New Kazakhstan Law on Trade Unions and Amendments to the Labour Code

by Morgan Lewis
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Under the new law, trade unions are limited and monitored.

New Law No. 211-V of the Republic of Kazakhstan on Trade Unions, dated 27 June 2014, (the Law) has been adopted in Kazakhstan. The Law came into force on 11 July and defines rules and regulations governing trade union activity in the country. The Law abolished the old law on trade unions from 1993.

In furtherance of the Law, the associated Law No. 212-V on Amendments to Certain Legislative Acts of the Republic of Kazakhstan on Labour Relations and Activities of Trade Unions, dated 27 June 2014, (the Amendments) has been adopted and also came into force on 11 July. This law introduces amendments, in particular, to the Labour Code.

In general, the Law does not grant additional powers to trade unions to represent employees, but it is intended to strictly monitor and limit the organization and establishment of trade unions. In particular, the Law

  • eliminates employees’ rights to organize themselves in their own free trade unions;
  • deprives trade unions of the right to conduct strikes; and
  • restricts employees’ rights to make demands addressed to employers via trade unions.

Key Features of Trade Unions Under the Law

  • The definition of a “trade union” has been changed to remove the freedom to create trade unions.
  • Trade unions are formed based on the production industry and/or territorial principle.
  • Trade unions independently draft and approve their charters and structures, define priority activities, form trade union bodies, organize their activities, and hold meetings, conferences, and congresses.
  • Trade unions are independent from and do not report to all levels of government, political parties, employers, and their associations. They are not controlled by or subordinate to any of the aforementioned entities.
  • Trade unions may unite into associations of trade unions.
  • Trade unions are formed by a group of at least 10 individuals who are linked by their common professional and industrial interests.
  • Trade union charters and bodies are approved at constituent congresses (e.g., conferences or meetings). The Law provides a list of information that must be provided in a trade union’s charter. The charter may also include restrictions on membership in other trade unions.
  • A trade union’s capacity as a legal entity arises from the moment of its state registration.
  • A trade union must be registered within two months from the date of its constituent congress (conference or meeting).
  • The Law further develops the concept of structural membership depending on the following levels of social partnership: national, regional, industrial, and local. If the level of social partnership is higher, the Law sets more requirements for establishing a trade union.

Levels of Social Partnership

The Law establishes the following levels of social partnership (i.e., cooperation among state authorities, employers, and employees aimed at ensuring their interests in connection with labour and other relations directly pertaining thereto):

  • National Trade Unions must have members from organizations in more than half of Kazakhstan’s regions and cities as well as the capital.
  • Regional Trade Unions must be part of the national association of trade unions as a membership organization or part of the relevant regional association of trade unions.
  • Industrial Trade Unions must include at least half of the total number of employees in the sector and related industries or industry organizations and related industries or they must have divisions or affiliates in more than half of Kazakhstan’s regions and cities at the national level and in the capital. Employees of small-sized businesses may create industrial trade unions, provided that the unions have structural divisions (e.g., branch and representative offices) and membership organizations in more than half of Kazakhstan’s regions and cities at the national level and in the capital. Industrial trade unions are part of the national association of trade unions as membership organizations.
  • Local Trade Unions are part of the industrial trade union as membership organizations.
  • Primary Trade Unions are established within organizations by a group of at least three individuals and are not legal entities. Primary trade unions must be a structural subdivision of a local or industrial trade union.

Limitations

  • Before the six-month period after the state registration date expires, national, regional, industrial, and local trade unions must provide documents confirming compliance with the requirements on membership and location.
  • Failure to comply with the requirements during the establishment of a trade union entails cancellation of its state registration in accordance with Kazakhstan laws.
  • A decision of registration authority may be appealed in court.

Associated Labour Code Amendments

  • Trade unions: In addition to trade unions’ rights set by the previous law, the Amendments specify functions of trade unions and their associations in representing the interests of employees at various levels of social partnership, including industrial, regional, and national. Furthermore, the Amendments specify the main terms and conditions of agreements at various levels of social partnership. The Amendments also extend the main terms for collective labour agreements (e.g., collective labour agreements, in addition to the existing terms, must also contain terms creating conditions for trade union activities and activities to educate employees on the basics of Kazakhstan’s labour laws of and on monitoring compliance with the collective labour agreement).
  • Inspection: State labour inspectors are now entitled to visit employers for one day for inspections without prior notice. There was no such right provided by the previous law.
  • Dismissal of women: Pregnant women, women with small children up to three years old, and single mothers may now be dismissed if they proceed to participate in a strike after being informed of a court’s decision to recognize the strike as illegal or the suspension of a strike. The previous law did not contain such grounds for dismissal of this category of employees.

Existing trade unions must, within one year from the date of the Law’s enactment, update their charters and organization structures in line with the requirements of the Law.

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Morgan Lewis
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