Individual Case (CAS) - Discussion: 2023, Publication: 111st ILC session (2023)

Written information provided by the Government

The Government has provided the following written information as well as a copy of Law No. 6/2023.

Update on the Job Creation Law

The Job Creation Law (Law No. 11/2020 and the amendment) does not amend the regulations on collective bargaining agreements (CBAs). The rules on CBAs remain under Law No. 13/2003 on Manpower and Law No. 2/2004 on Settlement of Industrial Relations Disputes.

Regarding CBAs for workers of small and medium-sized enterprises (SMEs), the Job Creation Law clearly stipulates that wages and workers’ rights at the termination of employment (compensation and other financial rights) must be based upon agreement between workers and employers. This is because the financial capacity of SMEs is not as high as that of large companies.

With respect to the revision of the Job Creation Law (following the decision of Constitutional Court No. 91/PUU-XVIII/2020), the Government states that:

- Procedural and substantial revision of the Law has been conducted by the Government and Parliament through amendment of Law No. 12/2021 on the Creation of Law, to also include an “omnibus law” model and meaningful public participation.

- Concluding Law No. 6/2023 on the Enactment of Law No. 2/2022 on Job Creation is to replace Law No. 11/2020.

- The revision of the Job Creation Law has been through public socialization and engagement with various stakeholders (unions, employers, universities, and other public sectors). The Government also paid attention to proposals and suggestions from independent research institutions, notably on critical issues raised by the public.

Article 1 of the Convention. Adequate protection against acts of anti-union discrimination

The Government reiterates that national law incorporates procedures to settle anti-union discrimination or violation of workers’ rights to organize: Law No. 21/2000 on Workers’ Unions and Law No. 2/2004 on the settlement of industrial relations disputes. The Government encourages all workers and unions to utilize national procedures as stipulated by the law, if they believe that their rights have been violated.

Article 2. Adequate protection against acts of interference

The Government reiterates its previous comment that article 122 of the Manpower Act is not intended to allow interference by employers or government officials when workers are voting. As yet, the Government has not received complaints relating to the presence of employers and/or government officials during a vote. Article 122 is also an expression of Indonesia’s sovereignty to regulate its domestic matters. There is no compelling reason to amend it.

Article 4. Promotion of collective bargaining

Based on Law No. 2/2004, the settlement of industrial relations disputes through an arbitration and industrial relations court can only take place after the parties in dispute have exhausted all measures of negotiation. Precisely as suggested by the Committee, the arbitration and industrial relations court serves as a final measure when negotiations between the parties fail.

The Government remains convinced that articles 5, 14, and 24 of Law No. 2/2004 are consistent with Article 4 of the Convention, as well as the principles of compulsory arbitration (as a last resort when repeated negotiations end in a deadlock). There is no compelling reason to amend the articles.

Recognition of organizations for the purposes of collective bargaining

The number of CBAs concluded at the end of 2021 was 17,495 agreements; at the end of 2022 it was 18,144 agreements.

Collective bargaining at the sectoral level

The Government as of now is still focusing on the creation of CBAs at the enterprise level to prevent disputes in the future, in line with Law No. 13/2003 on Manpower, and Ministerial Decree No. 28/2014 on the Rules to Conclude and Validate Enterprise Regulations and the Conclusion and Registration of CBAs.

Export processing zones

Workers’ rights to conclude CBAs in export processing zones (EPZs) remain guaranteed. To date, there has been 687 CBAs concluded in EPZs.

Discussion by the Committee

Chairperson – The third case on our agenda today is Indonesia, on the application of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

Government representative – On behalf of the Government of Indonesia, I take this opportunity to respond to the notes of the Committee of Experts on the application of the Convention in Indonesia which is associated with the implementation of the Job Creation Law and regulations and the application of collective bargaining. We have submitted our written response and would use this opportunity to further clarify the concerns.

First, on the impact of the Job Creation Law on the implementation of the Convention and the request to update information regarding the changes to the Law. The primary objective of the Law is to foster job creation and enhance employment opportunities while at the same time ensuring better protection for workers. This objective is achieved through initiatives and enhancing the national investment climate to attract both domestic and foreign investors, empowering cooperatives, micro, small and medium-sized enterprises as well as strengthening the national industry and trade sector, thereby stimulating economic growth in Indonesia.

The Law has yielded a positive impact for Indonesia, particularly in the economic and investment sectors as well as in the employment sector. Therefore, it deserves the support of the international community as one practical way for Indonesia to recover and lay the foundation for a stronger and more sustainable economy. The Job Creation Law and its amendment through Law No. 6/2023 on the stipulation of the government regulation regarding job creation to become law do not change any provision regarding the rights to organize for workers, which is regulated by the Law No. 13/2003 on employment (the manpower Act). The Law recognizes labour unions and employer’s organizations as important instruments for industrial relations. Following the enactment of the Law, the number of trade unions, federations, confederations, and members of trade unions in Indonesia has increased tremendously. There were estimated to be over 10,000 unions before the enactment of the Law, comprising more than 3.2 million members. After the enactment of the Law, from 2020 to 2023 the number of trade unions rose to over 12,000, encompassing more than 4.2 million members. This clearly demonstrates that the Job Creation Law has no negative impact on the workers’ right to organize. In addition, the Indonesian Constitution guarantees that no party may engage in discrimination or anti-union acts against specific groups. This has been stipulated in Law No. 21/2000 on Workers’ Unions. Therefore, concerns regarding the potential negative impact of the Job Creation Law on the implementation of the Convention are deemed irrelevant. The Job Creation Law does not amend collective bargaining provisions. In general, the provisions of collective bargaining apply to all scales of business. Both in terms of collective bargaining agreements and in the event of industrial relations dispute settlement. Regarding wages, Indonesia reiterates that the agreements between employers and workers in micro and small enterprises are concluded through collective bargaining, with the provision that the wage should not be lower than minimum limit set by the regulation. This is intended to protect workers’ wages and to maintain the sustainability of the business, considering that the capacity of companies at this scale is not the same as the medium and large-scale enterprises. Therefore, concerns that the Job Creation Law would limit collective bargaining between workers and employers in micro and small-scale businesses are unfounded. Furthermore, regarding the amendment of the Job Creation Law as follow-up to the Constitutional Court decision, we would like to provide the following information.

Amendments to the Law, both procedural and substantive, have been carried out through the revision of Law No. 12/2011 on the formulation of legislation that regulates the omnibus law method and meaningful public participation and Law No. 6/2023 on the stipulation of the government regulation regarding job creation to become law. The amendment to the Law has undergone dissemination and public engagement with various stakeholders such as labour unions, employers, academia and civil society. In addition, the Government has considered inputs from independent research institutions, particularly on critical issues raised by the public.

Secondly, regarding the observations that Indonesia does not provide adequate protection against anti-union discrimination. Indonesia reiterates that the national laws guarantee the protection of workers and labour unions against anti-union discrimination. Furthermore, the procedures for resolving disputes of anti-union discrimination or violation of workers’ rights to organize are explicitly stated in Law No. 21/2000 on Workers’ Unions and Law No. 2/2004 on the Settlement of Industrial Relations Disputes. Workers and labour unions whose rights are considered to have been violated are encouraged to utilize the national arrangements as stipulated in the two laws. The Government provides services to facilitate complaints of alleged violations in this regard.

Third, concerning the Committee of Experts’ recommendation to amend several of Indonesia’s regulations, we have thoroughly examined inputs from the Committee of Experts regarding the voting procedure in collective bargaining, collective bargaining agreements, article 122 of Law No. 13/2003 and mandatory arbitration to resolve industrial relations disputes, articles 5, 14, 25 of Law No. 2/2004. The regulation on voting procedures as outlined in article 122 of Law No. 13/2003, which refers to article 119, paragraph 2, holds significant importance. This is because it upholds the fundamental rights of every worker to join or not join a trade union, as well as the right to establish or refrain from establishing a trade union. In our assessment, these articles retain their relevance and lack compelling justification for modification.

Fourth, with regard to sectoral level collective bargaining. Indonesia is currently focusing on promoting the establishment of collective labour agreements at the company level, which is in line with Law No. 13/2003 and Ministerial Decree No. 28/2014, and to prevent broader industrial relations disputes. We are taking this approach considering that the capabilities of companies at the sectoral level are varied.

Fifth, regarding the right of workers to make collective bargaining agreements in export processing zones, I wish to reiterate my Government’s commitment to ensuring equal treatment for all workers, including those working in export processing zones and their right to make collective bargaining agreements.

In conclusion, Indonesia remains steadfast in its commitment to the principles of the ILO and the implementation of the Convention. Our commitment to fulfilling our obligations and addressing the Committee of Experts’ observations is unwavering. We are open to constructive dialogue and collaboration with the ILO and wider stakeholders on this issue.

Employer members – As we know, Convention No. 98 is a fundamental Convention, and it was ratified by Indonesia in July 1957. This case has been previously discussed six times in the Committee in: 1991, 1993, 1994, 1995, 1997 and 1998, but not for some time. It has also been the subject of 21 previous observations by the Committee of Experts.

