Observación (CEACR) - Adopción: 2023, Publicación: 112ª reunión CIT (2024)

Kazajstán

Convenio sobre la inspección del trabajo, 1947 (núm. 81) (Ratificación : 2001)
Convenio sobre la inspección del trabajo (agricultura), 1969 (núm. 129) (Ratificación : 2001)

Previous comment

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

The Committee notes the observations of the Trade Union of Workers in the Fuel and Energy Complex (TUWFEC), as well as the observations of the International Trade Union Confederation (ITUC) received on 1 September 2022, on the Conventions).

Articles 12 and 16 of Convention No. 81 and Articles 16 and 21 of Convention No. 129. Limitations and restrictions of labour inspections. Powers of labour inspectors. 1. Moratorium on labour inspections. Following its previous comment, the Committee notes with deep concern that the application period of the Presidential Decree No. 229 of 26 December 2019 “on the Introduction of a Moratorium on Inspections and Preventive Monitoring and Oversight with Visits in the Republic of Kazakhstan” has been extended to 1 January 2024 by Presidential Decree No. 44, of 7 December 2022. The moratorium, which has been in force since 1 January 2020, applies to labour inspections for private and state-owned enterprises belonging to the categories of small and micro-enterprises. The Committee notes that the exceptions to this moratorium are: (i) inspections aimed at the prevention or elimination of violations that potentially bear a major threat to human life and health, to the environment, to law and public order, or a direct or indirect threat to the constitutional order and national security; and (ii) inspections performed on the grounds specified by the Law of the Republic of Kazakhstan of 4 July 2003 on the Governmental Regulation, Control and Oversight of Financial Market and Financial Organizations. The Committee notes that Presidential Decree No. 44 of December 2022 adds unscheduled inspections conducted in accordance with the Entrepreneur Code of the Republic of Kazakhstan (No. 375-V ZRK of 29 October 2015, hereafter the Entrepreneur Code) as possible exceptions to the moratorium. The Committee also notes that section 144(12) of the Entrepreneur Code, as amended by Law No. 95-VII of 20 December 2022, retains the provision stipulating the possibility to suspend with a Government decision the state control and supervision over private business entities for a certain period of time.

The Government indicates in its report that inspections are carried out based on a decision by the head of the central state body or local authority. For this purpose, a model algorithm has been approved, which establishes a uniform procedure for assigning inspections to small and micro enterprises for compliance by local authorities. The Government also states that unscheduled inspections are initiated in cases of collective complaints from (three or more) workers on issues of non-payment of wages and other entitlements, wholesale dismissals and staff cuts, as well as violation of labour rights in the area of occupational safety and health. From 2020 to 2022, state labour inspectors carried out 196 inspections in small and micro enterprises where serious violations were found. However, the Committee notes that according to the observations of the TUWFEC, in response to complaints about violations of labor rights received from employees of small businesses, the labor inspectorate could only help complainants in preparing statements of claim to the court and in sending letters to employers about the necessity to follow labour laws, without any legal consequences for violations. In addition, none of the complaints to the labour inspectorate about violations of labour rights in agriculture were inspected due to the moratorium. The trade union also indicates that the necessity of inspections is confirmed by reports of numerous rights violations and accidents in workplaces during the moratorium.

In this respect, the Committee once again recalls its General Observation of 2019 on the labour inspection Conventions, expressing concern at reforms that substantially undermine the inherent functioning of labour inspection systems, including moratoria on labour inspections, and urging governments to remove these restrictions, with a view to achieving conformity with the Conventions. Recalling that a moratorium placed on labour inspection is a serious violation of the Conventions, the Committee expresses deep concern at the Government’s decision to extend the moratorium, and urges in the strongest possible terms the Government to act promptly to eliminate the temporary ban on inspections and to ensure that labour inspectors are empowered to undertake labour inspections as often and as thoroughly as is necessary to ensure the effective application of the legal provisions, in compliance with Article 16 of Convention No. 81 and Article 21 of Convention No. 129.

2. Other restrictions on inspection powers. Following its previous comment on extensive restrictions on inspection and the frequency of inspection visits, the Committee notes the Government’s indication that the proposal for labour inspectors to visit workplaces without prior notice was considered as part of the implementation of the Action Plan to Ensure Safe Work through to 2025. However, the Government indicates that this proposal was not supported by the State Enterprise Authority and employers’ representatives.

