Kazakhstan are established without prior authorization – neither the State’s nor the enterprise’s – as per the Convention. Primary trade unions do not have to undergo registration in the justice departments. If trade unions wish to acquire legal personality and obtain a business identification number, then they have to undergo registration. If there are shortcomings, the registering body rejects the application and provides the reasons therefor.

Regarding the registration of the Congress of Free Trade Unions of Kazakhstan (KSPK), once all shortcomings identified by the registering body are addressed, it can once again apply for the registration (and can do so an unlimited number of times). We will provide the support to any trade unions seeking registration.

The draft law I have referred to will simplify the procedures and will give a union one year (instead of six months) to confirm its status.

Secondly, with regard to the comments relating to the right to form and join organizations of one’s own choosing, in Kazakhstan, trade unions enjoy the right to establish trade union organizations, choose the status and structures and area of activity. They are not dependent upon state bodies and they are not subjected to their authority nor do they have to report to them.

The mandatory association, as provided for in the Law on Trade Unions was necessary to strengthen the role of trade unions in resolving issues arising when they are carrying out their functions to protect the interests of workers. The provisions of this law served to make trade unions strong social partners whose opinions, as the result, carried weight when it came to taking decisions in the labour and social sphere. However, in light of the comments of the ILO and a number of tripartite consultations with the social partners, a decision has been taken to review the existing system of trade union structures. To that end, a draft law to amend certain legislative acts of the Republic of Kazakhstan has been developed. It provides for the repeal of compulsory affiliation to a higher level trade union organization (in this regard changes are being made to sections 12, 13 and 14 of the Law on Trade Unions), simplification of the procedure to confirm trade union status and increase to up to one year of the time frame given to trade unions to confirm their status of a republic, sectoral and regional organization. We would also express interest in receiving ILO technical assistance on the above-mentioned issues as the draft legislation passes through Parliament.

Thirdly, regarding the involvement of the Government in the NCE, proposals to amend the Labour Code have been formulated with a view to withdraw the authority of the NCE to represent employers at the national, sectoral and regional levels. In 2018, a five-year transitional period has ended; the Government withdrew from the structure of the NCE and no longer has a right of veto. The Government therefore has no power to impact on the activities of the NCE. The NCE will no longer be the representative of employers and that has the following implication: the NCE will no longer be on the tripartite commission on social partnership or other bodies. It will be leaving the sectoral organizations and will no longer be a signatory of the sectoral agreements. It will also no longer be present on the regional committees. The changes that I have indicated are provided for in the draft Law that I have mentioned which went to the Office of the Prime Minister in May this year. We would again, here, welcome the technical support of the ILO.

Fourth, and as concerns the right of organizations to organize their own activities and formulate their programmes, currently, amendments to section 176 of the Labour Code are being drafted in relation to the right to strike in hazardous facilities. In accordance with section 176 of the Labour Code, strikes are recognized illegal in the railway, civil aviation, healthcare and also hazardous facilities. The Labour Code states that at such organizations, strikes can be carried out if there are guarantees that services vital to populations will be provided, i.e. strikes will be carried out without harming the whole of the population of the territory concerned and without involving hazardous facilities.

The fifth comment relates to the amendments to article 402 of the Penal Code. In September 2018, an interdepartmental meeting examined this issue. The provision was amended to so as to provide for an alternative penalty of community work. The Government will pursue its work in this regard.

The sixth comment relates to the right to organize and receive financial assistance from international organizations of workers and employers. In Kazakhstan, there are no obstacles to the cooperation and carrying out of activities aimed at training of trade union officials and development of social and labour sphere financed by international organizations with the sole exclusion of financial support for anti-constitutional activities which undermine the sovereignty and the independence of the country. The resolution of the Government of 9 April 2018 gives a list of international foreign organizations which provide financial support and grants; that list includes the International Labour Organization and a number of other institutions. We have provided a written explanation regarding the legislation dealing with the cooperation with international organizations. At the same time, the draft Law I have referred to contains an amendment on the right of trade unions to carry out activities with international organizations on projects to improve the situation of workers in the Republic of Kazakhstan.

In conclusion, I would like to say that the Republic of Kazakhstan will continue making all efforts to develop institutes of social partnership in order to protect the rights of workers and employers. We will also be moving to ratify the Part-Time Work Convention, 1994 (No. 175). Once again, I would like to reassure you that the Government of Kazakhstan will continue to take all necessary measures in order to achieve the objective of full compliance with Convention No. 87.

Worker members – The case of Kazakhstan is one that has appeared recurrently before our Committee. In 2015, 2016 and 2017, our Committee examined the extent to which the situation in Kazakhstan conformed with the Convention. One direct contacts mission, one high-level tripartite mission and one road map later, we are once again dealing with the case of Kazakhstan. Needless to say, the situation in the country, despite all the above, remains particularly worrying when it comes to freedom of association. We are concerned that the country is not taking seriously the actions carried out thus far by the ILO and does not have a genuine desire to change its policies. In previous years, we already reported on the violence perpetrated against trade union leaders. Besides the violence already reported, we have been informed of further acts of violence against trade union leaders, in particular violence against the President of the Trade Union of Oil and Energy Workers in the region of Karaganda.

We deeply regret that the Government of Kazakhstan is persistently reviving practices that go against freedom of association. In addition to acts of violence, another modus operandi pervasive in Kazakhstan is that of filing legal proceedings against trade union leaders.

We have heard that Mr Eleusinov and Mr Kushakbaev have been released. This is a step in the right direction. Nevertheless, we emphasize that they are still facing severe restrictions to their freedom and movement and have been banned from carrying out trade union activities. This is also the case for Ms Kharkova.

A number of problems exist in relation to the applicable legislation in Kazakhstan. It is problematic that prison staff and firefighters are banned from establishing and joining trade unions. The Government of Kazakhstan affirms that only people of a certain rank (in the military or police) are subject to this ban. The Government of Kazakhstan must not use this as an excuse to circumvent or abuse the fact that police and armed forced are excluded from the freedom to establish and join organizations, as stipulated in the Convention.

If all prison staff and firefighters obtained a rank within the military or the police, the Government of Kazakhstan could de facto take away the rights and liberties prescribed to them in the Convention. In this way, it would be interesting to find out the proportion of ranked staff in comparison to that of civilian staff within each profession. It has already been established that the duties carried out by firefighters and prison staff do not justify their exclusion from the rights and guarantees laid out in the Convention. I refer you to paragraph 69 of the General Survey of 2012 on Fundamental Conventions for more information on this point.

We also wish to recall that derogations from the freedom to establish organizations should be interpreted restrictively, as stipulated in paragraph 67 of the General Survey of 2012.

In the case of Kazakhstan, it is also worth recalling the right to establish organizations without prior authorization. While the need to register a trade union is accepted, doing so cannot be a prerequisite for carrying out trade union activities that are legitimate. However, after the new trade union law entered into force, Kazakhstan obliged trade unions to register or re-register, and began to consider the activities of non-registered trade unions as illegal. It is difficult to bring the registration procedures to a successful conclusion and they sometimes take so long that they are damaging freedom of association. The Government systematically refuses to register independent trade unions and is even dissolving pre-registered ones.

Let us take the example of the Confederation of Independent Trade Unions of Kazakhstan (KNPRK). After two years of unsuccessful attempts to register, this trade union tried to register once again, this time under a new name, the KSPK, but was unsuccessful. This trade union has been refused registration four times in a row for no real reason. In addition to the registration problems facing independent trade unions, many other trade union organizations, whose independence is questionable, have been able to register without difficulties.

The Government has drawn attention to the helpline it has put in place to deal with questions related to trade union registration. However, it is our responsibility to say that this helpline does not have the capacity nor the necessary mandate to address problems of this nature.

Workers should have the right to establish any organization of their choice as well as to become a member. However, the law obliges sectoral, territorial and local trade unions to associate with a higher-level trade union structure within six months of registering. As we understand it, the Government is planning to prolong this time frame to one year. This is not in conformity with the Convention.

There are even more restrictive criteria when it comes to founding sectoral organizations. For example, sectoral organizations must include at least half of the total workforce of that sector or cover the territory of at least half of the regions. These criteria are too restrictive. They hamper the workers’ ability to establish trade unions which, in turn, affects the much-needed trade union plurality. In order to conform with the Convention, these criteria must be more reasonable.

In light of the above, it remains to be said that workers must have the right to freely and autonomously decide if they wish to associate or not with a higher-level trade union structure or to become a member. The Government of Kazakhstan has had time, since 2015, to amend the trade union law so as to align it with the Convention, but it is now clear that it did not do so. It is no longer enough for the Government to make promises and commitments.

The Law on the National Chamber of Entrepreneurs also lays out restrictions for employers’ organizations in relation to freedom of association and to the right to organize, in violation of the Convention.

These different violations of freedom of association jeopardize one of the founding values of the International Labour Organization, namely social dialogue. Both the workers’ organizations and the employers’ organizations are effectively subject to restrictions on their right to organize. The social partners must have full independence so that they can freely and efficiently represent the interests of their members.

The law provides that a certain number of companies can be categorized as companies that carry out so-called “hazardous industrial activities”. The vague nature of this concept and the fact that most companies can say that they engage in such activities, makes it impossible to accurately determine what activities fall under this category. This uncertainty means that, in practice, the majority of actions carried out by trade unions can be considered illegal and takes away the right to strike in three of the largest companies.

However, the Convention sets out the right of trade unions to organize their activities and develop a programme of action. This Convention is, for us, central to the right to strike and, as we know perfectly well, the right to strike is the very basis for the full expression of freedom of association. The legislation of Kazakhstan unreasonably obstructs the full expression of the right to strike in the largest companies. The right to strike should not be restricted except for the essential services. Interrupting the essential services could put the whole population or part of it at risk, endangering people’s lives, safety and health. We hope that the Government will follow up meaningfully on the recommendations that we can provide it with at the end of our discussions.

Trade union leaders have been convicted and imprisoned on the basis of article 402 of the Penal Code which makes it a crime to go on strike if a court declares that strike as illegal. Penalties may go up as far as three years’ imprisonment in some cases. We wish to strongly insist that a worker who has participated in a peaceful trade union activity was doing nothing more than exercising a fundamental right and therefore should not be subject to criminal sanctions. As the General Survey of 2012 indicates, criminal sanctions are only possible if crimes or offences are committed at the time of the trade union activity, and only when laws that penalize such acts apply.

We now find out that, after a meeting with all the public bodies concerned, the Government intends to entrust the inter-institutional working group of the Office of the Prosecutor with reviewing the above-mentioned article of the Penal Code. The involvement of the social partners in such questions is, in our opinion, equally as essential.

Lastly, while the law prohibits trade unions from accepting “direct” financial aid from international organizations, joint activities and projects are fully authorized in practice. The information provided by the International Trade Union Confederation (ITUC) shows that the authorities are refusing to register trade unions if they are affiliated with an international trade union organization, even if they do not receive direct financial aid from them. The laws and practices in place are therefore out of line with Article 5 of the Convention.

The Government maintains that it issued recommendations to trade unions on whether to accept financing from international organizations. It would be useful to see those recommendations in writing and ensure that they respect the principles of the Convention.

Employer members – I would like to thank the distinguished Government delegate for the submissions made before our Committee today. I begin by noting that the Convention was ratified by Kazakhstan in 2000 and this case, as the Worker spokesperson has pointed out, has been subject to ten observations by the Committee of Experts since 2006. This case has been discussed in the Committee three times, notably in 2015, 2016 and 2017, most recently.

In the Committee in 2017, the Employers’ group noted that despite the very clear direction provided by the Committee in 2015 and 2016, and despite the long-standing concern expressed by the Committee of Experts since 2006, back in 2017 it appeared that the Government had still not taken action on the serious issues related to workers’ and employers’ organizations freedom of association, and in particular a lack of action on the issue of the freedom to establish and join organizations of their own choosing without prior authorization from the Government.

In the Committee in 2017, the Employers’ group expressed its deep concern at the Government’s continued failure to ensure that the Law on the National Chamber of Entrepreneurs of 2013 provide employers’ organizations with full autonomy and independence without interference from the Government. The Employers’ group noted its deep concern that the law resulted in the interference with the freedom and independence of employers’ organizations in particular, and that the failure of the Government to amend this law was deeply problematic.

An ILO high-level mission to Kazakhstan took place in May 2018, which led to the adoption of a road map by the Government which included a promise of concrete action to address the issues of non-compliance, together with continued technical assistance from the ILO.

Furthermore, as regards specifically the issues of freedom of association that related to employers’ organizations, and in particular related to the NCE, the ILO ACT/EMP Bureau undertook a technical mission to Kazakhstan in January 2019. The specific purpose of that mission was to discuss with the relevant ministries amendments to several laws related to the NCE. This resulted in a basic agreement on necessary amendments during the mission, and yet, despite that basic agreement about the necessary amendments, the Government in a later communication denied the necessity of most of the proposed amendments to the legal framework. In addition, we understand that the ACTRAV Bureau of the ILO provided technical assistance to the Government for ongoing freedom of association issues related to workers’ organizations.

So there has clearly been continued and constructive engagement from various departments within the ILO aimed at raising the understanding of the Kazakhstan Government in this regard.

As a result of this activity, and the continued lack of progress, the Employers must begin our intervention this year, by once again expressing our deep concern at the Government’s continued failure to ensure that the law on the NCE of 2013 must provide employers’ organizations full autonomy to form and function. It must provide employers’ organizations independence to form and function without interference from the Government. The establishment of the NCE by this law, constitutes a serious obstacle to employers’ organizations freedom of association and in the Employers’ group view, serious issues of continued non-compliance with the Government’s obligations under the Convention.

Therefore, the Employers submit that, in particular, the legislative framework, and in particular the law on the NCE, which had the effect of establishing the NCE as an organization with compulsory membership and an all-encompassing mandate to represent employers, remains problematic and of concern. This concern is not alleviated by the Government’s submissions today, that its participation in the NCE has withdrawn and that it is no longer on the board with the power to impact the NCE. With all due respect, that is not information that appears to be accurate.

As a result, the restriction of the employers’ freedom of association which has now persisted for more than five years, in which the Employers’ group sees no progress to remedy the situation, requires the Employers’ group to call upon the Government as a matter of urgency, to prepare, in close consultation with the social partners, of the most representative free and independent employers’ and workers’ organizations, amendments that are consistent in respect of the law relating to the NCE that will ensure that employers’ and workers’ organizations can establish and join organizations of their own choosing without governmental interference. This we believe is of the utmost importance.

In addition, we also note that there are issues related with the Government’s interference with the formation and establishment and free activities of workers’ organizations. Many of those issues were addressed by the Worker spokesperson and the Employers would say that the availed information at this time indeed points to obstacles that continue to exist regarding the registration of trade unions. Therefore, the Government should, in consultation with the representative social partners, review these obstacles in order to find solutions to give full effect to the right to establish organizations without previous authorization, as required under Article 2 of the Convention.

In addition, the Employers note that there are certain aspects of the law on trade unions that continue to infringe the right of workers to decide with autonomy whether their trade union should join a national trade union or not. And it appears that there are elements of that existing law that pre-empts that decision.

In addition, there are issues of concern that deal with the high threshold that seem to be a significant obstacle to the workers’ rights to establish and join organizations of their own choosing. Therefore, we also raise concerns in respect to these issues.

There is also a question in this case about the right of organizations to receive financial assistance from international organizations of workers and employers. And the issue here is the absence in the law of an authorization of workers’ and employers’ organizations to benefit, for normal and lawful purposes, from the financial or other assistance of international workers’ and employers’ organizations.

Therefore, we take note of the Government’s indication that a recommendation on receiving financial assistance from international organizations has been drafted, and we take this opportunity however to emphasize that it is important that this issue be clarified in an unambiguous manner by the law, and request the Government to clarify the legal status and the content of this Recommendation.

Finally, I note that the Government has made submissions in response to the Committee of Experts’ observations regarding strikes in manufacturing and other hazardous industries. I also note Mr Leemans’ statement in this regard. We would simply say at this point that the observations made by the Committee of Experts under this point which relate to provisions of the labour code, the law on civil protection, and the criminal code exclusively concern issues related to the right to strike.

In this case there are comments regarding strikes and entities operating hazardous production facilities that are considered illegal, and penalties that are foreseen for the incitement to continue a strike declared illegal by the court.

The Employers recall our well-known position that Convention No. 87 does not deal expressly with the right to strike, and therefore, this is not an issue in which with there is consensus within this Committee on the ability to give direction to the Government on these points. We also highlight at this moment that the position that Convention No. 87 does not expressly deal with the right to strike, is not only the position of the Employers’ group, but it was also included in evidence by the 2015 statement of the Government group of the ILO Governing Body. Therefore, as there is no concessions on this point, we will not address this issue any further, and leave the Government the flexibility to address these issues in a manner that it seems appropriate.

In the closing of these opening comments, the Employers’ group wishes to stress, at this time, that it is necessary that there be concrete action. There has been goodwill and good-faith efforts by the ILO and its various activities as well as the social partners, and now it is time for the Government, without any further delay, to remedy these issues which constitute significant interference with the free functioning of independent workers’ and employers’ organizations.

Worker member, Kazakhstan – I would like to focus on the main points which, in our view, from the point of trade unions, are the most important. Firstly, I would like to note that we, the Federation of Trade Unions (FPRK), are always in favour of solidarity between trade unions and we promote campaigns of trade unions.

In April, the FPRK came up with an official announcement to the attention of our colleagues, campaigners trying to look at the decisions of our colleagues, Messrs Eleusinov and Kushakbaev and thanks to our efforts, the courts decided to release them. On 18 May 2018, the FPRK joined the complaint of the International Federation of Trade Unions (ITUC) to the ILO. We support the commitments that have been undertaken by the Government and look forward to further improvements in legislation. In October 2018, the FPRK made an official appeal to the law and enforcement authorities of Kazakhstan in support of the statements of trade unions leaders from the KNPRK. What we want to note is with regard to the situations we have discussed here today. We are concerned about the fate of our colleague Mr Senyavsky who suffered an attack. We believe that it is important to ensure that those individuals involved are brought to justice.

Secondly, the FPRK is making the utmost efforts to promote and apply ILO principles and standards of the ILO. Following the high-level visit, the Government and the social partners developed a road map for implementation of the recommendations of the Committee’s comments on the application of the Convention. The FPRK has worked with other representatives, including the trade union leaders of Kharkova and Belkina, in order to draft amendments to legislation, as discussed by the Government today, which are necessary to bring practice into line with the Convention.

Taking into account the joint discussion, as well as a seminar that was held on 4 and 5 September 2018 which was organized together with the ILO, additional proposals for amendments to the Law on Trade Unions and other legislative acts were developed and sent to the Ministry of Labour. The FPRK participated in the working group to consider the draft of our amendments. The amendments aim at simplifying the registration procedure of trade unions; excluding the obligatory affiliation of trade unions; and participation of international organizations in trade union activities.

We have heard today a number of proposals from the Government. We did make a number of proposals which did not make it to the draft law; those related to the exercise of the right to strike and collective agreements. I think we can recognize that the changes being made to the Law on Trade Unions can lend a genuine impulse to the development of the application of the Convention in Kazakhstan.

We have recently raised the question on the need to ratify further ILO Conventions. Since the fall of the Soviet Union, we have not ratified many Conventions. We believe that the Government should strive to ratify five Conventions which are absolutely essential for the country: the Social Security (Minimum Standards) Convention, 1952 (No. 102); the Collective Bargaining Convention, 1981 (No. 154); the Safety and Health in Agriculture Convention, 2001 (No. 184); the Part-Time Work Convention, 1994 (No. 175), and the Minimum Wage Fixing Convention, 1970 (No. 131). Ratification of these Conventions will enable us to improve the condition of labour and social legislation and enhance the legal protection and guarantees of workers.

We hope that the Government this time will respond responsibly, fulfil its obligations and that all of the issues that have been agreed and put into the road map and adopted following the visit of the ILO high-level mission will be resolved. We hope very much that all of those provisions will be put into practice.

Employer member, Kazakhstan – I would like to echo the information that we have heard on the importance of the Convention for employers’ organizations. After the activities of the NCEs, the activities of employers’ organizations were reduced. We were not able to do the work that we wanted because there was a law obstructing that, but before the creation of the NCE in Kazakhstan, there were efforts to unite the employers’ structures in one organization. We were against this and we tried to appeal to the Parliament and the Ministry but unfortunately the process of changing legislation is extremely slow and some ministers were not able to continue this work while they were in office. I think there has been a detrimental impact on the capacity to implement the Convention because of the slowness of procedures. With the arrival of the new Minister I think the activities relating to legal changes will continue. We have seen certain elements that were in the Law being removed. I think that the acceleration of this process is very important. I welcome the visits of the ILO coming to meet the social partners and consider the application of the Convention. A number of proposals have come out of that which we, the Employers, agree with. All of the provisions indicated in these documents should of course now be put into practice by the Government. We hope that the first step will lead on to further steps, with an impact on the Law on Trade Unions and the Law on the NCE. These Laws limit the abilities of organizations, including employers’ organizations, to exercise their rights freely. I think the processes that have begun will continue and will be completed this year. Our tripartite cooperation will enable us to be more successful as we move through the legislative process. A single organization like the NCE works for entrepreneurs but it cannot really work in the area of labour relations. I think that the changes that we have seen will take us close into line with the practice of the Convention.

Government member, Romania – I am speaking on behalf of the European Union (EU) and its Member States. The EFTA country, Norway, member of the European Economic Area, aligns itself with this statement. We attach great importance to human rights, including freedom of association and the right to organize of both workers and employers, and recognize the important role played by the ILO in developing, promoting and supervising international labour standards.

The EU–Kazakhstan relationship is governed by the Enhanced Partnership and Cooperation Agreement which has enabled us to strengthen our bilateral cooperation. This agreement includes commitments to effectively implement the ILO fundamental Conventions.

Kazakhstan is becoming a recurrent case at the Committee, as conformity with the Convention was already discussed in 2016 and 2017. Repeated requests were made by this Committee to the Government to amend the legislation related to trade unions, notably the provisions of the Law on Trade Unions which limits the rights of trade unions to form and join trade unions of their own choosing, as well as other provisions included in the Labour Code, the Constitution and the Criminal Code.

We welcome that following the Committee’s recommendations, an ILO high-level mission took place in May 2018. We note with interest that a road map was approved on this occasion which provided for a number of steps to be undertaken in order to implement the recommendations of the Committee of Experts. However, we regret the persistent lack of progress with regard to freedom of association, and the right to organize in the country including the right to strike, despite repeated requests by this Committee.

While welcoming the release of the two trade union leaders arrested in 2017, we express deep concern over allegedly continued harassment, intimidation and violations of fundamental human rights of trade unionists This included the physical assault on the leader of the Karaganda region branch of the fuel and energy workers union in November 2018. At this point, we take note that the released trade union leaders were reported to be prohibited from engaging in trade union activities.

We also express concern over the fact that some trade unions are still denied registration. In particular, the KNPRK, which went into liquidation and, as a consequence of the new law on trade unions, has still not been able to register or re-register. That said, we request the Government to engage with the social partners to review the difficulties identified by trade unions and to ensure the right of workers to establish organizations without prior authorization from the Government. Such a review should include the possibility of facilitating the registration and re-registration process of trade unions and revise the mandatory affiliation requirement.

We want to reaffirm that an environment conducive to dialogue and trust between employers, workers and government is essential for social and economic stability and contributes to creating a basis for solid and sustainable growth and inclusive societies.

Based on the above considerations, we reiterate the requests made in 2017:

- We call on the Government of Kazakhstan to respect the workers’ right to establish and join organizations of their own choosing. To ensure that this right is fully respected, we urge the Government to amend the trade union law adopted in 2014 without further delay and in particular section 11(3), section 12(3), section 13(2) and (3), and section 14(4), in consultation with the social partners.

- Employers also have the right to form and join the organization of their own choosing. As repeated several times by this Committee, we urge the Government to amend the Law on the Chamber of Entrepreneurs and any other relevant legislation to ensure the autonomy and independence of the free and independent employers’ organizations in Kazakhstan.

- We urge the Government to take measures to ensure that the right to strike is fully respected in the country and amend the 2015 Labour Code as well as section 402 of the Criminal Code accordingly, as the Government has already committed to several times before this Committee. We request the Government to provide information on the reform of the criminal law and procedure so that no penal sanction is imposed against a worker for having carried out a peaceful strike.

- Finally, we encourage the Government to take the necessary measures – in line with the current experts’ report – to authorize workers’ and employers’ organizations to receive financial assistance from international organizations of workers and employers.

We are pleased to hear that the Government is preparing a new Law to amend the Law on Trade Unions. We encourage the Government to continue to avail itself of ILO technical assistance in order to proceed with the reforms needed and ensure that the legislative changes comply with ILO Conventions.

In practice, we expect from the Government not to impede registration of independent trade unions, to respect the workers’ right to organize and freedom of association, including the right to strike, and to put an end to harassment, intimidation and arrests of trade unionists in the country. We will continue to closely monitor the situation and remain fully committed to our cooperation and partnership with Kazakhstan.

Government member, United States – The United States is deeply concerned by the ongoing obstacles to the achievement of freedom of association in Kazakhstan. In particular, we are troubled that the Government has not instituted any meaningful changes to address the issue.

The Committee has reviewed this case every year since 2015, except for 2018 when a high-level tripartite mission visited the country. Throughout this time, the Government has not implemented any of the recommendations of the supervisory bodies. This inaction has allowed for the continuous violation of the rights of workers and employers in Kazakhstan.

This is especially concerning in light of allegations of violence, restrictions on union activities, and intimidation through ongoing spurious criminal charges against trade unionists. We share deep concern over the alleged beating and injuries suffered by trade union leader, Dmitriy Senayvskiy, and request more information on the status of the investigation. We also note with concern the ongoing criminal trial against union leader, Yerlan Baltabay. While we welcome the release from prison of Amin Eleusinov and Nurbek Kushakbaev in 2018, we continue to be concerned about the continued ban on their and Larisa Kharkova’s participation in trade union activities, as well as the restriction on Kharkova’s movement.

In July 2018, we were pleased to hear that the Federation of Trade Unions of Kazakhstan, together with the Government, ILO, and independent trade union representatives, began drafting legislative amendments that would bring Kazakhstan’s legislation into compliance with the Convention, in accordance with the ILO road map for Kazakhstan. Unfortunately, since then, Kazakhstan has made little progress towards bringing this draft legislation into law. We welcome the Government’s announcement of the new draft law in May 2019 and we encourage the Government to provide additional information to the Committee about the scope and status of the law, as well as to convey a copy of the draft law for review by the ILO and its Members.

To that end, we urge the Government to take the following necessary measures to help bring Kazakhstan into conformity with the Convention:

- fully investigate any acts of violence against union leaders;

- cease harassment and interference in the activities of workers and employers;

- bring before Parliament and adopt legislation to bring the Labour Code, the Law on Trade Unions, the Criminal Code, and the Law on the National Chamber of Entrepreneurs into compliance with the Convention.

Now is the time for the Government to take substantive actions toward implementing the recommendations of ILO supervisory bodies. We urge the Government to address immediately the outstanding freedom of association issues in the country in close cooperation with the ILO and the social partners.

Observer, International Trade Union Confederation (ITUC) – I am speaking on behalf of the members of the KNPRK. It was liquidated in a case brought by the Government before the courts as were its member organizations. Its financial and legal documentation was seized and this is a clear violation of the fifth article of the Constitution of Kazakhstan and the Convention.

The courts have also decided to sentence leaders of trade unions: Larisa Kharkova; Amin Eleusinov; and Nurbek Kushakbaev who was awarded the Arthur Svensson prize for trade union activity. And, we have also seen members being fired or rather dismissed from their places at work in order to eliminate members of our trade union.

The Government is not implementing the measures agreed in the road map which was put together, together with the ILO. There is also a new civil case against Larisa Kharkova and a criminal case against Yerlan Baltabay, the President of the Independent Trade Union of Oil and Energy Workers.

The Government is continuing to destroy independent trade unions. It is forcing employers to not sign collective agreements. It is intimidating waged workers and hampering the creation of new trade unions or joining trade unions on behalf of the KNPRK and its members’ organizations. We call on the Committee to demand from the Government of Kazakhstan to immediately put into practice the road map worked together with the ILO high-level mission and to bring its legislation and practice into line with the Convention – also to put a stop to the administrative and criminal prosecution of trade union activists and stop interfering in the internal affairs of trade union organizations.

Government member, China – The Chinese Government has closely followed the speech made by the Kazakhstani Government. We have noticed that by legislation, the Government has made a great effort in implementing the Convention including the extensive dialogue between the social partners as well as establishing the hotline. We have also noticed that, apart from listening carefully about the suggestions from the social partners and the ILO, Kazakhstan will continue to revise their legislation. China strongly supports the Kazakhstan’s dialogue with the social partners and would like to see a better implementation of the Convention. And we also would like to see more help from the ILO.

Worker member, United States – Canadian workers join us in our statement. A year ago, the American Federation of Labor and Congress of Industrial Organizations (AFL–CIO) requested suspension of trade benefits granted to Kazakhstan by the United States Generalized System of Preferences. This action followed previous submissions regarding the persistent failure of Kazakhstan to protect and respect freedom of association. Since the brutal repression of an oil sector strike in 2011, killing at least 17 unionists and injuring dozens more, the Government has initiated, continued and accelerated a course of actions in legislation and in practice to deny workers the rights contained in the Convention. The criminalization of independent trade unions and efforts to eliminate all authentic unions has been a thorough and sustained programme of the Government since that strike.

Aside from the laws others have commented on and the forced deregistration of many independent unions and the KNPRK, employers and the Government have worked together to remove democratically elected union leaders and replace them with employer-designated leaders. This programme has also taken extreme actions to deny strike rights. Since 2012, authorities have used excessive force to contain strikes, resulting in at least 12 deaths and arrested and prosecuted outspoken oil workers and government critics, almost all of whom were convicted despite allegations that they were tortured.

As discussed in the Generalized System of Preferences (GSP) petitions, family members, fellow independent federation officials and individuals suspected of associating with KNPRK leader, Larissa Kharkova, report threats and acts of intimidation by the police and unknown individuals. Ms Kharkova, having served two years of a four-year sentence, remains restricted to Shymkent and has a strict curfew and constant surveillance.

Retaliation against the federation’s Press Secretary, Lyudmila Ekzarkhova, escalated after the AFL–CIO filed its 2017 petition, included targeting, harassment and eventually forcible deportation of her husband. The Government has created a climate of fear for independent union leaders and all those who associate with them.

The Government has pursued a pattern of harassment and criminalization against the independent federation and against key sectoral unions that have demonstrated independence. In October 2018, police raided the home of Yerlan Baltabay, leader of the Union of Fuel and Energy Workers of the dissolved KNPRK. The Government began a series of police and legal actions against him very similar to those directed against Larissa Kharkova, in spite of the fact that her case was conducted without credible evidence and violated criminal procedure in Kazakhstan. On 28 February 2019, the Government liquidated Yerlan Baltabay’s energy sector union for failing to change its by-laws to comply with the 2014 law on unions though the union tried five times to re-register since 2015 and was denied each time. Such aggression is faced by independent unions to eliminate those who refuse to bow to government pressure.

In February 2019, Kuspan Kosshigulov, who is here with us today, spoke on behalf of the independent unions of Kazakhstan at the December 2018 ITUC World Congress. He was attacked and detained on a train and taken to a police station for interrogation and examination with his 8 year-old child in the weeks after the Congress. Union and allies view this as a retaliation for Kuspan’s activity at the ITUC Congress.

The Government must make meaningful changes to its legislation and end anti-union practices in order to ensure freedom of association according to the Convention.

Government member, Canada – Canada thanks the Government of Kazakhstan for the information provided today. Canada considers Kazakhstan an important partner in many areas of international cooperation, and looks forward to many more years of positive collaboration. We note that Kazakhstan continues to make significant efforts to improve the standards of living for its people, especially important at the momentous occasion of the transition of power from first President Nazarbayev to President Tokayev, elected this month. However, we note with deep concern that this is the fourth time in five years that the Government of Kazakhstan has been called to appear before this Committee due to non-compliance with the principles of the Convention, with little apparent progress on these issues to date. We have concerns about deteriorating respect for labour and human rights in the country, including incidences of violence against trade unionists, undue restrictions on the right of peaceful assembly, and the inability of workers and employers to join autonomous and independent organizations of their choosing.

Respect for freedom of association and the right to organize is fundamental. Strong and independent workers’ and employers’ organizations are also key in addressing economic and social challenges, and collectively can help ensure and sustain the well-being of both individuals and enterprises. Canada therefore urges the Government of Kazakhstan to implement the previous conclusions of this Committee without any further delay. In particular, we urge the Government to: (i) amend the Law on Trade Unions to ensure workers can freely establish and join trade unions of their choosing; (ii) effectively address the current difficulties in the trade union registration process; and (iii) amend the Law on the NCE to ensure employers’ organizations in Kazakhstan can function independently and autonomously. All such law reforms should be consistent with international labour law and standards, including this Convention, and the result of genuine and effective tripartite dialogue.

We also urge the Government to cease and prohibit the harassment of trade union leaders and members, ensure any perpetrators of such actions are brought to justice in accordance with due process and the rule of law, and protect the rights of individuals engaged in peaceful protest. Finally, we encourage the Government to avail itself of ILO technical assistance in its efforts to ensure compliance with the principles of the Convention. Canada remains committed to working with the Government of Kazakhstan towards these ends as a partner.

Observer, IndustriALL Global Union – I am speaking on behalf of IndustriALL Global Union representing workers in mining, energy and manufacturing sectors throughout the world, including Kazakhstan. I have taken this floor to speak about inadmissible situation with workers’ rights in Kazakhstan. In 2017 we raised the issue about consequences of adoption of the repressive Law on Trade Unions and the dissolution of the Confederation of Independent Trade Unions of the Republic of Kazakhstan. Now, we see that the same legislation is effectively used to prevent registration of this and other independent trade union organizations.

The Law on Trade Unions provides for a mandatory two-step registration that can take half a year. In the same time a local trade union upon registration must join a sector level union, and in their turn the sector level unions must become part of one particular national trade union centre.

The practice now is that unions are repeatedly denied registration at all levels by the judicial authorities if they do not plan to join the specific union centre, or if they previously happened to be members of independent unions. In the same time, members and activists of independent unions are legally prosecuted or punished with large fines for performing their union-related tasks.

Another matter we want to point out is Criminal Code, which is now widely used to limit workers’ ability to strike through the charges in “incitement of interethnic discord”. Lack of its clear definition creates large space for manipulation of workers’ rights.

Prohibition of strike at workplace with harmful and dangerous conditions also requires a clearer definition. So far, because of this particular legislation, every strike of oil workers is under ban. Even if it is called by workers behind the gates of the enterprise and does not disrupt overall mode of the enterprise operation.

We consider this is a continuation of repression against workers stemming from the massacre in Zhanaozen, the oil town of Kazakhstan, where at least 16 people were killed and many more wounded in December 2011 in result of clashes with police. Independent trade union leaders are subject to repressions, some of them were convicted, or physically assaulted, while one of them, Yerlan Baltabay, already mentioned a number of times here, head of the local trade union “Decent Work” for petrochemical industry workers is being trialled right now. And, Erlan attended this Conference in 2017 to speak about union rights violations in his country, and now this is clearly a retaliation to his participation.