By way of background, overlapping regulations, and historical and out-of-sync policy data within central and local government, were proving increasingly destructive to the investment climate in Indonesia. The Government took the initiative to bring these conflicting elements together under an integrated framework known as the Omnibus Law. Aspects of this law as originally drafted were deemed unconstitutional by the Constitutional Court, and the Government undertook a process of revision to rectify the shortcomings and to produce the current law. This was done through a public socialization process and engagement with various stakeholders including unions, employers, universities and other members of the public sector. The Government, we note, also paid attention to proposals and suggestions from independent research institutions on critical issues raised by the public.

We note that the omnibus methodology or concept is used in other countries to overcome similar obstacles. Certainly, the Employer members believe that a comprehensive approach such as this could lead to a strengthening of the economic systems in Indonesia, enhancing a conducive and attractive investment climate and providing comprehensive protections and systems to manage the labour market.

Care needs to be taken however, that these are done in such a way that they do not violate the international Conventions that have been ratified. Turning to the observations by the Committee of Experts concerning adequate protection against anti-union discrimination and notwithstanding the revision of the Omnibus Law, the ITUC, the Indonesia Trade Union Prosperity (KSBSI) and the Confederation of Indonesian Trade Unions (KSPI) assert that the Omnibus Law exposes certain categories of workers to a greater risk of anti-union discrimination. Noting that the Law was undergoing revision as a result of a decision of the Constitutional Court, in its 2023 report, the Committee of Experts requested the Government to examine the concerns expressed by the trade unions before the National Tripartite Council with a view to ensuring the full conformity of the revised law with the Convention. We understand that this process, in fact, is underway.

With respect to ensuring adequate protection against acts of interference, the Committee of Experts again expected the Government to amend article 122 of the Manpower Act, so as to prohibit the presence of the employer during voting procedures. Interestingly, this comment appears more relevant to article 119 which requires that votes be administered by a committee that is composed of workers’ representatives and union officials witnessed by a government official and by the employers.

We note here that there is no provision for anything other than a passive role for employers and the Government who nevertheless by their presence can ensure that there is no undue influence placed on voting workers.

We also note that few if any complaints have been received from the very many Indonesian unions or indeed workers about the exercise of this provision. Nor have there been any consequent judicial reviews regarding compliance with Article 4 of the Convention.

In relation to the promotion of collective bargaining, the Committee of Experts also requested the Government to take the necessary steps to promote collective bargaining at the sectoral and regional levels and to provide information in this regard.

However, the Employer members note that the Convention does not require promotion at a particular level of collective bargaining, only that and I quote “Measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or employers’ organizations and workers’ organizations, with a view to the regulation of terms and conditions of employment by means of collective agreements.” I think you will agree that that is a pretty general statement, not a more specific one.

In the case of Indonesia, the Job Creation Law regarding collective bargaining agreements for workers of small and medium-sized businesses, provides that wages and workers’ rights must be based on agreement between workers and employers. This in large part recognizes that the achievability of collective bargaining at higher than enterprise level is limited by the sheer number of micro and small enterprises in Indonesia and the practical difficulties inherent in organizing them. There are similarly large numbers of unions in Indonesia. As we heard, over 12,000.

By way of context, micro and small enterprises account for over 60 per cent of the whole Indonesian economy with more than 99 per cent of total enterprises in Indonesia categorized as micro and small, accounting for about 97 per cent of employment. There are also already a significant number of current collective bargaining agreements. At the end of 2021, there were around 17,495; at the end of last year, it was over 18,000.

Historically, most of the micro and small enterprises have been located in the informal economy where wages are unregulated, mainly due to an inability to pay the minimum wage which was too high compared to the profits they generated.

The Omnibus Law changed this. It brought micro and small enterprises into the formal economy in such a way that they can contribute more directly to the national economy, and are provided all the protections of employment law, albeit in forms that reflect the precarious reality of many small enterprises.

One of these forms is the exemption of micro and small enterprises from applying provisions related to the minimum wage. This is aimed at ensuring that a fair wage for the workers in micro and small enterprises is fulfilled while still considering the viability of micro and small enterprises. This is not an open chequebook.

Any agreed wage must be at least 50 per cent of the average consumption at the provincial level and at least 25 per cent above the poverty line. Furthermore, setting wages in this way does not eliminate the role of collective bargaining, instead, the policy emphasizes the need for free and voluntary negotiation between employers and workers.

Notwithstanding that the Government is currently focusing on the creation of collective agreements at the enterprise level, there is also an eye on the future. We understand that the ILO, Government and social partners have agreed to organize mediation skills training and training for workers’ and employers’ representatives in collective bargaining.

On export processing zones, we note that the Committee of Experts requested that the Government take steps to ensure that the rights under the Convention are guaranteed for workers where export products are produced and to continue to inform it.

The Committee of Experts also requested information on a number of collective agreements in force. We note that the collective agreements at the moment in the export processing zones are 687.

Overall, we have a small number of recommendations with all these points in mind, the Employer members urge the Government to continue to address the various issues arising from the introduction of the Omnibus Law through the National Tripartite Council and to avail itself of the technical assistance available from the ILO in this regard. And to ensure that any presence of employers or government officials on an occasion of voting is strictly in accordance with the provisions of the Convention.

Worker members – The application of Convention No. 98 by the Government of Indonesia is the subject of our discussion. The report of the Committee of Experts refers to a number of issues with respect to the application of the Convention in law and practice, including adequate protection against anti-union discrimination, adequate protection against acts of interference, promotion of collective bargaining and the extension of the coverage of protections afforded under the Convention to workers in export processing zones and in all such industrial and economic zones. The Convention protects workers from anti-union discrimination, from acts calculated to undermine the rights of workers to join or form a genuine workers’ organization, or otherwise prejudice a worker because of their union activities or membership. It calls for the setting up of appropriate machinery to ensure respect for the right to organize and calls for measures to be taken to encourage and promote the full development and utilization of the machinery of collective bargaining for the regulation of conditions of employment. The ILO flagship report of 2022 on collective bargaining shows the potential of collective bargaining to make an important contribution to the inclusive and effective governance of work, with positive effects on stability, equality, efficiency, compliance and the resilience of enterprises and labour markets. We are concerned that the Government is not taking measures that will enable workers in Indonesia to benefit from the protection afforded under the Convention. We have a particular situation in mind.

On 2 November 2020, President Joko Widodo signed Law No. 11/2020 on job creation, known as the Omnibus Law, despite the strong objection of a broad coalition of Indonesian trade union organizations and other civil society organizations. The Constitutional Court of Indonesia struck down the law on 25 November 2021. While this could have been an opportunity to engage in meaningful tripartite dialogue to address the trade unions’ many legitimate concerns, the Government instead issued an emergency regulation for job creation in December 2022, which re-enacted the Omnibus Law with only minor amendments. Parliament passed the emergency decree into Law No. 6/2023 on 21 March 2023. The stated motivation behind the enactment of the Omnibus Law, was to attract foreign investment in order to stimulate economic growth. Instead of upholding the provisions in the Convention, with a view to achieving sustainable and productive economic growth by lifting real workers out of the low income, low labour protection merry-go-round. The path chosen by the Government will instead drive down wages and worsen working conditions. Making life even more difficult for workers already reeling from the impact of the COVID-19 pandemic. Foremost, the law significantly damages the existing system of wage setting in Indonesia, by removing minimum wage protections for almost all Indonesian workers, which has the effect of undermining the tripartite wage negotiations that determine minimum wages as well as the capacity of the unions to negotiate wages at the enterprise level. In fact, instead of encouraging and promoting machinery for collective bargaining, the law exempts micro and small enterprises, for which wages must now be determined based on agreement between the entrepreneur and the workers in the company.

The vast majority of Indonesian workers as we have heard, 97 per cent, are employed in micro, small or medium-sized enterprises, according to 2018 figures from the Central Bureau of Statistics.

Additionally, a number of provisions undermine the obligation to set up measures to encourage and promote the full development and utilization of collective bargaining by fomenting more precarious employment and thus undermining the protection afforded to workers to form unions, organize their activities and to bargain. For example, reforms related to fixed term contracts, outsourcing of work and labour and the termination of employment threaten an ever-greater usage of precarious employment in the country, exacerbating already significant economic and social instability and insecurity for workers. The Law effectively removes many provisions and limitations on the use of fixed term contracts contained in the previous Law No. 13/2003. Without these provisions, workers are exposed to the risk of abusive recourse to fixed-term contracts, leading to social instability and a lack of balanced and sustainable economic growth that improves the lives of real people.

The new flexibilities in the Law, if not amended, will render the minor protections remaining in the Law cosmetic, and largely meaningless. As the Committee of Experts has recently observed, a worker whose fixed-term contract was not extended or renewed, will usually bear the burden to show that the failure to extend or renew the contract was the result of anti-union discrimination, or some other prohibited reason, undermining the effect of provision against anti-union discrimination, required under the Convention. The Law also provides that labour providers can outsource labour to perform any functions of the user company, including its core functions. Further, the labour provider is solely responsible for workers, apparently absolving the user company of any responsibility to all workers, even when the labour provider violates the law.

