ILO-en-strap
NORMLEX
Information System on International Labour Standards
NORMLEX Home > Country profiles >  > Country comments > Texts of comments: Kazakhstan

Comments adopted by the CEACR: Kazakhstan

Adopted by the CEACR in 2022

C144 - Direct Request (CEACR) - adopted 2022, published 111st ILC session (2023)

Articles 2 and 5 of the Convention. Consultation mechanisms and tripartite consultations required by the Convention. In its previous comments, the Committee requested information concerning the content and outcome of consultations held within the National Tripartite Commission on Social Partnership (RTK), particularly with regard to items placed on the agenda of the Conference (Article 5(1)(a)), the re-examination of unratified Conventions (Article 5(1)(c)) and questions arising out of reports on the application of ratified Conventions (Article 5(1)(d)). The Committee also previously requested information on the outcome of tripartite consultations held with respect to the possible ratification of Conventions Nos 97, 102, 131, 154 and 184. The Committee notes the Government’s indication that the General Agreement for 2021-2023 was signed by the parties at the RTK meeting held on 12 March 2021. The General Agreement establishes the main areas for cooperation on employment, social protection, improvements to working conditions and pay, occupational safety and health, among others. The Government reports that the parties have agreed to consult on matters concerning the ratification of nineteen ILO Conventions, including the abovementioned instruments. The Committee further notes the Government’s explanation that examination of the question of ratifying Convention No. 102 is being set aside pending full implementation of the measures provided for in the Framework for further modernization of the pension system until 2010, adopted by Decree No. 841 of 18 June 2014. The Committee requests the Government to provide updated detailed information on the content and outcome of the consultations held within the National Tripartite Commission on Social Partnership on each of the matters related to international labour standards listed under Article 5(1) of the Convention, particularly with regard to: Conference agenda items (Article 5(1)(a)); the re-examination at appropriate intervals of unratified Conventions and Recommendations to which effect has not yet been given (Article 5(1)(c)); and questions arising out of reports to be presented on the application of ratified Conventions (Article 5(1)(d)). The Committee also requests the Government to provide information on the outcome of the tripartite consultations held with regard to the possible ratification of the abovementioned Conventions.
Article 4. Administrative support and financing of training. The Government provides information on training provided to enterprise workers on national labour legislation, in the framework of the programme on “The Social Modernization of Kazakhstan: 20 Steps to a Society of Universal Labour”.The Government indicates that, by the end of 2018, 1,544 training courses on national labour legislation had been provided to 36,848 enterprise workers through the territorial offices of the Committee for Labour, Social Protection and Migration.The Committee further notes the information provided by the Government in relation to a large number of seminars and presentations provided in 2021, aimed at explaining aspects of labour legislation to workers. Moreover, the Government indicates that the Regional Support Organization of the Federation of Trade Unions of Kazakhstan provides ongoing training for trade union members and officials to improve their legal knowledge and expertise. The Committee nevertheless notes that the activities referenced by the Government do not give effect to the provisions of Article 4 of the Convention. As the Committee noted in paragraph 123 of its 2000 General Survey on Tripartite Consultation, Article 4(1) of the Conventionrequires the competent authority to assume responsibility for the administrative support of the procedures provided for in the Convention, namely the tripartite consultations held within the RTK on international labour matters set out in Article 5(1) of the Convention.The administrative support called for under the Conventionincludes, among other elements, making meeting rooms available, correspondence and, where appropriate, the assistance of a secretariat (2000 General Survey on Tripartite Consultation, paragraph 124). In addition, Article 4 of the Convention calls for appropriate arrangements to be made “for the financing of any necessary training of participants” in the consultation procedures. The intent of this provision is “to make available appropriate training to enable participants in the procedures to perform their functions effectively” (Paragraph 3(3) of Recommendation No. 152. The Committee therefore once again requests that the Government provide information on the manner in which administrative support is provided for the procedures laid down in the Convention, as well as on arrangements made for the financing of any necessary training of participants in the consultative procedures on international labour matters required by the Convention.
Article 5(1)(b). Prior tripartite consultations on proposals made to Parliament. The Committee once again refers to its repeated comments since 2010 in relation to the Government’s constitutional obligation of submission, in which it has continued to urge the Government and the social partners to examine the measures to be taken with a view to holding effective consultations on proposals made to Parliament when submitting the instruments adopted by the Conference since 1993. The Committee notes that there are currently 38 instruments adopted by the Conference between 1993 and 2019 that are pending submission. The Committee notes that the Government does not provide information on the measures taken to ensure effective consultations in relation to these instruments. The Committee once again recalls that prior effective tripartite consultations must be held with the representative organizations on the nature of the proposals to be made to Parliament when submitting ILO instruments adopted by the Conference (2000 General Survey on Tripartite Consultation, paragraph 85). The Committee once again draws the Government’s attention to its previous comments on the constitutional obligation of submission. It urges the Government to take steps without delay to examine, together with the social partners, the measures to be taken in order to ensure prior effective consultations on the proposals made to Parliament when submitting the 38 instruments adopted by the Conference between 1993 and 2019.