Taking into consideration these manipulations with workers’ rights, which constitute blatant violations of the Convention, in absence of any meaningful step from the Government of Kazakhstan to improve the situation, IndustriALL calls on to consider this case under special paragraph of the ILO Constitution.

Government member, India – India welcomes the delegation of the Government of Kazakhstan and thanks it for providing the latest update on the issue under consideration. India appreciates the commitment of the Government of Kazakhstan to fulfil its international labour obligations including those related to the Convention through progressive implementation of the relevant recommendations of the ILO and the willingness to constructively work with it.

We take positive note of the efforts being made by the Government of Kazakhstan in genuine consultation with its social partners to draft a law in this regard which essentially aims at simplification of the process of registration of trade unions and their empowerment in the spirit of social dialogue and tripartism and in accordance with their specific national context. We look forward to its enactment by the Parliament of Kazakhstan next month as planned for.

In fulfilling its labour-related obligations, we request the ILO and its constituents to fully support the Government of Kazakhstan and provide all necessary technical assistance that it may seek in this regard. We take this opportunity to wish the Government of Kazakhstan all success in its endeavours.

Worker member, Australia – Criminal sanctions against workers peacefully exercising their right to freedom of association are unacceptable and inconsistent with the Convention. So much is made clear in the conclusions of the Committee of Experts in the present case of Kazakhstan. Kazakhstan has a long and regrettable history of laws and practices that exhibit clear disregard for the right to freedom of association. In 2015, the UN Special Rapporteur extensively documented these problems.

The criminalization of industrial conduct in Kazakhstan includes the following. Firstly, the Criminal Code’s article 174, which bans inciting social, national or other discord. Under these provisions, union lawyer, Natalia Sokolova, was sentenced to six years’ imprisonment in August 2011. Her crime of incitement involved publicly calling for a change to the system for calculating workers’ wages.

Secondly, the requirement to obtain preauthorization for public assemblies which can only be conducted in designated and often isolated areas. Participation in unauthorized assemblies can attract severe criminal sanctions, including imprisonment. The Criminal Code also prohibits providing “assistance” to “illegal” assemblies, including by “means of communication”, thus criminalizing such simple acts as the use of social media to organize workers. Section 402 of the Criminal Code, under which an incitement to continue a strike declared illegal by a court is punishable by up to three years’ imprisonment.

In January 2017, Nurbek Kushakbaev, Deputy Chair of the KNPRK, was charged and detained for allegedly inciting the continuation of a hunger strike. The indictment against him included declassified material that showed that the phones of the union and its leaders had been tapped by the authorities since October 2015. Serious questions arose about whether Mr Kushakbaev received a fair trial. Journalists were not permitted to attend. Key witnesses gave inconsistent evidence, including one who changed her version of events overnight.

On 7 April 2017, Mr Kushakbaev was sentenced to two and a half years’ imprisonment and ordered to pay the equivalent of more than €75,000 in compensation to the company involved and more than €2,400 in costs. The court also banned Mr Kushakbaev from engaging in “public activities” for two years following his sentence. He was eventually released on bail in May 2018 but the restrictions on his right to participate in union activities remain.

In its recent correspondence to this Committee, the Government of Kazakhstan seeks to reassure the Committee that processes are in train for the positive revision of the laws that have been identified as being inconsistent with international standards. Conspicuously absent from the list of measures that the Government provides, is any reference to these criminal laws – laws which are anathema to free-functioning trade unions and the right of Kazakhstani workers to enjoy what is supposed to be a constitutionally guaranteed right to freedom of association.

Government member, Belarus – The delegation of the Republic of Belarus is grateful for the detailed information provided by the Government of Kazakhstan and the report of the Committee of Experts on its compliance with the Convention. We are also grateful for the efforts Kazakhstan has been making to carry out its obligations vis-à-vis the Convention and the ILO. The Belarusian delegation assesses positively what the Government of Kazakhstan has done to implement the recommendations of the Committee of Experts. We welcome amendments to existing legislation in the country, particularly as they apply to the activity of trade unions. We would emphasize that this work is being done in accordance with the country’s social partners. We appreciate the cooperation that Kazakhstan has had and continues to have with the International Labour Organization and we welcome the carrying out of an ILO mission to the country last year, and consultations which were held in April this year. We would like to express our support to the Government of Kazakhstan as it continues to act to implement the recommendations made to it by the ILO on the basis of the road map which it has worked out together with the Organization.

Worker member, France – The case of Kazakhstan is, unfortunately, well-known in our assembly. It is also important to recall that there are human lives behind the case that we are discussing. Thus, we must put human beings, not profit, at the centre of our concerns. I will take a few minutes, which is not much, to talk about imprisonment, harassment, intimidation and interrogation, as carried out by the national security services.

What is there to say about the President of the KNPRK, Ms Larisa Kharkova, who is facing new charges in addition to those for which she was sentenced to four years of restrictions on her freedom of movement, 100 hours of forced labour and a five-year ban on holding any position in a public or a non-governmental organization?

What is there to say about the lawsuit filed against Mr Yerlan Baltabay, leader of the sectoral Trade Union of Oil and Energy Workers, whose offices have been systematically searched and its official documents confiscated? What is there to say about the psychological pressures on these trade union activists and their families?

What is there to say about the physical assault launched on 10 November 2018 against Dmitriy Senayvskiy, representative of the same trade union in the region of Karaganda, who was hit across the head, and sustained several fractures to the arm and other injuries?

These are just a few examples among many others. Kazakhstan is one of ten countries with the worst record on workers’ rights violations according to the ITUC Global Rights Index. Workers who wish to join a trade union of their choice face administrative pressures, threats and intimidation.

Our conclusions from 2017 on this specific point strongly recommended that the Government of Kazakhstan ensure that trade union activists did not face reprisals. They also recommended ensuring that workers could exercise their internationally recognized right to peaceful assembly and amending the law in that regard. In addition, they recommended that the Government conduct a survey on the use of violence and torture in Zhanazoen as a form of reprisal or as a deterrent.

There is a long list of names that should be brought before this assembly given the high number of attacks that are taking place. It seems that Kazakhstan today requires particular attention from our Committee and from the international community in order to bring an end to practices which violate the Convention.

Government member, Turkey – We thank the Government of Kazakhstan for the information it provided and welcome its willingness and commitment to constructively engage and cooperate with the ILO. The Government of Kazakhstan has demonstrated efforts to strengthen and adapt its current legislative framework to bring it into line with ILO standards. We encourage the Government of Kazakhstan to continue to undertake necessary steps in this regard. We commend the positive and significant steps taken by the Government of Kazakhstan in consultation with the social partners, including its taking into account the observations of the Committee of Experts to amend its internal laws. Recent amendments made by the Government of Kazakhstan with a view to the implementation of the road map as a result of the ILO mission in May 2018 and in order to bring their national legislation in accordance with standards of the Convention should be acknowledged.

We believe that Kazakhstan, which respects the ILO and international labour standards and fulfils its obligations of submission of reports related to the ratified ILO Conventions, will continue to work with the ILO and social partners in the spirit of constructive cooperation.

Worker member, Norway – I speak on behalf of the trade unions in the Nordic countries. As in the International Labour Conference in 2015 and 2017, we also this year express our deep concerns about continuous lack of progress bringing the Law on Trade Unions in Kazakhstan into full conformity with the Convention.

This year we are also deeply concerned about criminal charges against trade union activists, as well as provocations, beating and injuries suffered by trade union leaders of which the Government has done nothing to investigate the matters to bring the perpetrators to justice. In the road map adopted at the high-level tripartite mission in May 2018, Kazakhstan pledged to submit a new draft trade union law to Parliament in November 2018. This has not been done. Instead authorities have continued to shut down independent unions, denied registration to new unions, and exercise pressure, including prosecution, on those who dared to protest.

I wish to remind that the Arthur Svensson prize was awarded to the Kazakhstani independent unionists, who were sentenced in unfair trials to prison or limitation of freedoms. The Trade Union Law, seriously limits the ability of trade unions to define their own structure, put forward demands and realize their right to strike, as well as the problems regarding the union registration by the state bodies, reorganization and liquidation. The free exercise of the right to establish and join organizations implies the right of workers to freely decide whether to associate or become members of a higher-level trade union structure. This is not the case in Kazakhstan as the law have high thresholds to establish a higher-level organization by making it almost impossible to form confederations.

In the 2017 conclusions, this Committee called on Kazakhstan to take all necessary measures to ensure that the KNPRK and its affiliates are able to fully exercise their trade union rights and are given the autonomy and independence needed to fulfil their mandate and to represent their constituents.

The Justice Ministry in 2018 four times refused to register the KSPK – twice in August because the name was too similar to a previously registered union, and twice in September on minor technicalities. Nordic workers including judges, prison staff and firefighters, enjoy the right to form and join unions of their own choosing and to bargain collectively. This protects us from monopolization and secures plurality of trade unions in the Nordic countries. We urge the Government of Kazakhstan to ensure the right of workers to freely join and establish trade unions, and to organize their activities free of interference by the authorities. This must be ensured both in the law and practice.

Government member, Russian Federation – I would like to express my gratitude to the distinguished representative of the Government of Kazakhstan and the country’s mission for having provided material, explanations and comments on the heart of this matter, and new information about what the State is doing to comply with its international obligations in respect of guaranteeing freedom of association.

Kazakhstan has been working steadily in order to improve its implementation of the Convention through constructive cooperation with the International Labour Organization.

We welcome the adoption of a road map which was agreed at the end of the ILO mission to Kazakhstan held in May last year. We also welcome steps the Government is taking to carry out that road map.

The Government has taken a comprehensive series of measures to bring its national law and practice fully into line with its obligations under the Convention. It is particularly important that this work is being done in close cooperation with the social partners, and strengthening the foundations for tripartite cooperation in accordance with the guidelines issued on the matter by the ILO.

After consultations held with the ILO and the social partners in April this year, amendments to the legislation will be sent to Parliament.

We are certain that this work will conclude successfully. We hope that the Committee will note the information provided by Kazakhstan with satisfaction, and having done so closed consideration of this case in the very near future.

Observer, Public Services International (PSI) – I am speaking on behalf of the European Public Service Union (EPSU) and PSI.

I would like to inform the Committee of new violations that have arisen, and which confirm the violations that have already been reported to the Committee of Experts. Our affiliate organization, the Trade Union of Health Workers of Kazakhstan, has been the object of interference, while its members have been and continue to be victims of pressure and threats from the authorities and public employers. These are violations of the right to freely join an organization of one’s choice.

This situation is directly linked to two concurrent facts. On the one hand, our affiliate organization, the Trade Union of Health Workers of Kazakhstan, left the Federation of Trade Unions of Kazakhstan less than two years ago. On the other, a new, alternative organization for the health sector, the Trade Union of Health Workers (SENIM), was, at the same time, established under the umbrella of the Federation. Since then, there has been a massive exodus of members from our affiliate trade union to the one recently established. At the same time, a very high number of registrations for organizations formed through our affiliate have been annulled. This did not occur naturally but as a result of interference, pressure and threats, as mentioned previously. For example, for the regions of Turkistan, Atyrau and Kyzylorda, all organizations formed through our affiliate were completely decimated in the space of only two weeks. We also know that our affiliate has complained to the civil service agency in the Kazakhstan and to the anti-corruption authorities, but to no avail.

Another concrete example is that of an organization based in Astana whose registration was annulled, which then lead to a lawsuit. The decisions of the Court of First Instance and the Court of Appeal raised concerns over the organization’s independence. Despite the fact that interference from the hospital administration is widely documented, both judicial decisions ruled against the trade union representatives.

I would like to underline that, as a result of these developments, since March 2018, there has been a sharp fall in the number of organizations affiliated to the Trade Union of Kazakhstan, from 926 to 288, and the number of trade union members has also decreased from 311,000 to 78,000. This represents a loss of 68.9 per cent and 75 per cent, respectively. We ask the Committee to duly consider these violations and to ensure that the conclusions for this case contain specific measures that put an end to those violations.

Government member, Armenia – We welcome the delegation of Kazakhstan and thank it for the information provided today. We welcome the ratification of 24 ILO Conventions by the Government of Kazakhstan, obligations on which have been incorporated into the national legislation. We also welcome Kazakhstan for their endorsement of the report of the Global Commission on the Future of Work and note the convening of a high-level forum dedicated to the 100th anniversary of the ILO in May this year. We note that with the view to implement the road map on the implementation of ILO recommendations elaborated as a result of the ILO mission in May 2018 and in order to bring the national legislation into accordance with the standards of the Convention, Kazakhstan held various workshops and discussions, as well as drafted amendments to the current legislation related to the activities of trade unions and entrepreneurs. While praising Kazakhstan for its efforts, we encourage it to continue its positive engagement.

Worker member, Germany – “International trade union solidarity constitutes one of the fundamental objectives of any trade union movement” – to quote the Committee on Freedom of Association. Accordingly, the Committee considers that legislation prohibiting a national trade union from accepting financial aid from an international workers’ organization violates Article 5 of the Convention. However, this continues to be the case in Kazakhstan, whose Constitution and national legislation prohibit unions, inter alia, from receiving funding from international trade union organizations.

Already, in 1995, the Committee on Freedom of Association Case No. 1834, called on the Government to amend the Constitution and the law. Almost 25 years later, there is still no real change in sight. It is true that the now-announced amendment to the law, gives unions “the right to organize, hold events together with international organizations, and implement projects aimed at protection of rights and interests of workers in accordance with laws of the Republic of Kazakhstan”. However, this regulation does not contain any information on the question of financial support. Also, an amendment to article 5(4) of the Constitution has not been announced.

This is but one additional point on a long list of violations of ILO standards in which we have serious doubts about Kazakhstan’s willingness to actually bring about a national law and practice in line with its international obligations.

In March 2019, the European Parliament passed a resolution criticizing Kazakhstan for taking no concrete steps to actually implement the provisions of the ILO road map, or the recommendations of the United Nations Special Rapporteur on Freedom of Assembly and Association. The Parliament has therefore urged the Government to end the crackdown on independent trade unions, stop the politically motivated prosecution of trade union leaders, and to bring national legislation into line with ILO standards.

Similarly, in March 2019, the UN Committee on Economic Social and Cultural Rights also calls, in its concluding remarks on the State report of Kazakhstan, not only for the implementation of the obligations under Article 8 of the UN Covenant and Economic Social and Cultural Rights, but also for the Obligations under the Convention as well as the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

Against this background therefore, we call on the Government to take the necessary steps to amend article 5(4) of the Constitution. In addition, we call upon the Government to prove to the Committee of Experts its compliance with the Convention on the basis of specific laws which are in force, and not merely announced. Furthermore, we demand special attention be given to this case of serious and persistent non-compliance.

Government member, Uzbekistan – We would like to thank the Kazakhstani delegation for its exhaustive report and its compliance with the Convention. Our delegation welcomes the active cooperation of Kazakhstan with the ILO on this issue.

On the recommendation of the Committee, Kazakhstan accepted an ILO high-level mission recently. I would particularly stress that, together with that mission, the Government of Kazakhstan has drawn up a road map to implement its recommendations in order to bring its legislation into full compliance with the Convention.

Let me highlight the following points: the preparation of recommendations for all social partners concerning the receipt of financial aid and support are unions from international organizations; and of the measures to amend legislation regarding trade unions and employers as the result of wide-ranging discussion at national and international levels. We are sure that these measures indicate the attachment of Kazakhstan to creating working conditions which are dignified and deserve the recognition of this Committee.

Worker member, Burkina Faso – My voice echoes the voices of the 14 trade union centres from the 12 African countries. I would like to congratulate the employers’ spokesperson on her intervention, in which she used a phrase that I will repeat here: the need for goodwill.

It is true that Kazakhstan has ratified 24 out 189 Conventions. The Convention in question was ratified in 2000 and we observe that, in five years, the country has appeared before the Committee four times. This is consistent proof that no orderly relation exists between the speeches made here and the facts on the ground. From this point of view, the International Labour Organization must ensure respect for the platforms on which the authorities come to speak.

It is necessary to consider the possibility of applying sanctions more widely, not just against countries behind on their (financial) payments but also against countries that do not meet their commitments. It is unacceptable that they make certain statements at different fora but, on the ground, do something else.

First, with regard to the violation of standards ratified by Kazakhstan, we wish to simply refer to page 15 of the rules issued in 2014 which states that countries that have ratified a Convention must commit to applying in law and in practice what has not already been done. Second, in the same document, on page 28, it says in paragraph 1 that the principle of freedom of association is at the heart of ILO values. It is inexcusable to see a country ratify a Convention in 2000 but then interfere in the affairs of health worker trade unions, thereby violating Article 2 of that same Convention.

Such actions lead to a lack of social justice which can be the cause of violence and radicalism.

I conclude by saying that all those that violate the Convention with a view to weakening trade unions, are themselves weakened. Indeed, if the social partners are weakened, poverty will become so bad and intolerable that other voices will be born and these voices will be radical, demanding and lacking in diplomacy. It is then that we will regret not having the courage to truly work towards respecting international standards which are the essential pillars of the ILO, an organization founded in 1919.

Government member, Tajikistan – Tajikistan notes the efforts of Kazakhstan to implement the road map and the recommendations of the ILO, developed on the basis of the ILO mission in May 2018, as well as to bring national legislation into line with the provisions of the Convention.

In particular, we emphasize the following points:

- seminars and discussions were held with the participation of international experts on the implementation of ILO recommendations;

- a helpline has been established for registration and activities of trade unions;

- recommendations were developed on obtaining financial assistance from trade unions and international organizations.

We also note the consultations held on 30 April 2019 by the ILO secretariat to agree on draft amendments to the legislation and the intention of the Government of Kazakhstan to introduce the relevant legislation in July 2019 We hope for further constructive cooperation between Kazakhstan and the ILO on the implementation of the road map.

Worker member, Russian Federation – I am speaking on behalf of the Workers’ delegation of the Russian Federation. Over the last few years, beginning at the 105th International Labour Conference, our delegation has been expressing its concerns about the complicated procedure for the legal registration of unions in Kazakhstan. We have drawn the attention of this Committee to the fact that certain provisions of the legislation of Kazakhstan have not been in line with the basic principles of this Organization. Unfortunately, it turns out that our fears were justified. The situation has got seriously worse over the last couple of years. We have not seen any substantive changes to legislation in accordance with the road map that was agreed with the ILO. Instead, current laws have been used to wipe out one of the national unions, the FNPRK. Following that, several branch affiliates were forced to close because they had been trying to go through the re-registration process in accordance with the existing laws in Kazakhstan on unions. They came up against a lot of obstacles and dozens of times they were refused registration by the courts.

Similar obstacles are placed in the way of branch unions which were part of the former Confederation and which have made several attempts in the course of 2018 to register new, country-wide unions. There are many cases of local unions also being refused registration. Meanwhile, the State is using not only laws which have already been criticized, including by experts, but is exercising direct and systematic pressure on trade union activists and leaders. Three leaders of the Confederation have been convicted on spurious charges – the President, Larisa Kharkova and the leaders of the branch unions, Amin Eleusinov and Nurbek Kushakbaev. Their cases have not been heard yet but their freedoms have certainly been restricted. At the moment, a criminal case is being opened against another leader of the Confederation, Yerlan Baltabay, who spoke at the Committee two years ago on the case of Kazakhstan. Irrespective of the need to move the charges, the workers of the Russian Federation are convinced that the criminal persecution of these people and many other activists who are constantly being illegally pressured, physically beaten and persecuted through administrative measures, are being treated like this because they have legally been engaged in trade union activity.

In 2011, the authorities of Kazakhstan opened fire on a peaceful protest of workers in an Oil and Gas Factory. They were demanding an increase in wages. Sixteen people were killed and tens of activists were taken to court and prosecuted. We see, unfortunately, that the Republic of Kazakhstan does not appear to want to have any regard at all for its international obligations in respect of freedom of association. That is why the Workers’ delegation of the Russian Federation demands that this case deserve a special paragraph.

Government representative – First of all I would like to convey my thanks to those who made suggestions and recommendations about this particular case involving Kazakhstan. We greatly appreciate the International Labour Organization and its assistance and the opinions of international employers’ and workers’ organizations. And, of course, we will make further efforts as we know we have to in order to make progress in Kazakhstan towards fully complying with the provisions of the Convention.

There are just a couple of comments I would like to make in response to what has been said.

Firstly on the functioning of employers’ organizations. In 2018, we went through a transitional period and some organizations left the NCE. We are making further efforts, we have been and will continue to do so to clearly define in our legislation the roles and functions of employers’ organizations and of the NCE. In order to make sure that we have clear parameters for what they are doing and the action they are taking, technical assistance from the International Labour Organization of course will be very helpful to us in this respect and we do hope that we will be able to receive more this year. That will help us to ensure that the provisions in the draft law which we have prepared and which is going to go to the Parliament very soon are appropriate.

We understand the concern that has been expressed about the use of force against members of unions. Whenever there is a case like this we will investigate it.

As to the charges of hooliganism against leaders of the demonstration that took place in 2011 and legal investigation of the trade union leader, Yerlan Baltabay, action was taken in accordance with the Criminal Procedures Code.

Workers have rights, unlimited rights to set up and join trade union organizations. There are a couple of exceptions: the fire service and the army, people working in prisons and those who are employed in the prisons and rehabilitation through labour camps in our country, as well as troops of the Internal Affairs Ministry. These people are not able to join trade unions.

According to the provisions of the Convention, it is up to national legislation to define the extent to which the guarantees provided in the Convention can be applied to the armed forces, etc. I would like to emphasize, once again, however, that civilians working in the prison system, in the army, that is people working on things like finances and the provision of healthcare, the legal services in human resources departments, they, according to the law are entitled to join trade unions and that right at the moment can be fully enjoyed without restriction.

I would like once again to take this opportunity to say that Kazakhstan has taken initiatives to amend its law on trade union activity, its labour code and other pieces of legislation. Over the next two months we will get down to work on bills to amend our legislation. Those will then go forward to the Parliament of Kazakhstan in the hope that the amendments and the new legislation can be adopted as soon as possible. Again, technical advice from experts here in the ILO will be more than welcome and we hope to benefit from that in the course of next year.

Moving on now to registration procedures for trade unions. Where there have been problems those will be thoroughly considered and investigated with the bodies responsible for registering trade unions which are part of the judiciary and therefore come under the Ministry of Justice.

I can assure you that Kazakhstan will make whatever efforts are necessary to ensure that the country is fully in compliance with its obligation under the Convention.

Employer members – The Employers thank the distinguished Government delegate for both the oral submissions provided this afternoon and evening, as well as the written information provided in respect of this case. We also thank those that intervened in the discussion that took place.

It seems to the Employers’ group that now is the perfect opportunity to seize upon the goodwill that the Government has indicated that it has in respect of this process, and to see that translated into action. Therefore, taking into account the Government’s submissions in this regard, the Employers urge the Government to review, in consultation with the social partners, the existing law and practice regarding re-registration of trade unions with a view to overcoming the existing obstacles in law; to prepare, in close consultation with the social partners, amendments to the provisions in question of the trade union law with a view to first, ensuring that workers can freely decide whether they are sector-based territorial or local trade union affiliates with a national trade union, and second, lowering the threshold for national sector-based trade unions.

In addition, the Employers’ group is of the view that the Government should prepare, in close cooperation and social dialogue with the representative employers’ and workers’ organizations, the necessary amendments to this legislative framework that at this moment provides obstacles to the free association of both workers’ and employers’ organizations. As a part of this, the Employers’ group urges the Government to prepare, in consultation with the representative employers’ organizations, the amendments to the relevant regulations on the NCE in order to ensure that employers can establish and join organizations of their own choosing. While we have taken due note of the Government’s submissions with respect to the transitional period in the NCE Law, we fear that the Government has missed the point in respect of the Employers’ concerns. So to be clear, the point is that the Government has no legitimate role in the activities of free and autonomous employers’ organizations. So, we encourage the Government to engage in consultation with the most representative employers’ organizations and to accept ILO technical assistance in this regard to ensure that the legislative framework allows the free and autonomous functioning of employers’ organizations separate and independent from the Government.

Therefore, we welcome the Government’s indications that the draft law is pending and will resolve these issues and we will be hopeful that that does in fact happen. We also encourage the Government to provide information on the legal status and the contents on its recommendation regarding authorization of workers’ and employers’ organizations to receive financial assistance from international workers’ and employers’ organizations. We note our deep concern that a number of these recommendations have been repeated for some time and so it is our firm expectation that this move forward without delay.

Worker members – Kazakhstan has been examined before our Committee time and time again. It has also recently hosted a high-level tripartite mission whose members had the opportunity to make a number of recommendations to the Government

We call on the Government to urgently implement the recommendations received from our Committee in 2015, 2016 and 2017. Similarly, it should implement the road map presented upon completion of the high-level tripartite mission. All these actions should be undertaken in consultation with all worker and employer representatives.

Above all, it is fundamental to request the Government to put an end to the acts of violence committed against trade union leaders and activists. It can do so, notably, by prosecuting and punishing the perpetrators effectively. Putting in place penalties that sufficiently deter perpetrators is crucial in that regard.

In addition, the Government must also stop intimidating trade unionists particularly through legal proceedings, remove any restrictions to their trade union activities and drop any charges against them.

The registration procedure poses a number of further problems and is now effectively restricting freedom of association. We ask the Government to respond to the concerns raised by the social partners with regard to the recurring problems associated with the registration procedure and to dialogue with them with a view to taking all necessary measures. In particular, there is a need to heavily amend the trade union law with a view to lifting all legal obstacles and ensuring freedom of association in the country.

We emphatically ask the Government to ensure the registration of all trade unions, particularly the KNPRK or its successor, the KSPK.

It is also important to note the interference that still takes place in the internal organization of trade unions in Kazakhstan. We ask the Government to refrain from all interference in the internal affairs of trade unions.

The obligation to associate with a higher-level trade union within six months of registering undermines the freedom for trade unions to choose whether to do so or not. It is therefore necessary to amend the trade union law to guarantee the right of workers to decide freely whether they wish to associate with or become members of a higher-level trade union structure.

More fundamentally, the Government should refrain from defining the structure of any trade union, from limiting the categories of trade unions and from reserving the right to decide whether a trade union exists or not. The criteria for affiliation outlined in the legislation are equally as strict. It is important to make the criteria for affiliation less restrictive to guarantee true freedom of association.

Equally, the Government should guarantee that employer organizations are fully independent by amending the law on the National Chamber of Entrepreneurs.

More generally, the Government should respect the freedom to take collective action, including the right to strike. In that regard, there is a problem with the concept of hazardous industrial actions and the procedure for determining whether an activity is indeed hazardous or not. The concept is still too vague and may include a large number of activities. The procedure allows for the company itself to decide whether its activities are indeed hazardous industrial activities. This overly restricts the right to strike. We have noted the position of the Employers’ group on the right to strike. We take this opportunity to remind them that the Worker’s Group believes that the right to strike is in fact included in the Convention.

The remarks of the Committee of Experts on this point are very relevant and we support them entirely. In 2015, the Government Group recognized that the right to strike is linked to freedom of association, which is a fundamental principle of the ILO. The Group recognized the need to protect the right to strike in order to fully guarantee freedom of association, particularly the right to organize activities, with a view to promoting and protecting the interests of workers.

I also take this opportunity to thank the governments which have made this point throughout our discussions. I will say no more on this and refrain from interpreting the position expressed the Government Group.

It is therefore necessary to amend the Labour Code with a view to making it clearer on what establishments are considered hazardous and with a view to revising the procedure for determining whether a company engages in such activities. The company itself must not decide.

We request that article 402 of the Penal Code be repealed because it criminalizes strike action if declared illegal by a court.

We have heard that some recommendations have been addressed to trade unions that receive international financing. It would be interesting to see those recommendations in writing therefore we ask the Government to send them to the Committee of Experts. The fact remains that the legislative aspects of this issue continue to be problematic. They must be brought into total conformity with the Convention. Therefore, we ask the Government to amend the legislative framework relating to international financing in order to guarantee that the social partners are free to receive financing from international partners.

In order to implement all of these recommendations, we ask the Government to request technical assistance from the ILO.

In light of these serious, recurrent and persistent shortcomings, despite the many recommendations made as a consequence of the many times that the case of Kazakhstan has been examined before our Committee, despite the many ILO initiatives aiming to ensure that Kazakhstan conforms with the Convention, and in light of the lack of progress made in that regard, we request that the conclusions of the Committee are included in a special paragraph.

Conclusions of the Committee

The Committee took note of the written information and oral statements made by the Government representative and the discussion that followed.

The Committee regretted the persistent lack of progress since the last discussion of the case, in particular with regard to the serious obstacles to the establishment of trade unions without previous authorization in law and in practice and the continued interference with the freedom of association of employers’ organizations.

The Committee took note of the ILO high-level tripartite mission that took place in May 2018 and the resulting road map.

Taking into account the discussion, the Committee calls upon the Government to:

- amend the provisions of the Law on Trade Unions consistent with the Convention, on issues concerning excessive limitations on the structure of trade unions which limit the right of workers to form and join trade unions of their own choosing;

- refrain from imposing restrictions on the right to hold elected positions in trade unions and the right to freedom of movement for engaging in legitimate trade union activities;

- ensure that the allegations of violence against trade union members are investigated, and where appropriate, impose dissuasive sanctions;

- review, in consultation with the social partners, the existing law and practice regarding re-registration of trade unions with a view to overcoming the existing obstacles;

- amend, in consultation with the most representative, free and independent employers’ organizations, the provisions of the Law on the National Chamber of Entrepreneurs, and related regulations, in a manner that would ensure the full autonomy and independence of free and independent employers’ organizations, without any further delay. In particular remove the provisions on the broad mandate of the NCE to represent employers and accredit employers’ organizations by the NCE;

- ensure that the KNPRK and its affiliates enjoy the full autonomy and independence of a free and independent workers’ organization, without any further delay, and are given the autonomy and independence needed to fulfil their mandate and to represent their constituents;

- confirm the amendment to legislation to permit judges, firefighters and prison staff, who do not occupy a military rank, to form and join a workers’ organization;

- adopt legislation to ensure that national workers’ and employers’ organizations are not prevented from receiving financial assistance or other assistance by international organizations. In this regard, provide information on the legal status and contents of its recommendation regarding the authorization of workers’ and employers’ organizations to receive financial assistance from international organizations; and

- implement the 2018 road map in consultation with the social partners as a matter of urgency.

The Committee invites the Government to pursue ILO technical assistance to address these matters and to report on progress to the Committee of Experts by 1 September 2019.

The Committee decides to include its conclusions in a special paragraph of the report.

Government representative – I would like to take this opportunity to thank all the participants in the discussion on Kazakhstan, including social partners, government representatives and non-governmental organizations. We take note of the conclusions. We will continue to work with the social partners and the ILO on legislation and practice related to the implementation of Convention No. 87 in Kazakhstan. Kazakhstan is committed to fully respecting and implementing its obligations under the ILO.

However, while the first line of the conclusions indicate that the Committee took note of the written information and oral statements made by the government representatives and the discussions that followed, paragraph one, mentioning the necessity to amend the provision of the Law of Trade Unions, and paragraph eight, referring to the adoption of legislation to ensure that national workers’ and employers’ organizations are not prevented from receiving financial assistance, are drafted as if nothing has been said by the Government representative and nothing has been heard by the Committee. It is a highly unusual situation to adopt a document, received ten minutes previously, before the government representative has expressed his or her opinion on it. But we can live with that.

Furthermore, regarding the paragraph regarding the requirement to ensure that the KNPRK, a dissolved former trade union, has to be given full autonomy and independence, this trade union, as the government report indicates, attempted to re-register under a different name. What happens if they choose a different name? How are we going to follow this recommendation of the Committee? Do we need to force them to adopt the same name as you mentioned in this document or would you allow it to register under a different name? Because it is up to trade union members and trade union activists to do that.

Finally, you would suggest that the Committee includes its conclusions in a special paragraph of the report. I kindly request the secretariat to give us further information on what this implies for us and why Kazakhstan has been singled out in this case. We notice that out of 26 speakers on the Kazakhstan case, only two or three delegates mentioned this special paragraph but you support it. We therefore need further clarification and explanation from the secretariat.

And we fully share India’s remarks regarding the need for increased transparency of the Committee.

CMNT_TITLE_CAS



A Government representative stated the 2015 Law on Trade Unions and the 2015 Labour Code were intended to strengthen the organizational basis of the trade union movement and expand its role in defending the rights and interests of workers. The Constitution and the Law on Trade Unions prohibited both unlawful interference by the State in the affairs of public associations and any acts that prevented a trade union from being founded or carrying out its activities. Discrimination against citizens on the grounds of their membership of a trade union was forbidden in Kazakhstan. Trade unions were founded on the basis of equality among their members. All trade unions were equal before the law. Trade unions operated independently and adopted their own by-laws, decided on their own structure, determined their own priorities for action and formed their own trade union committees. Under the legislation, trade unions acted independently of state bodies at all levels and of employers and their associations, and were neither controlled by nor accountable to them; trade unions had the right to work with international trade unions and other organizations active in defending the rights and freedoms of workers and to conclude cooperation agreements. Today, there were two national trade union centres in the country, with a membership of nearly 3 million workers. This was almost half of all employed workers in the country. In addition, the country had 38 sectoral, 23 regional and 404 local trade unions, and 20,000 first-level trade union organizations. Regarding the work under way to address the observations made by the Committee of Experts in respect of the 2016 conclusions of the Conference Committee, a roadmap on the development of a concept note for a draft law had been adopted; a special working group with the participation of all social partners had been formed to improve legislation on trade union activities; this group had already formulated basic approaches and amendments to current legislation in line with the Committees’ observations and conclusions. In September 2016, Kazakhstan hosted an ILO direct contacts mission (DCM). The mission had welcomed the willingness of Kazakhstan to continue working to bring national legislation into conformity with the Convention and acknowledged the openness and transparency displayed by the Government during the discussion of issues raised. The mission noted the positive progress in relation to the proposed amendments to the Law on Trade Unions and the Labour Code. During the DCM and the subsequent mission by the International Trade Union Confederation (ITUC), national approaches to amending legislation were discussed. To date, the following measures have been taken. First, regarding the procedures for founding trade unions, the working group, taking into account international practice, and the growing number of small and medium-sized enterprises in the country, drafted a bill to reduce the number of founding members from ten to three. Second, in relation to the trade union registration procedure, he recalled that the current legislation provided for a two-step process: (1) primary registration, within two months after the founding; and (2) confirmation of trade union status within six months following registration. The working group proposed to replace the current complicated two-stage registration procedure with just a one-stage procedure. Third, with regard to the restriction on the right to strike, the working group had proposed to amend section 176 of the Labour Code, which established a total ban on strikes at enterprises classified as hazardous production facilities so as to allow strikes at such facilities, provided that minimum service would ensure that the main equipment could continue working uninterrupted, and industrial safety was ensured. The conditions and criteria for classifying an enterprise as a hazardous production facility were set out in sections 70 and 71 of the Law on Civil Protection. All the proposed legislative amendments had been approved by national trade unions and employers’ associations. The concept note for a draft law was examined and approved on 26 May 2017 by the interdepartmental committee on legislative activities that reported to the Government. A draft law was being prepared for submission to Parliament. The Government was also planning to consider amendments to the Law on Trade Unions, with regard to the trade union affiliation system, as well as the Law on the National Chamber of Entrepreneurs (NCE), with regard to the Government’s membership in the NCE. In September 2016, during the DCM, as well as in early 2017, the Government had requested technical assistance of the Office in this regard. It was now awaiting its official reply to begin examining, with the ILO support, the second package of legislative amendments. The Government would take all the necessary steps to ensure that the national legislation met all the requirements of the Convention.