As with fixed-duration contracts, the deregulation of labour outsourcing will have profoundly negative impacts on the exercise of fundamental labour rights. As the ILO has explained, the presence of multiple labour providers can fragment the bargaining unit, preventing workers from reaching the regulatory threshold necessary to either form a trade union or gain recognition as bargaining agent. Moreover, if there are multiple bargaining units within an enterprise, they may not have sufficient bargaining power in collective bargaining negotiations.

In addition to the problems created by the Job Creation Law, the Committee of Experts has also highlighted a number of legislative and policy issues, which the Government should have addressed rather than creating new and serious problems. Here we would refer to the Committee of Experts’ request to amend article 122 of the Manpower Act, so as to prohibit the presence of the employer during voting procedures; amend articles 5, 14 and 24 of Law No. 2/2004, or the Industrial Relations Dispute Settlement Act, to ensure that compulsory arbitration during collective bargaining can only be invoked under exceptional circumstances, so as to ensure that the principle of free and voluntary collective bargaining is respected; take the necessary steps to also promote collective bargaining at the sectoral and regional levels and to provide information in this regard; and ensure that the rights under the Convention are guaranteed for workers in all the zones, including export processing zones, where export products are produced and continue to inform of the progress in the above-mentioned tripartite consultation.

The Government has much work ahead to bring it laws and practice into compliance with the Convention. We urge the Government to immediately undertake a thorough review of its laws, including the new Job Creation Law, in a tripartite manner and with the technical support of the ILO, in order to ensure full compliance with the right to collective bargaining protected under the Convention.

Employer member, Indonesia – Thank you for granting the Indonesian Chamber of Commerce and Industry (APINDO), the employer’s association of Indonesia, the opportunity to address this Committee and provide additional information regarding the Indonesian case on Convention No. 98. For this matter, we invite you to follow the prevailing labour situation that prompted Indonesia to enact the Job Creation Law of 2020, then confirm it under Act No. 6/2023, using the omnibus method.

According to a survey conducted by the Indonesian Central Statistics Bureau, the Indonesian workforce in August 2019 reached approximately 133 million, with 126 million people employed and 7 million unemployed. There were 28 million part-time workers and 8 million under-employed. Meanwhile, the new workforce reached 2 million and every year it is estimated that there will be about a 3 million annual increase in the new workforce. There should be efforts to create job opportunities for approximately 45.8 million people. The issue of employment opportunities directly correlates to the education level of the Indonesian workforce, which is predominantly at the junior high school level or below.

The employment challenges are also exacerbated by the upcoming peak of Indonesia’s demographic bonus projected for 2030. The abundant productive working-age population must be effectively managed to ensure maximum benefits for the country.

Based on data from the Indonesia Investment Coordinating Board, there has been a significant decline in labour absorption. In 2013, investments amounted to 398 trillion Indonesian Rupiah (IDR), with a job absorption ratio of 1 trillion per 4,594 workers. However, in 2022, investments reached IDR1,207 trillion, but the job absorption ratio decreased to 1 trillion per 1,081 workers. These figures demonstrate that investments have tripled over the past ten years, while job absorption has drastically declined by 75 per cent. This declining trend in labour absorption requires careful attention, particularly considering the fact that over 50 per cent of Indonesian workers were employed in the informal sector.

This Job Creation Law involved revisions and updates to articles covered in the previous Manpower Act of 2003.

These changes to the labour regulations were implemented to fulfil the demands of the Indonesian people’s constitutional rights, as stipulated in article 27(2) of the Indonesian Constitution of 1945 which states that every Indonesian citizen has the right to work and a decent livelihood for humanity.

We need to further note, that although there have been some changes to the terms of employment, the new Law also introduces new protection schemes for workers. The Job Creation Law provides a new protection mechanism for terminated workers through an unemployment benefit scheme and compensation for temporary workers, who were not previously addressed by the Manpower Act.

As Indonesia has ratified nine fundamental Conventions, we believe that the said Law has been formulated deliberately to ensure that the provision does not jeopardize the principles of respecting workers’ fundamental rights as outlined in the ILO Declaration on Fundamental Principles and Right at Work.

Concerns regarding potential violations of the Convention due to the changes in labour regulations are not substantiated. The specific regulations governing wages for workers in micro and small enterprises exist because it will be unrealistic if we apply the same standards for micro and small enterprises as medium and large enterprises. However, article 90(b) of the Job Creation Law also stipulated that agreements between employers and workers on minimum wages for micro and small enterprises workers may not be lower than a certain percentage of average public consumption. Additionally, workers in micro and small enterprises continue to be covered by all social protection and occupational safety and health regulations. The Law needs to strike a balance between achieving ideal goals and addressing the existing realities.

According to recent data, the business world in Indonesia is mainly supported by micro, small and medium-sized enterprises, since they account for 119.56 million people (96.92 per cent). This fact supports the objectives of the Job Creation Law, which is to empower and promote the development of micro and small enterprises so that they can expand job opportunities and equal distribution of welfare for Indonesian people.

In line with the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144), the formulation and the process of Law No. 11/2020 has undergone a detailed and comprehensive process including incorporating the aspirations of various stakeholders and conducting a thorough social dialogue in the Tripartite Consultation Forum.

On this occasion, we would like to also emphasize that the Indonesian employers’ association respects the right to collective bargaining in the workplace. Therefore, we continuously strive to strengthen the capacity for collective bargaining in the workplace. One example is our collaboration with the Dutch Employers’ Cooperation Programme, the Christian National Trade Union Federation and KSBSI to conduct training on social dialogue between management and workers in the workplace, enabling them to formulate collective labour agreements that are suitable for their respective companies.

APINDO does not claim that everything is perfect. There is still much work to be done by the Government to ensure that the Job Creation Law fulfils its intended role of providing extensive job opportunities for the welfare of the entire Indonesian nation. The coordination between the central government and local authorities to achieve a common goal still needs to be improved to enhance the quality and productivity of the workforce, which is becoming an ongoing challenge.

However, the Government has continuously demonstrated its commitment to the welfare of the Indonesian nation. This was evident during the global COVID-19 pandemic as we were able to navigate through it successfully.

We believe that through collaboration among all stakeholders who share the same vision, the welfare of the Indonesian people can be promoted. What business associations need now is a preferable domestic situation that enables all parties to fulfil their role to the fullest. Therefore, we hope that the Committee will share our views that domestic issues will be resolved internally by the relevant parties, focusing on the best interests of the Indonesian people through constructive dialogue and enforced by the tripartite spirit. By doing so, we believe social justice and decent work can be achieved.

Worker member, Indonesia – The discussion of this case by the Committee is very timely and critical. As highlighted in the Committee of Experts’ report, the implementation of the Convention in Indonesia is very problematic. The Job Creation Law, which has become known as the Omnibus Law, and its implementing regulations, clearly undermine labour rights, remove many protections and in particular the rights which are protected under the Convention.

Before I get deeper into the main issues on the implementation of this Convention, I will inform this house on the matters related to this Job Creation Law. On 2 November 2020, President Joko Widodo, signed Law No. 11, the Job Creation Law, which became known as the Omnibus Law. Trade unions and civil society opposed this Job Creation Law for its negative impact on the promotion and protection of labour rights.

In developing the Law, the Government of Indonesia failed to have proper consultations with trade unions. Trade unions unitedly voiced their opposition. As a result, on 25 November 2021, the Constitutional Court ruled that the formation of the Omnibus Law was unconstitutional and ordered the Government to improve the Law within two years. But instead of enacting the Constitutional Court’s decision, President Joko Widodo took a shortcut by issuing the Government Regulation in lieu of Law (Perppu) No. 2/2022 to impose the enforcement of this Omnibus Law.

Similar to the Job Creation Law, the provisions in the Perppu entirely downgraded workers’ fundamental rights and workers’ welfare, particularly on minimum wage setting, short-term contract employment prolongation, flexible regulation on outsourcing, longer overtime, reduced severance payment and so on.

The Government claimed Perppu No. 2/2022 was released on the grounds of a state of emergency caused by the economic impacts of the war between Russia and Ukraine. Trade unions and civil society organizations opposed this by nationwide strikes as there were no such emergency grounds.

On 20 March 2023, the Director-General of the ILO wrote a letter to the Government to raise the concerns submitted by the three largest trade union confederations (KSPI, KSBSI and KSPSI) so as not to pass this emergency regulation into law. However, this regulation was passed by Parliament and became Law No. 6/2023. Still, protests against this law continued. With the enactment of this law, the previous Law No. 11/2020 on job creation automatically no longer applies.

There is ambiguity in this regard. On the one hand, the new law is already promulgated and in effect, however, there are at least 49 implementing regulations currently in force originating from the annulled Law No. 11/2020. Nonetheless, the examination of the Convention by this Committee is very timely and relevant because the law clearly undermines the principles of the Convention.

To facilitate the implementation of the Job Creation Law, the Government issued several implementing regulations including: (i) Government Regulation No. 35/2021 on fixed-term employment, outsourcing of labour, and so on; (ii) Government Regulation No. 36/2021 on wages; and (iii) Minister of Manpower Regulation No. 5/2023 concerning adjustment of working time and wages. I will limit my intervention to how these critical implementing regulations undermine the Convention.

