Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

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

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.]