The Employer members pointed out that despite the very clear direction provided by this Committee in 2016 and the commitment of the Government, and notwithstanding the long-standing concerns expressed by the Committee of Experts in its observations adopted in 2006, 2007, 2008, 2010, 2011, 2014, 2015 and 2016, it appeared that the Government had still not taken action on the serious issues related to the workers’ and employers’ organizations freedom of association, in particular, the freedom to establish and join organizations of their own choosing without prior authorization. They stressed their deep concern at the Government’s continued failure to ensure that the Law on the National Chamber of Entrepreneurs of 2013 provide employers’ organizations full autonomy and independence without the interference of the Government. The establishment of the NCE by this Law constituted a serious obstacle to the employers’ organizations’ freedom of association. They expressed their deep and continued concern that the five-year transitional period provided for by the Law resulted in the interference with the freedom and independence of employers’ organizations, and the broad ranging duties and responsibilities of the NCE. They further noted with deep concern the Government’s failure to amend this Law to ensure that employers’ organizations had full autonomy and independence. Taking into account the findings of the DCM and the Government’s commitment to improve the situation, the Employer members were of the view that the Government needed to take some preliminary steps to remedy the situation immediately. Action to be taken by the Government to remove obstacles to the freedom of association of employers’ organizations could include: (1) removing the all-encompassing mandate of the NCE to represent employers’ needs; and (2) deleting the provision in the Law on the NCE on the accreditation of employers’ organizations by the NCE, which put employers’ organizations in a subordinate position vis-à-vis the NCE and allowed it to arbitrarily refuse accreditation of an employers’ organization. The Employer members also expressed their concern with regard to the barriers to freedom of association of workers’ organizations, namely with respect to their registration. Expressing their deep commitment to the principles of freedom of association and the right of workers and employers to establish and join organizations of their own choosing, they urged the Government to take action, with the ILO assistance, to address the concerns raised by this Committee without any further delay. Finally, in light of the repeated comments of the Committee of Experts on this case, the Employer members recalled their disagreement with the Committee of Experts’ views concerning Convention No. 87 and the right to strike and further recalled that “the scope and conditions of this right were regulated at the national level” and that there was no consensus on this issue in the Conference Committee.

The Worker members recalled the examination of this case at the previous session of the Conference and expressed concern at the constant deterioration of the situation in Kazakhstan in relation to freedom of association. The Government did not seem to have heeded the strong signal sent by the Committee at its previous session. The direct contacts mission that visited the country in September 2016 had not been able to convince the Government to bring an end to the prosecutions that were still being pursued against certain trade union leaders. Although there had been certain positive political signals, they had not been reflected in practice. For example, after agreeing to register the Confederation of Free Trade Unions of Kazakhstan (KNPRK) following an abnormally long registration process, the Government had revoked its registration, which meant that any activity by the union was unlawful and would render it criminally liable. The Government had also ordered the arrest of trade union leaders and initiated legal proceedings, and heavy penalties had been imposed on them. Such intimidatory practices were intended to destroy the capacity of trade unions to take action. These serious issues were the subject of a complaint to the Committee on Freedom of Association and demonstrated the extent of the progress required to defend freedom of association, which was the subject of the Convention that was not respected in the country. The failings in the application of the Convention had mostly been addressed on previous occasions. With reference to the prohibition on prison staff and firefighters from establishing or joining trade unions, the Government claimed that only personnel with military or police status were covered by this prohibition. The Government should not make use of this justification to circumvent or abuse the exception recognized for the police and the armed services in relation to the freedom to establish and join organizations. The duties of firefighting and prison personnel did not justify their exclusion from the rights and guarantees of the Convention in view of the principle of the restrictive interpretation of exceptions to the freedom to establish organizations, as emphasized in the General Survey of 2012 on the fundamental Conventions. Although it was acceptable for the establishment of a trade union to be subject to registration, that could not be a requirement for the exercise of lawful trade union activities. And yet, following the entry into force of the new Trade Union Act, Kazakhstan was requiring the registration or re-registration of trade unions and considered activities by an unregistered trade union to be unlawful. Moreover, registration procedures were often so long that they were prejudicial to freedom of association. The willingness shown by the Government to simplify the registration procedure should nevertheless be welcomed, and it was to be hoped that this simplification would also guarantee real freedom to establish organizations. Turning to the requirement for local and sectoral unions to join higher level organizations, it was essential to recall that workers had the right to decide in complete freedom and independence whether or not to be affiliated with or to join a higher level union structure. The thresholds for the establishment of higher level organizations were currently too high, and amounted to an obstacle to their establishment. To be in conformity with the Convention, such thresholds should be set at a reasonable level. The Act on the National Chamber of Entrepreneurs also contained restrictions on the freedom of association and right to organize of employers’ organizations, which were in violation of the Convention. These violations of freedom of association jeopardized one of the fundamental principles of the International Labour Organization, namely social dialogue. Article 3 of the Convention set out the right of organizations to organize their activities and to formulate their programmes. It was clear that the national legislation restricted this freedom of action for a number of organizations which fell into the category of organizations engaged in “dangerous industrial activities”. The nebulous nature of this concept and the possibility for a large majority of enterprises to declare their work as being “dangerous industrial activities” meant that it was not possible to determine precisely the activities that were covered by this provision. This uncertainty in practice implied that most action carried out by trade unions could be considered unlawful. A trade union leader had been imprisoned and convicted, for the first time, under section 402 of the Criminal Code, which criminalized the continuation of a strike declared unlawful by a court. Strong emphasis should be placed on the fact that workers who participated in peaceful trade union action were only making use of an essential right, and must not therefore be liable to penal sanctions. Such sanctions should only be possible if, during trade union action, violence was committed against persons or property, or other serious violations of criminal law occurred, and only under the laws applicable to such acts. The establishment of a minimum service should be a real and exclusive minimum service, and should not be an obstacle to the freedom to engage in trade union action. It was also essential for the social partners to be able to participate in the definition of the minimum service. However, the legislation was in breach of these principles, and also prohibited trade unions from accepting direct financial assistance from international organizations. It appeared that joint cooperation projects and activities were fully authorized in practice. Yet, the information provided by the ITUC included reports of refusal by the authorities to register trade unions on the sole ground of their affiliation to international trade union organizations, without there being any question of direct financing. The legislation was therefore still not in conformity with Article 5 of the Convention. As noted by the Committee of Experts, requiring the approval of the public authorities to receive funding from abroad was contrary to the freedom of organizations to organize their administration. In the view of the Worker members, purely and simply prohibiting the receipt of financing from international organizations was also contrary to the freedom to organize their activities. In view of the above, they firmly called on the Government to bring an end to any interference in the affairs of representative organizations and to guarantee the independence and autonomy of such organizations so as to ensure harmonious social dialogue in the country.

The Employer member of Kazakhstan recalled that the recommendations of the ILO supervisory bodies were binding on his country as the legislation placed international law above the national legislation. In this respect, he thanked the social partners and this Committee for their common goal of making the world a better place. His organization, the NCE, actively contributed to this endeavour through, for example, developing, in accordance with international standards, a concept for national social corporate responsibility in the sphere of labour, socio-economic development, employment and security. The NCE, one of the social partners, had signed a general tripartite agreement for 2015–17, 16 regional agreements and six branch agreements (14 branch agreements were being drafted). The NCE shared the responsibility for ensuring freedom of labour and productive employment. The issue of compliance with the Convention had been discussed by the NCE. In this respect, he pointed out that there were no cases of Government interference in the activities of the NCE or its member associations, as the legislation in force prohibited all interference in the activities of public organizations. Out of 53 members of the NCE presidium, only three represented the Government. In a way, the Government depended on the NCE as no law could be adopted without its expert opinion. The NCE was created taking into account international experience. Its structure was based on the continental model, in particular, that of France, Germany and other democratic States. In accordance with the Law on the NCE, the Government transferred over 50 of its functions to the NCE and its member associations. Pursuant to the recommendations of the Committee and the 2016 DCM, the NCE advised the Government to repeal the provision allocating three seats to the Government in the presidium of the NCE. To conclude, he underlined that the NCE was an independent and autonomous organization, which strived, with the ILO technical assistance, to become one day an example of full compliance with international standards.

The Worker member of Kazakhstan indicated that work had been carried out to address the comments of the Committee of Experts. In particular, in the framework of consultations with the Government, the social partners, including the Federation of Trade Unions of the Republic of Kazakhstan (FPRK), made proposals for the amendment of the Law on Trade Unions. On this basis, a law to amend certain provisions had been drafted. Pursuant to the draft, the minimum number of founding trade union members would be reduced from ten to three and the second stage of the registration procedure during which the union was required to confirm its status would be repealed. The FPRK was aware that two member organizations of the KNPRK had not been re-registered; three FPRK member organizations had not been re-registered either. Furthermore, taking into account the comments of the Committee of Experts on the right to strike, section 176 of the Labour Code would be amended so as to provide for the minimum services at the enterprises classified as hazardous to ensure the safety and to maintain the functioning of the main equipment. The speaker recalled that the FPRK, together with the Confederation of Labour (KTK), had taken an active part in the development of the Labour Code and the Law on Trade Unions. The legislation allowed for systemic reform of trade unions, and strengthening and expansion of the social partnership framework. Collective agreements and the sectoral agreements, having the status of legal acts, played a key role in regulating labour relations, determining decent wages, ensuring safe working conditions and increasing social benefits and guarantees. The FPRK was grateful to the ILO for the technical assistance provided so far in the form of seminars, conferences and summer schools. The FPRK was concerned at the situation of trade union leaders, Mr Eleusinov and Mr Kushakbaev, who had received harsh penal sentences and, together with the KTK, called on the Government to demonstrate lenience in their respect.

The Government member of Malta speaking on behalf of the European Union (EU) and its Member States, as well as Montenegro, Bosnia and Herzegovina and Norway, firmly believed that compliance with ILO Conventions was essential for social and economic stability in any country and that an environment conducive to dialogue and trust between employers, workers and governments contributed to the creation of ? basis for solid and sustainable growth and inclusive societies. The EU was actively engaged in the promotion of universal ratification and implementation of the core labour standards, as part of the Action Plan on Human Rights and Democracy, adopted in July 2015. The speaker welcomed the EU–Kazakhstan Enhanced Partnership and Cooperation Agreement, which included commitments to effectively implement the ILO fundamental Conventions. The Committee had discussed this case in 2016 and, on that occasion, had made ? series of requests to the Government to amend the Law on Trade Unions, which limited the rights of workers to form and join trade unions of their own choosing, as well as provisions of the Labour Code, the Constitution and the Penal Code. The speaker welcomed the fact that an ILO DCM had visited the country. However, he expressed deep concern over recent developments in the country related to trade unions, notably the cancellation of the registration of the KNPRK, as well as the imprisonment of two trade union leaders. His group called on the Government to ensure that trade unionists could exercise their rights without impairment as guaranteed by the Convention. In this regard, Kazakhstan needed to take effective measures to ensure that the workers’ right to establish and join organizations of their own choosing was fully respected, and notably to amend the Law on Trade Unions. The speaker encouraged the Government to consider suspending any delisting procedures until the Law had been amended and to ensure that trade unionists could exercise their rights without any hindrances. The Government’s intention to amend the Labour Code regarding the right to strike was noted with interest and it was hoped that the Government would take the necessary measures to amend the Labour Code and the Penal Code in consultation with the social partners, so as to ensure that the right to strike was also fully respected in the country. The Government was also encouraged to take the necessary measures in line with the Committee of Experts’ comments to: (1) authorize workers’ and employers’ organizations to receive financial assistance from international organizations of workers and employers; (2) ensure the autonomy and independence of free and independent employers’ organizations in Kazakhstan, by amending the Law on the National Chamber of Entrepreneurs. The Government was further encouraged to continue to cooperate with the ILO in order to proceed with the reforms needed and to comply with ILO Conventions. He finally expressed his group’s full commitment to cooperation and partnership with Kazakhstan.

An observer representing the International Trade Union Confederation (ITUC) said that he represented the KNPRK, which had been recently liquidated, in spite of a two-week hunger strike by some of its members which was found to be illegal by the court and stopped by the police. Fines of €12,000 were imposed for the damage caused by the strike and, on 20 January 2017, Mr Amin Eleusinov, Chairperson of the Union of Oil Workers of the Oil Construction Company (OCC), and Mr Nurbek Kushakbaev, Vice-President of the KNPRK, were detained and taken under arrest on criminal charges. Both leaders had been sentenced to two and two-and-a-half years in prison and prohibited from engaging in trade union activities after their release. Mr Kushakbaev was convicted for having called for an illegal strike. Ms Larisa Kharkova, the Chairperson of the KNPRK, was also subject to criminal prosecution with the threat of imprisonment. The Committee needed to adopt conclusions on the basis of which work could be undertaken to restore the fundamental rights in the world of work for each employee and each organization in Kazakhstan.

The Government member of the United States recalled that in the last two years, this Committee reviewed Kazakhstan’s implementation of the Convention and urged the Government to amend its legislation, including specific provisions that set onerous registration rules on unions and inhibited the freedom and functioning of independent trade unions. While positive steps had been taken by the Government to heighten its engagement with the ILO and welcoming the 2016 DCM, he notes that serious failure to comply with the Convention continued. In this regard, he recalled that in January 2017, the Committee of Experts reiterated the need to modify certain provisions of the Law on Trade Unions and the Law on the NCE to ensure the full autonomy and independence of employers’ organizations. He expressed deep concern at the dissolution of the country’s largest independent trade union, the KNPRK; the lodging of charges against Ms Kharkova, the KNPRK Chairperson, and the imprisonment of two labour activists, Mr Eleusinov and Mr Kushakbaev, both of whom had been imprisoned apparently for exercising their basic worker rights. He urged the Government to take steps to support freedom of association and specifically to: (1) make the necessary changes in the labour legislation in accordance with the recommendations of the ILO supervisory bodies; (2) allow all workers’ and employers’ organizations, and in particular the KNPRK, to register and operate in a manner that is consistent with Kazakhstan’s international obligations; and (3) drop the charges and release those labour officials and activists who had been arrested and imprisoned for exercising their right to freedom of association. He looked forward to the swift resolution of these issues and encouraged the Government to expeditiously avail itself of ILO technical cooperation to that end.

The Worker member of France said that independent trade union activists in Kazakhstan were constantly harassed, intimidated and persecuted. They were subjected to police interrogations, placed under surveillance and arrested on the grounds of their trade union activity. In 2011, the police had brought a bloody end to a strike lasting several months in Zhanaozen, leaving 17 dead and many injured. Seven independent trade unionists had been imprisoned for having exercised their fundamental right to strike. Dozens of people had been charged and their trials had taken place in extremely tense conditions. Since then, the repressive atmosphere had intensified and an organized and systematic attack on trade unionists had been observed. Trade union leaders in the oil sector, including Amin Eleusinov, a trade union representative in the LLL oil company, and Nurbek Kushakbaev, vice-president of the Confederation of Free Trade Unions of Kazakhstan (KNPRK) had recently been arrested for having merely mentioned the possibility of a strike in a speech. Article 24 of the National Constitution, however, recognized the right to strike. Journalists had been refused access to the trial, and there had appeared to be no formal investigation under way. It had subsequently emerged that the alleged culprits had been under telephone surveillance since 2015. They were detained in inhumane conditions: placed in quarantine for an entire month; and forbidden from sitting on their beds or lying down, so as to wear them down psychologically in the hope of obtaining a false confession and quashing the trade union movement. The president of the KNPRK, Larisa Kharkova, had been questioned daily by police and had been placed under surveillance on spurious grounds, which had a de facto impact on the time she was able to spend on trade union activities and on her freedom of movement. On 7 April 2017, the vice-president of the KNPRK had been sentenced to two and a half years in prison and banned from any public activity for a further two years following his release, as well as being fined the equivalent of €75,000 on top of some €2,400 in court costs. Such cases were unfortunately far from isolated examples. The Committee on Freedom of Association had drawn attention to the fact that such methods constituted a serious attack on trade union rights and a grave breach of freedom of association. Kazakhstan must immediately put an end to the anti-union climate, meet its international commitments and apply the ILO’s recommendations on freedom of association. She concluded by demanding the immediate release of the trade unionists arrested for their trade union activities, calling for judicial proceedings against them to be halted and for their sentences to be set aside. The case was very serious and required special attention.

The Government member of Cuba welcomed the information supplied by the Government and observed that the report of the Committee of Experts had mentioned the development of a draft law which sought to better regulate social relationships in the sphere of trade union activities, in compliance with the Convention. She highlighted the fact that the report had confirmed the existence of union pluralism in the country, demonstrating the Government’s willingness to comply with the Convention. Likewise, she emphasized that the technical assistance required by the Government should be provided, as had been suggested by the direct contacts mission.

An observer representing IndustriALL Global Union indicated that Kazakhstan remained a country with a very poor record of trade union and human rights. The recent developments in the country showed how the authorities of the country undermined the ability of workers to organize and collectively bargain for their rights, despite the fact that in addition to ratification of the ILO Conventions, the Constitution of Kazakhstan recognized the right to freedom of association and the right to strike. After the Zhanaozen massacre in 2014, Kazakhstan had adopted a new Law on Trade Unions. The Committee of Experts had commented repeatedly that this Law limited the free exercise of the right to establish and join organizations and the right of workers to freely decide whether they wish to associate or become members of a higher level trade union structure. After the adoption of this Law, the registration of the KNPRK had been revoked and workers had seen their organizations dismantled for unclear and unjustified reasons. Trade unions at the sectoral level had faced similarly lengthy and burdensome registration procedures. When trade union activists and workers from the Oil Construction Company had organized a peaceful mass protest, including a hunger strike, against the dissolution of the union of their choice, the local authorities and management had suppressed the protest. The Chairperson of the Oil Construction Company Workers’ Trade Union, Mr Eleusinov, and one labour inspector, Mr Kushakbaev had been arrested on 20 January 2017. On 7 April, Mr Kushakbaev had been sentenced to two-and-a-half years in a corrective labour colony for his appeals to strike. The judge had also satisfied the Oil Construction Company’s demand to collect 25 million Kazakhstani Tenge (KZT) (US$80,000) from Mr Kushakbaev for alleged harm caused to the company by workers’ hunger strikes, although there was no disruption of work. Mr Eleusinov had been sentenced to two years of imprisonment and would have to reimburse KZT8 million (over US$25,000). Upon his release, he would be forbidden to conduct any civil or union activity for five years. At the same time, the Oil Construction Company management had started massive layoffs of employees who had participated in the protests. This company formed part of KazMunaiGas, the largest state oil and gas company in Kazakhstan, infamous for their involvement in Zhanaozen massacre. The speaker expressed her deep concern about the repression of trade union activists. These were blatant violations of the ILO Conventions on freedom of association. The abovementioned Court decisions based on employers’ lawsuits represented a dangerous precedent of a further criminalization of trade union work in Kazakhstan. The escalating crack-down on trade unions called for special attention from the ILO and the international community.

The Government member of Turkmenistan welcomed the legislative measures taken by the Government with a view to fulfilling its international obligations under ratified Conventions. The Government collaborated with the ILO in a constructive manner, including through consultations with ILO experts with a view to creating the conditions for complying with the provisions of the Convention.

The Worker member of the United States recalled that thousands of workers in Kazakhstan’s oil and gas industry went on strike to protest unsafe work conditions and low pay. In December 2011, the country’s law enforcement forces brutally repressed the strikes by opening fire on unarmed protesters and criminally prosecuting strikers. Six years later, exercising the right to strike in Kazakhstan, a right guaranteed by the Constitution, remained extremely dangerous. The 2015 Labour Code, while recognizing the right to strike, sharply circumscribed it. Workers in a number of industries were prohibited from striking. A recent Human Rights Watch report had found that Kazakhstan courts routinely declared strikes illegal and that it was extremely difficult, if not impossible, for workers to meet the onerous requirements in order to strike legally. For example, before striking, workers must engage in cumbersome mediation procedures with their employer. In at least one instance, a company had unilaterally terminated the mediation process and faced no liability, despite the union’s complaints to the authorities. Workers and union leaders faced serious liability for engaging in an illegal strike. The 2014 Penal Code criminalized “calls to continue a strike that had been ruled illegal by a court”. This offence carried a maximum prison sentence of three years. Courts had also subjected strikers to significant administrative fines of up to 33 per cent of an average worker’s annual salary. In addition, the Labour Code allowed employers to discipline workers who participated in an illegal strike, even before the declaration of the strike illegal by a court. In January 2017, about 300 employees of an oil company began a hunger strike to protest the court mandated liquidation of the KNPRK. The workers notified municipal authorities in advance and continued to perform their jobs. Still, the company petitioned a court to declare the strike illegal. The court took advantage of the 2016 amendments to the Code of Civil Procedure which had established extremely short time frames for the consideration of illegal strike cases. In just two days, the court declared the hunger strike illegal. The strikers were detained and imposed significant fines. The court subsequently found that the strikers must reimburse the company for supposed losses from the strike, resulting in additional hefty fines. Union leaders were also arrested, convicted and imprisoned in connection with the strike. These leaders were still in prison. Kazakhstan’s current limitation on strikes and criminalization of participation in strikes was in violation of the Convention, and must be remedied.

The Government member of Switzerland said that her Government supported the statement made by the European Union and recalled that the independence, autonomy and freedom of the social partners were essential to achieving effective social dialogue and contributing to economic and social development. In law and in practice, any restriction on the right of workers and employers to establish and join organizations of their own choosing was a cause for concern. The right to organize and to join unions applied at all levels of the union structure, and Switzerland encouraged the Government to follow the Committee’s recommendations in order to guarantee freedom of association in law and in practice.

An observer representing the International Union of Food, Agriculture, Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Associations (IUF) recalled that the issue of freedom of association in Kazakhstan had been acute for several years and needed to be considered in the context of the general atmosphere that existed in the country since 2011 when the longest labour conflict in the post-Soviet era had ended in the city of Zhanaozen, resulting in many injured and fatal cases amongst the oil workers claiming increments to their wages. Had the Government complied with the Convention, this strike would not have ended with acts of provocation and the use of armed force but with signing an agreement. The General Prosecutor’s Office recognized that the police forces exceeded their authority and illegally used weapons, which resulted in the deaths and injuries of people. An investigation had found that a number of police officers were found guilty of beatings and brought to justice. There could not be freedom of association in Kazakhstan until these events were given a clear assessment by the State; until the legitimacy of the demands and actions of oil workers were recognized; and until the verdicts against trade unionists were dropped. The establishment of the principle of freedom of association was not only a means to improve working conditions, but also a means of ensuring peace and was a prerequisite for continued progress. However, the Government refused to comply with the provisions of the Convention. The reform of the labour legislation that followed the Zhanaozen events was designed to further restrict the rights of workers, and to destroy any opportunities for the activities of independent trade unions that were not under the control of the State. One should not forget about those who tried to realize this right in Zhanaozen during seven long months in 2011, those who died for this right and those who were still waiting for the cancellation of sentences and the restoration of justice. The recently opened criminal cases; the recent arrests of trade union leaders; and the unprecedented pressure on them and their families to obtain confessions on trumped-up charges was a continuation of the general course chosen by the authorities back in 2011. The speaker concluded by indicating that these constituted systematic and large-scale repressions, which had been going on for more than six years and affected thousands and tens of thousands of workers.

The Worker member of Norway, speaking on behalf of trade unions in the Nordic countries, expressed his deep concern at the lack of progress on amending the Law on Trade Unions, despite the fact that the Committee had urged the Government to bring it into full conformity with the Convention in 2015 and 2016. In that regard, he recalled that certain provisions of the Law made it difficult to exercise trade union rights, and that formalities prescribed in the Law were applied to delay and discourage the establishment of trade unions. He urged the Government to ensure, both in law and in practice, that workers had the right to freely join and establish trade union organizations and to organize their activities free of interference by the public authorities. He further urged the Government to enforce the Committee’s recommendations to amend the Law to ensure its conformity with the Convention.

The Government member of Canada, while acknowledging the strides Kazakhstan had made since independence in developing its economy and improving the standard of living of its people, noted with significant concern the observations of the Committee of Experts. This was the third consecutive year that the Government had been called to appear before the Conference Committee to discuss its implementation of the Convention. In view of the considerable challenges regarding the exercise of freedom of association rights, including difficulties with the trade union registration process, she urged the Government to resist pressure to restrict personal rights and freedoms, and to take concrete measures to protect labour rights by amending and enforcing labour legislation in line with ILO labour standards, including Convention No. 87. She encouraged the Government to seek technical assistance from the Office in this respect. Canada remained committed to working with the Government towards these ends as a partner.

The Worker member of Honduras expressed concern about what was going on in Kazakhstan in terms of continuing violations of the Convention and, in particular, the criminalization of the right to strike. He stressed that the ILO should fix its gaze on the country so that it did not continue violating workers’ rights and encouraged the Government to conclude agreements in all sectors in order to restore peace and harmony.

The Worker member of the Russian Federation indicated that the worsening of the situation of workers in neighbouring countries sometimes constituted an example for his Government. Many of those States, including the Republic of Kazakhstan, were, together with the Russian Federation, part of the Single Eurasian Economic Community, where the harmonization of the legislations of the participating countries was in progress. In 2016, concerns had been voiced about the deliberately complicated procedure for registering trade unions in Kazakhstan. The attention of this Committee had been drawn to the inconsistency of certain provisions of the national legislation with the ILO fundamental Conventions. He also called on the Government to make efforts to bring the legislation regulating the activities of trade unions into line with the requirements of the Convention. Regretfully, those concerns were justified. The situation over the past year had deteriorated significantly. In fact, one of the national trade union centres, affiliated to the ITUC, the KNPRK, had already been dismantled. State bodies had exerted direct and systematic pressure on trade unionists and leaders, including through arrests and imprisonment for the exercise of their legitimate trade union activities. Mr Eleusinov and Mr Kushakbaev had been arrested and brought to justice. Despite the content of official accusations, their imprisonment was in fact directly related to their legitimate trade union activities. Ms Kharkova was under criminal prosecution on far-fetched grounds and faced imprisonment. Such measures were used to prevent the development of an independent trade union movement in Kazakhstan so as to stop workers from trying to collectively defend their labour, social and economic rights. In 2011, the authorities of Kazakhstan had shot at a peaceful protest action by the workers of the transnational oil and gas company in Zhanaozen, killing 16 people and imprisoning dozens of participants. The speaker deeply regretted that the Government had not assumed its responsibility for this event and continued to show disdain for its own international obligations, and called on the Committee to consider including this case in a special paragraph of its report.

The Government representative thanked the delegates for the attention paid to the Government’s statement, the comments made, and calls and wishes expressed. The Government regretted that the events many speakers referred to had taken place and understood the concerns expressed in this regard. In replying to questions raised during the discussion, he indicated that, unfortunately, six trade union associations saw their registration withdrawn by the decisions of the courts: the KNPRK, headed by Ms Kharkova, its two branch trade unions, one branch trade union of the FPRK, one branch trade union of the KTK; and an independent trade union “Decent Work”. The reason for the delisting of all six unions was the same: they all had failed to confirm their status within the allocated six-month period. All they needed to do was to involve in their ranks at least one affiliate organization in nine of the country’s 16 regions. Unfortunately, they could not get such support from the workers. While the Government was working on abolishing the “two-step” registration procedure, 467 trade union associations had successfully passed this procedure. The Government and the Ministry of Labour had always had good working relations with the KNPRK. The latter actively participated in all working groups on the development of the current Law on Trade Unions and its amendments. Its Chairperson, Ms Kharkova, had regularly participated in the meetings of the Republican Tripartite Commission, the highest tripartite body in the country, and was a signatory of the General Agreement on Social Partnership between the Government, trade unions and employers’ associations for 2015–17. Moreover, during the ITUC mission to Kazakhstan in August 2016 to discuss the KNPRK ITUC membership, the Government supported the KNPRK. Thus, the Ministry of Labour regretted the situation and conducted a number of consultations with the justice authorities in this respect. The Ministry of Labour was ready to assist, together with the justice authorities, in the re-registration of the abovementioned trade unions, should they so desire. To date, two of the six abovementioned trade unions had passed the first stage of registration. Concerning the financing of trade unions, while the Constitution forbade direct financing of trade unions by international organizations (for example, by paying salaries, purchasing cars and offices), there were no prohibitions for trade unions to participate and carry out international projects and activities (such as seminars, conferences, etc.) jointly or with the assistance of international workers’ organizations. All trade union associations had always received such help. Regarding the cases of prosecution of three trade union leaders, while understanding the concern expressed, as a representative of the executive branch of the Government, he could not comment on the decisions of the judiciary. He assured that his Government would continue its work to improve the legislation and practice on the basis of the comments and requests expressed during the discussion.

The Worker members firmly encouraged the Government to address the various failures in how the Convention was being applied, such as denying trade unions the choice of structure that they could adopt. The Government should amend its legislation and practice, with a view to: proceeding with the registration of the KNPRK and its member organizations without delay; withdrawing unconditionally all charges against trade union leaders and members who organized and participated in peaceful trade union activities; respecting the narrow interpretation of exemptions from the freedom to establish and join trade union organizations and allowing judges, firefighters and prison staff to establish and join a trade union organization; removing restrictive criteria and registration procedures which limited freedom of association; respecting the independence and autonomy of trade unions and abolishing the requirement for sectoral, territorial and local trade unions to be affiliated to a higher level trade union; reducing the membership threshold for the establishment of a representative organization; respecting the freedom to manage representative organizations and lifting the prohibition on financial assistance from international workers’ or employers’ organizations; ensuring that a minimum service was genuinely and exclusively a minimum service and that workers’ organizations could participate in defining that service; and specifying the organizations that carried out “dangerous industrial activities”, for which strikes were illegal. The Worker members strongly urged the Government to receive a high-level tripartite mission in order to implement those recommendations.

The Employer members expressed their appreciation for the information provided by the Government and urged it to: (1) ensure that in the new legislation, workers had the right to join and establish organizations and that trade union registration procedures were simplified; (2) in an effort to make progress to ensure that employers’ organizations’ freedom of association rights were respected, remove the all-encompassing mandate of the NCE to represent all employers’ interests and delete the provisions in the Law on the NCE regarding the accreditation of employer organizations by the NCE; and (3) allow trade union and employers’ organizations to benefit freely from and participate in joint cooperation projects and activities with international organizations. Finally, they encouraged the Government to welcome a high-level tripartite mission in order to ensure that those goals were met.

Conclusions

The Committee took note of the oral statements made by the Government representative and the discussion that followed.

The Committee noted the grave issues in this case concerning this fundamental Convention referring in particular to the revocation of the registration of the voluntarily unified KNPRK, as well as the infringement of the employers’ freedom of association by the Law on the National Chamber of Entrepreneurs (NCE). The Committee also noted the serious obstacles to the establishment of trade unions without previous authorization in law and in practice. The Committee was concerned over the persistent lack of progress since the last discussion of the case by the Committee in June 2016 despite an ILO direct contacts mission visiting the country in September 2016.

Taking into account the discussion, the Committee called upon the Government of Kazakhstan to:

- amend the provisions of the Trade Union Law of 2014 consistent with the Convention, on issues concerning excessive limitations on the structure of trade unions which limit the right of workers to form and join trade unions of their own choosing;

- amend the provisions of the Law on the National Chamber of Entrepreneurs in a manner that would ensure the full autonomy and independence of free and independent employers’ organizations, without any further delay. In particular remove the provisions on the broad mandate of the NCE to represent employers and accredit employers’ organizations by the NCE;

- allow trade unions and employers’ organizations to benefit from and participate in joint cooperation projects and activities with international organizations;

- amend legislation to lift the ban on financial assistance to national trade unions and employers’ organizations by international organizations;

- take all necessary measures to ensure that the KNPRK and its affiliates are able to fully exercise their trade union rights and are given the autonomy and independence needed to fulfil their mandate and to represent their constituents;

- amend legislation to permit judges, firefighters and prison staff to form and join a workers’ organization;

- ensure that applications for union registration are acted upon expeditiously and are not denied unless they fail to meet clear and objective criteria set forth in the law.

The Committee calls on the Government to effectively pursue ILO technical assistance to address these matters.

The Government should accept a high-level tripartite mission before the next International Labour Conference in order to assess progress towards compliance with these conclusions.

CMNT_TITLE_CAS



A Government representative stated that tripartite commissions were functioning at the national, sectoral and regional levels. Parliament had adopted the Act on the National Chamber of Entrepreneurs and the Trade Union Act, which aimed at the further development of social partnership and took into consideration the comments of the Committee of Experts. Regarding the limitation on the right of judges to join or establish associations, he explained that judges, who were the bearers of judicial power and who exercised constitutional authority, should be independent and subject only to the Constitution. Any interference in their activities would be a violation of the law. Considering the special status of judges, the Constitution prohibited them from being members of political parties or trade unions, but did not restrict their right to be members of other associations. For example, the public association, the Union of Judges of Kazakhstan, which represented and protected the common interests of the judicial community, was operating successfully in the country. Law enforcement bodies, such as the police, fire brigade and other public order bodies, because of the specificity of their functions, were subject to certain restrictions. However, civilian personnel in such offices enjoyed the rights set forth in the Convention. For example, there were trade unions of soldiers, with 12,000 members, and of 4,000 employees of the Ministry of the Interior. He was of the opinion that the Convention permitted certain restriction in national legislation. Section 10 of the Act on Public Associations, which required a minimum of ten persons to establish a public association, was in the process of being reviewed in order to reduce the number of members that were required to establish an association. The Trade Union Act introduced a system of association of trade unions in order to develop an active trade union movement in the country. The main goal was to protect the rights of workers by providing them with access to discussion and the resolution of issues involving serious political matters through organizations considered to be at the right level. However, the trade unions were free to join trade union associations or to establish their own. The principle was based on plurality, either at the national or regional level, and there was no monopoly with regard to the trade unions concerned. Under the new law, three national associations of trade unions had been registered, including the Confederation of Free Trade Unions of Kazakhstan, which brought together 3 million workers. He requested the ILO to support the efforts of the Government to maintain an active trade union movement in the whole of the country. The Constitution prohibited external financial assistance for trade unions, and this prohibition protected the constitutional order, independence and territorial integrity. The right to join international organizations had resulted in the Federation of Trade Unions of Kazakhstan joining the International Trade Union Confederation (ITUC), which was a clear indication that the national legislation fully complied with the Convention.

The Act on the National Chamber of Entrepreneurs aimed to protect the interests and rights of businesses and ensure wide coverage and involvement of entrepreneurs in the formulation of legislative and other standards for the conduct of business. The consolidation of entrepreneurial activities led to strong businesses. Under section 32 of the Act, a five-year transitional period had been introduced for the participation of the State in the activities of the National Chamber of Entrepreneurs. At the end of the transitional period, the Government would no longer be a member of the National Chamber of Employers, and the rules providing for its participation in the Chamber would then fall into abeyance. According to section 176 of the new Labour Code concerning civil aviation, railways, health care and other essential services providing vital services to the population, strikes were allowed on condition that a minimum level of service was provided for the population. Parliament had launched an independent report on the situation concerning strikes in essential services and had decided to further improve the sections of the Labour Code in this regard. He gave assurances that all the necessary measures would be taken to improve the legislation to meet the requirements of the Convention.