First, Government Regulation No. 35/2021 has weakened the power of unions to bargain collectively. On fixed-term employment contracts this allows flexibility to employers, as there is no longer any restriction on extension and renewal, except that the total length of the fixed-term contract should not exceed five years. It was also recently circulated in the media when the women workers disclosed the practice of “staycation”. Staycation is a practice where women workers are asked to spend a night with their boss as a requirement to extend the short-term employment contract.

On the outsourcing of labour, under the Omnibus Law, a company could easily undermine an existing trade union of directly hired workers performing core functions simply by hiring new workers through a labour agency. On the termination of employment, the Omnibus Law dismantles a crucial safeguard on employment termination. With such relaxation of employment termination processes, fixed-term contract workers would be more reluctant to join trade unions, therefore it has an impact on weakening the function and role of trade unions. On severance payment, under the Omnibus Law, severance pay has been reduced. Second, Government Regulation No. 36/2021 limits the union rights to collective bargaining and caused significant damage to the wage system. The Omnibus Law significantly reduces the role of tripartite wage council negotiation in determining minimum wages. The Omnibus Law introduced a new formula in which minimum wages would be set based on data provided by the national statistics agency.

The fact that through this system trade unions no longer have room to negotiate commodity prices as one of the most important elements in determining the minimum wage, means that these changes affect the capacity of trade unions to effectively negotiate wages.

The Job Creation Law also abolished sectoral minimum wages. In addition, the law also exempts micro and small enterprises from having to pay the minimum wage. This wage exemption rule is a clear violation of the universal right to wages, which states that everyone is entitled to a fair and decent wage without discrimination in any form.

Third, the Minister of Manpower Regulation No. 5/2023 violates trade unions’ right to bargain collectively. On March 2023, Minister of Manpower Regulation No. 5/2023 entered into force. In article 8 of this regulation, it states that the companies in the above-mentioned sector may adjust and reduce workers’ working hours and wages up to 75 per cent. Although the wage cut will be made based on an agreement between the employer and (individual) workers, trade unions are very concerned about the fact that the regulations deny the existence of union representatives, especially at the company level, and are thus violating the collective bargaining process.

The regulation clearly ignores the employers’ obligation to disclose proper data to trade unions on the cause of wage cuts. Facts on the ground showed that a number of companies in the above-mentioned sectors have decided on certain acts of wage cuts and changes in working hours without any prior dialogue with the existing unions.

As highlighted in the report, we support the Committee of Experts’ view that the Government should take measures to amend the Industrial Relations Dispute Settlement Act.

The above explanations clearly illustrate how the Job Creation Law and its implementing regulations undermine the basic principles stipulated in the Convention. Therefore, through this Committee, we urge the Government to immediately take steps to: (i) amend the Job Creation Law along with its implementing regulations, in consultation with the social partners, to ensure full compliance with the Convention; and (ii) suspend the operation of all regulations under the Job Creation Law.

In this regard, we request the technical assistance of the ILO to ensure the proposed amendment is in conformity with the Convention by way of a direct contacts mission request to Indonesia.

Government member, Brunei Darussalam – I am speaking on behalf of the Association of Southeast Asian Nations (ASEAN) member States. ASEAN acknowledges the numerous endeavours and initiatives undertaken by Indonesia to adhere to the Convention. In this regard, ASEAN commends Indonesia on the recent amendments made to its legislation, known as the Job Creation Law, aimed at enhancing economic development, trade, investment and worker protection.

The amendments to the legislation represent a substantial undertaking that will require time to observe their impact on implementation. Ensuring public oversight is crucial to guarantee the enforcement of this law. In this context, ASEAN is pleased to note that the Indonesian Constitution guarantees every citizen’s right to bring concerns regarding national laws to the Constitutional Court. ASEAN remains optimistic that the Indonesian Government is fully committed to preventing any violation of individuals’ rights due to the enactment of this law.

ASEAN also urges Indonesia to sustain meaningful engagement and consultation with the tripartite constituents. The Job Creation Law should facilitate and encourage dialogue and consensus-building between employers and workers. ASEAN expresses appreciation for Indonesia’s commitment in this regard, which highlights its dedication to safeguarding workers’ rights and ensuring equitable treatment for all workers, including those employed in micro-and small enterprises, as well as those working in the export processing zones.

Moreover, Indonesia has established and implemented legal frameworks that incorporate safeguard elements and provisions for remedies, which can be deemed adequate in addressing concerns related to anti-union discrimination. Nevertheless, ASEAN recommends that Indonesia continues reviewing these provisions to ensure full compliance with the Convention and the complete effectiveness of their implementation.

ASEAN acknowledges and appreciates Indonesia’s strong partnership with the ILO throughout the amendment process, recognizing that this collaboration serves as a pathway towards full compliance with the Convention. ASEAN views this as a timely moment for Indonesia to persevere in its commendable endeavours to safeguard and advance the rights of workers. We express our unwavering support for the continuous and sustainable implementation of planned activities in this regard.

In addition, ASEAN emphasizes the importance of addressing emerging issues and challenges that impact the traditional labour market and industrial harmony. We urge the ILO to maintain close cooperation with its Member States, fostering an environment that promotes decent work for all workers. Together, we can proactively address these issues and ensure the well-being of our workforce.

Interpretation from Russian: Government member, Belarus – At the outset I would like to thank the delegation of Indonesia for the report, which contains detailed comments on the questions from the Committee of Experts. We note the commitment on the part of the Government to rigorously observe the ILO Conventions. We welcome the pursuit of a consistent policy on employment and work and also the measures taken at the national level to develop social dialogue.

We welcome the measures taken by the Government to ensure participation in the preparation of the Job Creation Law by the social partners, representatives of civil society and academia. We are sure that such an approach to the development of this legislation will enable the State to broaden the possibilities for the organization of collective bargaining, while also enhancing the legal basis to prevent all forms of discrimination in labour and employment and raising awareness among workers of their rights.

We call upon the Government to pursue these efforts. We also call upon the ILO to continue providing Indonesia and the social partners in the country with the necessary technical assistance.

Employer member, Thailand – The Employers’ Confederation of Thailand is making the statement here on behalf of the ASEAN Confederation of Employers (ACE). With the ending of the pandemic, all countries must adapt to the new ways of working and develop a global strategy to reconstruct their economies. In this regard, we believe there is no “one size fits all” strategy because every country has unique challenges. It is therefore imperative for Indonesia to rebuild its economy by rejuvenating the labour law by enacting Job Creation Law No. 11/2020 through the omnibus method. Concerning this case, ACE believes that the Government has conducted a robust and comprehensive consideration accommodating the interests of all the relevant stakeholders, including by conducting a social dialogue between Government, labour unions and APINDO. This practice is in line with the spirit of tripartism under Convention No. 144.

ACE believes that during the social dialogue, not all interests, including those of employers could be accommodated. However, for the long-term need of Indonesia’s economic sustainability, ACE believes that the Job Creation Law is the way forward for the realization of social justice and decent work in Indonesia. The social dialogue is the clear proof that the Government has made its best efforts to embrace all relevant parties in order to fulfil its responsibilities in enhancing the welfare of Indonesian society.

ACE is hopeful that the Indonesia case could be settled internally through social dialogue among tripartite members and requests the Committee of Experts to comprehensively review and reconsider this case for the better future of Indonesian people.

Worker member, Belgium – Law No. 13/2003 included numerous protections and limitations on the purpose, duration and renewals of fixed-term contracts. All these protections were repealed by the Omnibus Law of 2020. The three-year limitation on fixed-term contracts was extended to five years by Government Regulation No. 35/2021. The provision on transforming oral contracts into open-ended contracts was abolished. While fixed-term contracts for jobs of a permanent nature remain prohibited, the new law renders this prohibition ineffective.

The significant imbalance in bargaining power between employers and workers means that, in practice, employers can impose contractual conditions on workers without negotiation. As a result, many more workers are being hired on consecutive precarious contracts, with limited legal protections. Moreover, some companies have dismissed workers with permanent status, only to rehire them as temporary workers.

Precarious contracts create obstacles to exercising the right to freedom of association. Workers engaged in trade union activity can be more easily subjected to reprisals and dismissed. These contracts have a negative impact on groups exposed to employment discrimination, particularly women. For example, it is common for employers not to renew the contracts of pregnant women.

Lastly, the increased power of employers due to the precariousness of employment can also lead to violence and harassment. Persons seeking contract renewals can be coerced into sexual relations through the widespread practice of “staycations”. Recently, a worker at a cosmetics company in the city of Bekasi, West Java, testified that prior to the renewal of her contract, her manager invited her via WhatsApp to join him at a hotel for a so-called vacation. If she rejected this invitation, she risked not having her contract renewed. The case was handled by the Labour Inspectorate and the police, and on May 29 the Minister of Manpower issued Decree No. 88 on the guidelines for preventing and dealing with sexual harassment and violence at work in relation to this practice.

It is certainly highly desirable for Indonesia to combat violence and harassment, including gender-based violence and harassment, and to ratify the Violence and Harassment Convention, 2019 (No. 190).

However, protection against violence and harassment also requires the ability to negotiate better working conditions, such as better job security and effective protection against dismissal.

