Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

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

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.