The Employer members recalled that Convention No. 87 was a fundamental Convention, which provided that “Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation.” The Convention had been ratified by Kazakhstan in 2000 and the Committee of Experts had made observations on its application in 2006, 2007, 2008, 2010, 2011, 2014, 2015 and 2016. Moreover, the application of the Convention in Kazakhstan had been examined by the Conference Committee in 2015. This was therefore a long-standing case. In 2015, the Conference Committee had deplored the absence of a representative of the Government during the discussion, despite his accreditation to the Conference. They thanked the Government for its presence this year and for the information provided. The Employer members noted that the reference to the conclusions of the Conference Committee, made by the Committee of Experts in the introduction to its observation on this case showed the strong and positive relationship between the Conference Committee and the Committee of Experts. In 2015, the Conference Committee had observed the pending matters raised by the Committee of Experts with regard to restrictions on the freedom of association workers and interference with employers’ organizations. The conclusions of the case had been included in a special paragraph of the report of the Conference Committee, which constituted a serious measure. The Government had not provided a full report that was responsive to the requests of the Committee of Experts and the Conference Committee. This continuing failure was a matter of great concern.

In 2015, with regard to the restrictions on the freedom of association workers, the Conference Committee had requested the Government to amend the provisions of the Trade Union Act of 2014 consistent with the Convention. While noting the Government’s indication that work to address this issue was ongoing, the Employer members considered that more information was needed on this point. The Conference Committee had also requested the Government to amend the Constitution and the relevant legislation to permit judges, firefighters and prison staff to establish and join a trade union. While the Government had provided additional information on such exclusions and the impact of the Constitution, the Employer members considered that more information was required to fully assess this issue. Expressing concern at the significant barriers to freedom of association in law and practice, they once again urged the Government to take the necessary measures to amend its legislation to ensure that judges, firefighters and prison staff had the right to establish organizations, in compliance with the Convention. The Conference Committee had also requested the Government to amend the Constitution and the relevant legislation to lift the ban on financial assistance to national trade unions by an international organization. The Employer members observed that, although the Government had indicated that it was possible to receive external financial assistance, this did not appear to be reflected in the legislation in force. With regard to issues related to interference with employers’ organizations, the Conference Committee had requested the Government to amend the Act on the National Chamber of Entrepreneurs of 2013 to ensure the full autonomy and independence of employers’ organizations. While noting the Government’s information regarding the five-year transitional period during which the functions of the State would be transferred to the Chamber and the revision of section 176 of the Labour Code, the Employer members expressed concern that the Act resulted in interference in the freedom and independence of employers’ organizations and noted with concern that the Government had not made any commitment to amend it. In light of the seriousness of the issues, they urged the Government to take measures without delay to amend the Act so as to eliminate all possible interference by the Government and to ensure the full autonomy and independence of employers’ organizations in Kazakhstan. They encouraged the Government to avail itself of the technical assistance of the ILO in this respect. They also expressed concern that the Government had not implemented, to their knowledge, any measures to address barriers to the establishment of employers’ organizations and urged it to take such measures without further delay.

The Worker members expressed their deep concern at the repeated neglect by the Government of Kazakhstan of its international obligations towards the Committee. This attitude should be firmly condemned. The amendments made in 2014 and 2015 to the Trade Union Act and to the Labour Code had done nothing to improve the exercise of freedom of association. The Kazakh legislation remained contrary to the Convention in various aspects. Firstly, Article 2 of the Convention established the right of workers and employers, without any distinction whatsoever, to establish and join trade unions. However, it appeared that the Kazakh legislation obstructed the free establishment of trade unions for judges, firefighters and prison staff. The only exceptions to freedom of association provided for by the Convention concerned members of the police and armed forces. Secondly, the Trade Union Act obliged unions to be affiliated to a national trade union association. This prevented the establishment of trade unions that were structured freely and in full autonomy, which was contrary to Article 2 of the Convention. Moreover, sectoral trade unions had to represent at least half of the total workers in the sector, half the trade unions in the sector or had to be present in over half the regions to be validly constituted. However, it was recalled in the General Survey published by the Committee of Experts in 2012 that, to be in conformity with the Convention, the threshold should be fixed at a reasonable level so that the establishment of organizations was not hindered. Thirdly, under the Trade Union Act, a two-step procedure had to be followed for the establishment of a trade union: it was necessary to register it with the Ministry of Justice and then to become affiliated to a national trade union association in the six months following registration, or registration was cancelled. This was in violation of the free exercise of the right to establish organizations without prior authorization and to decide in full freedom whether or not to establish or join a higher-level structure. These various violations to the right to freedom of association, affecting both workers’ and employers’ organizations, were a threat to one of the fundamental values of the ILO, namely social dialogue. The full and complete independence of the social partners was necessary for the latter to be able to represent their members’ interests freely and effectively.

Article 3 of the Convention guaranteed the right of organizations to organize their activities and to formulate their programmes. There was no escaping the fact that the legislation restricted such freedom of action for a number of organizations carrying out “hazardous industrial activities”. The Committee had already highlighted the problem posed by the vagueness of this term and the uncertainty that prevailed regarding which organizations were specifically concerned by that provision. The Committee of Experts recalled that a minimum service should not form an obstacle to freedom of action. It was also essential for the social partners to be able to participate in its definition. Section 303 of the Labour Code appeared to conflict with these principles. The Kazakh legislation still banned trade union organizations from accepting financial assistance from international organizations and this, as recalled by the Committee of Experts, violated the principles relating to the right of affiliation to international workers’ organizations. That assistance was often essential for trade union organizations whose freedom was obstructed by both legal and practical obstacles imposed by the Government. The latter must stop all interference in the affairs of representative workers’ organizations and, to that end, amend its legislation without further delay in line with the recommendations made by the Committee. Information provided by Human Rights Watch, published in May 2016, also referred to the introduction in 2014 of new provisions relating to administrative violations and criminal offences. New administrative penalties were imposed on the leaders and members of public associations, who could more easily be held liable for any act that was not defined by their union rules. That had the effect of unduly increasing their liability. Participation in actions that had been declared illegal and acceptance of funding from international organizations were also considered to be criminal acts which could incur penalties of up to three years’ imprisonment. The notion of leader of a public association was extremely vague, but such leaders could be held liable for a whole range of specific criminal offences, in particular breaches of the Act on Incitement to Social Discord, which in itself was a particularly vague concept. All of the above showed that the situation remained a source of concern with regard to trade union freedoms. The tragic events that occurred in Zanaozen in 2011 had not been forgotten. The recommendations made in the past to the Government should therefore be reiterated and strengthened so that it could formally give them effect in practice.

The Worker member of Kazakhstan said that much work had been done in the country over the last four years to strengthen the protective function and responsibility of trade unions, including the adoption in June 2014 of the new Trade Union Act, under which the antagonism between and within trade unions was ended. A multi-level system of social partnership existed in Kazakhstan, with the labour unit, primary trade union and an employer as the primary level. The second level was the territorial level. At every level, there was a tripartite body which dealt with labour disputes. These bodies held monthly meetings, attended by trade unions, employers and the territorial authorities, to resolve labour disputes. For example, in 2015, with the participation of the Office of the Public Prosecutor, wage arrears of 4.1 billion tenge had been paid to 83,000 employees. In addressing this issue, fines had been imposed on employers in violation of labour laws in 1,075 cases, and 178 cases had been referred to the courts and five criminal prosecutions indicted. In the territorial bodies of the trade unions, during the first quarter of 2016, a total of 1,200 applications and queries had been received regarding labour law, which demonstrated the trust that existed in trade unions. The new law concerning public councils had been adopted. All of these initiatives helped workers. Taking into account the global crisis, the territorial bodies were able to conclude memorandums with employers and local authorities which helped to protect the jobs of over 2.5 million workers. The ministerial level, together with branch trade unions and employers’ associations, was the important third level where a great deal of work was being done to address social questions in a particular sector or branch. The fourth level, consisting of the Government, workers and employers, met every quarter to examine the most topical issues of social partnership. A tripartite agreement was signed every three years. The signatories were all three national trade union associations, which had not previously been the case. He noted that, in a country with 2.5 million trade union members, there were 836 independent trade unions listed, some of which were only present in enterprises for limited activities, collecting trade union dues and conducting simple activities. Therefore, for a transitional period, the Act provided for measures to consolidate and strengthen trade unions, which was not contrary to the Convention in principle. He indicated that the Trade Union Act did not infringe the right of workers to establish a trade union and that several trade union organizations could work together within the same enterprise. Under section 13 of the Trade Union Act, branch or sectoral trade unions were fully authoritative and representative of the workers in social partnerships at the branch level. From the moment a branch trade union was founded, there was a six-month period to confirm its status and it had to cover over half of the districts of the concerned region. The Act was not contrary to democratic principles and was necessary during the transitional period. Under the new legislation, trade unions retained the right to determine their organizational structures, elect their representatives and establish branch and territorial unions and associations. The Act also provided for protection of trade union leaders against acts of interference. He was of the view that this approach was in accordance with the Convention and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). Trade union membership should not lead to any discrimination or restrictions on the right of citizens with regard to employment and to career progression. The right of workers to leave, join or establish a trade union should not be restricted and there were criminal sanctions for infringements of workers’ rights in this regard. Section 16 of the new law concerned the social and labour interests of workers and provided details which had not been present in the previous law. The new Labour Code, which had come into effect on 1 January 2016, had been reviewed and redrafted following the comments of the trade unions and gave new powers to trade unions and inspectors. The Federation of Trade Unions had made 219 amendments to various articles, with 117 of the proposed amendments being adopted during the examination of the different versions of the Labour Code.

The Government member of Turkmenistan supported the comprehensive measures adopted to apply the Convention and noted the efforts made to improve the legislation and introduce new provisions on active social partnership. He welcomed the constructive cooperation with the ILO and the Committee of Experts in this regard.

The Worker member of the United States referred to the tragic events of December 2011, during which the police had violently ended a seven-month strike by oil workers, killing at least 17 trade unionists and injuring dozens more. To date, nothing had been done by the competent authorities to carry out investigations and prosecute the perpetrators. The Government had given no indication that it was taking the tragedy seriously and, inexplicably, charges against oil workers were still pending. The new laws adopted in 2014 and 2015 did not provide appropriate solutions and workers’ rights continued to be undermined and restricted. Kazakhstan’s trade union legislation imposed serious restrictions on workers’ right to freedom of association and their right to organize. Trade unions were required to fulfil a burdensome multi-step registration process: they needed to successfully register with the Ministry of Justice and then confirm their status by demonstrating, within six months, that they were affiliated to a higher-tier union. Trade unions at all levels had faced difficulties and delays trying to reregister in accordance with this law. Even if a union managed to prove its affiliation, there was still the possibility for the Government to deny registration on alleged technical grounds. As a result, all independent unions were only registered on a temporary six-month basis and risked dissolution if they did not pass the second step imposed by the Government. By requiring trade unions to confirm their membership of higher-level unions, the law mandated trade union affiliation and limited freedom of choice with regard to trade union membership, in violation of the Convention. Although the Conference Committee had called on the Government to amend the provisions of the Trade Union Act of 2014 consistent with the Convention, the Government had failed to take any steps in this regard. The existing trade union laws might be less restrictive, but their effect was the same and the situation was still critical as of 2015. Workers in a range of industries regularly faced interference in organizing, were intimidated for joining independent trade unions, sometimes under threat of dismissal, or were subject to surveillance by the authorities. Some workers were threatened with criminal sanctions in response to their labour activism and union activities. In light of the continued restrictions on freedom of association, the Government should make meaningful changes to its law and practice in order to ensure freedom of association for independent trade union activists, as required by the Convention.

An observer representing the International Union of Food, Agriculture, Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Associations (IUF) said that the situation concerning the right of workers to freedom of association needed to be examined not only from the point of view of the manner in which legislative standards changed but, above all, from the point of view of the events of 16 December 2011, when a seven-month strike by oil workers had been brought to an end. If the country had given effect to its obligations under the Convention, the strike would have ended peacefully through the negotiation of an agreement or protocol, instead of being ended by the use of armed force resulting in the death, wounding or arrest of numerous workers. Workers’ leaders had been accused of inflaming social division and organizing disorder. This had sent a clear message to all workers that they should not stand up for their rights or the right to collective bargaining and association, and these events had become a turning point in the development of industrial relations systems in Eastern Europe and Central Asia. Most importantly, until the Government had carried out a full evaluation of these events, the future of freedom of association in the country would be uncertain. The Government should take into account the comments of the Committee of Experts and the results of the discussion of the Conference Committee. Freedom of association was one of the principal ways in which working conditions were guaranteed and peace was secured, and was therefore a necessary prerequisite for continued social progress. He recalled that people had attempted to protect and defend their rights in 2011 and he called for their sentences to be repealed and justice to be reinstated for those workers.

The Government member of Belarus welcomed the comprehensive measures taken to implement the Convention, such as the adoption of the Trade Union Act and the extension of the rights of workers and their participation at all levels of dialogue. With the creation of the National Chamber of Entrepreneurs and the strengthening of the legislation the rights of employers had also been reinforced. The National Chamber of Entrepreneurs, which would lead to an effective economy and create strong business, would serve as an example for other countries in Europe. He welcomed the Government’s readiness to cooperate at all tripartite levels to comply with the Convention and considered it useful for the ILO to help the country implement its obligations in accordance with international standards.

The Worker member of the Russian Federation referred to the developments in Kazakhstan with regard to the issues under examination and the manner in which the new Trade Union Act was applied. The Act provided for a two-step procedure for the registration of trade unions, which was complicated, not transparent and made compliance difficult. In this regard, he referred to some of the problems that Kazakh trade unions had experienced with regard to registration, such as cases of refusal. There were also issues of discrimination between trade unions. He expressed concern with regard to a section in the Criminal Code on “sowing of social discord”, which had been quoted in connection with the 2011 tragedy of the oil workers. He hoped that both criminal and labour legislation would be brought into line with the Convention.

An observer representing the World Federation of Trade Unions (WFTU) expressed concern at the number of cases pertaining to Convention No. 87 that were being examined by the Committee. He emphasized that the present case involved murders, acts of intimidation, imprisonment and the arbitrary transfer of trade unionists. The Government needed to adopt legislation to bring an end to violations of fundamental rights. He hoped that the right of workers to freely choose their trade union would be respected. Trade unions must be independent of the Government and of employers, and must be established and chosen freely. Expressing solidarity with Kazakh workers and their right to freely choose their trade unions, he called on the Government to respect the rights of workers and international labour Conventions and requested the Committee to give the Government the opportunity to improve the situation.

The Government member of the Russian Federation appreciated the detailed information provided by the Government and noted its readiness to engage in practical and constructive cooperation with the ILO in order to, in association with its social partners, ensure the right to freedom of association and the other rights laid down in the Convention. He believed that the delay in providing information was due to organizational problems and that the misunderstanding which had arisen with the Committee of Experts would be quickly resolved. He called on the ILO to continue providing expert and technical assistance to the Government for the implementation of the Convention, taking into account its willingness to cooperate.

The Worker member of Turkmenistan noted that the Government had taken measures to improve the legislation and the working methods of trade unions. The new Trade Union Act had been adopted with the aim of protecting workers’ interests and to create, develop and protect an effective and well-functioning trade union system in the country, at the sectoral and government levels. Trade unions were not obliged to be members of higher organizations. The Act did not interfere with the rights of the trade unions and there was no monopoly in the trade union system. The Trade Union Act provided for a flexible environment for the establishment of trade unions. The new Labour Code expanded the role of trade unions and the right to strike. These legislative reforms would have a considerable impact on the functioning of trade unions and it was important to support the Government in this regard.

The Government member of Uzbekistan appreciated the information provided by the Government on the implementation of the Convention and the manner in which it was developing constructive cooperation with the ILO in this regard. Measures were being taken in the country in order to provide freedom of association, protect workers’ rights to join and establish trade unions and improve the national legislation. As a result of the improvement of the legislation, including the new Trade Union Act, more than three trade union confederations were registered covering a significant number of workers. Over 3.6 million workers were therefore covered by trade unions, which represented 58 per cent of wage earners in the country. He welcomed the efforts made by the Government to provide for strong social partnerships and to give effect to the Convention.

The Government member of China noted the improvements made by Kazakhstan, its political will to cooperate with the ILO to actively address the relevant issues and to formulate laws that were in line with international labour standards. It was the obligation of ratifying countries to implement international labour Conventions. In the meantime, the ILO needed to provide the necessary technical support to its member States for the application of standards. He concluded by supporting the Government’s efforts and hoped that the ILO would be able to provide technical assistance.

The Government representative assured the Committee that all the comments made would be taken into account. With reference to the registration of trade unions, he indicated that the new Trade Unions Act established a new procedure. Given that a branch trade union defended the interests of the workers in the relevant branch, the branch union needed to be sufficiently representative. The legislation set out three equally important membership requirements that the branch union had to meet for registration: (i) no fewer than half of the persons working in a branch; (ii) no fewer than half of the enterprises in a branch; and (iii) member organizations in no fewer than half of the territory covered by the sector. He believed that the law was reasonable, notably as trade unions could join any upper level organization of their choosing and the law did not limit the number of trade unions at the branch or company levels. Branch unions first registered with the authorized state body without providing supporting documents. Following registration, they had six months to provide copies of the documents confirming compliance with the conditions for the establishment of branch unions. The Government was prepared to improve the law with regard to the registration procedure. He also referred to the questions raised relating to the interference by the Government in the National Chamber of Entrepreneurs. In accordance with section 32(11) of the Act, at the end of the transitional period, the Government would cease participation in the activities of the National Chamber of Entrepreneurs. That would occur in July 2018. He concluded by indicating that in December 2015 Kazakhstan had become a member of the World Trade Organization (WTO) and that the next step would be to become a member of the Organisation for Economic Co-operation and Development (OECD). Institutional reforms in Kazakhstan, as announced by the President in 2015, were focused primarily on improving laws and practices and their harmonization with international social and labour standards. He reaffirmed the commitment of Kazakhstan to ILO principles and to cooperation with the Organization.

The Worker members emphasized that no significant progress had been made by Kazakhstan on the shortcomings that had been pointed out the previous year. Certain occupations, other than the police or the armed forces, were still deprived of the right to establish or join a trade union, which was contrary to the Convention. Trade unions were still denied the choice of the structure they could adopt. This structure was imposed by law and was a hindrance to freedom of association enshrined in Article 2 of the Convention. This freedom was further curbed by extremely restrictive registration procedures and by the fact that receiving financial assistance from international organizations was banned by law and subject to criminal sanctions. Interference had also been noted in the affairs of the social partners, which was in violation of Article 3 of the Convention. The legislation should therefore be amended to: (i) allow judges, firefighters and prison staff to establish and join a trade union; (ii) remove restrictive criteria and registration procedures which limited freedom of association; (iii) end the mandatory affiliation of sectorial, territorial and local trade unions to a national trade union association within six months following their registration; (iv) reduce the membership threshold for the establishment of a trade union; (v) lift the prohibition on financial assistance from international workers’ or employers’ organizations; (vi) amend the administrative and criminal Codes to clarify vague notions such as “public association leader” and “social discord”; (vii) ensure that a minimum service was genuinely and exclusively a minimum service and that the workers’ organizations could participate in the definition of that service; and (viii) specify the organizations that carried out “hazardous industrial activities”, for which actions were illegal. The Worker members urged the Government to avail itself of ILO technical assistance to implement these recommendations.

The Employer members agreed with the Worker members that no concrete steps nor significant progress had been made in Kazakhstan in relation to the issues raised repeatedly by the Committee of Experts and the Conference Committee. They joined in the call for the Government to cease its interference with freedom of association in respect of both employers’ and workers’ organizations. They were surprised by the Government’s reference to the Act on the National Chamber of Entrepreneurs, and particularly section 23(2) as an indication that there was no government interference with the Chamber. The law contained serious infringements of freedom of association, and particularly interference with employers’ organizations, such as rules regarding: (i) compulsory membership in the National Chamber of Entrepreneurs; (ii) the maximum membership fee to be approved by the Government and the payment procedure to be established by the Government; (iii) exclusive competence of the Chamber to represent Kazakh employers and to further and defend their interests in the various state bodies; (iv) government participation in the work of the congress of the Chamber and the right to veto decisions; and (v) the inclusion in the presidium of the Chamber of, among others, government representatives and parliamentarians, and only a small number of representatives of employers at the sectoral and regional levels. They concluded that the Act institutionalized government influence on the decisions and activities of the National Chamber of Entrepreneurs. The Chamber could not be considered an independent employers’ organization, as required by the Convention, but was rather an institution close to the public authorities. They urged the Government to amend the Act on the National Chamber of Entrepreneurs without delay so as to ensure that employers’ organizations in Kazakhstan could operate with full autonomy and independence.

Conclusions

The Committee took note of the information provided by the Government representative and the discussion that followed on issues raised by the Committee of Experts.

The Committee expressed serious concern regarding the Government’s lack of progress in relation to the implementation of the conclusions of the Committee in 2015.

Taking into account the discussion of the case, the Committee urged the Government to:

• - Amend the provisions of the Law on the National Chamber of Entrepreneurs in a manner that would ensure the full autonomy and independence of the free and independent employers’ organizations in Kazakhstan, without any further delay.
• - Amend the provisions of the Trade Union Law of 2014 in line with the Convention, including issues concerning excessive limitations on the structure of trade unions found in Articles 10–­15 which limit the right of workers to form and join trade unions of their own choosing; and Amend section 303(2) of the Labour Code so as to ensure that any minimum service is a genuinely and exclusively minimum one.
• - Indicate which organizations fall into the category of organizations carrying out “dangerous industrial activities” and indicate all other categories of workers whose rights may be restricted, as stipulated in section 303(5) of the Labour Code.
• - Amend the Constitution and appropriate legislation to permit judges, firefighters and prison staff to form and join a trade union.
• - Amend the Constitution and appropriate legislation to lift the ban on financial assistance to national trade unions by an international organization.
• - Accept ILO technical assistance to implement the above noted conclusions.

The Government should accept a direct contacts mission this year in order to follow up on these conclusions.

The Government representative thanked the Committee for its consideration of the measures taken by his Government to fully apply the Convention, and assured them that further measures would be taken in the near future and be reported to the ILO supervisory bodies.

CMNT_TITLE_CAS



The Worker members deplored the fact that the Government had not felt the need to appear before the Committee on the Application of Standards, even though Convention No. 87 was not only one of the eight fundamental ILO Conventions but also the cornerstone of collective bargaining, social dialogue and the ILO itself. In its 2012 observation, the Committee of Experts had already formulated a series of comments to the Government regarding the application of the Convention. The Government had then sent copies of two draft laws on trade unions and employers’ organizations to the Office for technical guidance. Despite several minor changes, the new Law on Trade Unions had entered into force in July 2014 without taking into account the key changes proposed by the Office, thus prompting several comments from the Committee of Experts. They maintained, in this connection, that the application of the Convention could be summarized as comprising seven principal issues. First, trade unions were not authorized until they had been registered and, in order to remain registered, local and regional trade unions had to affiliate to a national confederation within six months. That registration procedure could seriously restrict freedom of association, as demonstrated by the refusal of the Ministry of Justice to register the Confederation of Free Trade Unions of Kazakhstan (CFTUK) on 25 May 2015. Second, the new law established strict rules concerning the establishment of sectoral and territorial trade unions. Sectoral trade unions had to include at least half of the workers in the sector or half of the trade unions in the sector. Such thresholds were, according to the Committee of Experts, contrary to Article 5 of the Convention. Moreover, all enterprise unions were required to be affiliated to a sectoral trade union and all sectoral trade unions had to belong to a national trade union. It was furthermore mandatory for territorial trade unions to join territorial organizations created by national trade unions. That complex and compulsory structure made it impossible to establish independent trade unions, thereby undermining the very essence of freedom of association, which presupposed the freedom to choose the structure of organizations. Third, judges did not always have the right to form trade unions and, according to the Committee of Experts, the present union, the Union of Judges of the Republic of Kazakhstan, did not constitute a workers’ organization within the meaning of the Convention. Fourth, neither firefighters nor prison staff could establish trade unions, whereas the only exclusions from the right to organize authorized by the Convention were members of the police and the armed forces. Fifth, the right to strike of numerous categories of workers was severely restricted. This was the case with workers in “dangerous industrial activities” (concept that was not defined by the legislation), and with workers in round-the-clock industries and industries providing various public services. In those various cases, the legislation provided that strikes should not jeopardize the maintenance of services or the meeting of users’ essential needs, which was why it was necessary to remind the Government that a minimum service should remain a minimum service and that workers’ organizations should be able to participate in defining it. With regard to the prohibition of the right to strike in the public service, even though the Government had made it clear to the Committee of Experts that it did not cover certain categories, such as teachers, doctors or bank employees, it should be recalled that the ban on the right to strike should be limited to civil servants exercising authority in the name of the State. On account of their scope, the abovementioned prohibitions and restrictions on the right to strike constituted a significant infringement on trade unions’ right to collective action. Sixth, the legislation still forbade trade unions from receiving assistance from international organizations, which was a clear violation of the Convention. Seventh, since the start of the year, trade union activities were even more threatened by the entry into force of a new Code on Administrative Violations and a new Penal Code whose provisions were sufficiently vague to allow them to be applied selectively. The new Administrative Code reinforced the responsibility of the leaders and members of public associations in the event of actions not provided for by their constitutions, without specifying which actions would thus be covered by the law. The new Penal Code reaffirmed that foreign funding of trade union organizations and calls for illegal strikes constituted criminal acts. The new Penal Code also introduced the concept of leader of a public association and provided that the latter could be held criminally liable in the event of violation of various existing laws. The arbitrariness made possible by the abovementioned new provisions inevitably evoked the Zanaozen tragedy of 2011 and the resultant plight of the strikers who had been sentenced to several years in prison or in a penal colony.

The Employer members joined the Worker members in deploring the Government’s failure to appear before the Committee. Such failures prevented the Committee from exercising a key part of its mandate, which was the evaluation of the information and views supplied by governments. They regretted that the Government was unable to indicate whether it had amended the minimum membership requirement laid down in section 10(1) of the Law on Public Associations, in line with the request of the Committee of Experts. As concerned the Law on the National Chamber of Entrepreneurs, she recalled the various concerns the Committee of Experts had raised with respect to a number of its provisions, including: section 5, which empowered the Government to approve the maximum membership fees to be paid by members of the Chamber; section 9, which apparently granted the Chamber the exclusive right to represent the employers of Kazakhstan in international bodies; and section 19, which empowered the Government to participate in the Chamber and veto its decisions. These provisions, which collectively infringed upon the freedom of association rights of employers’ organizations and threatened their independence from the Government, were deeply problematic. They called on the Government to take all measures requested by the Committee of Experts regarding the Law’s amendment, so as to guarantee the full autonomy and free functioning of employers’ organizations, and to consider accepting the technical assistance of the Office in this regard. With regard to section 106 of the Civil Code and article 5 of the Constitution, which prohibited the receipt of financial assistance to national trade unions from international organizations, they emphasized that these provisions violated the rights enshrined in the Convention and urged the Government to remove this prohibition, as per the Committee of Experts’ request. With respect to the strike provisions laid down in section 303 of the Labour Code, they recalled that their views on this particular issue diverged from those of the Worker members and referred to their explanation of their views during the discussion on the General Report. They reiterated that, in their opinion, the right to strike was not regulated by Convention No. 87 and that the parameters of the right to strike were to be regulated at the national level. They concluded by again expressing their disappointment at the Government’s failure to appear before the Committee.

The Worker member of Norway, speaking on behalf of the trade unions in the Nordic countries and Estonia, expressed deep concern over recent developments in the country that limited freedom of trade union activities and allowed the Government to interfere with trade union activities. The recently adopted law seriously limited the ability to freely define trade unions’ structure, put forward demands and realize the right to strike. The provisions hampered the procedures for the registration, reorganization and liquidation of trade unions. Pursuant to the new law, sector trade unions should be established by at least half of the total number of employees or organizations in the industry, or should have structural subdivisions in more than half of the regions, cities of national significance and in the capital. Similarly, it was almost impossible to form trade union confederations because of the high legal thresholds. These requirements hindered the free establishment of trade unions and could lead to trade union monopoly. The obligation to re-register created risks for existing trade union, of not fulfilling the new requirements, as observed by the International Trade Union Confederation (ITUC) and the CFTUK. Indeed, the Government refused the registration of CFTUK on 25 May 2015 based on a number of reasons concerning the charter of the organization. The requirements were in clear violation of the Convention which provided workers with the right to formulate charters and decide freely on the structures of the unions. She urged the Government to remedy this situation and allow for the registration of CFTUK, which otherwise would be illegal starting from 1 July 2015. She finally called on the Government to enforce the recommendations of the Conference Committee and ensure compliance with the Convention as well as to ensure in law and in practice the right of workers to freely join and establish trade union organizations and to organize their activities free from any interference by public authorities as well as to allow for the trade unions to represent and protect the rights of their members.

The Worker member of the United States recalled that the Government had started introducing changes to its labour legislation in 2011, following a seven-month strike that year by workers in the oil sector that had ended in the deaths of 17 of them, and injuries to dozens more. The Law on Trade Unions was passed in 2014, and although the Government had requested and received the Office’s technical comments on the draft of the said legislation in 2013, several recommendations set out in those comments were not reflected in the adopted version. Several of the latter’s provisions consequently contravened the Convention, particularly those minutely regulating the structure of the trade union movement. She expressed concern that the registration application of the CFTUK was denied on 25 May 2015. This denial of registration to an established and well-recognized union, one that had previously been recognized as a participant in the tripartite structure, suggested that the Government’s position vis-à-vis trade unions had become more restrictive with the legislative reforms. Moreover, amendments to both the Civil and Penal Codes introduced further restrictions on the exercise of the right to strike. The definition of illegal strikes had been amended under the former law, whereas the latter imposed penalties of up to three years in prison for issuing calls to continue a strike that had been declared illegal. She noted with concern that developments following the strike of 2011 reflected a deterioration in the trade union rights situation, and urged the Government to undertake the legislative reforms necessary to ensure full compliance with the Convention.

The Employer member of Germany regretted that, pursuant to the Law on the National Chamber of Entrepreneurs, the membership to the Chamber was mandatory, maximum membership fees were established, and the Government participated in the work of the Chamber with compulsory competencies. She noted that the Confederation of Employers of the Republic of Kazakhstan, recognized by European and International organizations, embraced a system of democratic governance based on voluntary membership. She emphasized that the mandatory structure hampered the role of the Chamber and was incompatible with the definition of social partners and with the principle of freedom of association.

The Worker member of Poland said that the case of Kazakhstan was a source of concern, as the issues raised by the Committee of Experts were of great importance for the workers. She recalled the different points highlighted by the Worker members. That situation was all the more worrying given that the Committee of Experts had repeatedly requested the Government to amend the national legislation, with a view to bringing it into line with the Convention. Worse still, the Government had completely ignored the technical comments of the ILO regarding the draft Law on Trade Unions. She reminded the Government that: all workers, without distinction, including judges, firefighters and prison staff, had the right to establish organizations of their choice without previous authorization; the free exercise of the right to establish trade unions presupposed the free determination of their structure, composition and affiliation to a higher level organization; the legislative provisions governing the internal functioning of workers’ organizations implied serious interference by the public authorities; the right to strike was an essential means by which workers could promote and defend their economic and social interests, and it was therefore crucial that national legislation did not deprive workers of that right or restrict the exercise thereof; and that the right to receive financial assistance from international organizations was legitimate, particularly for unions that required advice and support from other firmly established organizations. She therefore urged the Government to make the necessary amendments to the national legislation to bring it into conformity with the provisions and principles established under Articles 2, 3 and 5 of the Convention, and thereby put an end to the violations of workers’ basic rights.

The Worker member of Germany expressed the support of the Confederation of German Trade Unions (DGB) for its colleagues in Kazakhstan. The problems relating to freedom of association in Kazakhstan affected workers and employers, taking into account especially the serious events surrounding the strikes that had taken place in the oil sector. They expressed disbelief that the delegation had failed to come before the Committee, given that the ILO had helped to set up bases for social dialogue in the country. The Law on Trade Unions of 2014 imposed many restrictions to the establishment of trade unions, particularly regarding registration. Within six months following their registration, trade unions had to mandatorily join a higher level trade union organization and if they did not fulfil this requirement they were struck off the register. The risks of this principle of prior agreement imposed by law had been highlighted by the ITUC and the CFTUK. The DGB considered that these restrictive provisions constituted a violation of Articles 3 and 4 of the Convention. Trade unions should be able to choose their structures, regulations and operating rules without interference from the authorities. Furthermore, a legislative provision prevented trade unions from seeking financial assistance from other international trade union organizations, which was a violation of Article 5 of the Convention. Trade unions were a fundamental part of a democratic society. He therefore invited the Government to bring legislation into line with the Convention and to guarantee the free exercise of freedom of association.

The Worker members pointed out that the various statements made on the case all tended in the same direction. They underlined the fact that, since the Committee’s last meeting, a new trade union act had been adopted. It provided for compulsory registration of trade unions and established a highly restrictive structure under which organizations appeared to be obliged to join higher level unions, which was a violation of the Convention. Moreover, setting very high thresholds for forming higher level trade unions so as to restrict trade union pluralism was also contrary to the Convention. Furthermore, since the beginning of the year, a new Penal Code and a new Code on Administrative Violations had imposed restrictions on trade union activity. In the light of the Committee’s discussions, the Worker members requested the Government to: amend its legislation to recognize the rights of judges, firefighters and prison staff to form trade unions; remove the restrictive conditions and procedures for registering trade union organizations; re-register the CFTUK immediately; put an end to the obligation for local, sectoral and regional trade unions to join a national organization within six months of their registration; amend legislation to lower the thresholds required to form a sectoral trade union; lift the prohibition on receiving financial aid from international employers’ and workers’ organizations; and amend the new Penal Code and the new Code on Administrative Violations to clarify vague notions such as “civil society leader” or “social discord”. Lastly, the Worker members urged the Government to request technical assistance from the Office. Given the Government’s attitude towards the Committee, they considered that it would be appropriate to include the Committee’s conclusions on the case in a special paragraph.

The Employer members concurred with the Worker members that both groups agreed upon a number of points, while holding divergent views on others, particularly as concerned the exercise of the right to strike. They stressed that the Law on the National Chamber of Entrepreneurs substantially infringed upon the freedom and independence of Kazakhstan’s employers’ organizations. Legislative reforms urgently needed to be introduced to bring about an environment where employers’ organizations could freely exercise all rights guaranteed under the Convention. They urged the Government to fully comply with the Committee of Experts’ requests to amend those sections of the Law representing undue Government interference in the functioning of employers’ organizations, as well as to clarify whether the Law indeed provided that only members of the Chamber could represent the interests of employers’ organizations in international bodies. Expressing once again their disappointment with the Government’s failure to appear before the Committee, they concluded by calling for the Committee’s conclusions on the case to be included in a special paragraph of the report.

Conclusions

The Committee deplored the total absence of a Government representative during the discussion of this case, despite its accreditation and presence at the International Labour Conference.