Government member, United States of America – We thank the Government for providing additional information to this Committee regarding updates on the Job Creation Law, also known as the Omnibus Law.

The Government reports on various measures it has taken to address concerns related to the Job Creation Law, including efforts to revise the Law procedurally and substantively through the amendment of Law No. 12/2021 on the Creation of Law to include provisions detailing an “omnibus law model” and a meaningful public participation process. It also indicates that Law No. 2/2022 on job creation replaces Law No. 11/2020. We also note that the law was promulgated through an emergency regulation, or “Perppu”.

We note significant concerns with respect to both the development and consultation process, as well as impacts to existing labour laws. We also note reports that workers continue to express concerns related to changes in several laws.

We are especially concerned that the legal changes made by the Omnibus Law threaten Indonesian workers’ freedom of association and right to organize and bargain collectively.

Namely, we note that increased flexibility for companies to use temporary contracts for extended periods of time in place of hiring a permanent workforce and the expanded ability for companies to outsource permanent work to private labour-only outsourcing companies supplying temporary workers specifically imperil these rights.

Further, contract and outsourced workers will have little to no recourse to address working conditions at the user companies and risk losing their jobs if they attempt to raise concerns about working conditions to an industrial relations tribunal; and, also, the use of workers from multiple outsourcing companies at a single user company can seriously fragment the workforce, enabling the use of multiple employers by the contracting company, which will prevent workers from organizing and bargaining collectively.

To that end, we urge the Government to remove the labour-related provisions from the Job Creation Law that impede the rights to freedom of association and collective bargaining, and we call on the Indonesian Government to work closely with the ILO to ensure all future labour law reforms are consistent with international labour standards.

We also call on the Government to immediately implement the recommendations of the Committee of Experts and end compulsory arbitration obligations by amending articles 5, 14 and 24 of the Industrial Relations Dispute Settlement Act. The United States remains deeply committed to engaging with the Government to advance workers’ rights in Indonesia.

Worker member, United States of America – I want to begin by echoing the comments of my Indonesian trade union colleague. The Government’s imposition of the omnibus Job Creation Law represents a grave threat to workers’ fundamental rights to freedom of association and collective bargaining.

Indeed, despite the November 2021 ruling of the Constitutional Court ordering the Government to reformulate the law with the full input of the social partners, the Government has instead chosen to plough ahead with a highly unpopular set of regulatory changes in a misguided attempt to attract foreign direct investment.

Let me focus on one highly problematic change that directly undermines the right of Indonesian trade unions to bargain collectively on behalf of their members. Through Government Regulation No. 36/2021, the Indonesian Government has eliminated the ability of trade unions and businesses to negotiate sectoral minimum wage levels that can exceed the prevailing minimum wage. Removing sectoral negotiations from wage setting will significantly reduce the salaries of workers in several sectors, such as mining, construction and apparel. It also violates the right of trade unions to use a proven method of collective bargaining to raise wages for their members and workers more generally.

In our view, this attack on workers’ rights to organize and bargain collectively has implications for Indonesia’s efforts to position itself as a sustainable source of critical minerals in the growing electric vehicle battery industry.

Presently, the Government of Indonesia is proposing a free trade agreement for critical minerals to the United States so that companies who utilize Indonesian mineral inputs can benefit from United States tax credits for electric vehicles.

The United States labor movement is watching this closely and will insist that any trade deal contains strong commitments to uphold workers’ fundamental rights to freedom of association and collective bargaining.

Moving forward, we urge this Committee to issue a strong recommendation for Indonesia to amend the Omnibus Law, in consultation with the social partners, to ensure compliance with the Convention.

Interpretation from Arabic: Government member, Egypt – We have taken note of the statement delivered by the Government representative concerning implementation of the Convention. Indonesia has extensively overhauled its employment legislation. This is being reviewed by the Government and Parliament through public consultation with participation of all stakeholders, unions, employers, academia and other sectors. The Indonesian Government has seen to it that domestic legislation contains provisions to govern various elements of work. The Government encourages all the stakeholders to avail themselves of these provisions in their industrial relations. The Government has encouraged the establishment of collective bargaining agreements with 18,000 collective agreements as of 2022. The Government has seen to it that a thorough assessment is undertaken at the enterprise level and the necessary steps are taken to avoid workplace conflict. We reiterate the important role to be played by the ILO in supporting Member States to enable them to ensure that they are line with the provisions of international labour standards.

Worker member, Netherlands – The Job Creation Law impacts the Indonesian world of work in several areas ranging from curtailing wage increases to increased labour flexibility limiting freedom of association and collective bargaining. As already said by previous speakers, I want to focus on an aspect that has to do with minimum wage. The Job Creation Law has made substantial changes regarding the calculation of the minimum wage. The new regime shifts from a decent wage calculation based on purchasing power to a safety net calculation. Under the 2003 Manpower Act, the minimum wage was based on three components, namely the tripartite negotiated wage basket, also known as Komponen Hidup Layak, productivity and economic growth. The Job Creation Law introduced a new formula in such a way that the connection between the statutory minimum wage and the cost of living is weakened and thus no longer adequately counter-balances rising inflation for minimum-wage-earners. This in turn reduces the capacity of wage earners to maintain or raise their standard of living and those of their families.

On top of that, I also would like to add to this a comment regarding Government Regulation No. 36/2021, which exempts micro and small enterprises from the provincial, regional or city-level minimum wage.

The vast majority of Indonesian workers, around 97 per cent of the workforce, it was already said before, are employed in micro, small and medium-sized enterprises. Based on data published by the Ministry of Cooperatives and SMEs of Indonesia, there were over 64 million SMEs in 2019, which made up 99.9 per cent, or even more, of the total business population and employed, I repeat, 97 per cent of the total workforce. The exemption of the SMEs is in contravention to article 90 of the Manpower Act 2003, which “prohibits employers from paying lower than the minimum wage”. To be more precise this article states clearly that: (i) entrepreneurs are prohibited from paying wages lower than the minimum wages as referred to under article 89; (ii) entrepreneurs who are unable to pay minimum wages may be allowed to postpone paying minimum wage; and (iii) procedures for postponing paying minimum wages shall be regulated with a ministerial decision. All this is an important floor for workers in their wage negotiations with any employer.

This is not the case as long as there are exceptions in the application of the minimum wage for large groups of workers, even though this minimum wage is not even equal to a living wage.

Therefore, Government Regulation No. 36/2021 denies the right of a meaningful wage negotiation to 97 per cent of the workforce, which goes against the core objective of the Convention.

Government member, Algeria – The Algerian delegation thanks the Government for the information provided, which signals its willingness to cooperate with the ILO supervisory bodies. The additional information provided by the Government summarizes a range of matters and outlines its desire to make further progress in inclusive social dialogue, improve freedom of association and strengthen protection against all anti-union discrimination.

We therefore take this opportunity to highlight the importance of giving the Government sufficient time to engage in constructive social dialogue with the bodies and representative trade unions within the framework of national legislation and in compliance with its obligations and commitments under relevant international standards. That will allow collective bargaining to be strengthened in all workplaces, thus better adapting employment relationships to businesses’ specific circumstances.

The Government has established mechanisms to promote sectoral collective bargaining and tripartite social dialogue, making constructive progress in creating decent jobs, combating unemployment and preventing collective labour disputes, including in export processing zones. Moreover, the country’s Constitution sets out clearly that individuals’ rights and freedoms are protected by law, independently and impartially.

We also welcome the Government’s communication and substantive exchanges with the social partners, as well as the significant number of collective agreements and accords that have been concluded on the matter of working conditions.

Lastly, the Algerian delegation hopes that the Committee’s conclusions will be objective, technical and balanced, based on information provided by the Government.

Worker member, Republic of Korea – In solidarity with Indonesian workers, I would like to express concerns about Government Regulation No. 36/2021 on wages, which is effectively abolishing the negotiation process in minimum wage setting.

Under the Manpower Act of 2003, wage councils, consisting of representatives of government, employers and trade unions have taken leading role in setting provincial and district minimum wages. At the same time, “decent living needs”, a list of items covering the expenses on food, housing, clothes, education, health, transportation, recreation, and savings, was jointly determined by wage councils. Other elements, including productivity at national and local level, economic growth and the position of marginalized industries had also to be considered. So, debates in relation to decision-making in wage councils, especially over the “decent living needs” were a crucial space for negotiation where unions can exercise the rights to represent their members and the workers.

This mechanism was once deteriorated and the space for negotiation were limited when the Government Regulation No. 78/2015 was introduced. This Regulation changed the cycle of updating the “decent living needs” from one year to five years. In other years the minimum wage was set automatically set by combing the rate of inflation and economic growth. But the “decent living needs” were still used as a basis for the determination of the minimum wage and room for negotiation existed.

Government Regulation No. 36/2021, an implementation decree for the Job Creation Law, dramatically worsened the mechanism. Under the new regulation, the minimum wage is determined technocratically based on predetermined formulas and data provided by the national agency of statistics. The actual cost of living that workers need to make ends meet is not the consideration anymore and trade unions have no say in determining the minimum wage.