The Committee notes that the Government does not provide information on whether Order No. 55-p of 16 February 2011 repeals Order No. 12 of 1 March 2004. On this matter, the Committee notes that Order No. 162 of 25 December 2020 on the implementation of section 146(2) of the Entrepreneur Code, provides for the prior registration of inspections with the Public Prosecutor’s office, who has the power to refuse such registration. The Committee also notes the observation of the ITUC that applicable law requires provision of advance notice of all inspections to the organization being inspected, including written notice 30 days in advance for scheduled inspections and 24 hours’ notice in advance for unscheduled inspections.

The Committee further notes with concern that the Entrepreneur Code, as amended by Law No. 95-VII of 30 December 2022, still contains limitations to inspection powers, including with regard to: (i) the ability of labour inspectors to undertake inspection visits without previous notice (sections 144(3) and (4) and 156 (2)); and (ii) the free initiative of labour inspectors (sections 144(13), 144–1, 144–2, 145, and 146). In addition, the Committee notes that, according to sections 143(3) and 151 of the Entrepreneur Code, only the requirements set out in the established inspection checklist are subject to verification and preventive control. The Committee once again urges the Government to take the necessary legislative measures to ensure that labour inspectors are empowered to make visits to workplaces without previous notice, and to carry out any examination, test or enquiry which they may consider necessary, in conformity with Article 12(1)(a) and (c) of Convention No. 81 and Article 16(1)(a) and (c) of Convention No. 129. Noting that section 197 of the Labour Code and section 147(2) of the Entrepreneur Code have been repealed, the Committee also requests the Government to indicate whether inspectors are now empowered to undertake inspection visits at any time of the day and night, as provided for in Article 12(1)(a) of Convention No. 81 and Article 16(1)(a) of Convention No. 129.

3. Frequency of labour inspections. Following its previous comment, the Committee notes that section 141 of the Entrepreneur Code as amended in 2022, provides for the frequency and types of inspections permitted in accordance with the degree of risk determined by the risk assessment and management system, regulated by Joint Order of the Minister of Health and Social Development of the Republic of Kazakhstan dated December 25, 2015 No. 1022 and the Minister of National Economy of the Republic of Kazakhstan dated December 28, 2015 No. 801 (hereafter Joint Order of 2015). Accordingly, the frequency of inspection shall be no more than once a year for entities classified as high risk, no more than once every two years for those of medium risk and no more than once every three years for those of low risk. The Committee notes that according to ITUC, there is no minimum frequency of inspections established for low-risk employers, meaning that employers classified under such risk category are not covered with scheduled monitoring oversight activities.

Referring to its general observation of 2019 on the labour inspection Conventions, the Committee once again urges the Government to take the necessary measures to revise the Entrepreneur Code, to ensure that labour inspectors are able to undertake labour inspections as often and as thoroughly as is necessary to ensure the effective application of relevant legal provisions. In addition, the Committee once again requests the Government to take the necessary measures to ensure that risk assessment criteria do not limit the powers of labour inspectors or the undertaking of labour inspections. The Committee also requests the Government to continue to provide information on inspections in practice, indicating the total number of workplaces liable to inspection, the number of scheduled and unscheduled inspections, specifying on-site inspection or inspection without a visit to the workplace, as well as the number of inspections conducted in response to a complaint, and the results of all such inspections.

Article 6 of Convention No. 81 and Article 8 of Convention No.129. Disciplinary sanctions. The Committee notes that, according to section 50(12) of the Law on Civil Service, gross violations of the requirements for the organization and conduct of inspections in respect of business entities set forth in subparagraphs (1), (2), (3), (4) and (7) of section 151, and subparagraphs (2), (6) and (8) of section 156 of the Entrepreneur Code shall be considered as disciplinary offences. The Committee notes that section 151(1) provides that labour inspectors are not allowed to conduct inspections on elements that are not included in the inspection checklist. According to section 156(2) inspections are to be considered invalid in the absence of a prior notification to the subject of control or if the deadline for such notification is not respected. Therefore, the Committee notes that these provisions of national legislation involve restrictions on labour inspectors’ power which are not in conformity with the Conventions. The Committee requests the Government to take the necessary measures to revise sections 151 and 156 of the Entrepreneur Code, and to provide information on the number of disciplinary sanctions imposed on labour inspectors in accordance with section 50(12) of the Law on Civil Service.

