Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

With reference to its previous observation, the Committee notes the information provided by the Government in March 2004 in reply to the comments made by the International Confederation of Free Trade Unions (ICFTU) concerning the exploitation of Indonesian migrant workers. It also notes the information provided by the Government during the discussion on the application of the Convention in the Committee on the Application of Standards of the International Labour Conference in June 2004, the Government’s report received in August 2004 and the new comments made by the ICFTU in August 2004, a copy of which was forwarded to Government on 2 September 2004.

1. Forced labour of children on fishing platforms. In its previous comments, the Committee requested the Government to provide information on the action taken to eradicate work by children on fishing platforms (jermals) and on the results achieved in practice through this action. Noting that the Government has ratified the Worst Forms of Child Labour Convention, 1999 (No. 182), and provided reports on its application, the Committee requests it to refer to the comments that it is making on the application of that Convention. Indeed, as Convention No. 182 provides in Article 3(a) that the worst forms of child labour include "all forms of slavery or practices similar to slavery, such as the sale and trafficking of children, debt bondage and serfdom and forced or compulsory labour", the Committee considers that the problem of the forced labour of children on fishing platforms may be examined more specifically in the context of Convention No. 182.

2. Trafficking of persons. In its previous comments, the Committee referred to the observations made by the ICFTU indicating that the trafficking of persons, including for the purpose of forced prostitution, is widespread in Indonesia and that many migrants should be considered as victims of trafficking, with as many as 20 per cent of the 5 million Indonesian migrant workers being victims of trafficking. It noted in this respect the measures adopted by the Government to combat this phenomenon, including: the formulation of Bills on trafficking-related crimes; the establishment of 200 special centres and 19 integrated service centres to combat the trafficking of persons; the action taken by the police to prevent and combat the phenomenon; and the adoption on 30 December 2002 of the National Action Plan for Abolishing Woman and Child Trafficking. The Committee requested the Government to provide information on the adoption of the Bills for the prevention and repression of the trafficking of persons, the measures taken in the context of the National Action Plan for Abolishing Woman and Child Trafficking, the results obtained in combating the trafficking of persons in general (as women and children are the only categories covered by the Action Plan) and any legal proceedings initiated with a view to penalizing those responsible for trafficking.

During the discussion of the application of the Convention by Indonesia in the Conference Committee on the Application of Standards and in its report submitted subsequently, the Government has provided certain information on this subject:

-  the implementation of the National Plan of Action for Human Rights, 2004-09, which includes a programme to improve the integrated efforts for child protection from trafficking and sexual exploitation;

-  the reinforcement of the national police so that it is better able to deal with the crime of the trafficking of women and children;

-  the organization by the Ministry of Manpower and Transmigration of workshops to raise the awareness and train labour inspectors from various provinces and officials responsible for the enforcement of labour legislation so that they can address matters related to trafficking at the workplace with a view to its prevention;

-  the launching of a regional initiative in cooperation with the Government of Australia and the hosting of the Regional Ministerial Conference on People Smuggling and Trafficking in Persons in 2002 and 2003 with a view to enhancing regional cooperation and establishing a regional mechanism to combat trafficking in persons;

-  the continued updating of data on cases of trafficking, which is essential for the formulation of effective policies and programmes in this field;

-  the continuation of the process of harmonizing the legislation, particularly the Criminal Code and the law on immigration, with a view to including provisions on the trafficking in persons, and the finalization of the draft law on the eradication of people trading and trafficking in persons; and

-  in the context of collaboration with the ILO, participation in a project designed to address in particular the problems encountered by Indonesian domestic workers, including trafficking (the project on "Mobilizing Action to Protect Domestic Workers from Forced Labour and Trafficking").