Adopted by the CEACR in 2021

C081 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

The Committee notes the observations of the International Trade Union Confederation (ITUC) on the Labour Inspection Convention, 1947 (No. 81) and the Labour Inspection (Agriculture) Convention, 1969 (No. 129), received on 1 September 2021.
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.
Legislation. The Committee notes the adoption of the Labour Code No. 414-V ZRK of 2015.
Articles 3(1)(a) and (b) of Convention No.81 and Articles 6(1)(a) and (b) of Convention No.129. Preventive functions of labour inspection. The Committee previously noted the Government’s indication that the Labour Code was amended to provide for state control “in other forms” based on criteria jointly approved by the labour inspectorate and a body representing employers. In this regard, the Committee notes that the Government does not clarify whether “other forms of control” refers to preventive inspection visits. The Committee notes that section 191(5) of the Labour Code provides that state control over compliance with labour legislation is carried out in the form of inspection and other forms of control.
The Committee further notes the Government’s indication that, following a raft of initiatives taken by governmental bodies and employers over the past five years (2016-2020) in relation to occupational safety and health (OSH), a positive trend in the creation of safe working conditions has been established insofar as the number of industrial accidents has decreased by 10 per cent (from 1,683 to 1,503) and the number of related deaths by 16 per cent (from 248 to 208). Furthermore, it indicates that since 2019, proactive and preventive inspection visits have been routinely conducted at enterprises with the aim of preventing violations of labour legislation, including in relation to OSH. According to the Government, these visits take place in sectors more likely to generate injuries, namely mining and quarrying, construction, electricity generation, transmission and distribution, water supply, sewerage and waste management, farming, forestry and fishing, manufacturing industry, transport and warehousing. The Committee notes that in 2020, State labour inspectors carried out 113 preventive inspections. The Committee requests once again that the Government clarify the meaning of “other forms” of state control; it also requests the Government to continue providing information on actions taken to augment the creation of safe working conditions.
Article 4 of Convention No.81 and Article 7 of Convention No.129. Supervision and control of the labour inspection system by a central authority. In its previous comment, the Committee noted that under Law No. 102 – VRK of 2003 on the division of power between state bodies, the functions of the State labour inspectorate were transferred to executive bodies at the local level.
The Committee notes that, in relation to its request on the organization and functioning of the labour inspection system following the transfer of labour inspection functions to the executive bodies at the local level in accordance with the Law No. 102 – VRK of 2013, the Government refers to section 16 of the Labour Code. According to this section, the authorized state body for labour organizes the public supervision of compliance with national labour legislation and also coordinates the work of local labour inspection services. In addition, the Government indicates that the overall leadership of the Labour Inspectorate activities is exercised by the Chief State labour inspectors, who sit on the Committee for Labour, Social Protection and Migration of the Ministry of Labour and Social Protection (the Committee). The Committee’s Chief State labour inspectors provide guidance and coordinate the activities of the local executive authorities to regulate labour relations by requesting information on labour relations from local labour inspectorates, coordinate the activity of State bodies to develop technical regulations on OSH, and coordinate and cooperate on OSH with other State agencies and representatives of workers and employers. Recalling that Article 4 of Convention No. 81 requires that labour inspection be placed under the supervision and control of a central authority, the Committee requests the Government to provide further information on the manner in which the work of the inspection services in local authorities is monitored, supervised, and effectively controlled by the central authority for labour inspection.
Articles 5(a) and 17 of Convention No.81 and Articles 12(1) and 22 of Convention No. 129. Effective cooperation between the labour inspection services and the justice system. In its previous comment, the Committee noted that the number of proceedings instituted appeared to be low in relation to the number of cases reported, and that the Government had not provided the requested information in relation to cooperation with the judicial authorities. The Committee notes the Government’s information that in 2020 labour inspectors conducted 4,439 inspections, in the course of which 7,260 violations were found, of which 5,001 concerned labour relations, 2,096 OSH, and 163 public employment issues. Employers were issued with 2,614 orders and 1,090 fines. In addition, a total of 496 accident investigation files were sent to the law enforcement authorities, resulting in 56 criminal proceedings. However, the Committee notes that the Government still does not provide information in relation to cooperation with the judicial authorities as requested. The Committee once again requests the Government to indicate the measures taken or envisaged to enhance effective cooperation between the labour inspection services and the judicial authorities (which could include joint meetings to discuss practical aspects of cooperation, joint trainings on the procedural and material aspects of labour law and inspection procedures, the establishment of a system for the recording of judicial decisions accessible to labour inspectors, etc.). The Committee further requests the Government to continue to provide statistical information on the number and nature of offences reported, the number of penalties imposed, the amounts of fines imposed and collected, and information on criminal prosecutions, if any.