The Committee observed that the pending matters raised by the Committee of Experts concerned both restrictions on workers’ freedom of association (including the right to organize of judges, firefighters and prison staff, the mandatory affiliation of sector, territorial and local trade unions to a national trade union association, the excessively high minimum membership requirement for higher-level organizations and the ban on receiving financial assistance from an international organization) and on employers’ organizations (an excessive minimum membership requirement for employers’ organizations and the adoption in 2013 of the Law on the National Chamber of Entrepreneurs which undermined free and independent employers’ organizations and gave the Government significant authority over internal matters of the Chamber of Entrepreneurs).

The Committee noted the actions of the Government that had infringed both the freedom of association rights of workers’ and of employers’ organizations in violation of the Convention.

Taking into account the discussion and the failure of the Government to attend before the Committee, the Committee required that the Government:

• amend the provisions of the Law on the National Chamber of Entrepreneurs in a manner that would ensure the full autonomy and independence of the free and independent employers’ organizations in Kazakhstan. The Committee requested the Office to offer, and urged the Government to accept, technical assistance in this regard;
• amend the provisions of the Trade Union Law of 2014 consistent with the Convention, including issues concerning excessive limitations on the structure of trade unions found in Articles 10 to 15 which limit the right of workers to form and join trade unions of their own choosing;
• amend the Constitution and appropriate legislation to permit judges, firefighters and prison staff to form and join a trade union; and
• amend the Constitution and appropriate legislation to lift the ban on financial assistance to national trade unions by an international organization.

As a result of the Government’s failure to attend, the Committee decided to include its conclusions in a special paragraph of the report.

A Government representative apologized for the absence of the Government delegation during the discussion and informed that the delegation had only arrived in Geneva on 9 June 2015. He nevertheless wanted to express the Government’s view on the case. Article 23 of the Constitution guaranteed freedom of association and the national legislation governed the activities of trade unions. In accordance with the national legislation, members of the armed forces, the judiciary and the police did not have the right to establish and join organizations. Civil servants, including those within the police, the armed forces and the judiciary, had a specific status under the law, since they had to ensure the proper functioning of the State. However, civilian workers in the armed forces and the police had the right to establish and join organizations. There were several trade unions of civilian workers, including staff working in the armed forces and the police. There was no impediment for the creation of new trade unions. In fact, section 14 of the Law on Public Associations only required a membership of three persons to form a first-level trade union. However, it was true that not many first-level unions had been established yet. In relation to the comments of the Committee of Experts about the requirements for the creation of local and regional trade unions, he indicated that a new law specifically provided that it was essential that trade unions were represented at the regional, local and enterprise levels. While a great number of trade unions existed in the country, there was no trade union unity, with trade unions being rather dispersed. Only branch and sectorial trade unions were able to conclude collective agreements, and over 600 trade unions at the local and regional level were not associated to them. However, at the national level there was no problem in this regard. Kazakhstan was a young country and needed more time to implement the internationally recognized principles. While the existing laws did not provide for impediments to constitute trade unions, new laws could be adopted where necessary, in accordance with international standards and international best practice. The Government was committed to improve the situation and would take into account the discussions in, and the conclusions of, the Committee.

CMNT_TITLE

The Committee notes the observations of the International Organisation of Employers (IOE), of the Sectoral Trade Union of Workers in the Fuel and Energy Complex (Sectoral Trade Union of TEK Workers), and of the International Trade Union Confederation (ITUC), received respectively on 25 August, 30 August and 1 September 2022, referring to the issues raised by the Committee below.

The Committee notes the report of the Direct Contacts Mission (DCM) which visited the country in May 2022 following a request to that effect made by the Committee on the Application of Standards (the Conference Committee) at its 109th Session (June 2021).

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 110th Session, May–June 2022)

The Committee notes the discussion that took place in the Conference Committee in June 2022 concerning the application of the Convention. The Committee observes that the Conference Committee urged the Government, in consultation with the social partners, to: (i) ensure that the allegations of violence against trade union members are thoroughly investigated, notably in the case of Mr Senyavsky; (ii) allow an independent investigation of the Zhanaozen events of 2011; (iii) stop practices of judicial harassment of trade union leaders and members conducting lawful trade union activities and drop all unjustified charges, including the ban preventing trade unionists from holding any position in a public or non-governmental organization; (iv) resolve the issue of registration of KSPRK and the Industrial Union of Employees of the Fuel and Energy Sector, so as to allow them to enjoy the full autonomy and independence of a free and independent workers’ organization, to fulfil their mandate and to represent their constituents without further delay; (v) engage with the free and independent employers’ and workers’ organizations to review issues concerning their registration in law and practice with a view to overcoming existing obstacles; (vi) review the composition of the permanent working group that assesses areas of concern involving the registration of trade unions, so as to ensure the full involvement of independent workers’ and employers’ organizations in this working group; (vii) refrain from showing preference towards a particular trade union and stop the interference in the establishment and functioning of trade union organizations; (viii) remove any existing obstacles in law and practice to the operation of free and independent employers’ organizations in the country; (ix) remove any existing obstacles in law and practice to the operation of free and independent employers’ and workers’ organizations in the country, in particular repeal provisions in the Law on the National Chamber of Entrepreneurs (NCE) on accreditation of employers’ organizations with the NCE; (x) ensure that workers’ and employers’ organizations are not prevented from receiving financial or other assistance by international workers’ and employers’ organizations, and extend the list in Ordinance No. 177 of 9 April 2018 to cover international workers’ and employers’ organizations, such as the ITUC and IOE; and (xi) fully implement the 2018 road map. The Conference Committee requested the Government to develop, in consultation with the social partners, a time-bound action plan in order to implement all these conclusions. In order to elaborate, implement and evaluate this action plan, it urged the Government to avail itself of technical assistance from the Office on an ongoing basis in this regard.

The Committee welcomes the Plan of Action elaborated with the participation of the social partners pursuant to the request made by the Conference Committee. The Committee expects that all measures to give effect to the recommendations of the ILO supervisory bodies, as outlined below, will be taken within the indicated time frames.

The Committee recalls that, while Mr Baltabay and Ms Kharkova, former trade union leaders, have served their respective sentences (after they have been found guilty of the alleged misappropriation of funds), they remained prevented from holding a trade union office. The Committee notes the Government’s indication that this restriction expires, with regard to Ms Kharkova, in November 2022, and in case of Mr Baltabay, in 2026. The Committee further notes that the DCM had discussed with the Human Right Commissioner the possibility that courts might impose an additional punishment in the form of a ban on holding a public office (including trade union leadership posts) or a prohibition to engage in “public activities” provided for by the Criminal Code. The Commissioner considered that this would appear to be in violation of basic civil liberties and human rights. The Prosecutor General’s Office (PGO) explained to the DCM that the relevant sections of the Criminal Code leave it to the appreciation of the courts as to whether such an additional penalty should be imposed, the time period and conditions. The legislation did not outline any precise criteria in this respect. The PGO pointed out that the Ministry of Labour and Social Protection of the Population (MLSPP) could submit to it a legislative initiative aimed at amending the relevant sections of the Criminal Code. The Committee notes that according to the above-mentioned Plan of Action, the responsible State bodies are to submit to the PGO working group their suggestions for the amendment of the criminal legislation before the end of 2022. The Committee requests the Government to provide information on all developments in this regard.

The Committee recalls that it had previously noted that no progress has been made in investigating the assault on Mr Senyavsky, a former trade union leader, and urged the Government to investigate the matter without delay and to bring the perpetrators to justice. The Government reiterates that while the investigation has been suspended for lack of evidence, if new circumstances come to light, Mr Senyavsky will be informed. The Committee further notes that the Plan of Action provides for steps to be taken with a view to finding the perpetrators before the end of 2022. The Committee urges the Government to intensify its efforts in investigating the incident with a view to bringing to justice those responsible for the assault, and to report on all developments in this regard.

The Committee notes the ITUC allegation that judicial harassment of trade union leaders continues in the country; the ITUC refers in this respect to the arrest and administrative detention in October and December 2021 of two trade union leaders, Mr Zhenis Orynaliev and Ms Saule Seidakhmetova, in connection with their participation in a strike action. The Committee requests the Government to provide its comments thereon.

The Committee notes the Government’s detailed reply to the Conference Committee’s request to allow an independent investigation of the Zhanaozen events of 2011. The Committee understands from the information contained in the Government’s report that the circumstances of those 2011 events, which the Government refers to as riots, have been investigated and that various outside observers agreed on the transparency of both pre-trial procedures and trial processes. The Government indicates that criminal proceedings against 11 defendants who had called for mass unrest were discontinued at the preliminary investigation stage due to an amnesty, and that among those organizers of riots brought to trial, 13 received prison sentences, 16 received suspended sentences, three were acquitted and five were released following amnesty. The Government further indicates that following inquiries into 16 complaints of unlawful methods of investigation, a decision was taken not to initiate any criminal proceedings. The Committee observes with concern that the Government does not reply to the statements made by several speakers during the discussions at the Conference Committee alleging the deaths of 17 strikers and injuries to more than 100 others following the extremely violent repression of strike action in Zhanaozen. The speakers, as well as the ITUC in its latest observations, alleged that the violence ended a seven-month long peaceful strike involving more than 3,000 workers demanding a wage increase. The Committee points out that it is against this background that the Conference Committee urged the Government to allow an independent investigation to take place. This Committee considers that the maintenance of a climate of impunity for the perpetrators of such violence is extremely harmful and constitutes a major obstacle to the free exercise of freedom of association in the country. The Committee therefore urges the Government to take all necessary steps, in consultation with the social partners, to establish an independent investigation into the 2011 events in Zhanaozen, with a view to elucidating all facts and determining responsibilities so that healing and reconciliation can begin to take place. The Committee requests the Government to inform it of all measures taken in this regard.

Article 2 of the Convention. Right to establish organizations without previous authorization. The Committee had previously requested the Government to take all necessary steps to resolve the issue of registration of the Congress of Free Trade Unions (KSPRK) and of the affiliate organizations of the Sectoral Trade Union of TEK Workers, so as to allow them to enjoy the full autonomy and independence of a free and independent workers’ organization, to fulfil their mandate and to represent their constituents without further delay. The Committee further requested the Government to continue engaging with the social partners to review the difficulties identified by trade unions seeking registration with a view to finding appropriate measures, including legislative, to give full effect to Article 2 of the Convention and to ensure the right of workers to establish organizations without previous authorization. The Committee notes the Government’s indication that to date (and since November 2019), no application for state registration has been submitted by the KSPRK. In this respect, the Committee notes from the DCM report that, with the exception of the Sectoral Trade Union of TEK Workers, there is no other union that the KSPRK could immediately affiliate to be granted registration at the republican level. In this connection, the Committee notes the Government’s indication that applications for the registration of the affiliates of the Sectoral Trade Union of TEK Workers in Atyrau and Almaty were turned down on five and two occasions, respectively, and that the shortcomings have been explained to the unions concerned. The Government indicates that once these are addressed, the unions can re-apply for registration.

The Committee notes that the DCM raised the issue of registration of trade unions in the oil sector in all its meetings with State bodies. While the Commissioner for Human Rights alluded to the fact that the oil sector was of national security importance, other responsible Ministries, as well as the Deputy Prime Minister, indicated that the only reason for the denial of registration was failure to respect legislative requirements set out for the registration of trade unions, despite the explanations provided during a workshop organized in March 2021 to assist the union in understanding the procedures. The DCM noted, however, that the requests for registration of these trade unions were systematically refused on the basis of technicalities, which could have been easily remedied on the spot at the registration office instead of a refusal followed by another one-month long application process, and further noted that with each refusal the registering authority referred to a wholly new inconsistency with the legislation, i.e. one to which it did not refer to in its previous motivated refusal. The impossibility to register the two trade union structures precludes the Sectoral Trade Union of TEK Workers from confirming its status. The Committee notes the Government’s indication that under the Plan of Action, the composition of the working group set up to consider problems encountered in the registration procedure will be reviewed. Expressing deep concern at this course of events, the Committee urges the Governmentto take additional steps to resolve the issue of registration of the affiliates of the Sectoral Trade Union of TEK Workers so as to allow them to enjoy the full autonomy and independence of a free and independent workers’ organization, to fulfil their mandate and to represent their constituents without further delay. The Committee requests the Government to inform it of all developments in this regard.

Further in this connection, the Committee notes from the DCM report that with the recent decision to establish additional regions in the country, a requirement to have affiliated organizations and/or structures in over 50 per cent of the regions/cities of regional importance/capital, as currently provided for the establishment of a sectoral trade union, appeared to be too high and needed to be reduced, in particular, when a sector or industry covers only a few regions, such as oil sector, for example. The Committee notes that according to the Sectoral Trade Union of TEK Workers, in the new circumstances, it will be more difficult, if not impossible, for it to confirm its sectoral status. The Committee notes that the national Commissioner for Human Rights considered that the Law on Trade Unions should be amended in this regard so as to represent the reality of certain sectors. The Committee requests the Government to amend the Law on Trade Unions accordingly so as to ensure that the establishment of sectoral trade unions is not impeded. The Committee requests the Government to inform it of all measures taken in this respect.

The Committee further notes from the DCM report a proposal to amend the national legislation in order to simplify registration by replacing it with a notification procedure for trade unions wishing to acquire a legal personality or allowing trade unions to function without registering and thus without obtaining legal personality. The draft amendments were to be developed by the end of 2022 for adoption in the first quarter of 2023. Welcoming this information, the Committee requests the Government to provide information on developments in this regard, including a copy of the amendments once adopted.

Following up on conclusions of the 2021 Committee on the Application of Standards, this Committee had previously encouraged the Government to continue reviewing the application of the Law on the National Chamber of Entrepreneurs (NCE) in practice to ensure that its provisions on accreditation of employers’ organizations with the NCE did not hinder the exercise of the right of employers’ organizations to organize their administration and activities and to formulate their programmes. The Committee notes from the DCM report that the role of employers’ organizations was not always understood by all State actors and needed to be clarified with a view to ensuring that participation in social dialogue, and in particular in collective bargaining, was a prerogative of employers’ organizations. The DCM further noted that the accreditation system was voluntary; that the Confederation of Employers was not accredited with the NCE; and that the former did not consider that the accreditation or the lack thereof restricted its rights. The Committee notes the Government’s indication that the idea of a separate law on employers’ organizations is being considered as a means of improving social partnership and dialogue and enforcing employers’ organizations’ rights under the Convention. The Committee welcomes this information and requests the Government to report on all developments in this regard.

Article 3. Right of organizations to organize their activities and to formulate their programmes. The Committee recalls that it had previously requested the Government to amend section 402 of the Criminal Code (2016), according to which an incitement to continue a strike declared illegal by the court was punishable by arrest for the duration of up to 50 days and in certain cases (substantial damage to rights and interest of citizens, mass riots, etc.) up to two years of imprisonment. In the absence of any further specific information in this regard, the Committee once againrequests the Government to provide information on all steps taken or envisaged in order to review section 402 of the Criminal Code so as to ensure that simply calling for a strike action, even one declared illegal by the courts, does not result in detention or imprisonment.

Article 5. Right of organizations to receive financial assistance from international organizations of workers and employers. The Committee had previously noted the Government’s reference to its Ordinance No. 177 of 9 April 2018 “On the adoption of a list of international and state organizations, foreign and Kazakhstani non-governmental organizations and funds which can provide grants”, which determined 98 international organizations allowed to provide grants to physical and legal persons in Kazakhstan. The Committee trusted that the list contained in the Ordinance would be amended to include international workers’ and employers’ organizations. The Committee notes that as per the Plan of Action, this issue is to be examined before the end of 2022. The Committee expects that necessary measures will be taken without delay to ensure that workers’ and employers’ organizations are not prevented from receiving financial or other assistance from international workers’ and employers’ organizations. The Committee requeststhe Government to provide information on all developments in this regard.

CMNT_TITLE

The Committee notes the observations of the International Trade Union Confederation (ITUC), received on 1 and 28 September 2021, referring to the issues raised by the Committee below.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 109th Session, June 2021)

The Committee notes the discussion that took place in the Conference Committee on the Application of Standards (the Conference Committee) in June 2021 concerning the application of the Convention. The Committee observes that the Conference Committee welcomed that further steps towards implementing the 2018 road map were made, in particular amendments to the law. However, it regretted that not all previous recommendations have been fully addressed so far. In this regard, the Conference Committee took note of the continuing restrictions in practice on the right of workers to form organizations of their own choosing, in particular the unduly difficult re-registration and deregistration processes, which undermine the exercise of freedom of association. The Conference Committee also noted with concern the numerous allegations of violations of the basic civil liberties of trade unionists, including violence, intimidation and harassment. The Committee notes that the Conference Committee requested the Government to: (i) bring all national legislation into line with the Convention to guarantee full enjoyment of freedom of association to workers’ and employers’ organizations; (ii) ensure that the allegations of violence against trade union members are completely investigated, notably in the case of Mr Senyavsky; (iii) stop judicial harassment practices of trade union leaders and members conducting lawful trade union activities and drop all unjustified charges, including the ban for trade unionists to hold any position in a public or non-governmental organization; (iv) continue to review developments in the cases of Mr Baltabay and Ms Kharkova; (v) resolve the registration of the Congress of Free Trade Unions (KSPRK) and the Industrial Union of Employees of the Fuel and Energy Sector so as to allow them to enjoy the full autonomy and independence of a free and independent workers’ organization, to fulfil their mandate and to represent their constituents without further delay; (vi) review with the social partners the law and practice concerning the registration of trade unions with a view to overcoming existing obstacles; (vii) refrain from showing favouritism towards any given trade union and put an immediate stop to the interference in the establishment and functioning of trade union organizations; (viii) remove any existing obstacles in law and in practice to the operation of free and independent employers’ organizations in the country, in particular repeal of provisions in the Law on the National Chamber of Entrepreneurs (NCE) on accreditation of employers’ organizations with the NCE; (ix) ensure that workers’ and employers’ organizations are not prevented from receiving financial or other assistance by international workers’ and employers’ organizations; and (x) fully implement the previous recommendations of the Committee and the 2018 road map. The Committee also notes that the Conference Committee requested the Government to accept a direct contacts mission of the International Labour Office before the next session of the International Labour Conference with full access to the organizations and individuals mentioned in the observations of the Committee of Experts.

The Committee recalls that in their previous observations, the ITUC and the Federation of Trade Unions of Kazakhstan (FPRK) denounced the sentencing of a trade union leader Mr Baltabay to seven years of imprisonment in July 2019 for the alleged misappropriation of approximately US$28,000 of union dues. Mr Baltabay was released in August 2019 after being pardoned by the President and given a fine of US$4,000 in exchange for his remaining prison sentence. Mr Baltabay insisted on his innocence, refused to pay the fine or recognize the presidential pardon, and argued in court that criminal charges of large-scale misappropriation of funds levied against him were politically motivated and unfounded. The Committee further recalls that on 16 October 2019, Mr Baltabay was given a new prison sentence of five months and eight days of imprisonment for union-related activities and for not paying the fine. While Mr Baltabay was released from jail on 20 March 2020, the Committee notes that according to the ITUC, he is still banned from any public activity, including trade union activities, for seven years, as per the previous sentence.

The Committee notes from the ITUC observations, that Ms Larisa Kharkova, the Chairperson of the now liquidated Confederation of Independent Trade Unions of Kazakhstan (KNPRK), who was sentenced to four years of restriction on her freedom of movement and a five-year ban on holding any position in a public or non-governmental organization, continues to serve her sentence.

The Committee notes that the Government does not dispute the facts as outlined by the ITUC, but indicates that judicial decisions in the cases of Ms Kharkova and Mr Baltabay were made in respect of ordinary crimes, namely the “misappropriation and embezzlement of entrusted property” and the “abuse of office”, and were not related to their participation in legal trade union activities. The Government indicates that the period of restricted freedom imposed on Ms Kharkova expires on 9 November 2021.

The Committee takes due note of the information provided and refers to the conclusions and recommendations of the Committee on Freedom of Association (CFA) which continues to examine cases of Mr Baltabay and Ms Kharkova in the framework of Case No. 3283 (see 392nd Report, October 2020). It requests the Government to indicate whether Ms Kharkova and Mr Baltabay are still prevented from holding a trade union office.

The Committee recalls that it had previously noted with deep concern the ITUC allegation of assault and injuries suffered by Mr Dmitry Senyavsky, the Chairperson of a trade union of workers of the fuel and energy complex in the Karaganda region, and urged the Government to investigate the matter without delay and to bring the perpetrators to justice. The Committee had noted the information provided by the Government confirming the assault by unknown persons on 10 November 2018. According to a forensic medical report, Mr Senyavsky suffered mild damages to his health. The Committee recalls the Government’s indication that while pretrial investigations were opened under section 293(2)(1) of the Criminal Code (disorderly conduct), they were later suspended pursuant to section 45(7)(1) of the Criminal Procedure Code (failure to identify the person who committed a crime) until new circumstances (evidence) would come to light. 

The Committee notes the ITUC indication that no progress has been made in investigating the attack. The ITUC points out that absence of effective investigations and judgements against guilty parties reinforce the climate of insecurity for victims and impunity for perpetrators, which are extremely damaging to the exercise of freedom of association rights in Kazakhstan. The Committee notes the Government’s indication that the work to solve this case continues. The Committee requests the Government to provide detailed information on all developments in this respect.

Article 2 of the Convention. Right to establish organizations without previous authorization. The Committee recalls that following the entry into force of the Law on Trade Unions in 2014, all existent unions had to be re-registered. It recalls in this respect that the KNPRK affiliates were denied registration/re-registration, which ultimately led to the KNPRK’s liquidation. The Committee further recalls the ITUC allegation of denials to register organizations, which previously formed the KNPRK, as well as the refusal to register the KSPRK (the name under which the successor of the KNPRK had last tried to re-register) and the Industrial Trade Union of Employees of the Fuel and Energy Sector. In its previous observation, the Committee had noted the Government’s explanation that in the event that the registering authority (Ministry of Justice) identifies shortcomings, it issues a reasoned refusal. The Government further indicated that the KSPRK had received a reasoned refusal and that the Ministry of Labour and Social Protection of the Population (MLSPP) had held a series of meetings with the representatives of the Congress regarding the refusal to register it. The Government had pointed out that if the trade union in question rectified the indicated shortcomings, the Ministry of Justice stood ready to re-examine the application for registration. However, according to the Government, the applicant had not yet addressed the relevant registering authority. Having duly noted the information provided by the Government, the Committee requested the Government to continue to provide information on the status of registration of the KSPRK and the Industrial Union of Employees of the Fuel and Energy Sector.

The Committee notes the ITUC indication that the KSPRK remains unregistered and that the Industrial Union of Employees in the Fuel and Energy Sector is undergoing a process of dissolution following a court decision dated 5 February 2021 to suspend its activities. The Committee further notes that the Government reiterates the information previously provided regarding the refusal to register the KSPRK and its predecessor and that the irregularities pointed out by the registering authority have not been addressed and no reapplication for registration has been submitted. The Government further indicates that by its decision of 6 May 2021, the civil and administrative appellate court decided not to change the verdict of the Shymkent special inter-district economic court of 5 February 2021 that the activities of the Industrial Union of Employees in the Fuel and Energy Sector should be suspended for six months. In order to resume its activities, the sectoral trade union was required, within six months of the court’s February 2021 decision coming into effect, to resolve the irregularities regarding the numerical strength of its affiliates (subdivisions, member organizations) in territory covering more than half of the country’s regions. As of August 2021, the union had not applied for registration of its affiliates. The Government also indicates that on 13 August 2021 Mr Kuspan Kosshygulov was appointed chairperson of the Union.

The Committee notes the Government’s indication that there are currently three national trade union associations, 54 sectoral, 34 territorial and 365 local trade unions, which bring together around 3 million workers, or half of all the country’s employees. Since the adoption of changes to the legislation in May 2020, one sectoral trade union (the “Byrlyk” union of workers in construction, housing and utilities, and transport, registered on 22 July 2021) and 37 local unions have been formed. The Government further indicates that a permanent working group exists to review areas of concern involving the registration of trade unions. Its members include representatives of the MLSPP, the Ministry of Justice and three national trade union associations (the FPRK, the Kazakhstan Labour Confederation and the “Amanat” Trade Union). While noting that new trade unions have been established and registered since the amendment of the legislation in 2020, the Committee observes that its longstanding concern regarding the registration of the KSPRK and the Industrial Union of Employees of the Fuel and Energy Sector is yet to be resolved. The Committee requests the Government to take the necessary steps for the resolution of the issue of registration of the KSPRK and the Industrial Union of Employees of the Fuel and Energy Sector so as to allow them to enjoy the full autonomy and independence of a free and independent workers’ organization, to fulfil their mandate and to represent their constituents without further delay. The Committee further requests the Government to continue engaging with the social partners to review the difficulties identified by trade unions seeking registration with a view to finding appropriate measures, including legislative, to fully give effect to Article 2 of the Convention and to ensure the right of workers to establish organizations without previous authorization. It requests the Government to provide information on all progress made in this respect.

With reference to the conclusions of the Conference Committee, the Committee encourages the Government to continue reviewing the application of the Law on the National Chamber of Entrepreneurs (NCE) in practice with the social partners to ensure that its provisions on accreditation of employers’ organizations with the NCE do not hinder the right of employers’ organizations to organise their administration and activities and to formulate their programmes.

Article 3. Right of organizations to organize their activities and to formulate their programmes. The Committee recalls that it had previously requested the Government to amend section 402 of the Criminal Code (2016), according to which an incitement to continue a strike declared illegal by the court was punishable by arrest for the duration of up to 50 days and in certain cases (substantial damage to rights and interest of citizens, mass riots, etc.) up to two years of imprisonment,

The Committee notes the Government’s indication that on 9 June 2021, the President of the Republic signed a decree on further human rights measures to be taken in Kazakhstan following which, the Government approved a plan of urgent human rights-related measures, including in respect of the right to freedom of association. The Government points out, in particular, that with a view to implementing the ILO recommendations, the intention under the Plan is to work towards further changes to national legislation, including with a view to further reviewing section 402 of the Criminal Code. The Committee requests the Government to provide information on all steps taken thus far, and planned for the future, to review section 402 of the Criminal Code so as to ensure that simply calling for a strike action, even one declared illegal by the courts, does not result in detention or imprisonment.

Article 5. Right of organizations to receive financial assistance from international organizations of workers and employers. The Committee had previously noted the Government’s reference to its Ordinance No. 177 of 9 April 2018 “On the adoption of a list of international and state organizations, foreign and Kazakhstani non-governmental organizations and funds which can provide grants”, which determined 98 international organizations allowed to provide grants to physical and legal persons in Kazakhstan. In this connection, the Committee welcomed the Government’s indication that the MLSPP was ready to examine the possibility of including in that list the ITUC and the International Organisation of Employers if a request to that effect is made. The Committee notes that the Government reiterates its previous statement and indicates that any such request should outline the reasons and specific objectives and state the areas in respect of which the grants are provided. The Committee trusts that the list contained in the Ordinance will be amended, if need be upon the Government’s initiative, to include international workers’ and employers’ organizations and requests the Government to provide information on the measures taken to that end.

The Committee trusts that a direct contacts mission of the International Labour Office requested by the Conference Committee will take place as soon as the situation so permits.

CMNT_TITLE

The Committee takes note of the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th Session (June 2020). The Committee proceeded with the examination of the application of the Convention on the basis of the supplementary information received from the Government and the social partners this year, as well as on the basis of the information at its disposal in 2019.

The Committee notes the observations of the International Trade Union Confederation (ITUC), received on 8 and 16 September 2020, and of the Confederation of Employers of the Republic of Kazakhstan (KRRK), received on 1 October 2020, referring to the issues raised by the Committee below.

The Committee recalls that in their 2019 observations, the ITUC and the Federation of Trade Unions of Kazakhstan (FPRK) denounced the imprisonment, on 16 October 2019, of Mr Erlan Baltabay, the leader of the Independent Oil and Energy Workers’ Union. Expressing its concern over this allegation, the Committee had requested the Government to provide its comments thereon. The Committee notes that in its 2020 observations, the ITUC recalls that Mr Baltabay was sentenced to seven years of imprisonment in July 2019 for the alleged misappropriation of approximately US$28,000 of union dues. According to the ITUC, Mr Baltabay was released in August 2019 after being pardoned by the President and given a fine of US$4,000 in exchange for his remaining prison sentence. Mr Baltabay insisted on his innocence, refused to pay the fine or recognize the presidential pardon, and argued in court that criminal charges of large-scale misappropriation of funds levied against him were politically motivated and unfounded. The ITUC further indicates that on 16 October 2019, Mr Baltabay was given a new prison sentence of five months and eight days imprisonment for union-related activities and for not paying the fine; while Mr Baltabay was released from jail on 20 March 2020, he is still banned from any public activity, including trade union activities, for the next seven years, as per the previous sentence.

The Committee further notes the ITUC indication that Ms Larisa Kharkova, the Chairperson of the now liquidated Confederation of Independent Trade Unions of Kazakhstan (KNPRK), who was sentenced to four years of restriction on her freedom of movement and a five-year ban on holding any position in a public or non-governmental organization, continued to serve her sentence.

The Committee notes that the Government does not dispute the facts as outlined by the ITUC, but indicates that judicial decisions in the case of Mr Baltabay were made in respect of ordinary crimes and were not related to his participation in legal trade union activities.

The Committee further notes that the cases of Mr Baltabay and Ms Kharkova continue to be examined by the Committee on Freedom of Association (CFA) in the framework of Case No. 3283 (see 392nd Report, October 2020). The Committee refers to the conclusions and recommendations of the CFA and urges the Government to provide detailed information on the cases of Mr Baltabay and Ms Kharkova.

The Committee recalls that it had previously noted with deep concern the ITUC 2018 allegation of assault and injuries suffered by the chairperson of a trade union of workers of the fuel and energy complex in the Karaganda region and urged the Government to investigate the matter without delay and to bring the perpetrators to justice. The Committee had noted the information provided by the Government confirming the assault of the Chairperson of the Trade Union of Workers in the Fuel and Energy Complex of Shakhtinsk, Mr Dmitry Senyavsky, by unknown persons on 10 November 2018. The Government indicated that pre-trial proceedings were opened under section 293(2)(1) of the Criminal Code (disorderly conduct). According to a forensic medical report, Mr Senyavsky suffered mild damages to his health. The Committee notes that in its 2020 observation, the ITUC indicates that two years after the assault, no suspects have been identified. The Committee notes that the Government reiterates in its supplementary report that the pre-trial investigation has been suspended pursuant to section 45(7)(1) of the Criminal Procedure Code (failure to identify the person who committed a crime) until new circumstances (evidence) come to light. The Committee requests the Government to continue to provide information on the developments in this case.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 108th Session, June 2019)

The Committee notes the discussion that took place in the Conference Committee in June 2019 concerning the application of the Convention. The Committee observes that the Conference Committee regretted the persistent lack of progress since the last discussion of the case in June 2017, in particular with regard to the serious obstacles to the establishment of trade unions without previous authorization in law and in practice, and the continued interference with the freedom of association of employers’ organizations. The Conference Committee took note of the ILO high-level tripartite mission (HLTM) that took place in May 2018 and the resulting road map. The Committee notes that the Conference Committee called upon the Government to: (i) amend the provisions of the Law on Trade Unions consistent with the Convention, on issues concerning excessive limitations on the structure of trade unions which limit the right of workers to form and join trade unions of their own choosing; (ii) refrain from imposing restrictions on the right to hold elected positions in trade unions and the right to freedom of movement for engaging in legitimate trade union activities; (iii) ensure that the allegations of violence against trade union members are investigated, and where appropriate, impose dissuasive sanctions; (iv) review, in consultation with the social partners, the existing law and practice regarding re registration of trade unions with a view to overcoming the existing obstacles; (v) amend, in consultation with the most representative, free and independent employers’ organizations, the provisions of the Law on the National Chamber of Entrepreneurs (NCE), and related regulations, in a manner that would ensure the full autonomy and independence of free and independent employers’ organizations, without any further delay. In particular remove the provisions on the broad mandate of the NCE to represent employers and accredit employers’ organizations by the NCE; (vi) ensure that the Confederation of Independent Trade Unions of Kazakhstan (KNPRK) and its affiliates enjoy the full autonomy and independence of a free and independent workers’ organization, without any further delay, and are given the autonomy and independence needed to fulfil their mandate and to represent their constituents; (vii) confirm the amendment to legislation to permit judges, firefighters and prison staff, who do not occupy a military rank, to form and join a workers’ organization; (viii) adopt legislation to ensure that national workers’ and employers’ organizations are not prevented from receiving financial assistance or other assistance by international organizations. In this regard, provide information on the legal status and contents of its recommendation regarding the authorization of workers’ and employers’ organizations to receive financial assistance from international organizations; and (ix) implement the 2018 road map in consultation with the social partners as a matter of urgency. The Conference Committee decided to include its conclusions in a special paragraph of the report.

The Committee notes that the Law on Trade Unions, the Labour Code, the Law on the NCE, the Criminal Code, the Code of Criminal Procedure and the Law on Public Associations were amended by virtue of adoption, in May 2020, of the Law on amendments and additions to some legislative acts of the Republic of Kazakhstan on labour issues. The Committee notes that in its conclusions and recommendations in Case No. 3283 (see 392nd Report, October 2020), the Committee on Freedom of Association referred the examination of these legislative amendments to the Committee. The Committee examines them below.

Article 2 of the Convention. Right to establish organizations without previous authorization. The Committee recalls that following the entry into force of the Law on Trade Unions in 2014, all existent unions had to be re-registered. It recalls in this respect that the KNPRK affiliates were denied registration/re-registration, which ultimately led to its liquidation. Recalling the ITUC allegation of denials to register organizations, which previously formed the KNPRK, the Committee requested the Government to provide information on the current status of the KNPRK and to ensure that the KNPRK and its affiliates enjoyed the full autonomy and independence of a free and independent workers’ organization, without any further delay, and were given the autonomy and independence needed to fulfil their mandate and to represent their constituents.

The Committee notes that the ITUC indicates that the Congress of Free Trade Unions (KSPRK) (the name under which the successor of the KNPRK had last tried to re-register) remains unregistered and that the Industrial Trade Union of Employees of the Fuel and Energy Sector is still waiting for its re-registration, while being unable to formally appoint a new chairperson.

The Committee notes the Government’s indication that in the event that the registering authority (Ministry of Justice) identifies shortcomings, it issues a reasoned refusal, citing the applicable legislative provision, as per section 11 of the Law on the State Registration of Legal entities and the Official Registration of Branches and Representative Offices. The Government further indicates that the KSPRK has also received a reasoned refusal and that the Ministry of Labour and Social Protection of the Population (MLSPP) has held a series of meetings with the representatives of the Congress regarding the refusal to register it. The Government points out that if the trade union in question rectifies the indicated shortcomings, the Ministry of Justice stands ready to re-examine the application for registration. The Government further indicates that an explanation was provided to the applicant for registration of the Industrial Trade Union of Employees of the Fuel and Energy Sector as to the body the application for registration and the accompanying documents should be submitted to. However, according to the Government, the applicant is yet to address the relevant registering authority. Having duly noted the information provided by the Government, the Committee requests the Government to continue to provide information on the status of registration of the KSPRK and the Industrial Union of Employees of the Fuel and Energy Sector.

The Committee further recalls that it had previously noted that several pieces of legislation regulated registration and that some trade unions were denied re-registration because their by-laws were found not to be in conformity with either one or all of the applicable laws. The Committee had therefore requested the Government to engage with the social partners to review the difficulties identified by trade unions seeking registration with a view to finding appropriate measures, including legislative, to fully give effect to Article 2 of the Convention and to ensure the right of workers to establish organizations without previous authorization.