The Committee notes all of this information and observes with interest that the Government, which is aware of the importance of the problem of trafficking in persons, is continuing to adopt awareness-raising, prevention and repression measures, particularly through the reinforcement of the capacities of the police and labour inspectors, regional cooperation and ILO technical assistance. Nevertheless, the Committee would be grateful if the Government would provide more concrete and detailed information, with particular reference to the following points:

-  assessing the scope and nature of the phenomenon of trafficking: the Committee hopes that the collection of data, to which the Government refers in its report, will mean that information becomes available on the number of persons concerned (men, women, children), the different forms of trafficking (national and transnational), the categories of workers concerned, etc., which will assist the Government in targeting the measures to be taken and assessing their effectiveness;

-  the penalties imposed: the Committee notes that the Government has not provided any information on the judicial proceedings initiated against those responsible for trafficking, nor the penalties imposed. In this respect, it notes that the draft law on trafficking in persons, to which the Government was already referring in 2003, has still not been adopted. The Government should take all the necessary measures rapidly to ensure that the legislation includes a full text defining trafficking in persons, providing for effective and dissuasive penal sanctions and containing provisions on the protection of victims and their compensation. The adoption of a text explicitly defining and penalizing trafficking would make it possible to resolve the shortcomings of the legislation in this field and would constitute an important stage in combating the trafficking in persons. In the meantime, the Committee notes that courts are nevertheless able to judge those responsible for trafficking based on other legal provisions, such as section 297 of the Penal Code, under which those responsible for the trafficking of women and boys are liable to a sentence of imprisonment of a maximum of six years, and the provisions of the Penal Code regarding sexual exploitation, as well as by penalizing failure to comply with the labour legislation (hours of work, working conditions, etc.). As Article 25 of the Convention provides that the illegal exaction of forced or compulsory labour shall be punishable by penalties that are really adequate, the Committee once again requests the Government to provide information on the complaints lodged for trafficking, the judicial proceedings initiated against the perpetrators, the penalties imposed, with copies of the relevant decisions, and the protection afforded to the victims;

-  the practical results achieved through the action carried out in the context of the National Action Plan for Abolishing Woman and Child Trafficking, adopted in December 2002. In this respect, the Committee draws the Government’s attention to the fact that the measures that it has announced do not appear to cover male victims.

3. Exploitation of migrant workers. In its previous comments, the Committee requested the Government to provide full information in reply to the comments made by the ICFTU on the exploitation of migrant workers. The requirement for migrants to go through recruitment agencies and the absence of legislation laying down the rights of Indonesian migrant workers and regulating the labour migration process make these workers vulnerable to exploitation. According to the ICFTU, unskilled Indonesians wishing to work abroad have to go through recruitment agencies, which charge them extortionate processing and training fees. Migrant workers are thus severely indebted even before they start working abroad. They are legally required to sign contracts with the recruitment agencies and have little power to negotiate their terms. Some contracts are even drafted in a foreign language and applicants are forced to lie about their age, address and even their identity. These workers end up accepting whatever work they are offered, even if it is different from the work envisaged in the contract. They are therefore in a situation of vulnerability to exploitation and forced labour.

According to the ICFTU, prospective migrant workers are exploited before, during and after their period abroad. Agencies require prospective migrant workers to live in training camps for up to 14 months, where they may be forced to work for the recruitment agency staff. Furthermore, conditions in these centres are extremely difficult and certain workers do not always benefit from freedom of movement. The agencies generate substantial profits as the exploitation of migrant workers continues after their departure for host countries. Once they are abroad, migrant workers have to pay off agency fees, which are usually higher than the legal maximum set by the Government. Depending on the country to which they emigrate, the agency is paid a sum corresponding to a number of months salary, which varies according to the country. In these circumstances, it is difficult for the workers, who are mistreated and forced to work longer hours than the normal working day under harsh conditions, to leave because of the contracts they have signed and the money owed to recruitment agencies. These workers encounter difficulties in obtaining information and assistance from their consular authorities, particularly on any redress mechanisms. Finally, migrant workers also have to pay agency fees to renew their contracts, which are usually higher than the legal maximum. Some agencies, by using coercion and deception for the recruitment and transportation of migrant workers abroad, are engaged in the trafficking of persons and should be punished accordingly. In its communication received in August 2004, the ICFTU reiterates these allegations in full.