Articles 6 and 7(1) and (2) of Convention No.81 and Articles 8 and 9(1) and (2) of Convention No.129. Status and conditions of service. Conditions for the recruitment of inspection staff. Following its previous comment, the Committee notes the Government’s indication that the selection and appointment of candidates for the post of State labour inspector take place in accordance with the Civil Service Act, under competitive conditions and subject to qualification requirements. The Government states that candidates for the post of State labour inspector are required to have a higher legal, economic or technical education. In addition, the Government indicates that the staff of the State labour inspectorate are public officials who work within local authorities and other public bodies and that, in the performance of their duties, State labour inspectors are protected by law and guided by the Constitution and other statutory instruments. The Committee requests the Government to provide a copy of the text setting out the conditions for the recruitment of labour inspectors.
Articles 10 and 11(1)(b) and (2) of Convention No.81 and Articles 14 and 15(1)(b) and (2) of Convention No. 129. Human resources and material means of the labour inspectorate. Following its previous comments, the Committee notes that the Government does not provide information on the applicable procedure regarding the reimbursement of any travel costs incurred by inspectors in the performance of their duties. However, it notes the Government’s indication that, as of 1 August 2021, there were 242 State labour inspectors active in the country, equipped with 33 mobile units. The Committee also notes ITUC’s indication that the actual number of state labour inspectors is not sufficient for adequate oversight of the observance of labour rights and does not allow for performing preventive activities on a larger scale. ITUC indicates that according to official data, about 1.3 million small and medium-size businesses and over 2,400 large businesses operate in Kazakhstan. Therefore, according to ITUC the number of labour inspectors is insufficient to ensure the effective discharge of the duties of the inspectorate. The Committee requests the Government to continue to provide information on the resources allocated to the labour inspection service, i.e. the budget for labour inspection functions at the local levels, as well as the number of inspection staff, the transport facilities and office space available to labour inspectors. The Committee further requests the Government once again to indicate the legal provisions and the applicable procedure regarding the reimbursement of any travel costs incurred by inspectors in the performance of their duties. Finally, the Committee requests the Government to provide its comments in respect to ITUC’s observation.
Article 15(a) and (c) of Convention No.81 and Article 20(a) and (c) of Convention No.129. Ethical principles of labour inspection. Noting that the Government has not provided a reply in relation to its previous request on this matter, the Committee requests the Government once again to provide further information on the effect given to Article 15(a) and (c) of Convention No. 81 and Article 20 (a) and (c) of Convention No. 129, and to send copies of the relevant legal provisions.

Matters specifically relating to labour inspection in agriculture

Article 6(1)(a) and (b) and 2 of Convention No. 129. Activities of the labour inspection services in occupational safety and health in agricultural undertakings. Noting the absence of a reply from the Government in this regard, the Committee once again requests the Government to provide information on the activities of labour inspectors in relation to agricultural undertakings, particularly on acts of supervision and prevention with a view to ensuring the protection of workers exposed to risks inherent to the use of chemicals, plant or complex machinery.
Recalling that Article 6(2) provides that national laws or regulations may give labour inspectors in agriculture advisory or enforcement functions regarding legal provisions relating to conditions of life of workers and their families, the Committee also once again requests the Government to provide information in relation to the application of this provision.
Article 9(3) of Convention No. 129. Training for labour inspectors in agriculture. Noting the absence of a reply from the Government in this regard, the Committee once again requests the Government to provide information on the content, duration, and dates of the training sessions intended specifically for labour inspectors performing their functions in the agricultural sector and the number of labour inspectors receiving such training at each session.
[The Government is asked to reply in full to the present comments in 2022.]