Articles 13 and 17 of Convention No. 81 and Articles 18 and 22 of Convention No. 129.Powers of labour inspectors to ensure the effective application of legal provisions concerning conditions of work and the protection of workers. Prompt legal proceeding. Following its previous comment, the Committee notes the Government’s reference to section 193 of the Labour Code, which provides for the power of labour inspectors to impose suspension measures in case of OSH related legislation and to forward cases to relevant law enforcement agencies and courts. The Government adds that the suspension measures adopted by labour inspectors are for a period of no more than five working days.

The Committee notes that sections 144–1 and 144–2 of the Entrepreneur Code, indicate that in case of violations identified in the course of preventive inspections, the inspectors are obliged to issue a warning without the possibility of initiating proceedings. Moreover, section 136 of the same Code provides that rapid response measures, which can be adopted by inspectors if the activities or goods pose a direct threat to the constitutional rights, freedoms and legitimate interests of individuals and legal entities, human life and health, the environment, and national security, can only be adopted in cases identified by the law and for violations of items included in the inspection checklist.

The Committee recalls that in accordance with Article 13 of Convention No. 81 and Article 18 of Convention No. 129, labour inspectors shall be empowered to take steps with a view to remedying defects observed in plant, layout or working methods which they may have reasonable cause to believe constitute a threat to the health or safety of the workers. The Committee also recalls once again that Article 17 of Convention No. 81 and Article 22 of Convention No. 129 provide that, with certain exceptions, persons who violate or neglect to observe legal provisions enforceable by labour inspectors shall be liable to prompt legal proceedings without previous warning, and that it must be left to the discretion of labour inspectors to give a warning or provide advice instead of instituting or recommending proceedings. The Committee once again requests the Government to take the necessary measures, including the revision of the legislation, to ensure that labour inspectors are empowered to take measures with immediate executory force and are able to initiate legal proceedings without previous warning, where required, in conformity with Articles 13 and 17 of Convention No. 81 and Articles 18 and 22 of Convention No. 129. It requests the Government to provide information on any progress made in this regard.

Article 18 of Convention No. 81 and Article 24 of Convention No. 129. Adequate penalties. Following its previous comment, the Committee notes the Government’s reference to section 462 of the Administrative Offences Code which provides for penalties on acts impeding civil servants of the state inspections office and other bodies of state control and supervision in performing their official duties. It notes that, however, section 12 of the Entrepreneur Code still provides for the right of employers to deny the inspection by officials of state control and supervision bodies. The Committee requests the Government to take the necessary measures to ensure that labour inspectors do not encounter undue obstruction while performing their duties. It also requests the Government to provide information on the number of cases in which inspectors are denied access to workplaces by employers and the grounds of such denial, and on the number of cases in which penalties are imposed on employers who obstruct labour inspectors in performing their duties and the nature of such penalties.

Articles 20 and 21 of Convention No. 81 and Articles 26 and 27 of Convention No. 129. Annual report on the work of the labour inspection services. The Committee notes that since the ratification of the Conventions in 2001, no annual report on the activities of the labour inspection services has been received by the Office. The Committee also notes that in its report the Government provides the following statistics for the year of 2021: 4,727 inspections were carried out, more than 10,000 breaches of labour law were identified, 3,300 orders were issued to remedy the violations identified and 1,323 fines were imposed in the amount of Kazakh Tenge (KZT) 324 million. Regarding agriculture, in 2021, 62 inspections were carried out, with 216 violations detected, 64 corrective orders and 23 administrative fines issued, amounting to KZT 4,562,180. In addition, the Committee notes that the Report on the review of the activities of labour inspectorates of the member States of the Euro-Asian Regional Alliance of Labour Inspections for the year 2022, contains information on the number of inspection visits, violations detected and penalties imposed and statistics on industrial accidents. The Committee once again requests the Government to take the necessary measures to ensure the establishment and publication of an annual report on the work of the inspection services and to transmit it to the ILO, in accordance with Article 20 of Convention No. 81 and Article 26 of Convention No. 129, and to ensure that it contains all the subjects listed under Article 21 of Convention No. 81 and Article 27 of Convention No. 129.

The Committee is raising other matters in a request addressed directly to the Government.

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