The Committee notes the Government’s explanation that trade unions may be established without previous authorization. Primary trade unions do not need to register. However, if a trade union wishes to become a legal entity (which entitles it to open a bank account), it must register with the justice authorities. The latter have the following powers to determine the status of trade unions: (1) to verify compliance with the legislation of documents submitted for registration; and (2) to issue certificates of state registration. In the case of refusal to register a trade union, the registering authority identifies shortcomings and issues a reasoned refusal. If the trade union in question rectifies these shortcomings, it may re-submit its application for registration, appending all necessary documents. The Government points out that the documents can be re-submitted an unlimited number of times. The Government indicates that it has made every effort to provide guidance on registration to all trade unions and informs that it has developed a step-by-step algorithm outlining the procedure for registration of trade unions (from the moment of preparing the necessary paperwork to the moment of registration). Furthermore, new rules of state services concerning state registration of entities with and without legal personality were approved in May 2020. The Committee welcomes that by virtue of the new rules the time frame for registration by the authority was reduced from 10 to five business days. The Committee notes the Government’s indication that there are currently three national associations of trade unions in the country, 49 sectoral, 44 territorial and 348 local trade union organizations, which bring together around 3 million workers - or half of all employees in Kazakhstan. The Government points out that following the amendment of the Law on Trade Unions, one sectoral, nine local trade unions and six structures of sectoral trade unions were established in the country, and that there have been no reported problems with registration of trade unions. The Government further indicates that the new general agreement for 2021–23 will provide for protection against acts of interference in internal affairs of organizations. The Committee requests the Government to continue engaging with the social partners on the issues concerning the registration process.

Right to establish and join organizations of their own choosing.  The Committee had previously requested the Government to amend the following sections of the Law on Trade Unions so as to ensure the right of workers to freely decide whether they wish to associate or become members of a higher-level trade union structure and to lower threshold requirements to establish higher-level organizations:

• -sections 11(3), 12(3), 13(3) and 14(4), which required, under the threat of deregistration pursuant to section 10(3), the mandatory affiliation of sector-based, territorial and local trade unions to a national trade union association within six months following their registration, so as to ensure the right of workers to freely decide whether they wish to associate or become members of a higher-level trade union structure; and
• -section 13(2), which required a sector-based trade union to represent no less than half of the total workforce of the sector or related sectors, or organizations of the sector or related sectors, or to have structural subdivisions and member organizations on the territory of more than half of all regions, cities of national significance and the capital, with a view to lowering this threshold requirement.

The Committee notes with satisfaction that sections 11, 12, 13 and 14 of the Law on Trade Unions were amended so as to remove the mandatory affiliation of trade unions to a higher-level association of trade unions. The Committee further notes that section 10 of the Law on Trade Unions was amended so as to extend the time limit for the confirmation of a trade union status as a national, sectoral or regional organization from six months to one year. If, after the expiration of one year, the organization has not confirmed it status, its functioning can be suspended for a period of three to six months so as to give it additional time to confirm its status, whereas previously, it was subject to liquidation.

Law on the National Chamber of Entrepreneurs (NCE). The Committee had previously urged the Government to amend the Law on the NCE and any other relevant legislation so as to ensure the full autonomy and independence of the free and independent employers’ organizations. The Committee recalls, in particular, that the Law calls for the mandatory affiliation to the NCE (section 4(2)). The Committee had further noted the difficulties encountered by the KRRK in practice, which stem from the mandatory membership and the NCE monopoly, and in particular, that the accreditation of employers’ organizations by the NCE and the obligation imposed in practice on employers’ organizations to conclude an annual agreement (a model contract) with the NCE, meant, for all intents and purposes, that the latter approved and formulated the programmes of employers’ organizations and thus intervened in their internal affairs. In this respect, the Committee had noted that there was an agreement to amend section 148(5) of the Labour Code so as to delete reference to the NCE’s authority to represent employers in the social dialogue at the national, sectoral and regional levels and that the road map provided for the measures to be taken to address the above concerns culminating with the submission of the draft law to amend various pieces of legislation, including the Law on the NCE to Parliament in November 2018. In this respect, the Committee had noted the Government’s indication that the accreditation by the NCE was an internal procedure, which took place on a voluntary basis. The Government stressed that this procedure was not an authorization procedure and did not prevent employers’ organizations from operating. Moreover, the compulsory NCE membership was not imposed on associations. The Government reiterated that following the amendment of the Labour Code, as outlined above, the NCE would withdraw from the National Tripartite Commission on Social Partnership and the Regulation of Social and Labour Relations, sectoral commissions (20 sectors) and regional commissions (16 regions). Accordingly, the NCE would no longer be a signatory to the General Agreement between the Government and national associations of employers and workers, sectoral agreements and regional agreements. The Committee had further noted the proposed amendment to section 9 of the Law on the NCE, which would exclude explicitly from the definition of the representative functions of the NCE the right to represent entrepreneurs in the system of social partnership as set out in the Labour Code. The Committee expected that section 148(5) of the Labour Code as well as section 9 of the Law on the NCE would be amended without further delay thereby ensuring that the NCE and its structures at the national, sectoral and regional levels were no longer employers’ representatives in social dialogue.

The Committee notes with satisfaction that section 148 (5) of the Labour Code and section 9 of the Law on the NCE have been amended as previously indicated. The Committee further notes the Government’s indication that currently there are 120 employers’ associations operating in the country and that at the September 2020 meeting of the Republican tripartite commission on social partnership and regulation of social and labour relations, the employers’ associations at all levels were asked to decide on their representatives to the social dialogue bodies at various levels, as well as on the signatories to the tripartite agreements.

Further in this respect, the Committee notes the KRRK’s indication that the NCE no longer participates in the social dialogue and will not be signing the 2021–23 national tripartite agreement as this became a prerogative of employers’ organizations and that the agreement will be signed by the KRRK. The KRRK indicates that it is being invited by the MLSPP to meetings addressing issues of social dialogue and expresses its trust that the dialogue will be further enhanced in the future. The KRRK provides detailed information on the relationship between the NCE and employers’ organizations following legislative amendments and queries about the impact of the accreditation system on the independence of employers’ organizations and their right to participate in the social dialogue processes. The Committee takes due note of the Government’s detailed reply on the KRRK observations. The Committee notes, in particular, the Government’s detailed explanation of the aims and functioning of the NCE as compared to the role of employers’ organizations. The Government stresses that the role of the NCE is linked to business development and promotion of entrepreneurship, whereas the purpose of employers’ organizations is to further and defend the rights of their members in the labour and social spheres through the participation in various social dialogue mechanisms, collective bargaining and consultations regarding labour legislation. The Government points out that despite the fact that some of the employers’ organizations are accredited in the NCE, they remain independent of each other in their respective roles.

Article 3. Right of organizations to organize their activities and to formulate their programmes. The Committee had previously requested the Government to provide information on the status of its proposal to amend section 176(1)(1) of the Labour Code regarding the right to strike. The Committee notes with interest that the above provision has been amended so as to provide that a strike remains possible with respect to certain “vital” services (electricity, heating, water and gas supply services; aviation, railway, automobile, public and water transport; communication and health services) so long as the necessary minimum level of services, previously agreed upon by the workers’ representatives and the local executive authorities, is maintained during the strike. 

The Committee recalls that it had previously noted with concern that trade union leaders have been convicted and sentenced in application of section 402 of the Criminal Code (2016), according to which an incitement to continue a strike declared illegal by the court was punishable by up to one year of imprisonment and in certain cases (substantial damage to rights and interest of citizens, mass riots, etc.), up to three years of imprisonment. The Committee notes that this provision has been amended so as to categorize the deeds described in section 402 as delinquent acts (and no longer as criminal acts), and to lower the penalties (both fines and imprisonments) accordingly. The Committee notes, in particular, that the imprisonment for up to one year, and three years in specific cases described above, is to be replaced by an arrest for the duration of up to 50 days and two years of imprisonment, respectively. While welcoming the proposed amendments aimed at reducing the penalties, the Committee is nevertheless of the opinion that simply calling for a strike action, even one declared illegal by the courts, should not result in arrest for up to 50 days and that in general, sanctions should be envisaged only where, during a strike, violence against persons or property, or other serious infringements of penal law have been committed.  The Committee requests the Government to further review section 402 of the Criminal Code taking into account the above and requests the Government to provide information on all developments in this regard.

Article 5. Right of organizations to receive financial assistance from international organizations of workers and employers. The Committee had previously welcomed the intention to amend the Law on Trade Unions by adding provisions on the right of trade unions to cooperate with international trade union organizations and, jointly with international organizations, to organize and conduct activities, as well as to carry out projects aimed at defending the rights and interests of workers in accordance with the legislation of Kazakhstan. The Committee notes with interest that section 6 of the Law on Trade Union has been amended to that effect. The Committee notes the Government’s reference to its Ordinance No. 177 of 9 April 2018 “On the adoption of a list of international and state organizations, foreign and Kazakhstani non-governmental organizations and funds which can provide grants”, which determines 98 international organizations allowed to provide grants to physical and legal persons in Kazakhstan. The Committee welcomes the Government’s indication that the MLSPP is ready to examine the possibility of including in that list the ITUC and the International Organisation of Employers if a request to that effect is made. The Committee trusts that the list contained in the Ordinance will be amended to include international workers’ and employers’ organizations and requests the Government to provide information on the measures taken to that end.

CMNT_TITLE

The Committee notes the observations of the International Organisation of Employers (IOE), received on 29 August 2019, containing the Employers’ statements made before the 2019 Conference Committee on the Application of Standards (hereinafter, the Conference Committee).

The Committee further notes the observations of the International Trade Union Confederation (ITUC), received on 1 September 2019, referring to the issues raised by the Committee below, as well as the observations received on 14 November 2019, alleging the imprisonment, on 16 October 2019, of Mr Erlan Baltabay, the leader of the Independent Oil and Energy Workers’ Union. The Committee also notes the observations of the Federation of Trade Unions of Kazakhstan (FPRK) on the application of the Convention, received on 18 November 2019, expressing its concern over the situation of Mr. Baltabay. Expressing its concern over this allegation, the Committee requests the Government to provide its comments thereon.

The Committee recalls that it had previously noted with deep concern the ITUC 2018 allegation of assault and injuries suffered by the chairperson of a trade union of workers of the fuel and energy complex in the Karaganda region and urged the Government to investigate the matter without delay and to bring the perpetrators to justice. The Committee notes the information provided by the Government confirming the assault of the chairperson of the Trade Union of Workers in the Fuel and Energy Complex of Shakhtinsk, Mr Dmitry Senyavsky, by unknown persons on 10 November 2018. The Government indicates that pre-trial proceedings were opened under section 293(2)(1) of the Criminal Code (disorderly conduct). According to a forensic medical report, Mr Senyavsky suffered mild damages to his health. However, the pre-trial investigation has been suspended pursuant to section 45(7)(1) of the Criminal Procedure Code (failure to identify the person who committed a crime) until new circumstances (evidence) come to light. The Committee requests the Government to continue to provide information on the developments in this case.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 108th Session, June 2019)

The Committee notes the discussion that took place in the Conference Committee in June 2019 concerning the application of the Convention. The Committee observes that the Conference Committee regretted the persistent lack of progress since the last discussion of the case in June 2017, in particular with regard to the serious obstacles to the establishment of trade unions without previous authorization in law and in practice, and the continued interference with the freedom of association of employers’ organizations. The Conference Committee took note of the ILO high-level tripartite mission (HLTM) that took place in May 2018 and the resulting road map. The Committee notes that the Conference Committee called upon the Government to: (i) amend the provisions of the Law on Trade Unions consistent with the Convention, on issues concerning excessive limitations on the structure of trade unions which limit the right of workers to form and join trade unions of their own choosing; (ii) refrain from imposing restrictions on the right to hold elected positions in trade unions and the right to freedom of movement for engaging in legitimate trade union activities; (iii) ensure that the allegations of violence against trade union members are investigated, and where appropriate, impose dissuasive sanctions; (iv) review, in consultation with the social partners, the existing law and practice regarding re registration of trade unions with a view to overcoming the existing obstacles; (v) amend, in consultation with the most representative, free and independent employers’ organizations, the provisions of the Law on the National Chamber of Entrepreneurs (NCE), and related regulations, in a manner that would ensure the full autonomy and independence of free and independent employers’ organizations, without any further delay. In particular remove the provisions on the broad mandate of the NCE to represent employers and accredit employers’ organizations by the NCE; (vi) ensure that the Confederation of Independent Trade Unions of Kazakhstan (KNPRK) and its affiliates enjoy the full autonomy and independence of a free and independent workers’ organization, without any further delay, and are given the autonomy and independence needed to fulfil their mandate and to represent their constituents; (vii) confirm the amendment to legislation to permit judges, firefighters and prison staff, who do not occupy a military rank, to form and join a workers’ organization; (viii) adopt legislation to ensure that national workers’ and employers’ organizations are not prevented from receiving financial assistance or other assistance by international organizations. In this regard, provide information on the legal status and contents of its recommendation regarding the authorization of workers’ and employers’ organizations to receive financial assistance from international organizations; and (ix) implement the 2018 road map in consultation with the social partners as a matter of urgency. The Conference Committee decided to include its conclusions in a special paragraph of the report.

The Committee notes the Government’s indication that a draft law to amend certain legislative acts has been submitted to Parliament and that a working group of the Mazhilis considered the draft on six occasions. The Committee takes note of a copy of the proposed amendments to the Law on Trade Unions (2014), the Labour Code (2015), the Law on the NCE, the Criminal Code, the Code of Criminal Procedure and the Law on Public Associations contained in this draft law.

Article 2 of the Convention. Right of workers, without distinction whatsoever, to establish and join organizations. Prison staff and firefighters. The Committee duly notes the information provided by the Government regarding the right to unionize of firefighters and prison staff.

Right to establish organizations without previous authorization. The Committee recalls that following the entry into force of the Law on Trade Unions, all existent unions had to be re-registered. It further recalls that it had noted with concern that the KNPRK affiliates were denied registration/re-registration, which ultimately led to its liquidation. The Committee recalls the Government’s indication that a helpline regarding the issues of trade union registration and activities had been established at the level of the Ministry of Labour and Social Protection (MLSP) in June 2018, as per the road map. The Committee recalls, however, the ITUC allegation that the helpline lacked the capacity and mandate to fulfil its role. The ITUC referred in this respect to the denials to register organizations which previously formed the KNPRK. The Committee requested the Government to provide its comments thereon. Further in this respect, the Committee recalls that it had noted that several pieces of legislation regulated registration and that some trade unions were denied re-registration because their by-laws were found not to be in conformity with either one or all of the applicable laws. The Committee therefore requested the Government to engage with the social partners to review the difficulties identified by trade unions seeking registration with a view to finding appropriate measures, including legislative, to fully give effect to Article 2 of the Convention and to ensure the right of workers to establish organizations without previous authorization.

The Committee notes the Government’s indication that there are three national associations of trade unions in the country, which bring together around 3 million workers or half of all employees in Kazakhstan, 39 sectoral, 19 regional, 635 local and over 20,000 primary trade union organizations. All trade unions may be established without previous authorization. Primary trade unions do not need to register. If a trade union wishes to become a legal entity (which entitles it to open a bank account), it must register with the justice authorities. The latter has the following powers to determine the status of trade unions: (1) to verify compliance with the legislation of documents submitted for registration; and (2) to issue certificates of state registration. In the event that the registering authority identifies shortcomings, it issues a reasoned refusal, citing the applicable legislative provision, as per section 11 of the Law on the State Registration of Legal entities and the Official Registration of Branches and Representative Offices. If the trade union in question rectifies these shortcomings, it may re-submit its application for registration, appending all necessary documents. The Government points out that this can be done for an unlimited number of times. The Committee further notes the Government’s indication that the MLSP and the Ministry of Justice have held a series of sessions for national federations of trade unions providing information on the registration procedure and seeking to identify problems that arise during registration. As a result, a working group has been set up to examine problems arising during registration and recommendations (step-by-step instructions) have been drawn up regarding trade union registration. These have been sent to trade unions for use in their work. The Government indicates that it has made every effort to provide guidance on registration to all trade unions and problems now occur only in isolated cases. While taking note of this information, the Committee regrets that the Government provides no information regarding the current situation of the KNPRK. The Committee requests the Government to provide information on the current status of the KNPRK and reiterates in this respect the need to ensure that the KNPRK and its affiliates enjoy the full autonomy and independence of a free and independent workers’ organization, without any further delay, and are given the autonomy and independence needed to fulfil their mandate and to represent their constituents.

Right to establish and join organizations of their own choosing. The Committee had previously requested the Government to amend the following sections of the Law on Trade Unions so as to ensure the right of workers to freely decide whether they wish to associate or become members of a higher-level trade union structure and to lower thresholds requirements to establish higher-level organizations:

• -sections 11(3), 12(3), 13(3) and 14(4), which require, under the threat of deregistration pursuant to section 10(3), the mandatory affiliation of sector-based, territorial and local trade unions to a national trade union association within six months following their registration, so as to ensure the right of workers to freely decide whether they wish to associate or become members of a higher-level trade union structure; and
• -section 13(2), which requires a sector-based trade union to represent no less than half of the total workforce of the sector or related sectors, or organizations of the sector or related sectors, or to have structural subdivisions and member organizations on the territory of more than half of all regions, cities of national significance and the capital, with a view to lowering this threshold requirement.

The Committee notes with interest the Government’s indication that the draft law, if adopted, would amend sections 11, 12, 13 and 14 of the Law on Trade Unions so as to remove the mandatory affiliation of trade unions to a higher-level association of trade unions. The Committee further notes the Government’s indication that the draft law seeks to simplify the conditions for confirming the status of a trade union as a national, sectoral or regional organization by extending the time limit for this procedure from six months to one year. The Committee expects that the legislative process will be concluded without further delay.

The Committee notes that the draft law proposes to modify the threshold requirements to stipulate that “a sectoral trade union should have structural divisions, member organizations in a territory that includes more than half the number of regions, cities of republican significance and the capital. Workers of small businesses have the right to create a sectoral trade union if there are structural divisions, affiliates in a territory that includes more than half the number of regions, cities of republican significance and the capital”. The Committee requests the Government to provide information on all developments on this matter.

Law on the National Chamber of Entrepreneurs (NCE). The Committee had previously urged the Government to amend the Law on the NCE and any other relevant legislation so as to ensure the full autonomy and independence of the free and independent employers’ organizations. The Committee recalls, in particular, that the Law calls for the mandatory affiliation to the NCE (section 4(2)). The Committee had further noted the difficulties encountered by the Confederation of Employers of Republic of Kazakhstan (KRRK) in practice, which stem from the mandatory membership and the NCE monopoly, and in particular, that the accreditation of employers’ organizations by the NCE and the obligation imposed in practice on employers’ organizations to conclude an annual agreement (a model contract) with the NCE, meant, for all intents and purposes, that the latter approved and formulated the programmes of employers’ organizations and thus intervened in their internal affairs. In this respect, the Committee had noted that there was an agreement to amend section 148(5) of the Labour Code so as to delete reference to the NCE’s authority to represent employers in the social dialogue at the national, sectoral and regional levels and that the road map provided for the measures to be taken to address the above concerns culminating with the submission of the draft law to amend various pieces of legislation, including the Law on the NCE to Parliament in November 2018.

The Committee notes the Government’s indication that the accreditation by the NCE is an internal procedure, which takes place on a voluntary basis. The Government stresses that this procedure is not an authorization procedure and does not prevent employers’ organizations from operating. Moreover, the compulsory NCE membership is not imposed on associations. The Government reiterates that the proposed amendment to the Labour Code outlined above is reflected in the draft law and thus, the NCE will withdraw from the National Tripartite Commission on Social Partnership and the Regulation of Social and Labour Relations, sectoral commissions (20 sectors) and regional commissions (16 regions). Accordingly, the NCE will no longer be a signatory to the General Agreement between the Government and national associations of employers and workers, sectoral agreements and regional agreements. The Committee notes this proposed amendment with interest. The Committee further notes with interest the proposed amendment to section 9 of the Law on the NCE, which would exclude explicitly from the definition of the representative functions of the NCE the right to represent entrepreneurs in the system of social partnership as set out in the Labour Code. The Committee expects that section 148(5) of the Labour Code as well as section 9 of the Law on the NCE will be amended as indicated without further delay thereby ensuring that the NCE and its structures at the national, sectoral and regional levels are no longer employers’ representatives in social dialogue. The Committee requests the Government to provide information on all developments in this regard.

The Committee recalls that it had also requested the Government to provide its comments on the 2018 observations of the KRRK which alleged that there was no real national dialogue regarding the implementation of the road map and that the implementation of the road map required a comprehensive approach, including modifications to the Entrepreneurship Code and beyond the proposed amendment to the Labour Code, which did not address the issue of financial and institutional dependency of employers’ organizations from the NCE. The Committee once again requests the Government to provide its comments thereon.

Article 3. Right of organizations to organize their activities and to formulate their programmes. The Committee had previously requested the Government to provide information on the status of its proposal to amend the Labour Code regarding the right to strike by making section 176(1)(1) (pursuant to which strikes shall be deemed illegal when they take place at entities operating hazardous production facilities), more explicit as to which facilities were considered to be hazardous. The Committee had noted that currently, “hazardous production facilities” are listed in sections 70 and 71 of the Law on Civil Protection, and can be further determined pursuant to Order No. 353 of the Minister of Investment and Development (2014).

The Committee notes the Government’s indication that in July and August 2019, the Ministry carried out consultations with the relevant state bodies and national associations of workers and employers regarding additional measures that could be developed to ensure respect for freedom of association. The Committee notes that the proposed amendments transmitted by the Government aim at modifying section 176 of the Labour Code so as to explicitly refer to certain services (aviation, railway, automobile and public transport, and communication) as vital and where a strike is deemed illegal, unless the necessary minimum level of services, previously agreed upon by the workers’ representatives and the local executive authorities, is maintained during a strike. The Committee expects that the legislative process will be concluded without further delay and requests the Government to provide information on all developments in this regard.

The Committee recalls that it had previously noted with concern that trade union leaders have been convicted and sentenced in application of section 402 of the Criminal Code (2016), according to which an incitement to continue a strike declared illegal by the court was punishable by up to one year of imprisonment and in certain cases (substantial damage to rights and interest of citizens, mass riots, etc.), up to three years of imprisonment. It recalled that no penal sanctions should be imposed against a worker for having carried out a peaceful strike and thus for merely exercising an essential right, and therefore that measures of imprisonment or fines should not be imposed on any account. Such sanctions could be envisaged only where, during a strike, violence against persons or property, or other serious infringements of penal law have been committed, and can be imposed exclusively pursuant to legislation punishing such acts (see the 2012 General Survey on the fundamental Conventions, paragraph 158). The Committee requested the Government to take the necessary measures to amend section 402 of the Criminal Code to bring it into line with this principle.

The Committee notes the Government’s indication that the Ministry undertook a series of consultations with the law enforcement authorities, as well as national associations of workers and employers regarding section 402 of the Criminal Code. Proposals to amend the penalties set out in section 402 of the Criminal Code were supported by the state bodies. The Committee notes that the proposed amendments intend to amend section 402 of the Criminal Code and the relevant provisions of the Code of Criminal Procedure so as to categorize the deeds described in section 402 as delinquent acts (and no longer as criminal acts), and to lower the penalties (both fines and imprisonments) accordingly. The Committee notes, in particular, that the imprisonment for up to one year, and three years in specific cases described above, is to be replaced by an arrest for the duration of up to 50 days and two years of imprisonment, respectively. While welcoming the proposed amendments aimed at reducing the penalties, the Committee is nevertheless of the opinion that simply calling for a strike action, even one declared illegal by the courts, should not result in arrest for up to 50 days and that in general, sanctions should be envisaged only where, during a strike, violence against persons or property, or other serious infringements of penal law have been committed. The Committee expects that the additional amendments will be further reviewed taking into account the above and will be submitted to Parliament in the near future. The Committee requests the Government to provide information on all developments in this regard.

Article 5. Right of organizations to receive financial assistance from international organizations of workers and employers. The Committee had previously requested the Government to adopt, in consultation with the social partners, specific legislative provisions which clearly authorize workers’ and employers’ organizations to benefit, for normal and lawful purposes, from the financial or other assistance of international workers’ and employers’ organizations. The Committee recalls that the road map provides for the drafting of an explanatory note on this issue and on the procedure to follow for public distribution. Noting the Government’s indication that a Recommendation on receiving financial assistance from international organizations had been drafted, the Committee requested the Government to provide a copy thereof, and to provide information on steps taken to adopt this Recommendation as a matter of law.

The Committee notes the Government’s indication that the legislation in force does not impede the conduct by trade unions of activities (such as seminars on gender and youth policy, freedom of association, collective bargaining and resolution of industrial disputes) financed by international organizations. Financial assistance aimed at undermining the constitutional order, sovereignty and independence of the country is, however, forbidden. The Government indicates that between 2013 and 2017 the Federation of Trade Unions of the Republic of Kazakhstan held 101 international events (such as seminars, meetings, conferences and summer schools) jointly with the ILO and the ITUC. The Government further indicates that the legislation has been explained to all national associations of trade unions, which have also received a copy of the above-mentioned Recommendation. The Committee notes that the Recommendation outlines the Government’s explanation above. The Committee welcomes that the draft law intends to amend the Law on Trade Unions by adding provisions on the right of trade unions to cooperate with international trade union organizations and, jointly with international organizations, to organize and conduct activities, as well as to carry out projects aimed at defending the rights and interests of workers in accordance with the legislation of Kazakhstan. The Committee expects that the Law on Trade Unions will be amended without delay and requests the Government to provide information on the developments in this regard.

CMNT_TITLE

The Committee notes the observations of the International Trade Union Confederation (ITUC), received on 1 September, 12 October and 15 November 2018, referring to the issues raised by the Committee below, as well as allegations of violations of fundamental human rights, including the physical assault on the chairperson of a trade union of workers of the fuel and energy complex in the Karaganda region. The Committee notes with deep concern the alleged beating and injuries suffered by the trade union leader and urges the Government to investigate the matter without delay and to bring the perpetrators to justice. It requests the Government to inform of any developments in this regard.

The Committee notes the observations of the Confederation of Employers of Republic of Kazakhstan (KRRK) to which it refers below. The Committee recalls that in June 2017, the Conference Committee on the Application of Standards considered that the Government should accept a high level tripartite mission (HLTM) before the 2018 International Labour Conference in order to assess progress towards compliance with its conclusions. The Committee notes the mission report of the HLTM, which took place in May 2018. The Committee notes, in particular, the road map to implement the recommendations of the Committee of Experts in relation to the application of the Convention, prepared by the Government and presented at the tripartite meeting with the HLTM.

The Committee had previously noted cases of Ms Larisa Kharkova, the Chairperson of the now liquidated Confederation of Independent Trade Unions of Kazakhstan (KNPRK), who was sentenced to four years of restriction on her freedom of movement, 100 days of compulsory labour and a five-year ban on holding any position in a public or non-governmental organization and of Mr Amin Eleusinov, the Chairperson of a union affiliated to the KNPRK, and Mr Nurbek Kushakbaev, the Vice-President of the KNPRK, who were sentenced to two and two-and-a-half years in prison, respectively and prohibited from engaging in trade union activities after their release. The Committee notes that the three cases have been examined in detail by the Committee on Freedom of Association (CFA) in the framework of Case No. 3283 (see Report No. 386, June 2018, paragraphs 424–474). It further notes from the HLTM report and the Government’s indication that Mr Eleusinov and Mr Kushakbaev have been released.

Article 2 of the Convention. Right of workers, without distinction whatsoever, to establish and join organizations. Prison staff and firefighters. The Committee notes the information provided by the Government regarding the right to unionize of firefighters and prison staff as well as the information thereon contained in the HLTM report. It notes, in particular, that prison staff, as part of the law enforcement bodies, are placed under the responsibility of the Ministry of Interior and as such are prohibited from establishing and joining trade unions. However, among the employees of the law enforcement bodies (which include prison staff and firefighters), only employees who have a military or police rank are prohibited from establishing and joining trade unions; all civilian staff engaged in the law enforcement bodies can establish and join trade unions. The Committee notes that the HLTM met with the leadership of the Trade Union of Workers of Defence Forces as well as with the chairpersons of the primary trade union organizations of penitentiary systems for two regions. It further notes from the report that similarly, all civilians working in firefighting serves enjoyed the right to establish and join trade unions.

Right to establish organizations without previous authorization. The Committee recalls that following the entry into force of the Law on Trade Unions, all existent unions had to be re-registered. It further recalls that it had previously noted with concern that the KNPRK affiliates were denied registration/re registration, which ultimately led to its liquidation. The Committee recalls that this was despite the assurances given in 2016 to the ILO direct contacts mission by the Ministry of Justice and the Ministry of Labour and Social Development (MLSD) that they would look into this matter and assist the unions, as relevant. The Committee notes the Government’s indication that a helpline regarding the issues of trade union registration and activities had been established at the level of the MLSD on 29 June 2018 as per the road map. The Committee notes however the ITUC allegation that the helpline lacks the capacity and mandate to fulfil its role. The ITUC refers in this respect to the recent denials to register organizations on the basis of the previous KNPRK. The Committee requests the Government to provide its comments thereon. The Committee further notes the conclusions of the CFA, which drew the legislative aspects of Case No. 3283 to the attention of the Committee. It notes, in particular, that several pieces of legislation regulate registration and that some trade unions were denied re-registration because their by-laws were found not to be in conformity with either one or all of the applicable laws. The Committee therefore requests the Government to engage with the social partners to review the difficulties identified by trade unions seeking registration with a view to finding appropriate measures, including legislative, to fully give effect to the Article 2 of the Convention and to ensure the right of workers to establish organizations without previous authorization. It requests the Government to provide information on all developments in this regard.

Right to establish and join organizations of their own choosing. The Committee had previously requested the Government to amend the following sections of the Law on Trade Unions so as to ensure the right of workers to freely decide whether they wish to associate or become members of a higher-level trade union structure and to lower thresholds requirements to establish higher-level organizations:

• -sections 11(3), 12(3), 13(3) and 14(4), which require, under the threat of deregistration pursuant to section 10(3), the mandatory affiliation of sector-based, territorial and local trade unions to a national trade union association within six months following their registration, so as to ensure the right of workers to freely decide whether they wish to associate or become members of a higher level trade union structure; and
• -section 13(2), which requires a sector-based trade union to represent no less than half of the total workforce of the sector or related sectors, or organizations of the sector or related sectors, or to have structural subdivisions and member organizations on the territory of more than half of all regions, cities of national significance and the capital, with a view to lowering this threshold requirement.

The Committee notes that the road map provides for a number of steps to be taken in consultation with the interested trade unions to address this issue and ultimately to achieve a common proposal for the amendment of the Law for its submission to Parliament in November 2018. The Committee notes the Government’s indication that the MLSD was in the process of collecting proposals from the relevant state bodies and the social partners. While noting that two activities aimed at discussing possible amendments to the Law on Trade Unions with the trade unions were conducted with the support of the Office, the Committee notes with regret the lack of progress in discussing the unions’ proposals and coming to a common position. The Committee urges the Government to take the necessary measures in order to amend sections 11(3), 12(3), 13(2) and (3), and 14(4) of the Law on Trade Unions without further delay in consultations with the social partners so as to ensure the right of workers to freely decide whether they wish to associate with or become members of a higher-level trade union structure and to lower thresholds requirements to establish higher-level organizations. It requests the Government to provide information on all progress made in this respect.

Law on the National Chamber of Entrepreneurs (NCE). The Committee had previously urged the Government to amend the Law on the NCE, so as to eliminate all possible interference by the Government in the functioning of the Chamber and so as to ensure the full autonomy and independence of the free and independent employers’ organizations in Kazakhstan. The Committee recalls that the Law calls for the mandatory affiliation to the NCE (section 4(2)), and, during the transitional period to last until July 2018, for the Government’s participation therein and its right to veto the NCE’s decisions (sections 19(2) and 21(1)). The Committee had noted the difficulties encountered by the KRRK in practice, which stem from the mandatory membership and the NCE monopoly, and in particular, that the accreditation of employers’ organizations by the NCE and the obligation imposed in practice on employers’ organizations to conclude an annual agreement (a model contract) with the NCE, meant, for all intents and purposes, that the latter approved and formulated the programmes of employers’ organizations and thus intervened in their internal affairs. The Committee notes from the HLTM report and the Government’s information in its report that there is an agreement to amend section 148(5) of the Labour Code so as to delete reference to the NCE’s authority to represent employers at the national, sectoral and regional levels. The Committee further notes that the road map provides for the measures to be taken to address the above concerns culminating with the submission of the draft law to amend various pieces of legislation, including the Law on the NCE to Parliament in November 2018. The Committee notes with regret the lack of information on progress in amending the legislation. The Committee urges the Government to take the necessary measures without further delay to amend the Law on the National Chamber of Entrepreneurs and any other relevant legislation so as to ensure the full autonomy and independence of the free and independent employers’ organizations. It requests the Government to provide information on all developments in this regard.

The Committee further notes the observations of the KRRK received on 17 November 2018 regarding the road map. The Committee requests the Government to provide its comments thereon.

Article 3. Right of organizations to organize their activities and to formulate their programmes. The Committee had previously welcomed the Government’s intention to amend the Labour Code regarding the right to strike by making section 176(1)(1), pursuant to which strikes shall be deemed illegal when they take place at entities operating hazardous production facilities, more explicit as to which facilities were considered to be hazardous. Currently, “hazardous production facilities” are listed in sections 70 and 71 of the Law on Civil Protection, and can be further determined, pursuant to Order No. 353 of the Minister of Investment and Development (2014), by the enterprise in question. While noting the information provided by the Government regarding the procedure to follow to declare a strike, the Committee requests the Government to provide information on the status of the previously proposed Labour Code amendment.

The Committee had previously noted with concern that trade union leaders have been convicted and sentenced in application of section 402 of the Criminal Code (2016), according to which an incitement to continue a strike declared illegal by the court was punishable by up to one year of imprisonment and in certain cases (substantial damage to rights and interest of citizens, etc.), up to three years of imprisonment. It recalled that no penal sanctions should be imposed against a worker for having carried out a peaceful strike and thus for merely exercising an essential right, and therefore that measures of imprisonment or fines should not be imposed on any account. Such sanctions could be envisaged only where, during a strike, violence against persons or property, or other serious infringements of penal law have been committed, and can be imposed exclusively pursuant to legislation punishing such acts (see the 2012 General Survey on the fundamental Conventions, paragraph 158). The Committee requested the Government to take the necessary measures to amend section 402 of the Criminal Code so as to bring it into line with this principle. The Committee notes the Government’s indication that on 17 August 2018 it had conducted a meeting on the application of this provision with all relevant state bodies. It was decided that this issue should be examined by the inter-agency working group of the Prosecutor’s Office which is considering amending various pieces of legislation with a view to reforming criminal law and procedure. The Committee requests the Government to provide information on all developments in this regard.

Article 5. Right of organizations to receive financial assistance from international organizations of workers and employers. The Committee had previously requested the Government to adopt, in consultation with the social partners, specific legislative provisions which clearly authorize workers’ and employers’ organizations to benefit, for normal and lawful purposes, from the financial or other assistance of international workers’ and employers’ organizations. The Committee notes that the road map provides for the drafting of an explanatory note on this issue and on the procedure to follow for public distribution. The Committee notes the Government’s indication that a Recommendation on receiving financial assistance from international organizations has been drafted. The Committee requests the Government to provide a copy thereof, and to provide information on steps taken to adopt this Recommendation as a matter of law.