C087 - Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

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.

C098 - Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

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.

C129 - Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

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 International Trade Union Confederation (ITUC) on Conventions Nos 81 and 129, received on 1 September 2021.
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. The Committee notes with deep concern that the Presidential Decree No. 229 “On Introduction of a Moratorium on Inspections and Preventive Monitoring and Oversight with Visits in the Republic of Kazakhstan” of 26 December 2019, introduces a three year moratorium on labour inspection, which applies to private and state-owned enterprises belonging to the categories of small and micro-enterprises, starting from 1 January 2020. According to the Decree, the only exceptions allowing for inspections shall be 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, in addition to 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 Organisations”. According to the observations submitted by the ITUC: (i) this moratorium is also valid for unscheduled inspections performed by the State Labour Inspectorate following complaints of employees about various labour violations by employers; (ii) between January and September 2020, the provisions on exceptions provided in the Decree were used by state inspectors only three times (in Kostanay Region, East Kazakhstan Region and in the city of Nur-Sultan); and (iii) according to information from the Ministry of Labour and Social Protection, as many as 16,330 complaints were submitted to the State Labour Inspectorate in the first 8 months of 2020. The Committee further notes that section 140(6) of the Entrepreneur Code of the Republic of Kazakhstan of 2015 (No. 375-V ZRK) provides for the possibility of suspending inspections of private business entities for a specific period after a decision by the Government, in coordination with the Administration of the President of the Republic. In this respect, the Committee 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 urges the Government to act promptly to eliminate the temporary ban on inspections and 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 the legal provisions, in compliance with Article 16 of Convention No. 81 and Article 21 of Convention No. 129.
The Committee previously noted that there appeared to be extensive legal and practical restrictions in relation to scheduled inspections concerning inspectors’ access to workplaces and the frequency of inspection visits, resulting in a reduced effectiveness and scope of inspections.
The Committee notes that the Government does not provide in its report information in relation to its previous request on whether Order No. 55-p of 16 February 2011 repeals Order No. 12 of 1 March 2004, and whether the restrictions introduced by the latter Order, especially the prior registration of inspections at the Public Prosecutor’s Office, have been lifted.
In addition, the Committee notes with concern that the Labour Code and the Entrepreneur Code of 2015 contain various limitations on labour inspectors’ powers, including with regard to: (i) the ability of labour inspectors to enter freely any workplace liable to inspection (section 12 of the Entrepreneur Code); (ii) the ability of labour inspectors to undertake inspection visits at any hour of the day or night (sections 197(5) of the Labour Code and 147(2) of the Entrepreneur Code); (iii) the ability of labour inspectors to undertake inspection visits without previous notice (section 147(1) of the Entrepreneur Code); (iv) the free initiative of labour inspectors (section 197(2)(2) of the Labour Code and section 144(10) of the Entrepreneur Code); and (v) the scope of inspections, particularly in terms of the issues that can be examined in the course of inspections (section 151 of the Entrepreneur Code).
The Committee urges the Government to take the necessary legislative measures to ensure that labour inspectors are empowered to make visits to workplaces without previous notice at any hour of the day or night, 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. In addition, the Committee requests once again the Government to provide information on whether Order No. 55-p of 16 February 2011 repeals Order No. 12 of 1 March 2004, and whether the restrictions introduced by the latter Order, especially the prior registration of inspections at the Public Prosecutor’s Office, have been lifted.
2. Frequency of labour inspections. The Committee previously noted with concern that the number of inspections undertaken had decreased, owing to the discontinuation of inspections of small and medium-sized enterprises starting from 2 April 2014 until 1 January 2015, pursuant to the Presidential Decree on Cardinal Measures to Improve the Conditions for Entrepreneurship in Kazakhstan (Decree No. 757).