While the collective bargaining system is yet to be effectively established, the minimum wage setting process served as de facto wage negotiation. The minimum wage setting only based on predetermined formulas, when it is combined with other changes in Government Regulation No. 36/2021, will deprive trade unions of the right to bargain for wage increase.

I join my worker colleagues in calling on the Government to bring the laws into conformity with the Convention.

Worker member, Brazil – The Government substantially amended article 66 of Law No. 13/2003, on outsourcing company activities and its effects on working conditions.

Prior to the so-called Omnibus Law, the law established that the workers of an authorized labour supplier could not be employed for the performance of the basic functions or main line of business. Unfortunately, the Omnibus Law has deregulated the triangular labour relationship, extending the scope of outsourcing to any activity of the user company, including its basic functions or main line of business.

This is a model of decentralization of productive activity to the direct detriment of workers’ rights that is well known in Latin American countries, including in Brazil, which was a prisoner of neoliberal policies applied by authoritarian governments until last year.

Moreover, the new Law exempts the main company from any responsibility for any non-compliance of labour and social security obligations by the subcontractor.

But the gravity of the Omnibus Law lies in its disregard for the right to freedom of association, as the company could seriously affect unions by hiring workers through labour agencies.

Indonesian law does not recognize the right of workers hired through an agency or supplier to join the main company’s union. The Law states that these workers may only, at best, organize in their direct employer’s union.

Obviously, this extreme fragmentation of labour is not conducive to the application of the main company’s collective bargaining agreement.

It will lead to different working conditions for the subcontractor’s workers and for the main company’s workers, even though they probably work in the same place and probably perform the same tasks.

In short, the Government must urgently repeal the labour outsourcing regulations that have undermined decent work in Indonesia.

Government member, Türkiye – We thank the Government for the information it provided and welcome its willingness to constructively engage and cooperate with the ILO. The Government has demonstrated efforts to revise the Job Creation Law and adapt its current legislative framework to bring it in line with the ILO standards. We encourage the Government to continue to undertake the necessary steps in this regard.

We welcome that the Job Creation Law does address the unique circumstances faced by workers in SMEs and this law considers the financial capacity of SMEs, ensuring a fair balance between workers’ rights and the sustainability of these enterprises.

Furthermore, we commend the Indonesian Government for actively seeking input from various stakeholders, including trade unions, employers, universities, and other sectors of society. The Government’s affirmation that national law incorporates procedures to address anti-union discrimination and the violations of workers’ rights to organize, along with its encouragement for workers and trade unions to utilize these procedures, is noteworthy.

Recent developments regarding adequate protection against acts of anti-union discrimination and interference, promotion of collective bargaining, recognition of organizations for the purposes of collective bargaining made by the Government in order to bring their national legislation in accordance with standards of the Convention should be acknowledged. It should also be highlighted that the Government is focused on creating enterprise-level collective bargaining agreements to prevent disputes, while workers in export processing zones have the right to engage in collective bargaining.

It should be emphasized that the Government is determined to work on the issues raised by the ILO and the social partners in a spirit of constructive dialogue and is ready to enter an open discussion on how to further improve the situation with them.

We have confidence that Indonesia will continue to work with the ILO and social partners in close cooperation.

Observer, Building and Wood Workers’ International (BWI) – I would like to call to the attention of members of this august chamber that the Minister of Manpower Regulation No. 5/2023 that allows the company to cut the wages by 25 per cent and reduce working hours has gravely undermined the rights of workers and their representatives as guaranteed by the Convention.

This regulation does not provide opportunities for equal and transparent negotiations between trade unions and employers. The provisions of article 9(1) do not explicitly stipulate the obligation for employers to prove to workers and/or workers’ organizations that the company has indeed experienced losses due to global economic recession. Reports from the trade unions indicated that the employer’s claim that the company has experienced loss or a decrease in orders is only a matter of verbal claim; it is not supported by any verifiable documents or data like an external audit report. The negotiation and conclusion of collective negotiation is always anchored in good faith in which disclosure of actual and factual financial standing of the company is necessary.

The provision of article 9(1) has also had an impact on workers’ hours and adjustment of wages in cases where there are multiple unions in a particular company. A case in point is a Korean company in the city of Karawang. There are 11 trade unions with a total of 20,000 workers. The production is stable, orders are good, and some production lines employ workers for overtime.

The method used by the companies is to gather workers to sign agreements related to Regulation No. 5/2023 with intimidation, if they refuse to sign agreements, companies will lay off workers in large numbers. The workers, who were mostly women, had no choice. After obtaining “approval” from workers, the company entered negotiations with 11 unions to pass Regulation No. 5/2023 into force. The union has no choice since the members have already agreed. The company has reduced working hours under the slogan “Stay at Home on Saturdays”. The reduction in working hours resulted in a reduction in wages of up to 35 per cent.

This problem is more pervasive and massive in companies where there is no union to challenge the enforcement of this regulation.

Observer, Public Services International (PSI) – I would like to congratulate in public the new spokesperson of the Employers’ group. I think that new blood, new ideas, new voices in this Committee are welcome and essential for the survival of this Committee. We hope that his presence will bring new approaches and help revitalize the work of this Committee. Of course, this applies to all of us including myself. Now with regard to the case, I would mostly like to stress that, despite assurances from the Government to the ILO’s supervisory mechanisms, a significant proportion of workers in Indonesia are denied the rights provided for in the Convention.

I am referring to workers who deliver vital public services, including health workers, civil servants in local and municipal government and also those in national administration. These workers are denied the right to unionize and the right to collective bargaining. So, in other words, the restriction applies to a broad range of workers, well beyond the exceptions afforded in this Convention.

The Committee of Experts noted that the Constitution grants civil servants the right to join “professional organizations” of their own choosing. But it seems to be a contradiction because the Committee also notes that the Government referred to an obligation imposed on these civil servants, depending on their status, to join respective professional organizations of functional positions. So, we have on the one had a contradiction and on the other, all that the Constitution does is to offer them to join a professional organization which are not trade unions in the sense provided for in the Convention.

I would also like to stress that civil servants have freedom of association according to Law No. 21/2000, but until now an additional law that grants these rights has not been passed.

So, to conclude I just want to say that we hope this Committee adopts conclusions and addresses these issues in line with the significance of these allegations.

Observer, IndustriALL Global Union – I am speaking on behalf of IndustriALL Global Union to express our complete frustration over the adoption of the emergency decree for job creation on 21 March of this year. This Job Creation Law is identical to the previous regulation, which was declared conditionally unconstitutional by the Constitutional Court in 2021.

The Job Creation Law is very dangerous for the future of Indonesian workers and their families, including those workers in manufacturing, mining and energy industries. Some 56.4 million formal workers in Indonesia (along with their families; around 80 million people) will be denied decent work and decent welfare.

In the past and for the new decree, due process was ignored, and many anti-worker provisions remain unchanged. We join all the Indonesian unions, students, and civil society organizations in strongly opposing this political choice. IndustriALL Global Union also supports the call for a judicial review before the constitutional court.

The provisions in the Job Creation Law undermine workers’ rights and environmental protections. The Law includes provisions that affect working hours, severance pay, contract work, outsourcing and the ability of unions to organize and strike, deteriorating current working conditions, although it must be other way around.

The Government should not use the global crisis, economic slow-down, and plans to attract more foreign investment, to justify its rollback of workers’ rights. The Job Creation Law leads to greater labour flexibility at the expense of fundamental labour rights, which is not acceptable.

The Law eliminates the sectoral minimum wage and regional minimum wage, and even reduces the current wage levels, it imposes excessive use and expansion of precarious work, particularly outsourcing, it undermines fixed-term employment contracts, the wages of women workers on leave and maternity will not be paid, working hours will be exploitative, and dismissals will be easier to carry out, without recourse to negotiation or appeal.

Therefore, IndustriALL Global Union calls on the Government to revoke the Job Creation Law, which is against the interests of the Indonesian people and workers.

Government representative – Allow me to convey my appreciation once again to the Committee and all ILO constituents for their valuable observations and recommendations. The Committee is critical in advancing social justice, decent work and the global protection of workers’ rights. Consequently, we have attentively listened and taken thorough note of the Committee’s recommendations. We are pleased to acknowledge that certain delegations recognized Indonesia’s unwavering commitment to upholding and adhering to the principles enshrined in the Convention.

Equally, we attentively acknowledge the concerns and recommendations provided by the Workers’, Employers’ and Government groups. We heard many constructive recommendations that will contribute to the Government and their work in effectively implementing the Convention. Although we note that some concerns expressed by some colleagues were unrelated to the context of the Convention. I wish to reiterate unequivocally that Indonesia remains resolute its dedication to the principles of the ILO and the effective implementation of the Convention.

As previously articulated in our responses, we maintain that concerns of infringement of the Convention related to the application of Job Creation Law and the implementation of collective bargaining in Indonesia lack essential ground.

First, the legislative process governing the Job Creation Law, fully adhered to our Constitution and the fundamental principle of public participation. Furthermore, Indonesia ensures that every citizen possesses the right to raise concerns regarding the law before the Constitutional Court.

Second, it is essential to highlight that the Job Creation Law seeks to enhance rather than to hinder access to collective bargaining. In fact, the provisions governing collective bargaining as delineated in our existing labour framework remain fully intact and applicable.