[The Government is asked to reply in full to the present comments in 2019.]

CMNT_TITLE

The Committee notes the observations of the International Organisation of Employers (IOE), received on 2 September 2017, containing the Employers’ statements made before the 2017 Conference Committee on the Application of Standards (hereinafter, the Conference Committee).

The Committee further notes the observations on the application of the Convention by the International Trade Union Confederation (ITUC), received on 1 September 2017, referring to issues raised by the Committee below, as well as informing that, on 25 July 2017, Ms Larisa Kharkova, the Chairperson of the now liquidated Confederation of Independent Trade Unions of Kazakhstan (KNPRK) was sentenced to four years of restriction on her freedom of movement, 100 days of compulsory labour and a five-year ban on holding any position in a public or non-governmental organization. The ITUC indicates that earlier in 2017, Mr Amin Eleusinov, the Chairperson of a union affiliated to the KNPRK, and Mr Nurbek Kushakbaev, the Vice-President of the KNPRK, were sentenced to two and two-and-a-half years in prison, respectively and prohibited from engaging in trade union activities after their release. Both were convicted for having called for a strike in response to a court decision to deregister the KNPRK due to its failure to re register provincial branches in at least nine of the country’s 16 regions. Noting that these cases have been discussed by the Conference Committee in June 2017, the Committee urges the Government to provide its comments thereon without delay.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 106th Session, June 2017)

The Committee notes the discussion that took place in the Conference Committee in June 2017 concerning the application of the Convention. The Committee observes that the Conference Committee noted the grave issues raised, which refer, in particular, to the revocation of the registration of the voluntarily unified KNPRK, as well as the infringement of the employers’ freedom of association by the Law on the National Chamber of Entrepreneurs (NCE). The Conference Committee also noted the serious obstacles to the establishment of trade unions without previous authorization in law and in practice. The Conference Committee was concerned over the persistent lack of progress since the discussion of the case in June 2016 despite an ILO direct contacts mission (DCM) visiting the country in September 2016. The Committee notes that the Conference Committee called upon the Government to: (i) amend the provisions of the Trade Union Law of 2014 consistent with the Convention, on issues concerning excessive limitations on the structure of trade unions which limit the right of workers to form and join trade unions of their own choosing; (ii) amend the provisions of the Law on the National Chamber of Entrepreneurs in a manner that would ensure the full autonomy and independence of free and independent employers’ organizations, without any further delay. In particular remove the provisions on the broad mandate of the NCE to represent employers and accredit employers’ organizations by the NCE; (iii) allow trade unions and employers’ organizations to benefit from and participate in joint cooperation projects and activities with international organizations; (iv) amend legislation to lift the ban on financial assistance to national trade unions and employers’ organizations by international organizations; (v) take all necessary measures to ensure that the KNPRK and its affiliates are able to fully exercise their trade union rights and are given the autonomy and independence needed to fulfil their mandate and to represent their constituents; (vi) amend legislation to permit judges, firefighters and prison staff to form and join a workers’ organization; and (vii) ensure that applications for union registration are acted upon expeditiously and are not denied unless they fail to meet clear and objective criteria set forth in the law. The Conference Committee considered that the Government should accept a high-level tripartite mission before the next International Labour Conference in order to assess progress towards compliance with these conclusions.

Article 2 of the Convention. Right of workers, without distinction whatsoever, to establish and join organizations. Judges, firefighters and prison staff. With reference to the conclusions of the Conference Committee, the Committee notes that the Government indicates in its report that the prohibition imposed on judges to become members of trade unions (article 23(2) of the Constitution) does not imply the restriction on their right to establish and join associations of judges. Pursuant to article 23(2) of the Constitution, judges, like all citizens of the State, have the right to freedom of association to further and defend their professional interests, as long as they do not use the associations to influence the administration of justice and to pursue political goals. The Government points out that the Union of Judges is an organization which represents the interests of judges. The Committee recalls that the DCM had noted that the Union can raise, and has raised in the past, issues relating to working conditions and pensions of judges.

Regarding prison staff and firefighters, the Committee notes the Government’s indication that prison staff, as part of the law enforcement bodies, are placed under the responsibility of the Ministry of Interior and as such are prohibited from establishing and joining trade unions. The Committee had previously noted from the DCM’s report that among the employees of the law enforcement bodies (which include prison staff and firefighters), only employees who have a military or police rank are prohibited from establishing and joining trade unions. The Committee notes that the Government reiterates that all civilian staff engaged in the law enforcement bodies can establish and join trade unions and recalls in this respect that it had previously noted that these workers were represented by two sectoral trade unions. According to the Government, the Trade Union of Workers of Defence Forces of Kazakhstan represents 11,610 members and a trade union active in the Ministry of Interior, represents 3,970 members. While taking due note of this information, the Committee requests the Government to provide further clarification on the trade union rights of prison staff and firefighters who have no military or police rank.

Right to establish organizations without previous authorization. The Committee recalls that following the entry into force of the Law on Trade Unions, all existent unions had to be re-registered. It further recalls that it had previously noted with concern that KNPRK affiliates were denied registration/re-registration. The Committee notes with deep concern, from the Conference Committee discussion and the ITUC’s 2017 observations, that the KNPRK registration has been revoked despite the assurances given to the DCM by the Ministry of Justice and the Ministry of Labour and Social Development that they would look into this matter and assist the unions, as relevant. The Committee urges the Government to take all necessary measures to ensure that the KNPRK and its affiliates are able to fully exercise their trade union rights and are given the autonomy and independence needed to fulfil their mandate and to represent their constituents. It requests the Government to provide information on all developments in this regard.

Right to establish and join organizations of their own choosing. The Committee had previously requested the Government to amend the following sections of the Law on Trade Unions so as to ensure the right of workers to freely decide whether they wish to associate or become members of a higher level trade union structure and to lower thresholds requirements to establish higher level organizations:

• -sections 11(3), 12(3), 13(3) and 14(4), which require, under the threat of deregistration pursuant to section 10(3), the mandatory affiliation of sector-based, territorial and local trade unions to a national trade union association within six months following their registration, so as to ensure the right of workers to freely decide whether they wish to associate or become members of a higher level trade union structure; and
• -section 13(2), which requires a sector-based trade union to represent no less than half of the total workforce of the sector or related sectors, or organizations of the sector or related sectors, or to have structural subdivisions and member organizations on the territory of more than half of all regions, cities of national significance and the capital, with a view to lowering this threshold requirement.

The Committee notes the Government’s indication that a working group to improve trade union legislation was established under the auspices of the Ministry of Labour and Social Development. It met in March and April 2017 to discuss the proposed amendments. In May 2017, an interagency commission approved a Concept Draft Law on the amendment of the legislation. In this regard, the Committee notes the intention to amend the Law on Trade Unions so as to: (i) lower the minimum membership requirement from ten to three people in order to establish a trade union; and (ii) simplify the registration procedure. While welcoming this information, the Committee notes that the proposed amendments do not address the Committee’s concerns described above. The Committee once again 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 and that the thresholds requirements to establish higher level organizations should not be excessively high. The Committee therefore requests the Government to engage with the social partners in order to review sections 11(3), 12(3), 13(2) and (3), and 14(4) of the Law on Trade Unions so as to bring it into full conformity with the Convention. It requests the Government to provide information on all measures taken or envisaged in this regard.

Law on the National Chamber of Entrepreneurs. The Committee had previously urged the Government to amend the Law on the National Chamber of Entrepreneurs, so as to eliminate all possible interference by the Government in the functioning of the Chamber and so as to ensure the full autonomy and independence of the free and independent employers’ organizations in Kazakhstan. The Committee recalls that the Law calls for the mandatory affiliation to the NCE (section 4(2)), and, during the transitional period to last until July 2018, for the Government’s participation therein and its right to veto the NCE’s decisions (sections 19(2) and 21(1)). The Committee further recalls from the DCM’s report the difficulties encountered by the Confederation of Employers of Kazakhstan (KRRK) in practice, which stem from the mandatory membership and the NCE monopoly. The DCM noted in particular that the KRRK considered that the accreditation of employers’ organizations by the NCE and the obligation imposed in practice on employers’ organizations to conclude an annual agreement (a model contract) with the NCE, meant, for all intents and purposes, that the latter approved and formulated the programmes of employers’ organizations and thus intervened in their internal affairs. While noting with regret that there are no immediate plans to amend the Law, the Committee welcomes the Government’s request for the technical assistance of the Office in this respect. In light of the above, and bearing in mind the serious concerns raised during the discussion of the application of this Convention in the Conference Committee, the Committee urges the Government to take measures without further delay to amend the Law on the National Chamber of Entrepreneurs with the technical assistance of the Office.

Article 3. Right of organizations to organize their activities and to formulate their programmes. Labour Code. The Committee had previously welcomed the intention of the Government to amend the Labour Code regarding the right to strike by making section 176(1)(1), pursuant to which, strikes shall be deemed illegal when they take place at entities operating hazardous production facilities, more explicit as to which facilities were considered to be hazardous. Currently, “hazardous production facilities” are listed in sections 70 and 71 of the Law on Civil Protection, and can be further determined, pursuant to Order No. 353 of the Minister of Investment and Development (2014), by the enterprise in question. The Committee had noted from the DCM’s report that the KNPRK had pointed out that legal strikes did not take place in Kazakhstan as: (i) almost any enterprise could be declared hazardous and the strike therein illegal; and (ii) requests to conduct a strike were submitted to the executive bodies and were denied in practice. The Committee notes that according to the Government, the abovementioned Concept Draft Legislation contains a provision aimed at making the Labour Code more explicit as to the situations where the strike is prohibited. The Committee expects that the necessary legislative amendments will be made in the near future, in consultation with the social partners and technical assistance of the Office, so as to address the outstanding concerns of the Committee regarding the right to strike. The Committee requests the Government to provide information on all measures taken or envisaged in this respect.

The Committee notes with concern from the Conference Committee discussions and the information provided by the ITUC that trade union leaders have been convicted and sentenced in application of section 402 of the Criminal Code (2016), according to which an incitement to continue a strike declared illegal by the court was punishable by up to one year of imprisonment and in certain cases (substantial damage to rights and interest of citizens, etc.), up to three years of imprisonment. The Committee requests the Government to provide its comments thereon. It recalls that no penal sanctions should be imposed against a worker for having carried out a peaceful strike and thus for merely exercising an essential right, and therefore that measures of imprisonment or fines should not be imposed on any account. Such sanctions could be envisaged only where, during a strike, violence against persons or property, or other serious infringements of penal law have been committed, and can be imposed exclusively pursuant to legislation punishing such acts (see the 2012 General Survey on the fundamental Conventions, paragraph 158). The Committee requests the Government to take the necessary measures to amend section 402 of the Criminal Code so as to bring it into line with this principle. It requests the Government to indicate all measures taken or envisaged in this respect.

Article 5. Right of organizations to receive financial assistance from international organizations of workers and employers. The Committee had previously requested the Government 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 and employers’ organizations by an international organization. The Committee notes the Government’s indication that the ban encompasses all financial and material assistance (cars, furniture, etc.) and is needed to safeguard the constitutional order, independence and territorial integrity of the country. The Committee recalls that while the DCM had noted there was no prohibition imposed on trade unions to participate in and carry out international projects and activities (seminars, conferences, etc.) together or with the assistance of international workers’ organizations, it had considered that the legislation could be amended so as to make it clear that joint cooperation projects and activities could be freely carried out. The Committee therefore once again requests the Government to adopt, in consultation with the social partners, specific legislative provisions which clearly authorize workers’ and employers’ organizations to benefit, for normal and lawful purposes, from the financial or other assistance of international workers’ and employers’ organizations. It requests the Government to provide information on all measures taken or envisaged in this regard.

[The Government is asked to reply in full to the present comments in 2018.]

CMNT_TITLE

The Committee notes the observations on the application of the Convention by the International Trade Union Confederation (ITUC) received on 1 September 2016 and of the Confederation of Independent Trade Unions of Kazakhstan (KNPRK) received on 25 November and 5 December 2016. It further notes the observations of the International Organisation of Employers (IOE) received on 1 September 2015, which are of general nature. In its previous comments, the Committee had also noted the observations of the Confederation of Free Trade Unions of Kazakhstan (CFTUK) (now, the KNPRK), as well as the Government’s failure to reply. The Committee deeply regrets that the Government still has not provided its comments in reply to these longstanding observations and firmly trusts that it will provide complete comments thereon without delay. The Committee also requests the Government to respond to the more recent observations of the ITUC and the KNPRK referenced above.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 105th Session, May–June 2016)

The Committee notes the discussion that took place in the Conference Committee on the Application of Standards (hereinafter the Conference Committee), in June 2016 concerning the application of the Convention. The Committee notes the Conference Committee’s request to the Government to: (i) amend the provisions of the Law on the National Chamber of Entrepreneurs in a manner that would ensure the full autonomy and independence of the free and independent employers’ organizations in Kazakhstan, without any further delay; (ii) amend the provisions of the Law on Trade Unions, in particular sections 10–15, which limit the right of workers to form and join trade unions of their own choosing; (iii) amend section 303(2) of the Labour Code so as to ensure that any minimum service is a genuinely and exclusively minimum one; (iv) indicate which organizations fall into the category of organizations carrying out “dangerous industrial activities” and indicate all other categories of workers whose rights may be restricted, as stipulated in section 303(5) of the Labour Code; (v) amend the Constitution and appropriate legislation to permit judges, firefighters and prison staff to form and join a trade union; (vi) amend the Constitution and appropriate legislation to lift the ban on financial assistance to national trade unions by an international organization; and (vii) accept ILO technical assistance to implement the above noted conclusions. The Conference Committee considered that the Government should accept a direct contacts mission (DCM) this year in order to follow-up on these conclusions.

The Committee notes the report of the DCM, which visited the country between 19 and 22 September 2016. It further notes the entry into force on 1 January 2016 of the new Labour Code.

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish and join organizations. The Committee had previously urged the Government to take the necessary measures to amend its legislation so as to ensure that judges, firefighters and prison staff have the right to establish organizations for furthering and defending their interests in line with the Convention.

As regards the judiciary, the Committee notes the Constitutional Council Ruling No. 13/2 of 5 July 2000 providing for an official interpretation of paragraph 2 of Article 23 of the Constitution. According to the Council, in accordance with paragraph 1 of Article 23 of the Constitution, “judges, like all citizens of the State, have the right to freedom of association to further and defend their professional interests, as long as they do not use the associations to influence the administration of justice and to pursue political goals. … The prohibition imposed on judges to become members of trade unions provided for by … the Constitution does not imply the restriction on their right to establish other associations and membership in other voluntary associations”. The Committee notes from the report of the DCM, that the Union of Judges, while not a trade union registered pursuant to the Law on Trade Unions, it is an organization which represents the interests of judges and which can raise, and has raised in the past, issues relating to working conditions and pension.

Regarding prison staff and firefighters, the Committee notes from the DCM report that among the employees of the law enforcement bodies, only employees who have a (military or police) rank are prohibited from establishing and joining trade unions (sections 1(9) and 17(1)(1) of the Law on Law Enforcement Service (2011)), and that under the current system, prison staff and firefighters who have the status of officers are ranked. The Committee notes from the DCM and the Government’s reports that all civilian staff engaged in the law enforcement bodies can establish and join trade unions and that there were currently two sectoral trade unions representing their interests.

Right to establish organizations without previous authorization. In its previous comments, the Committee had noted that pursuant to section 10(1) of the Law on Public Associations, which the Government had previously indicated was also applicable to employers’ organizations, a minimum of ten persons was required to establish an employers’ organization, and urged the Government to amend it so as to lower the minimum membership requirement for establishing an employers’ organization. The Committee notes from the DCM report that employers’ organizations are established as non-commercial entities pursuant to the Law on Non-Commercial Organizations, which allow, under section 20, for an organization to be created by one person, natural or juridical.

The Committee recalls that following the entry into force of the Law on Trade Unions, all existent unions had to be reregistered. The Committee notes from the DCM report that some of the KNPRK affiliates have encountered difficulties with the (re)registration. It further notes with concern the most recent ITUC and KNPRK communications, referring to cases of denial of registration. The Committee understands that unregistered or not reregistered trade unions are currently under the threat of being liquidated. Noting that the DCM was assured that the Ministry of Justice together with the Ministry of Labour and Social Development would look into this matter and assist the unions, as relevant, the Committee trusts that all the authorities will provide the necessary assistance to the organizations concerned. The Committee requests the Government to provide information on all measures taken in this respect and to reply to the ITUC and KNPRK allegations.

Right to establish and join organizations of their own choosing. The Committee had previously requested the Government to amend the following sections of the Law on Trade Unions:

• -sections 11(3), 12(3), 13(3) and 14(4), which require, under the threat of deregistration pursuant to section 10(3), the mandatory affiliation of sector based, territorial and local trade unions to a national trade union association within six months following their registration, so as to ensure the right of workers to freely decide whether they wish to associate or become members of a higher-level trade union structure; and
• -section 13(2), which requires a sector-based trade union to represent no less than half of the total workforce of the sector or related sectors, or organizations of the sector or related sectors, or to have structural subdivisions and member organizations on the territory of more than half of all regions, cities of national significance and the capital, with a view to lowering this threshold requirement.

The Committee notes from the DCM and the Government’s reports that following the 2016 Conference discussion, the Ministry of Labour and Social Development established a roadmap and held a tripartite meeting to discuss outstanding comments of the Committee of Experts. On the basis of the discussions, a Concept Note on the amendment of the legislation has been prepared and submitted to the Ministry of Justice. The Committee welcomes that pursuant to point 2 of the Concept Note, the adoption of a draft law “stems from the need to improve the legislation in force with the purpose of better regulating social relationships related to trade union activities and complying with international labour standards enshrined in Convention No. 87”. The Committee notes that in agreement with all three trade union centres, the Government intends to amend the Law on Trade Unions so as to: (i) lower the minimum membership requirement from ten to three people in order to establish a trade union; and (ii) simplify the registration procedure. Regarding the obligation imposed on a trade union to be affiliated to a higher level structure and the thresholds (sections 11(3), 12(3), 13(2) and (3), and 14(4) of the Law on Trade Unions), the Committee notes from the DCM report that while several actors agreed that this constituted a restriction on trade union rights, it was explained that the current circumstances in the country justified it. The Government considers that by obliging trade unions at the lower level to affiliate to trade unions of a higher level, the system allowed all trade unions to access political and economic decision-making processes and at the same time, engaged responsibility of the higher-level trade union structures towards their member organizations. The Government further considers that the trade union movement should be a system where all parts were linked, especially during the transitional stage, so as to ensure that trade unions become social partners capable of protecting ordinary workers. The Committee notes that the DCM observed that pluralism existed in the country and that there were currently three trade unions at the level of the Republic, 32 sectoral trade unions, 23 territorial trade unions and 339 local trade unions. While taking due note of this information, the Committee once again 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 and that the thresholds requirements to establish higher-level organizations should not be excessively high. The Committee, therefore, encourages the Government to engage with the social partners in order to review sections 11(3), 12(3), 13(2) and (3), and 14(4) of the Law on Trade Unions so as to bring it into full conformity with the Convention. It requests the Government to provide information on all measures taken or envisaged in this regard.

Law on the National Chamber of Entrepreneurs. The Committee had previously urged the Government to take measures to amend the Law on the National Chamber of Entrepreneurs, so as to eliminate all possible interference by the Government in the functioning of the Chamber and so as to ensure the full autonomy and independence of the free and independent employers’ organizations in Kazakhstan. The Committee recalls that the Law calls for the mandatory affiliation to the National Chamber of Entrepreneurs (NCE) (section 4(2)), and, during the transitional period to last until July 2018, for the Government’s participation therein and its right to veto the NCE’s decisions (sections 19(2) and 21(1)). The Committee further notes from the DCM report the difficulties encountered by the Confederation of Employers of Kazakhstan (KRRK) in practice, which stem from the mandatory membership and the NCE monopoly. The DCM noted, in particular, that the KRRK considered that the accreditation of employers’ organizations by the NCE and the obligation imposed in practice on employers’ organizations to conclude an annual agreement (a model contract) with the NCE, meant, for all intents and purposes, that the latter approved and formulated the programmes of employers’ organizations and thus intervened in their internal affairs. While noting with regret that, according to the information received by the DCM, there are no immediate plans to amend the Law, the Committee welcomes the Government’s request for the technical assistance of the Office in this respect. In light of the above, and bearing in mind the serious concerns raised during the discussion of the application of this Convention in the Conference Committee, the Committee urges the Government to take measures without delay to amend the Law on the National Chamber of Entrepreneurs with the technical assistance of the Office.

Article 3. Right of organizations to organize their activities and to formulate their programmes. Labour Code. The Committee had previously requested the Government to indicate which organizations fall into the category of organizations carrying out “dangerous industrial activities” for which strikes were illegal under section 303(1) of the Labour Code by providing concrete examples. It further requested the Government to indicate all other categories of workers whose rights may be restricted, as stipulated in section 303(5) of the Code and to amend section 303(2) 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 that section 176(1)(1) of the new Labour Code (previously 303(1)(1)) describes cases where a strike shall be deemed illegal. Under paragraph 1 of this section, strikes shall be deemed illegal when they take place at entities operating hazardous production facilities. The Committee notes sections 70 and 71 of the Law on Civil Protection listing hazardous production facilities, as well as Order No. 353 of the Minister of Investment and Development Order (2014), pursuant to which, determination of whether certain production facilities are hazardous is carried out by the enterprise in question. The Committee notes from the DCM report that the KNPRK pointed out that legal strikes did not take place in Kazakhstan as almost any enterprise could be declared hazardous and the strike therein illegal. Moreover, requests to conduct a strike were submitted to the executive bodies and were denied in practice. In these circumstances, section 176(2) of the Labour Code, according to which, “at railways, civil aviation … public transport … and entities providing communication services, strikes should be allowed to the extent that the required services were provided on the basis of prior agreement with a local executive body”, did not allow for strikes in practice. The KNPRK further pointed out that according to section 402 of the Criminal Code, which entered into force on 1 January 2016, an incitement to continue a strike declared illegal by the court was punishable by up to one year of imprisonment and in certain cases (substantial damage to rights and interest of citizens, etc.), up to three years of imprisonment. The Committee notes that the Government considers that the above provisions of the Labour Code could be made more explicit as to which facilities were considered to be hazardous instead of referring to another piece of legislation. The Committee notes, in particular, that according to the abovementioned Concept Note, “the Labour Code does not specify the conditions under which a strike action at entities operating hazardous production facilities shall be deemed illegal, which restricts the right of workers to freedom of action. Taking into account the implications of a strike action at entities operating hazardous production facilities and possible production process failures and accidents as a result, it is proposed to make the provision more concrete by introducing a prohibition to strike in such facilities in cases where industrial safety is not fully guaranteed.” The Committee welcomes the intention of the Government to amend the Labour Code regarding the right to strike and recalls that, rather than imposing an outright ban on strikes in certain sectors, negotiated minimum services may be imposed to guarantee the safety of persons and equipment. The Committee expects that the necessary legislative amendments will be made in the near future in consultation with the social partners and technical assistance of the Office so as to address the outstanding concerns of the Committee regarding the right to strike. The Committee requests the Government to provide information on all measures taken or envisaged in this respect.

Article 5. Right of organizations to receive financial assistance from international organizations of workers and employers. 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 from the DCM and the Government’s reports that only “direct” financing (for example, payment of salaries of trade union leaders by international organizations, purchase of cars and offices) was prohibited in order to safeguard the constitutional order, independence and territorial integrity of the country. However, there was no prohibition imposed on trade unions to participate in and carry out international projects and activities (seminars, conferences, etc.) together or with the assistance of international workers’ organizations. Thus, as noted by the DCM, currently, there was no intention to amend article 5(4) of the Constitution. While noting that all three trade union centres confirmed that in practice, they could benefit from international assistance as long as it was not through a “direct” financing and that there was a general agreement that banning the “direct” financing was necessary, the DCM noted that the legislation could be amended so as to make it clear that joint cooperation projects and activities could be freely carried out. The Committee, therefore, requests the Government to adopt, in consultation with the social partners, specific legislative provisions which clearly authorize workers’ and employers’ organizations to benefit, for normal and lawful purposes, from the financial or other assistance of international workers’ and employers’ organizations. It requests the Government to provide information on all measures taken or envisaged in this regard.

CMNT_TITLE

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 104th Session, June 2015)

The Committee notes the discussion that took place in the Conference Committee on the Application of Standards in June 2015 concerning the application of the Convention. The Committee further notes with regret that the Government did not appear before the Conference Committee during the examination of this case, despite its accreditation to the Conference. As a result, the Conference Committee decided to place its conclusions in a special paragraph. The Committee notes the Conference Committee’s request to the Government to: amend the provisions of the Act on the National Chamber of Entrepreneurs in a manner that would ensure the full autonomy and independence of the free and independent employers’ organizations in Kazakhstan; amend the provisions of the Trade Union Act of 2014; and amend the Constitution and appropriate legislation to: (i) permit judges, firefighters and prison staff to form and join a trade union; and (ii) lift the ban on financial assistance to national trade unions by an international organization.

The Committee notes with regret that the Government’s report has not been received despite the specific request from the Conference Committee when it examined the application of the Convention in June 2015 in the absence of a Government delegate.

The Committee notes the observations on the application of the Convention by the International Organisation of Employers (IOE) received on 4 September 2015. In its previous comments, it had also noted observations of the Confederation of Free Trade Unions of Kazakhstan (KSPK) and the International Trade Union Confederation (ITUC) to which the Government is yet to reply. The Committee deeply regrets that the Government has not provided its comments in reply to these observations and firmly trusts that it will provide complete comments thereon without delay.

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish and join organizations. In its previous comments, the Committee had requested the Government to take the necessary measures to amend its legislation so as to ensure the right to organize of judges, firefighters and prison staff, which is currently restricted by article 23 of the Constitution, section 11(4) of the Act on Public Associations and Act No. 380 IV on Law Enforcement Bodies. The Committee once again urges the Government to take the necessary measures to amend its legislation so as to ensure that judges, firefighters and prison staff have the right to establish organizations for the furtherance and defence of their interests in line with the Convention, and to indicate the progress made in this regard.

Right to establish organizations without previous authorization. The Committee recalls that pursuant to section 10(1) of the Act on Public Associations, applicable to employers’ organizations, a minimum of ten persons is required to establish an employers’ organization, and once again urges the Government to indicate the measures taken or envisaged to amend its legislation so as to lower the minimum membership requirement for establishing an employers’ organization.

Right to establish and join organizations of their own choosing. The Committee recalls that sections 11(3), 12(3), 13(3) and 14(4) of the Act on Trade Unions require, under the threat of de-registration pursuant to section 10(3) of that Act, 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 once again 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. The Committee once again urges the Government to take the necessary measures in order to amend the abovementioned legislative provisions accordingly, and to provide information on the progress made in this regard.

Act on the National Chamber of Entrepreneurs. In its previous comments, the Committee had analysed the Act on the National Chamber of Entrepreneurs and observed that a number of its provisions interfered with the right of employers to form and join the organization of their own choosing and the right of such organizations to elect their officers, carry out their activities and formulate their programmes without Government interference. The Committee had requested the Government to take measures to amend the Act so as to bring it into conformity with the Convention.

The Committee notes the information provided by the IOE that, with the adoption of the Act on the National Chamber of Entrepreneurs, its affiliate organization, the Confederation of Employers of the Republic of Kazakhstan (KRRK) is facing declining membership, relevance, income and staff due to the pressure and competition by government-controlled enterprise association entities. The National Union of Employers and Entrepreneurs (Atameken), which was established in 2005 on the initiative and with the support of the presidential administration, has transformed into the National Chamber of Entrepreneurs of Kazakhstan with the adoption of the Act in 2013. According to the IOE, the Act gives the National Chamber of Entrepreneurs an all-encompassing competence to represent Kazakh employers in all areas related to business operations with mandatory membership throughout the country.

The Committee recalls in this regard the concerns it had raised in relation to section 3(2) of the Act, under which 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 Act, the Chamber represents the interests and rights of entrepreneurs in the various state bodies and international organizations.

Moreover, the Committee recalls that, according to section 5(1) and (2) of the Act, the Government approves the maximum membership fees to be paid by the members of the Chamber, and establishes the procedure therefore. Pursuant to section 19(2) of the Act, 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 Act, the presidium (governing body) of the Chamber is composed, among others, of the government representatives and 16 parliamentarians. The Committee recalls that these provisions restrict the Chamber’s freedom, as well as the freedom of its member organizations, to administer the funds and establish overall control over internal acts and decisions, in a manner so as to jeopardize the Chamber’s independence from the Government and its capacity to effectively represent the interests of its members free from Government interference. In the opinion of the IOE, these restrictions and the powers enabling the Government to interfere, clearly show that the National Chamber of Entrepreneurs cannot be considered to be an independent employers’ organization but rather a quasi-ministry specialized in a business agenda.

In light of the above, and bearing in mind the serious concerns raised during the discussion of the application of this Convention in the Conference Committee, the Committee urges the Government to take measures without delay to amend the Act on the National Chamber of Entrepreneurs, so as to eliminate all possible interference by the Government in the functioning of the Chamber and so as to ensure the full autonomy and independence of the free and independent employers’ organizations in Kazakhstan, so that they may effectively represent their members’ interests without discrimination or Government interference. The Committee reminds the Government that the technical assistance of the Office is available in this respect.

Article 3. Right of organizations to organize their activities and to formulate their programmes. Labour Code. The Committee once again requests the Government to indicate which organizations fall into the category of organizations carrying out “dangerous industrial activities” for which strikes are illegal (section 303(1) of the Labour Code) by providing concrete examples. It further requests the Government to indicate all other categories of workers whose rights may be restricted, as stipulated in section 303(5) of the Labour Code.

The Committee reiterates its previous request 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, and requests the Government to indicate all measures taken or envisaged to that end.

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 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 recalls that section 13(2) of the Act on Trade Unions, requires a sector-based trade union to represent no less than half of the total workforce of the sector or related sectors, or organizations of the sector or related sectors, or to 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 recalls 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. The Committee notes the statement made by the Government representative after the case was examined by the Conference Committee, indicating that: a new law specifically provided that it was essential that trade unions were represented at the regional, local and enterprise levels; while a great number of trade unions existed in the country, there was no trade union unity, with trade unions being rather dispersed; only branch and sectorial trade unions were able to conclude collective agreements, and over 600 trade unions at the local and regional level were not associated to them. Recalling the KSPK and ITUC observations in this respect, the Committee requests the Government to engage with the relevant trade union organizations, including the KSPK, with a view to lowering the thresholds set by section 13(2) of the Act on Trade Unions. It requests the Government to provide information on the progress made in this regard.

The Committee notes the general statement by a Government representative at the Conference Committee that Kazakhstan was a young country and needed more time to implement the internationally recognized principles, and that new laws could be adopted where necessary, in accordance with international standards and international best practice. He stated that the Government was committed to improving the situation and would take into account the discussions in, and the conclusions of, the Conference Committee. The Committee trusts that the Government will rapidly undertake a review of the Constitution and the abovementioned legislative texts to bring them fully into conformity with the provisions of the Convention, and requests the Government to provide full details in this regard.

[The Government is asked to reply in detail to the present comments in 2016.]

CMNT_TITLE

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.

CMNT_TITLE

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 indicates 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 notes from the information available to it that this organization pursues such objectives as: strengthening of the judicial independence; provision of social security system and development of judicial self-administration; participation in discussions on court practice and improvement of legislation, etc. 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 Convention No. 87. 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. It 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 or envisaged in this respect.

The Committee had previously requested the Government to specify the categories of workers covered by the term “law enforcement bodies” whose right to organize is restricted under article 23(2) of the Constitution. The Committee had also requested the Government to ensure that fire service personnel and prison staff enjoy the right to organize. The Committee notes the Government’s indication that the term “law enforcement bodies” includes employees of home affairs bodies, the criminal justice system, financial police, the state fire service, customs and the Public Prosecution’s Office. The Government clarifies, however, that civilians working in the law enforcement bodies enjoy all the rights guaranteed by the Convention. While noting this information, the Committee once again recalls that firefighters and prison staff should enjoy the right to organize. It 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 or envisaged in this respect.

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 that the Government reiterates that a public association may be established at the initiative of no less than ten citizens. It therefore once again requests the Government to indicate measures taken or envisaged to amend its legislation so as to lower this minimum membership requirement in as far as it applies to employers’ organizations.

With regard to the Committee’s previous request to provide observations on comments of the International Trade Union Confederation referring to the allegedly high trade union registration cost, the Committee notes the Government’s indication that the cost of registration of a trade union in 2010 was 9,184 tenge (KZT) (US$62).

Article 3. Right of organizations to organize their activities and to formulate their programmes. The Committee had previously requested the Government to take the necessary measures in order to amend section 289 of the Labour Code so as to ensure the right of trade unions to submit claims to employers without their prior approval by a general meeting of workers. It further requested the Government to amend section 298(2) of the Code (according to which, a decision to call a strike was 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 regret that the Government’s report provides no information in this respect. It therefore reiterates its previous requests and expresses the hope that the Government will provide in its next report information on all measures taken or envisaged to amend the above sections of the Labour Code. The Committee also once again requests the Government to indicate whether under section 299(2)(2) of the Code, workers or their organizations can declare a strike for an indefinite period of time.

The Committee had previously requested the Government to take the necessary measures, including through amendment of the relevant legislative provisions, in order to ensure that the prohibition of the right to strike is limited only to civil servants exercising authority in the name of the State. The Committee notes that, in its report, the Government provides clarification on the distinction between “civil service” (“civil servant”) and “public service” (“public employee”). Pursuant to the Law on Civil Service, civil servants are employees of state bodies who exercise their official powers for the purpose of implementing the tasks and functions of the State. The Government adds that under section 10(6) of the Law on Civil Service, civil servants may not take part in activities that would hinder the normal functioning of the State, including strike action. Public service, on the other hand, in accordance with section 1 of the Labour Code, is the professional activity of public employees in the exercise of their official powers for the purpose of implementing the tasks and functions of state enterprises and establishments, and providing technical services. The Government adds that while under section 23 of the Labour Code, public employees do not have the right to participate in activities which impede the normal functioning of the public service, this provision does not impose a prohibition of strikes on public servants. The Government emphasizes that the prohibition of strikes applies only to civil servants and not to public servants. The Committee notes that the Law on Civil Service makes a distinction between “political” civil servants and “administrative” civil servants. 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 requests the Government to indicate whether “administrative” civil servants can exercise the right to strike.

The Committee notes with regret that the Government’s report contains no information on organizations carrying out “dangerous industrial activities” pursuant to 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 as 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 could participate in its definition. The Committee regrets that the Government’s report contains no information in this respect. It therefore once again requests the Government to take the necessary measures in order to amend section 303(2) of the Labour Code so as to ensure the application of this principle and to indicate in its next report all measures taken or envisaged in this respect.

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 of the public and state policy in various areas of public life. The Government argues 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.

