Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

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

Scope of the Convention. The Committee had previously requested the Government to provide clarification on the trade union rights and rights to collective bargaining of prison staff and firefighters who have no military or police rank and to inform about any collective agreement covering them. The Committee takes due note of the Government’s indication that all civilian staff engaged in the above-mentioned services enjoy the rights set out in the Convention.

Article 2 of the Convention. Adequate protection against acts of interference. In its previous direct request, the Committee had requested the Government to provide information on the application in practice of sections 145 and 154 of the Criminal Code (2014), pursuant to which cases of interference in the functioning of social organizations and/or trade unions are punishable by a fine or imprisonment. In the absence of the Government’s reply, the Committee once again requests the Government to provide information on the application of the abovementioned legislative provisions in practice.

Article 4. Right to collective bargaining. In its previous comments, the Committee had recalled that, under the terms of the Convention, the right of collective bargaining lies with workers’ organizations of whatever level, and with employers and their organizations. The Committee had therefore requested the Government to clarify whether under the model of collective bargaining provided for by the Labour Code other representatives can bargain collectively alongside an existing trade union. The Committee notes that sections 1(44) and 20(1) of the Labour Code were amended in 2020 to provide that workers are represented by trade unions or, in absence thereof, by other elected representatives. The Committee further notes that according to paragraph 3 of section 20(1) of the Labour Code, however, should workers’ membership in trade unions constitute less than half of an organization’s staff, the workers’ interests can be represented by trade unions and by elected representatives. The Committee notes that pursuant to section 20 of the Labour Code, as amended, if a trade union exists at the organization/enterprise, no collective bargaining can take place without the participation of that union. According to the Government, the amendments have made it possible to maintain a balance between the interests of workers who are union members and those who have not joined a union, and to take into account the opinions of the entire workforce without infringing the rights of union members. While taking due note of the amendments, the Committee recalls that in the collective bargaining process the position of a representative union, even if it does not represent 50 per cent of the workforce, should not be undermined by elected representatives. The Committee therefore requests the Government to further amend section 20 of the Labour Code in consultation with the social partners in order to bring it into conformity with the Convention and so as to eliminate the contradiction within the above-mentioned provisions of the Labour Code. The Committee requests the Government to indicate all steps taken to that end.

The Committee had previously noted that pursuant to section 97(2) of the Code on Administrative Breaches (2014), an unfounded refusal to conclude a collective agreement is punishable by a fine. The Committee had recalled that legislation which imposes an obligation to achieve a result, particularly when sanctions are used in order to ensure that an agreement is concluded, is contrary to the principle of free and voluntary negotiation. The Committee had thus requested the Government to repeal the mentioned provision. The Committee notes in this respect the Government’s indication that under article 158(5) of the Labour Code, any unjustified refusal to conclude a collective agreement by those authorized to conclude it renders them liable, under article 97(2) of the Code on Administrative Breaches, to a fine of 400 monthly calculation index (MCI). The Government provides detailed information on the procedure to follow prior to the conclusion of a collective agreement as set out in article 156 of the Labour Code. The Government points out that once all the procedures have been followed, any unjustified refusal to conclude the collective agreement is deemed unlawful. The Government further explains that the sanctions provided for in article 97(2) of the Code on Administrative Breaches are designed to protect the right to conclude a collective agreement and to avoid any forced conclusion thereof. While taking notes of this explanation, the Committee requests the Government to take the necessary measures in order to ensure the full conformity of the legislation with the principle of free and voluntary negotiation. The Committee also requests the Government to provide information on the application of the above-mentioned provisions in practice, in particular on the offences committed and the sanctions applied.