Third, our Government maintains its unwavering commitment to safeguarding workers’ right to join unions. We have active robust legal frameworks to prevent discrimination within the workplace and we have actively engaged in promoting awareness among workers regarding their rights.

Fourth, as the third largest democracy in the world, Indonesia remains fully committed to implementing the Convention, as we believe that the right to organize and collective bargaining is part and parcel of democracy. Indonesia is also committed to continue enhancing social dialogue at national level and would like to request ILO to continue facilitating such processes in providing the necessary and relevant technical support for our social partners in this matter.

Fifth, the Government is currently in the process of formulating regulations related to the Job Creation Law. In this regard, the Government assures that public participation and collective bargaining, as the fundamental principle of the Convention, are fully upheld.

Indonesia’s efforts to promote collective bargaining represent an ongoing continuous process. We acknowledge the challenges that lie ahead, including economic shocks and global disruption in commodities. Nevertheless, these challenges will not lessen our steadfast commitment to promoting and protecting the right of workers to collective bargaining. Indonesia will continue to take steps to strengthen supervision of the implementation of worker rights, including the rights to associate and engage in collective bargaining. Simultaneously, we will increase training and capacity-building programmes. In conclusion, the Government of Indonesia welcomes the constructive and balanced perspectives on the implementation of the Convention. The Government is also open to collaborating with all ILO Member States as well as Workers’ and Employers’ groups, with the aim of minimizing potential violations of the Convention.

Worker members – As you have heard from the discussion, the Job Creation Law is not the product of tripartite social dialogue. We remind the Government that its obligation under the Convention is to consult with social partners and workers’ and employers’ organizations. It is not enough to talk to academics and researchers about the law.

The unilateral imposition of new laws and regulations is contrary to the obligation to put in place appropriate machinery to ensure respect for the right to organize and collective bargaining.

Indonesian workers suffered numerous, serious violations of their fundamental rights while they had some formal protections under Law No. 13/2003. While the Law was not often respected or enforced, workers, especially workers in a union, could protect themselves from exploitation. Whatever pre-existing protections there were have been weakened even further.

These reforms will very likely lead to the further erosion of trade unions and collective bargaining coverage and quality.

The Committee of Experts, and the Committee on Freedom of Association, have documented serious issues relevant to our discussion. We are not seeing any progress on addressing these issues, which have included the violent repression of trade unionists merely for demanding a wage which can support themselves and their families. We need to see the Government sitting together with worker organizations to address these critical issues.

We therefore urge the Government to review the Job Creation Law with the social partners and to adopt in the shortest possible time the amendments necessary to bring that law into compliance with the Convention. The Government, in the meantime, must:

- Suspend the operation of all regulations under the Job Creation Law.

- Amend article 122 of the Manpower Act to prohibit the presence of the employer during voting procedures.

- Amend articles 5, 14 and 24 of Law No. 2 of 2004 or the Industrial Relations Dispute Settlement Act to ensure that compulsory arbitration during collective bargaining can only be invoked under exceptional circumstances.

- Take the necessary steps to also promote collective bargaining at the sectoral and regional levels. In our view, collective bargaining at these levels is appropriate in the national circumstances of Indonesia and therefore in line with the Convention.

- Ensure that the rights under the Convention are guaranteed for workers in all the zones, equivalent to export processing zones, where export products are produced.

- Report to the Committee of Experts this year on measures taken to comply with these recommendations and accept the technical assistance of the ILO in undertaking these recommendations, particularly focusing on legislative reform with the full involvement of the social partners.

- Accept a direct contacts mission.

Employer members – Just reiterating a couple of the points made earlier in relation to adequate protection against anti-union and discrimination. We again note that the Committee of Experts has asked the Government to examine the issues of concern expressed here by the contributors and by the Government and we note the Government’s willingness to work together with unions, with employers and with the ILO on all of these issues. We would urge them to basically get on with it. The recommendation in the report of February 2023, basically says use the National Tripartite Council to do these things. It is not that long since the report came out, but time is going on, and we would echo the Worker members call for the Government to report to the ILO by this year on the measures that they are taking. In other words, in New Zealand language, get on with it.

In relation to the promotion of collective bargaining, one of the things we have heard a bit about this afternoon was the call for wide collective bargaining and even the call for sectoral and industry-level bargaining. All of that is appropriate to ask for, but the other side of any request, we need to make sure that we examine a reality and we have heard just how much of the economy is reliant on micro and small businesses. How little of that is organized in what is regarded as the traditional sense, just how unions there are already involved, over 12,000 involved in the country, that are already part of the collective bargaining environment, even if there are many workers who are not yet members of unions and there is the sheer number of collective agreements involved as well. There is ample evidence that collective bargaining is open to be used and at the voluntary level, envisaged by the Convention, that the actual form of it is not so much about what people want, but what is possible. So, our caution is that we do not simply go down the path of saying this has to be the outcome. All outcomes are possible, depending on what will work most and best.

In terms of the description by some of the extent to which the Omnibus Law applies, it has given the impression that the primary exemptions from the provisions of the act are in fact those relating to the minimum wage. There does not seem to be wholesale exemption. Our impression has been that the Omnibus Law in fact brings far more people under the ambit of legal protection than was the case before, but at various levels. We will acknowledge that the treatment of the minimum wage for micro and small businesses is different from the treatment of the minimum wage for larger businesses and that is an issue for the future. That is something that starting now, that is an issue to be worked upon again, at the tripartite level to ensure that the country grows towards an economy that has an equally applicable and adequate minimum wage throughout. In the meantime, people have to grow towards that.

Quickly on dispute resolution and the use of compulsory arbitration. We note that the Industrial Relations Dispute Settlement Act, provides that a party to bargaining may file a lawsuit only after the disputing parties have conducted bipartite mediation or conciliation. This correlates with the Committee of Experts’ view that permissible uses of compulsory arbitration include the circumstance where bargaining has become protracted or it is at a stalemate and arbitration becomes the only viable mechanism to break the circuit. It seems, on face value at any rate, that the use of arbitration under the terms of the Industrial Relations Dispute Settlement Act, is in fact consistent with what the Committee of Experts have looked at in the past.

Lastly, we would simply just reiterate what we have asked for the Government to do, which is to continue addressing the various issues arising from the introduction of the Omnibus Law through the National Tripartite Council and to avail itself of all of the technical assistance available from the ILO to ensure that the presence of employers or government officials on occasions of voting are strictly in accordance with the provisions of the Convention, and, as I said before, to report to the ILO on all of these issues this year, so that we can ensure and measure progress.

Conclusions of the Committee

The Committee took note of the written and oral information provided by the Government and the discussion that followed.

The Committee noted with deep concern the significant gaps in law and practice regarding the protection against anti-union discrimination, the scope of collective bargaining permitted under the law, promotion of collective bargaining and interference in free and voluntary collective bargaining with respect to the Convention.

Taking into account the discussion, the Committee urges the Government, in consultation with the social partners, to take effective and time-bound measures to:

- review the Law on Job Creation in consultation with social partners and adopt without delay the amendments necessary to bring that law into compliance with the Convention;

- ensure in law and practice that there is no interference of employers or government officials in a voting procedure of trade unions in accordance with Article 2 of the Convention;

- ensure that unilateral recourse to compulsory arbitration as a way to avoid free and voluntary collective bargaining is employed only in very limited circumstances and ensure its use does not impede the right of trade unions to freely organize their activities;

- promote collective bargaining, and provide information to the Committee of Experts on the measures taken in this regard as well as on the results achieved, including the number of collective agreements specifying the sectors of activity concerned;

- ensure that the rights under the Convention are guaranteed for workers in all the zones, equivalent to export processing zones, where export products are produced, and provide information to the Committee of Experts on the trends and number of collective agreements in force in these zones;

- prevent any act of violence and ensure, in law and practice, adequate protection of individuals for their legitimate exercise of their rights under the Convention, including through effective and expeditious access to justice, adequate compensation as well as the imposition of effective and sufficiently dissuasive sanctions;

- provide to the Committee of Experts statistics on the number of complaints of anti-union discrimination and interference filed, the number of complaints brought before the courts, as well as any remedies and sanctions imposed and the average duration of proceedings under each category; and

- take decisive and effective measures to promote a climate of non-violence, as well as constructive social dialogue and labour relations at all levels.

The Committee requests the Government to avail itself, without delay, of ILO technical assistance with a particular focus on legislative labour law reform, including the Job Creation Law, with the full involvement of social partners, to ensure full compliance with its obligations under the Convention in law and practice.

The Committee requests the Government to provide detailed and complete information on measures taken and progress made on the recommendations to the Committee of Experts made before its next meeting.

Government representative – I take note of the conclusion of the Committee regarding the application of the Convention by Indonesia. We fully appreciate numerous calls and support from the Employers’ group and a number of governments to Indonesia, to make the Job Creation Law effectively implemented with a view to creating and fostering job creation and enhancing employment opportunities. As the third largest democracy in the world, Indonesia remains fully committed to implementing the fundamental principles and rights at work of the international labour standards including Convention No. 98. In this regard, the Government in consultation with the social partners will take the necessary step to strengthen the implementation of the Convention in accordance with its national priorities and policy.