CMNT_TITLE

The Committee notes that the Government’s report has not been received. It must therefore repeat its previous observation which read as follows:

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 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 Social Associations). The Committee had noted the Government’s explanation that judges have a special legal status within the State system and the particular nature of their function justifies the constitutional limitation of their rights. The Committee recalls that the only exceptions authorized by Convention No. 87 are members of the police and the armed forces and therefore once again requests the Government to take the necessary measures to ensure that judges can establish organization for defence and furtherance of their interests. It requests the Government to indicate the measures taken or envisaged in this respect.

The Committee recalls that it had previously requested the Government to specify the categories of workers covered by the term “law enforcement bodies” whose right to organize is restricted under the same provisions. The Committee had noted from the Government’s report, as well as from the definition provided for in section 256(2) of the Labour Code (2007), that firefighting and prison services are included in the definition of the “law enforcement bodies” and therefore, its personnel is excluded from the right to organize. The Committee considers that while exclusion from the right to organize of the armed forces and the police, as stated above, is not contrary to the provisions of Convention No. 87, the same cannot be said for fire service personnel and prison staff. The Committee is of the opinion that the functions exercised by these two categories of public servants should not justify their exclusion from the right to organize on the basis of Article 9 of the Convention (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 56). The Committee therefore requests the Government to ensure that fire service personnel and prison staff enjoy the right to organize. It requests the Government to indicate the measures taken or envisaged in this respect.

Right to establish organizations without previous authorization. The Committee had noted that in its report, the Government makes reference to section 10(1) of the Law on Social Associations, applicable to employers’ organizations and providing for a minimum requirement of ten people to form an association. The Committee recalls that a requirement of a membership of at least ten employers to create an employers’ organization is too high and likely to be an obstacle to the free creation of employers’ organizations. It therefore requests the Government to take the necessary measures in order to amend its legislation so as to lower this requirement. It requests the Government to indicate the measures taken or envisaged in this respect.

The Committee recalls that it had previously requested the Government to provide its observations on the comments of the International Trade Union Confederation (ITUC), referring to violations of Article 2 of the Convention in practice, in particular high registration cost, which makes registration of trade unions almost impossible. In view of the fact that no information has been provided by the Government in this respect, the Committee once again requests the Government to provide its observations on the comments of the ITUC.

Article 3. Right of organizations to organize their activities and to formulate their programmes. The Committee had noted Chapter 32 of the Labour Code (2007) regulating collective labour disputes. The Committee understands that the process of settlement of collective labour disputes begins with the procedure provided for by section 289, which requires that claims of workers should be formulated at the meeting (conference) of employees gathering not less than half of the total workforce and adopted by the majority of those present. The Committee considers that trade unions should be free to regulate the procedure of submitting claims to the employer and that the legislation should not impede the functioning of a trade union by obliging a trade union to call a general meeting every time there is a claim to be made to an employer. The Committee therefore requests the Government to take the necessary measures in order to amend section 289 of the Labour Code so as to ensure the right of trade unions to submit claims to the employers without their prior approval by a general meeting of workers. It requests the Government to indicate the measures taken or envisaged in this respect.

The Committee had noted that the right to strike is prohibited in the civil service (section 10(6) of the Law on Civil Service). Furthermore, according to section 231(2) of the Labour Code, public service employees cannot participate in any action impeding normal functioning of the service and their official duties. The Committee therefore understands that the right to strike of public servants is restricted or even prohibited. The Committee considers that the prohibition of the right to strike should be limited to public (or civil, as the case may be) servants exercising authority in the name of the State. The Committee notes that pursuant to section 230 of the Code, the list of services considered public was adopted by the Government on 27 September 2007 and concerns categories of workers who cannot be considered as exercising authority in the name of the State. With regard to the “civil service”, while noting from the Government’s report that teachers, doctors and bank employees are not civil servants, the Committee requests the Government to provide a full list of the services falling into this category. Therefore, the Committee requests the Government to take the necessary measures, including through amendment of the relevant legislative provisions, in order to ensure that the prohibition of the right to strike is limited only to public (or civil, as the case may be) servants exercising authority in the name of the State. It requests the Government to indicate the measures taken or envisaged in this respect.

The Committee had noted that pursuant to section 303(1) of the Labour Code, strikes are illegal in organizations carrying out dangerous industrial activities (subsection (1)) and in other cases provided for by the national legislation (subsection (5)). The Committee requests the Government to clarify which organizations fall into the category of organizations carrying out dangerous industrial activities and the categories of workers whose right to strike is so restricted. The Committee further requests the Government to indicate all other categories of workers whose right to strike is restricted by other legislative texts and to provide copies thereof.

The Committee further noted that according to section 303(2), in the rail and public transports, civil aviation and communications, 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. The Committee recalls that in situations in which a total prohibition of strikes would not appear to be justified (as in services mentioned above) and where, without calling into question the right to strike of the large majority of workers, one might consider ensuring that users’ basic needs are met or that facilities operate safely or without interruption, the minimum service as a possible alternative to a total prohibition would be appropriate. However, in the view of the Committee, such a service should meet at least two requirements. Firstly, and this aspect is paramount, it must genuinely and exclusively be a minimum service, that is one which is limited to the operations which are strictly necessary to meet the basic needs of the population or the minimum requirements of the service, while maintaining the effectiveness of the pressure brought to bear. Secondly, since this system restricts one of the essential means of pressure available to workers to defend their economic and social interests, their organizations should be able, if they so wish, to participate in defining such a service, along with employers and the public authorities. It would be highly desirable for negotiations on the definition and organization of the minimum service not to be held during a labour dispute, so that all parties can examine the matter with the necessary objectivity and detachment. The parties might also envisage the establishment of a joint or independent body responsible for examining rapidly and without formalities the difficulties raised by the definition and application of such a minimum service and empowered to issue enforceable decisions (see General Survey, op. cit., paragraphs 161 and 162). The Committee therefore requests the Government to amend section 303(2) of the Labour Code so as to ensure the application of these principles. It requests the Government to indicate the measures taken or envisaged in this respect.

The Committee had noted that according to section 298(2) of the Labour Code, the decision to call a strike is taken by a meeting (conference) of workers (their representatives) gathering not less than half the total workforce and the decision is adopted if not less than two-thirds of those present at the meeting (conference) have voted for it. The Committee considers that while a requirement of a strike ballot does not, in principle, raise problems of compatibility with the Convention, the ballot method, the quorum and the majority required should not be such that the exercise of the right to strike becomes very difficult, or even impossible in practice; if a member State deems it appropriate to establish in its legislation provisions which require a vote by workers before a strike can be held, it should ensure that account is taken only of the votes cast and that the required quorum and majority are fixed at reasonable level (see General Survey, op. cit., paragraph 170). In these circumstances, the Committee considers that while the quorum provided for by section 298(2) seems to be compatible with the freedom of association principles, the requirement that a decision to strike should be taken by two-thirds of those present at the meeting is excessive and limits the right to strike. The Committee therefore requests the Government to amend section 298(2) of the Labour Code so as to lower this requirement and so as to ensure that account is taken only of the votes cast in determining the outcome of a strike ballot. The Committee requests the Government to indicate the measures taken or envisaged in this respect.

The Committee had noted that section 299(2)(2) of the Labour Code imposes the obligation to indicate, in the strike notice, its possible duration. The Committee requests the Government to indicate whether workers or their organizations can declare a strike for an indefinite period of time.

Article 5. Right of organizations to establish federations and confederations and to affiliate with international organizations. For several years, the Committee had been requesting the Government to amend section 106 of the Civil Code and article 5(4) of the Constitution so as to lift the ban on financial assistance to national trade unions by an international organization. The Committee had noted that the Government reiterates that other than monetary, the financial assistance also includes such forms of support as property, equipment, motorized transport, communications and printing equipment. The Committee considers 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 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 hopes that the Government will make every effort to take the necessary action in the very near future.

CMNT_TITLE

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 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 Social Associations). The Committee notes the Government’s explanation that judges have a special legal status within the State system and the particular nature of their function justifies the constitutional limitation of their rights. The Committee recalls that the only exceptions authorized by Convention No. 87 are members of the police and the armed forces and therefore once again requests the Government to take the necessary measures to ensure that judges can establish organization for defence and furtherance of their interests. It requests the Government to indicate the measures taken or envisaged in this respect.

The Committee recalls that it had previously requested the Government to specify the categories of workers covered by the term “law enforcement bodies” whose right to organize is restricted under the same provisions. The Committee notes from the Government’s report, as well as from the definition provided for in section 256(2) of the Labour Code (2007), that firefighting and prison services are included in the definition of the “law enforcement bodies” and therefore, its personnel is excluded from the right to organize. The Committee considers that while exclusion from the right to organize of the armed forces and the police, as stated above, is not contrary to the provisions of Convention No. 87, the same cannot be said for fire service personnel and prison staff. The Committee is of the opinion that the functions exercised by these two categories of public servants should not justify their exclusion from the right to organize on the basis of Article 9 of the Convention (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 56). The Committee therefore requests the Government to ensure that fire service personnel and prison staff enjoy the right to organize. It requests the Government to indicate the measures taken or envisaged in this respect.

Right to establish organizations without previous authorization. The Committee notes that in its report, the Government makes reference to section 10(1) of the Law on Social Associations, applicable to employers’ organizations and providing for a minimum requirement of ten people to form an association. The Committee recalls that a requirement of a membership of at least ten employers to create an employers’ organization is too high and likely to be an obstacle to the free creation of employers’ organizations. It therefore requests the Government to take the necessary measures in order to amend its legislation so as to lower this requirement. It requests the Government to indicate the measures taken or envisaged in this respect.

The Committee recalls that it had previously requested the Government to provide its observations on the comments of the International Confederation of Free Trade Unions (ICFTU, now ITUC), dated 10 August 2006, referring to violations of Article 2 of the Convention in practice, in particular high registration cost, which makes registration of trade unions almost impossible. In view that no information has been provided by the Government in this respect, the Committee once again requests the Government to provide its observations on the comments of the ICFTU.

Article 3. Right of organizations to organize their activities and to formulate their programmes. The Committee notes Chapter 32 of the Labour Code (2007) regulating collective labour disputes. The Committee understands that the process of settlement of collective labour disputes begins with the procedure provided for by section 289, which requires that claims of workers should be formulated at the meeting (conference) of employees gathering not less than half of the total workforce and adopted by the majority of those present. The Committee considers that trade unions should be free to regulate the procedure of submitting claims to the employer and that the legislation should not impede the functioning of a trade union by obliging a trade union to call a general meeting every time there is a claim to be made to an employer. The Committee therefore requests the Government to take the necessary measures in order to amend section 289 of the Labour Code so as to ensure the right of trade unions to submit claims to the employers without their prior approval by a general meeting of workers. It requests the Government to indicate the measures taken or envisaged in this respect.

The Committee notes that the right to strike is prohibited in the civil service (section 10(6) of the Law on Civil Service). Furthermore, according to section 231(2) of the Labour Code, public service employees cannot participate in any action impeding normal functioning of the service and their official duties. The Committee therefore understands that the right to strike of public servants is restricted or even prohibited. The Committee considers that the prohibition of the right to strike should be limited to public (or civil, as the case may be) servants exercising authority in the name of the State. The Committee notes that pursuant to section 230 of the Code, the list of services considered public was adopted by the Government on 27 September 2007 and concerns categories of workers who cannot be considered as exercising authority in the name of the State. With regard to the “civil service”, while noting from the Government’s report that teachers, doctors and bank employees are not civil servants, the Committee requests the Government to provide a full list of the services falling into this category. In the light of the above, the Committee requests the Government to take the necessary measures, including through amendment of the relevant legislative provisions, in order to ensure that the prohibition of the right to strike is limited only to public (or civil, as the case may be) servants exercising authority in the name of the State. It requests the Government to indicate the measures taken or envisaged in this respect.

The Committee notes that pursuant to section 303(1) of the Labour Code, strikes are illegal in organizations carrying out dangerous industrial activities (subsection (1)) and in other cases provided for by the national legislation (subsection (5)). The Committee requests the Government to clarify which organizations fall into the category of organizations carrying out dangerous industrial activities and the categories of workers whose right to strike is so restricted. The Committee further requests the Government to indicate all other categories of workers whose right to strike is restricted by other legislative texts and to provide copies thereof.

The Committee further notes that according to section 303(2), in the rail and public transports, civil aviation and communications, 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. The Committee recalls that in situations in which a total prohibition of strikes would not appear to be justified (as in services mentioned above) and where, without calling into question the right to strike of the large majority of workers, one might consider ensuring that users’ basic needs are met or that facilities operate safely or without interruption, the minimum service as a possible alternative to a total prohibition would be appropriate. However, in the view of the Committee, such a service should meet at least two requirements. Firstly, and this aspect is paramount, it must genuinely and exclusively be a minimum service, that is one which is limited to the operations which are strictly necessary to meet the basic needs of the population or the minimum requirements of the service, while maintaining the effectiveness of the pressure brought to bear. Secondly, since this system restricts one of the essential means of pressure available to workers to defend their economic and social interests, their organizations should be able, if they so wish, to participate in defining such a service, along with employers and the public authorities. It would be highly desirable for negotiations on the definition and organization of the minimum service not to be held during a labour dispute, so that all parties can examine the matter with the necessary objectivity and detachment. The parties might also envisage the establishment of a joint or independent body responsible for examining rapidly and without formalities the difficulties raised by the definition and application of such a minimum service and empowered to issue enforceable decisions (see General Survey, op. cit., paragraphs 161 and 162). The Committee therefore requests the Government to amend section 303(2) of the Labour Code so as to ensure the application of these principles. It requests the Government to indicate the measures taken or envisaged in this respect.

The Committee notes that according to section 298(2) of the Labour Code, the decision to call a strike is taken by a meeting (conference) of workers (their representatives) gathering not less than half the total workforce and the decision is adopted if not less than two-thirds of those present at the meeting (conference) have voted for it. The Committee considers that while a requirement of a strike ballot does not, in principle, raise problems of compatibility with the Convention, the ballot method, the quorum and the majority required should not be such that the exercise of the right to strike becomes very difficult, or even impossible in practice; if a member State deems it appropriate to establish in its legislation provisions which require a vote by workers before a strike can be held, it should ensure that account is taken only of the votes cast and that the required quorum and majority are fixed at reasonable level (see General Survey, op. cit., paragraph 170). In these circumstances, the Committee considers that while the quorum provided for by section 298(2) seems to be compatible with the freedom of association principles, the requirement that a decision to strike should be taken by two-thirds of those present at the meeting is excessive and limits the right to strike. The Committee therefore requests the Government to amend section 298(2) of the Labour Code so as to lower this requirement and so as to ensure that account is taken only of the votes cast in determining the outcome of a strike ballot. The Committee requests the Government to indicate the measures taken or envisaged in this respect.

The Committee notes that section 299(2)(2) of the Labour Code imposes the obligation to indicate, in the strike notice, its possible duration. The Committee requests the Government to indicate whether workers or their organizations can declare a strike for an indefinite period of time.

Article 5. Right of organizations to establish federations and confederations and to affiliate with international organizations. For several years, the Committee had been requesting the Government to amend section 106 of the Civil Code and article 5(4) of the Constitution so as to lift the ban on financial assistance to national trade unions by an international organization. The Committee notes that the Government reiterates that other than monetary, the financial assistance also includes such forms of support as property, equipment, motorized transport, communications and printing equipment. The Committee considers 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 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.

CMNT_TITLE

The Committee notes the Government’s report.

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish and join organizations. In its previous observations, the Committee had requested the Government to indicate whether there were any regulations restricting trade union rights of non-citizens. The Committee notes the Government’s statement that the Law on Trade Unions applies to foreign citizens, as well as to stateless persons living and working in Kazakhstan and that, by virtue of section 11 of the Law on Social Associations, all public associations, other than political parties, are allowed to open their membership to foreign citizens and stateless persons.

The Committee had further requested the Government to indicate whether there were any regulations restricting trade union rights of railway workers. The Committee notes the Government’s indication that under the Law on Trade Unions, railway workers enjoy the same rights with regard to the establishment, operation and dissolution of their organizations as other trade union associations. The Government explains that workers of the railway sector are members of the Trade Union of Railway Workers of the Republic of Kazakhstan.

Article 5. Right of organizations to establish federations and confederations and to affiliate with international organizations. The Committee had previously noted the ban on financial assistance to national trade unions by an international organization (section 106 of the Civil Code and article 5(4) of the Constitution) and requested the Government to amend the legislation so as to lift this prohibition. The Committee notes the Government’s indication that other than monetary, the financial assistance also includes such forms of support as property, equipment, motorized transport, communications, printing equipment, etc. The Government explains that the reason behind such a prohibition is dictated by the need to protect the constitutional structure, independence and territorial integrity of the State; and that trade unions, by their very nature, possess a well-organized solidarity and have the capacity to influence the public political view and the policy of the State in various areas of public life. The Government further indicates that in order to protect trade unions from external influence and to ensure their independence and self-sufficiency, the State may adopt a legislation to prohibit other assistance to trade unions from foreign entities. The Committee considers 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 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 keep it informed of the measures taken or envisaged in this respect.

The Committee had previously requested the Government to clarify the meaning of article 5 of the Constitution and section 5(4) of the Law on Social Associations, which seemed to forbid the activities of international organizations within Kazakhstan, particularly in the light of section 9 of the Law on Social Associations, which provides that the subordinate structures (affiliates and representatives) of international and foreign non-commercial and non-governmental associations may form and operate in the Republic of Kazakhstan. The Committee notes the Government’s indication that, while no foreign trade unions may operate in Kazakhstan, section 6 of the Law on Trade Unions entitles trade unions to cooperate with trade union organizations based abroad, join international trade union associations and organizations and conclude agreements.

Finally, the Committee notes the adoption, in May 2007, of the Labour Code. The Committee recalls that in its previous observations it had raised the following issues, which now seem to be covered by the new Code:

–      the right to establish and join organizations of employees of law enforcement bodies and judges;

–      the right to strike in civil service;

–      the basis for determining the legality of strikes; and

–      sanctions against strikes.

The Committee will examine these issues once the translation of the Labour Code becomes available.

The Committee further once again requests the Government to provide its observations on the comments of the International Confederation of Free Trade Unions (ICFTU, now ITUC – International Trade Union Confederation) dated 10 August 2006, alleging violations of trade union rights in practice, in particular, high registration cost, which makes registration of trade unions almost impossible and interference by employers in trade unions’ internal affairs.

CMNT_TITLE

The Committee notes with regret that the information contained in the Government’s report is limited to the information provided in its report of 2003. The Committee regrets that, for three consecutive years, the Government has failed to reply to the specific comments and questions concerning the application of the Convention made by the Committee in its previous comments. It trusts that the Government will be more cooperative in the future.

The Committee further notes the comments of the International Confederation of Free Trade Unions (ICFTU) dated 10 August 2006, which addresses several legislative issues previously raised by the Committee and violations of trade union rights in practice, in particular, high registration cost, which makes registration of trade unions almost impossible and interference by employers in trade unions’ internal affairs. The Committee requests the Government to communicate its observations on these comments in its next report.

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish and join organizations. The Committee noted that section 10(1) of the Law on Social Associations and section 8 of the Law on Trade Unions stipulate that a social association is formed on the initiative of no less than ten individuals who are citizens of Kazakhstan. Recalling that no distinction based on nationality should be made as concerns the workers’ right to establish trade unions, the Committee requests the Government to indicate whether there are any specific regulations restricting trade union rights of non-citizens and to amend the Law on Trade Unions and the Law on Social Associations so that at least after a reasonable period of residency, non-citizens have the right to found a trade union.

The Committee further notes that employees of law enforcement bodies and judges are prohibited from forming and joining trade unions (article 23(2) of the Constitution and section 11(4) of the Law on Social Associations) and 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”. The Committee recalls in this respect, that the only exceptions authorized by Convention No. 87 are members of the police and the armed forces. However, civilians working in military installations or in the service of the army or police, as well as prison staff, should enjoy the rights provided for in the Convention. The Committee therefore requests the Government to amend its legislation so as to ensure the right to organize to judges to indicate whether railway workers have a right to form and join organizations to defend their own social and occupational interests. It further requests the Government to specify the categories of workers covered by the term “law enforcement bodies”.

Article 3. Right to strike. The Committee notes section 10(6) of the Law on Civil Service, which provides that “a civil servant has no right to participate in actions interfering in the normal functioning of state bodies and with fulfillment of official duties, including strikes”. The Committee recalls in this regard, that the prohibition of the right to strike in the public service should be limited to public servants exercising authority in the name of the State. Being aware of the fact that except for the groups falling clearly into one category or another, the matter will frequently be one of degree, the Committee considers that a solution might not be to impose a total prohibition of strikes, but rather to provide for the maintaining by a defined and limited category of staff of a negotiated minimum service when a total and prolonged stoppage might result in serious consequences for the public (see 1994 General Survey on freedom of association and collective bargaining, paragraph 158). The Committee therefore requests the Government to clarify the categories of public servants covered by the law and if this would include those who are not exercising authority in the name of the State, such as those working in public institutions, bank employees, teachers, etc., to modify this provision accordingly.

The Committee further notes that according to section 8(1)(6) of the Labour Law, the employer has a right to dismiss workers in the event of organization of, and participation in, a strike found illegal by the court. The Committee notes, however, that the Labour Law does not contain specific provisions on strikes. While considering that sanctions for strike action, including dismissals, should be possible only where the prohibitions of strike are in conformity with the principles of freedom of association, the Committee requests the Government to indicate the regulations, court judgements or other texts, which establish the basis for determining the legality of strike actions, and to provide a copy of the Law on Collective Disputes and Strikes.

Article 5. Right of organization to establish federations and confederations and to affiliate with international organizations. The Committee notes that according to section 106 of the Civil Code, “it is forbidden for political parties, non-governmental organizations with political goals and trade unions to receive any kind of foreign financial assistance from any foreign countries, foreign organizations, foreign citizens and international organizations”. This prohibition is reinforced by the constitutional provision contained in Article 5 (paragraph 4) which provides that “activities of trade unions of other states, as well as financial assistance to trade unions by foreign legal governments, foreign citizens, foreign companies, foreign NGOs, and international organizations is forbidden in the Republic”. The Committee considers 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 requests 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 prohibition on the acceptance by national trade unions of financial assistance from international organizations of workers and to keep it informed of the measures taken or envisaged in this respect.

As concerns the activities of international organizations in Kazakhstan, the Committee notes that although article 5 of the Constitution and section 5(4) of the Law on Social Associations seem to forbid them, section 9 of the Law on Social Associations provides that the subordinate structures (affiliates and representatives) of international and foreign non-commercial and non‑governmental associations may form and operate in the Republic of Kazakhstan. The Committee therefore requests the Government to clarify the meaning of article 5 of the Constitution and section 5(4) of the Law on Social Associations as concerns the activities of international organizations within Kazakhstan, especially for those who have affiliates in the country (particularly in the light of section 9 of the Law on Social Associations).

The Committee also requests the Government to provide a copy of the Law on non-commercial organizations to which the Government refers in its report.

CMNT_TITLE

The Committee notes with regret that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish and join organizations. The Committee notes that under the Kazakh legislation, foreigners and stateless persons enjoy the rights and freedoms provided for the citizens, unless otherwise stipulated by legislation and international treaties. The Committee notes, however, that section 10(1) of the Law on Social Associations and section 8 of the Law on Trade Unions stipulate that a social association is formed on the initiative of no less than ten individuals who are citizens of Kazakhstan. The Committee recalls in this respect, that no distinction based on nationality should be made as concerns the workers’ right to establish trade unions and requests the Government to indicate whether there are any specific regulations restricting trade union rights of non-citizens and to amend the Law on Trade Unions and the Law on Social Associations so that at least after a reasonable period of residency, non-citizens have the right to found a trade union.

The Committee further notes that employees of law-enforcement bodies and judges are prohibited from forming and joining trade unions (article 23(2) of the Constitution and section 11(4) of the Law on Social Associations) and 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". The Committee recalls in this respect, that the only exceptions authorized by the Convention are the members of the police and armed forces. However, civilians working in military installations or in the service of the army or police, as well as prison staff, should enjoy the rights provided for in the Convention. The Committee therefore requests the Government to amend its legislation so as to ensure the right to organize of judges and to indicate whether railway workers enjoy the right to form and join organizations to defend their social and occupational interests. It further requests the Government to specify the categories of workers covered by the term "law-enforcement bodies".

Article 3. Right to strike. The Committee notes section 10(6) of the Law on Civil Service which provides that "a civil servant has no right to participate in actions interfering with the normal functioning of state bodies and the fulfilment of official duties, including strikes". The Committee recalls, in this regard, that the prohibition of the right to strike in the public service should be limited to public servants exercising authority in the name of the State. Being aware of the fact that, except for the groups falling clearly into one category or another, the matter will frequently be one of degree, the Committee considers that a solution might be not to impose a total prohibition of strikes, but rather to provide for the maintaining by a defined and limited category of staff of a negotiated minimum service when a total and prolonged stoppage might result in serious consequences for the public (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 158). The Committee therefore requests the Government to clarify the categories of public servants covered by the Law and if this would include those who are not exercising authority in the name of the State, such as those working in public institutions, bank employees, teachers, etc., to modify this provision accordingly.

The Committee further notes that according to section 8(1)(6) of the Labour Code, the employer has a right to dismiss workers in the event of organization of and participation in a strike found illegal by the court. The Committee notes, however, that the Labour Code does not contain specific provisions on strikes. While considering that sanctions for strike action, including dismissals, should be possible only where strike prohibitions are in conformity with the principles of freedom of association, the Committee requests the Government to indicate the regulations, court judgements or other texts, which establish the basis for determining the legality of strike actions, and to provide a copy of the Law on collective disputes and strikes.

Article 5. Right of organizations to establish federations and confederations and to affiliate with international organizations. The Committee notes that according to section 106 of the Civil Code, "it is forbidden for political parties, non-governmental organizations with political goals and trade unions to receive any kind of foreign financial assistance from any foreign countries, foreign organizations, foreign citizens and international organizations". This prohibition is reinforced by the constitutional provision contained in article 5, paragraph 4, which provides that "activities of trade unions of other states, as well as financial assistance to trade unions by foreign legal governments, foreign citizens, foreign companies, foreign NGOs, and international organizations is forbidden in the Republic". The Committee further notes that in Case No. 1834 concerning Kazakhstan (see 305th Report, paragraphs 372-382), the Committee on Freedom of Association considered 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 requests 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 prohibition on the acceptance by national trade unions of financial assistance from international organizations of workers and to keep it informed of the measures taken or envisaged in this respect.

As concerns the activities of international organizations in Kazakhstan, the Committee notes that although article 5 of the Constitution and section 5(4) of the Law on Social Associations seem to forbid them, section 9 of the Law on Social Associations provides that the subordinate structures (affiliates and representatives) of international and foreign non-commercial and non-governmental associations may form and operate in the Republic of Kazakhstan. The Committee therefore requests the Government to clarify the meaning of article 5 of the Constitution and section 5(4) of the Law on Social Associations as concerns the activities of international organizations within Kazakhstan, especially for those who have affiliates in the country (particularly in the light of section 9 of the Law on Social Associations).

CMNT_TITLE

The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish and join organizations. The Committee notes with interest that under the Kazakh legislation, foreigners and stateless persons enjoy the rights and freedoms provided for the citizens, unless otherwise stipulated by legislation and international treaties. The Committee notes, however, that section 10(1) of the Law on Social Associations and section 8 of the Law on Trade Unions stipulate that a social association is formed on the initiative of no less than ten individuals who are citizens of Kazakhstan. The Committee recalls in this respect, that no distinction based on nationality should be made as concerns the workers’ right to establish trade unions and requests the Government to indicate whether there are any specific regulations restricting trade union rights of non-citizens and to amend the Law on Trade Unions and the Law on Social Associations so that at least after a reasonable period of residency, non-citizens have the right to found a trade union.

The Committee further notes that employees of law-enforcement bodies and judges are prohibited from forming and joining trade unions (article 23(2) of the Constitution and section 11(4) of the Law on Social Associations) and 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". The Committee recalls in this respect, that the only exceptions authorized by the Convention are the members of the police and armed forces. However, civilians working in military installations or in the service of the army or police, as well as prison staff, should enjoy the rights provided for in the Convention. The Committee therefore requests the Government to amend its legislation so as to ensure the right to organize of judges and to indicate whether railway workers enjoy the right to form and join organizations to defend their social and occupational interests. It further requests the Government to specify the categories of workers covered by the term "law-enforcement bodies".

Article 3. Right to strike. The Committee notes section 10(6) of the Law on Civil Service which provides that "a civil servant has no right to participate in actions interfering with the normal functioning of state bodies and the fulfilment of official duties, including strikes". The Committee recalls, in this regard, that the prohibition of the right to strike in the public service should be limited to public servants exercising authority in the name of the State. Being aware of the fact that, except for the groups falling clearly into one category or another, the matter will frequently be one of degree, the Committee considers that a solution might be not to impose a total prohibition of strikes, but rather to provide for the maintaining by a defined and limited category of staff of a negotiated minimum service when a total and prolonged stoppage might result in serious consequences for the public (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 158). The Committee therefore requests the Government to clarify the categories of public servants covered by the Law and if this would include those who are not exercising authority in the name of the State, such as those working in public institutions, bank employees, teachers, etc., to modify this provision accordingly.

The Committee further notes that according to section 8(1)(6) of the Labour Code, the employer has a right to dismiss workers in the event of organization of and participation in a strike found illegal by the court. The Committee notes, however, that the Labour Code does not contain specific provisions on strikes. While considering that sanctions for strike action, including dismissals, should be possible only where strike prohibitions are in conformity with the principles of freedom of association, the Committee requests the Government to indicate the regulations, court judgements or other texts, which establish the basis for determining the legality of strike actions, and to provide a copy of the Law on collective disputes and strikes.

Article 5. Right of organizations to establish federations and confederations and to affiliate with international organizations. The Committee notes that according to section 106 of the Civil Code, "it is forbidden for political parties, non-governmental organizations with political goals and trade unions to receive any kind of foreign financial assistance from any foreign countries, foreign organizations, foreign citizens and international organizations". This prohibition is reinforced by the constitutional provision contained in article 5, paragraph 4, which provides that "activities of trade unions of other states, as well as financial assistance to trade unions by foreign legal governments, foreign citizens, foreign companies, foreign NGOs, and international organizations is forbidden in the Republic". The Committee further notes that in Case No. 1834 concerning Kazakhstan (see 305th Report, paragraphs 372-382), the Committee on Freedom of Association considered 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 requests 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 prohibition on the acceptance by national trade unions of financial assistance from international organizations of workers and to keep it informed of the measures taken or envisaged in this respect.

As concerns the activities of international organizations in Kazakhstan, the Committee notes that although article 5 of the Constitution and section 5(4) of the Law on Social Associations seem to forbid them, section 9 of the Law on Social Associations provides that the subordinate structures (affiliates and representatives) of international and foreign non-commercial and non-governmental associations may form and operate in the Republic of Kazakhstan. The Committee therefore requests the Government to clarify the meaning of article 5 of the Constitution and section 5(4) of the Law on Social Associations as concerns the activities of international organizations within Kazakhstan, especially for those who have affiliates in the country (particularly in the light of section 9 of the Law on Social Associations).

The Committee also requests the Government to provide a copy of the Law on non-commercial organizations to which the Government refers in its report.

CMNT_TITLE

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

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish and join organizations. The Committee notes with interest that under the Kazakh legislation, foreigners and stateless persons enjoy the rights and freedoms provided for the citizens, unless otherwise stipulated by legislation and international treaties. The Committee notes, however, that section 10(1) of the Law on Social Associations and section 8 of the Law on Trade Unions stipulate that a social association is formed on the initiative of no less than ten individuals who are citizens of Kazakhstan. The Committee recalls in this respect, that no distinction based on nationality should be made as concerns the workers’ right to establish trade unions and requests the Government to indicate whether there are any specific regulations restricting trade union rights of non-citizens and to amend the Law on Trade Unions and the Law on Social Associations so that at least after a reasonable period of residency, non-citizens have the right to found a trade union.

The Committee further notes that employees of law-enforcement bodies and judges are prohibited from forming and joining trade unions (article 23(2) of the Constitution and section 11(4) of the Law on Social Associations) and 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". The Committee recalls in this respect, that the only exceptions authorized by the Convention are the members of the police and armed forces. However, civilians working in military installations or in the service of the army or police, as well as prison staff, should enjoy the rights provided for in the Convention. The Committee therefore requests the Government to amend its legislation so as to ensure the right to organize of judges and to indicate whether railway workers enjoy the right to form and join organizations to defend their social and occupational interests. It further requests the Government to specify the categories of workers covered by the term "law-enforcement bodies".

Article 3. Right to strike. The Committee notes section 10(6) of the Law on Civil Service which provides that "a civil servant has no right to participate in actions interfering with the normal functioning of state bodies and the fulfilment of official duties, including strikes". The Committee recalls, in this regard, that the prohibition of the right to strike in the public service should be limited to public servants exercising authority in the name of the State. Being aware of the fact that, except for the groups falling clearly into one category or another, the matter will frequently be one of degree, the Committee considers that a solution might be not to impose a total prohibition of strikes, but rather to provide for the maintaining by a defined and limited category of staff of a negotiated minimum service when a total and prolonged stoppage might result in serious consequences for the public (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 158). The Committee therefore requests the Government to clarify the categories of public servants covered by the Law and if this would include those who are not exercising authority in the name of the State, such as those working in public institutions, bank employees, teachers, etc., to modify this provision accordingly.

The Committee further notes that according to section 8(1)(6) of the Labour Code, the employer has a right to dismiss workers in the event of organization of and participation in a strike found illegal by the court. The Committee notes, however, that the Labour Code does not contain specific provisions on strikes. While considering that sanctions for strike action, including dismissals, should be possible only where strike prohibitions are in conformity with the principles of freedom of association, the Committee requests the Government to indicate the regulations, court judgements or other texts, which establish the basis for determining the legality of strike actions, and to provide a copy of the Law on collective disputes and strikes.

Article 5. Right of organizations to establish federations and confederations and to affiliate with international organizations. The Committee notes that according to section 106 of the Civil Code, "it is forbidden for political parties, non-governmental organizations with political goals and trade unions to receive any kind of foreign financial assistance from any foreign countries, foreign organizations, foreign citizens and international organizations". This prohibition is reinforced by the constitutional provision contained in article 5, paragraph 4, which provides that "activities of trade unions of other states, as well as financial assistance to trade unions by foreign legal governments, foreign citizens, foreign companies, foreign NGOs, and international organizations is forbidden in the Republic". The Committee further notes that in Case No. 1834 concerning Kazakhstan (see 305th Report, paragraphs 372-382), the Committee on Freedom of Association considered 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 requests 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 prohibition on the acceptance by national trade unions of financial assistance from international organizations of workers and to keep it informed of the measures taken or envisaged in this respect.

As concerns the activities of international organizations in Kazakhstan, the Committee notes that although article 5 of the Constitution and section 5(4) of the Law on Social Associations seem to forbid them, section 9 of the Law on Social Associations provides that the subordinate structures (affiliates and representatives) of international and foreign non-commercial and non-governmental associations may form and operate in the Republic of Kazakhstan. The Committee therefore requests the Government to clarify the meaning of article 5 of the Constitution and section 5(4) of the Law on Social Associations as concerns the activities of international organizations within Kazakhstan, especially for those who have affiliates in the country (particularly in the light of section 9 of the Law on Social Associations).

The Committee also requests the Government to provide a copy of the Law on non-commercial organizations to which the Government refers in its report.