The Committee notes the Government’s indication that: (i) the risk management system is currently the main tool for determining the frequency of inspections; (ii) the joint Decree of the Ministry of Health and Social Development (No. 1022 of 25 December 2015) and the Ministry for the National Economy (No. 801 of 28 December 2015) established the risk assessment and checklist criteria for inspecting compliance with national labour legislation; and (iii) the risk management system has made it possible to regulate the controls carried out by state labour inspection bodies, to reduce the administrative pressure on employers in the context of their due diligence, and to improve the quality of the work performed by state labour inspectors. According to the ITUC: (i) the risk management system determines the frequency of scheduled inspections depending on the risk category assigned to the employer; (ii) in these conditions, no frequency of inspections is established for low-risk employers, meaning that the employers classified under such risk category are not covered by any scheduled monitoring activities; (iii) the procedure for the assessment of the risk category assigned to the employer depends, among other criteria, on the number of employees, with higher risk categories being assigned to enterprises with a greater numbers of employees; (iv) there is a decreasing probability of inspections of small and medium-sized businesses that carry a significant risk of abuses by employers; and (v) during scheduled inspections, an inspector is limited to the number of questions included in the checklists.
The Committee notes with concern that the Labour Code, as well as the Entrepreneur Code of 2015, which uses risk assessment criteria for classifying inspections and their frequency, contain various limitations on the frequency and duration of labour inspections (sections 140(8), 141, 148 and 151(6) of the Entrepreneur Code and section 197(6) of the Labour Code). Referring to its general observation of 2019 on the labour inspection Conventions, the Committee urges the Government to take the necessary measures, including the revision of the Entrepreneur Code and the Labour 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 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 the undertaking of inspections in practice, indicating the number of scheduled and unscheduled inspections, as well as the total number of workplaces liable to inspection. With regard to inspections conducted without prior notice, the Committee requests the Government to indicate the number of such inspections, whether they are conducted on-site or 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.
Articles 13, 17 and 18 of Convention No. 81 and Articles 18, 22 and 24 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. Further to its previous request, the Committee notes that the Government does not provide information on the penalties imposed for violating labour legislation and for obstructing labour inspectors in the performance of their duties. In this regard, the Committee notes with concern, that section 12 of the Entrepreneur Code of 2015 provides that enterprises may deny the inspection by officials of state control and supervision bodies in cases where they fail to comply with the requirements for inspections established by the Code.
The Committee notes that various legal provisions, such as sections 136 and 153 of the Entrepreneur Code of 2015, appear to limit the powers of labour inspectors to take steps with a view to remedying defects observed in plant, layout or working methods and to order measures with immediate executory force in the event of imminent danger to the health or safety of the workers.
The Committee further notes the Government’s indication, in reply to its previous request, that in order to prevent violations of labour law, section 197 of the Labour Code provides for a new form of monitoring of preventive visits to enterprises, following which the state labour inspector issues the employer with an improvement notice only, with no imposition of administrative penalties.
The Committee recalls 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 requests the Government to take the necessary measures, including the revision of the Entrepreneur Code and the Labour Code, to ensure that labour inspectors are able to initiate legal proceedings without previous warning, where required, in conformity with Article 17 of Convention No. 81 and Article 22 of Convention No. 129. The Committee further requests the Government to take the necessary measures to empower labour inspectors to take steps with a view to remedying defects observed in plant layout or working methods, or to order measures with immediate executory force in the event of imminent danger to the health or safety of the workers. In addition, the Committee once again requests the Government to indicate the penalties for violations of the legal provisions enforceable by labour inspectors, and for obstructing labour inspectors in the performance of their duties, to provide a copy of the relevant provisions, and to indicate how often such penalties have been assessed, as well as the amounts of sanctions imposed and collected.
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, an annual report on the activities of the labour inspection services has never been received by the Office. However, the Committee notes that the Government provides statistics on the number of inspectors, the number of inspections carried out, the number of industrial workplaces inspected, the number of industrial accidents, the number of accidents investigated, and the number of violations detected and penalties imposed. The Committee notes that the statistics sent by the Government on the activities of the labour inspectorate do not identify the specific data relating to the agricultural sector, so as to allow the Committee to assess the level of application of Convention No. 129. 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 the subjects listed under Article 21 of Convention No. 81, including in particular Article 21(a), (c) and (g). It also requests the Government to take the necessary measures to ensure that the annual reports contain information specific to the agricultural sector, as required by 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 2022.]
© Copyright and permissions 1996-2024 International Labour Organization (ILO) | Privacy policy | Disclaimer