In reply, the Government indicates that the recruitment of Indonesian migrant workers comes under its responsibility. It is regulated by Decree No. 104A/MEN/2002 and is carried out through public and private recruitment agencies, of which there are currently around 400. Private recruitment agencies have to obtain an official licence, which is only issued after verification of certain criteria. The Government acknowledges that abuses may occur throughout the recruitment process of migrant workers. It therefore supervises the activities of recruitment agencies and sanctions those which do not comply with the regulations. During the period 2002-03, a total of 61 agencies were sanctioned, 53 licences were withdrawn and legal proceedings were initiated against eight agencies. In cooperation with the police, the Ministry of Manpower and Transmigration raided several training and accommodation centres. The Government even suspended the sending of Indonesian workers to the Asian-Pacific area between February and August 2003.

The Government also provides information on the various stages of the recruitment process to which the ICFTU referred in its comments:

-  agencies are under the obligation, under penalty of sanctions, to inform workers of the nature of the job proposed, the conditions of work and constraints relating to the destination country so that they can decide freely whether to agree to leave and sign the employment contract. If the job does not correspond to the one envisaged in the contract, the worker has to refer the matter to the competent government institution so that action can be taken against the agency or employer. Agencies have already been sanctioned in this respect (withdrawal of their licences, the obligation to compensate the worker) and the Government keeps a blacklist of those in violation;

-  the Government establishes the cost of the placement of migrant workers on the basis of various factors, such as supply and demand, particularly with a view to preventing the worker being exploited by the agency. In this respect, the placement agreement concluded between the agency and the worker has to establish the rights and obligations of both parties, and particularly the cost of placement borne by the worker and the payment system. The Government verifies these agreements to prevent excessive costs being borne by workers;

-  the preparation of workers in training centres and the living conditions in dormitories are duly regulated. The Government adds that it has not received any complaint from workers who, having completed their training, are placed in households while awaiting the document authorizing their departure abroad;

-  the obligation to return to Indonesia upon completion of the contract is intended to allow workers to socialize with their families. Such a return is sometimes made compulsory by the host country. This obligation also affords workers the opportunity to extend their working contracts by themselves without going through the agency, thereby avoiding exploitation.

Finally, the Government indicates that it is aware of the lack of bargaining power of migrant workers and for this reason is seeking to improve their conditions through the conclusion of protocol agreements with host countries. Furthermore, a Bill on migrant workers’ placement and protection is under preparation and is intended to: raise the minimum age for working abroad; increase the role of manpower offices in recruitment processes and placement at the regional level; limit the validity of the licences granted to agencies; limit the placement costs borne by workers; and increase sanctions for placement agencies which infringe the law.

The Committee notes all of this information. It observes that the Government is aware of the abuses which may occur during the course of the process of the placement of Indonesian migrant workers and is endeavouring to take measures to combat such abuses and to penalize those responsible for them. Whilst welcoming these government initiatives, the Committee would be grateful if the Government would continue to provide information, particularly on:

-  the nature of the supervision carried out over the activities of placement agencies on the national territory, particularly with regard to the verification of placement agreements and employment contracts and compliance with their terms, the cost of placement actually borne by the worker, the training provided, the living conditions in training centres and dormitories and waiting periods;

-  the means available to the Ministry of Manpower and Transmigration to carry out these controls;

-  the nature of the infringements reported, the penalties imposed and any court decisions with copies of the decisions;

-  the facilities provided (assistance, redress mechanisms, etc.) to Indonesian migrant workers who are exploited in host countries and the protocol agreements signed with these countries, and to provide copies thereof.

Finally, the Committee hopes that the Bill on migrant workers’ placement and protection will be adopted in the very near future. It requests the Government to provide information on the comments made on this subject by the Indonesian Trade Union Congress, which were forwarded to the Government on 15 November 2004.