Individual Case (CAS) - Discussion: 1998, Publication: 86th ILC session (1998)

A Government representative informed the Committee that, in the momentum and spirit of reform, the Government had taken several important steps to ensure full compliance with the Convention. These included the signature the previous week by the President of the Republic of a decree for the ratification of Convention No. 87, which would be followed by the drafting of a new Trade Union Bill. On 27 May 1998, the Minister of Manpower had issued a new Ministerial Regulation (No. 5 of 1998) which cancelled the previous Ministerial Regulation (No. 3 of 1993) on the registration of trade unions. The new Regulation permitted national and regional trade unions to seek registration at the company level at the relevant government office by tabling with the request the list of its executive officers, constitution and members. This new system had allowed the trade union known as Serikat Buruh Sejahtera Indonesia (SBSI) to be recognized at last as an independent trade union; its representatives had been included in the Indonesian tripartite delegation to this session of the Conference.

With reference to the newly adopted Act No. 25/1997, she stated that it set out the basic principles of labour which would be further elaborated in implementing regulations, of which 12 were currently being prepared. They were expected to be finalized by the beginning of October 1998, so that the Act could enter into force. Act No. 25 not only encompassed the principles of the ILO's seven basic Conventions, but also facilitated ratification of the remaining four basic Conventions which her Government had not yet ratified. The Government had already ratified Convention No. 87, and was preparing the instrument of ratification for Convention No. 138. The others would be considered in due time. She therefore hoped that her Government would be in a position to respond fully to the concerns expressed by the Committee of Experts on the issues of protection against acts of anti-union discrimination, protection of workers' and employers' organizations against acts of interference by each other and restrictions on collective bargaining. With regard to the freedom of association of public servants, she stated that the Government fully recognized the right of every worker to associate freely, as set out in Convention No. 87.

In conclusion, she endorsed the appeal made in the Conference Committee by Mr. Muchtar Pakpahan for ILO technical assistance in the drafting of new labour legislation and hoped that such assistance could be provided by the Secretariat in Geneva or the South-East Asia and the Pacific Multidisciplinary Advisory Team. The Government, together with the social partners, would continue to identify the remaining regulations which were not consistent with the spirit of reform.

The Workers' members thanked the Government representative for the information furnished and said that they had been following the situation in Indonesia very closely. The freeing of Muchtar Pakpahan (whose speech before the Committee is reproduced at the end of the discussion of this case), the recognition of the SBSI and the ratification of Convention No. 87 were all signs of progress in the observance of trade union rights which made it possible to look forward to a more constructive collaboration with the ILO than had existed in the past. The effective application of fundamental standards, and in particular Convention No. 98, sometimes required significant changes in legislation, institutions and practices in order to establish the rule of law which was essential for the exercise of civil and political rights and freedoms. The "security approach", which had long influenced the industrial relations system, urgently needed to be replaced by measures guaranteeing the rule of law. This case had been one of the most well-known discussed by the Conference Committee, which had examined it on five occasions since 1991 and the Committee on Freedom of Association had issued very firm conclusions and recommendations in several related cases. The Conference Committee had insisted, as had the Committee of Experts, that specific legislation be adopted providing effective protection for workers against acts of anti-union discrimination, as well as protecting unions against interference by employers, public authorities or the security services. Moreover, the Government needed to establish a solid legal framework, instead of regulating fundamental aspects of industrial relations through decrees or circulars. The Committee of Experts had indicated in this regard that the draft legislation of 1997 contained several elements which were not in conformity with the Convention. The draft legislation did not improve the protection of workers against acts of anti-union discrimination. It did not contain any provision guaranteeing the protection of trade union organizations against acts of interference by employers. In sections 48 and 49, it placed excessive restrictions on the registration of enterprise-level unions and their federations, which amounted to restrictions on collective bargaining which, in contrast, needed to be promoted. Moreover, it was absolutely necessary to clarify the methods for the determination of the conditions of employment of public officials. In view of the recent changes, it was necessary to urge the Government to embark without delay on the far-reaching reforms needed to establish a really democratic system of industrial relations. Effective guarantees of civil and political rights were indispensable for the full respect of freedom of association and the right to collective bargaining. The ILO's technical assistance, which had been requested by the Government representative, could certainly assist in the substantial tasks which needed to be accomplished. However, a direct contacts mission would be necessary to better identify the principal priorities and accelerate the necessary changes.

The Employers' members, recalling that restrictions of freedom of association affected both employers and workers, observed that the shortcomings in the application of the Convention had been examined on five occasions since 1991, and most recently in 1997. The problems raised related to three areas: protection against acts of anti-union discrimination; protection of employers' and workers' organizations against acts of interference by each other; and excessive restrictions on trade union's functioning and activities and on the collective bargaining process. In the past, Government representatives had referred to various regulations and draft legislation designed to improve the situation, but the Committee of Experts had still been of the opinion that the Labour Bill of 1997 was not sufficient to meet the requirements of the Convention in a number of areas. One of these concerned the restriction that collective bargaining could only be conducted by registered trade unions with the support of the majority of workers within the company concerned. It was not clear whether this meant that the majority of workers in the enterprise had to support the collective bargaining efforts of the trade union, or whether the trade union needed to have the membership of a majority of workers in the enterprise. There had nevertheless been positive developments since 1991, although they had not been considered by the Committee of Experts to be fully satisfactory. The Government representative had informed the Committee of further changes, which were not surprising in view of recent events. These constituted important beginnings of major reforms. However, emphasis would have to be placed on making much broader changes in labour law in the near future. The Employers' members welcomed the Government's acceptance of the comments made by the Committee of Experts which demonstrated a considerable advance in its approach. Real progress now needed to be made in the country itself. They therefore hoped that these expectations would be fulfilled and that the Government would make considerable efforts to resolve the shortcomings noted in recent years. Although the Government had requested technical assistance, it should be urged to accept the help that could be provided by a direct contacts mission.

The Government member of Iceland recalled that the previous year he had spoken on behalf of the Nordic countries, the Netherlands and the United Kingdom in support of the urgent appeal to the Government to take the necessary measures to bring the situation into conformity with the Convention and to release from prison the independent labour leader Muchtar Pakpahan. This year, speaking on behalf of the Nordic Governments of Denmark, Finland, Iceland, Norway and Sweden, as well as the Governments of Austria, Belgium, Canada, Germany, Italy, Japan, the Netherlands, Portugal, Turkey, the United Kingdom and the United States, he expressed particular pleasure at the positive developments in the present case. These included the decision by the Government to ratify Conventions Nos. 87, 105, 111 and 138 and to release Mr. Pakpahan, who had addressed the Conference Committee two days earlier. He urged the Government to release other prisoners who were still detained for their ideals. Moreover, they recognized that there was still room for further progress to be made so that the fundamental rights set forth in the Convention were respected in law and in practice. He looked forward to such progress and would monitor further developments closely. He also welcomed the request by the Government for ILO technical assistance.

The Worker member of the United States observed that this case was one which offered new hope and promise after years of stagnation and frustration. The case had been discussed five times over the past six years and it was only now, in the wake of dramatic events in the country, that real change appeared on the horizon. For decades, the Government had imposed a military-controlled trade union monopoly on the workers. The statements made by the Government representative which indicated that those days were over were inspirational and reassuring. In order to bring the country into compliance with the Convention, however, the Government had to accept the fact that remnants of the old system still existed in workplaces throughout the country and would pose a serious obstacle to organizing unions of workers' own choosing, independent of government, political parties and employers. This situation required proactive measures by the Government to create a climate in which workers would feel free and secure to choose for themselves. The Experts had provided a good outline of the legal changes needed to reform the labour law in order to create such a climate: the need to strengthen the protection of workers against discrimination for legitimate union activity, especially in the area of attempting to organize new unions and recruit new members; the need to protect workers' organizations from employer interference; and, the need to remove restrictions on collective bargaining not in compliance with the Convention. As concerned the second area, current law allowed for the creation of enterprise level unions or SPTPs. There had been a well founded concern that many if not most of the SPTPs organized during the past few years were employer-dominated or yellow unions. This practice should no longer be encouraged if unions which could really speak for workers were to emerge. He believed that in order for the Government to begin to take positive steps to overcome its economic crisis it would need to build a social consensus for measures which would be painful and would affect the daily lives of millions of people. The key to building such a consensus would be the perception that the pain would be shared equitably by all sectors of society and that workers, through their unions, were participating in the development and implementation of an economic recovery plan. A new labour law which not only permitted but encouraged the emergence of a social partner to fulfil this role would be essential for the country's economic recovery. The American trade union movement had followed closely developments in Indonesia for many years. It had used all means available to secure the release of Muchtar Pakpahan and other imprisoned trade unionists, many of whom remained in prison. He asked the Government to move quickly to secure their release. The American trade union movement, in solidarity with the international movement, would continue to provide its support to the SBSI and other independent unions organized by workers to help them develop quickly their capacity to represent the interests of their members during such difficult but hopeful times for the country.

The Worker member of Spain welcomed the liberation of the trade union leader of SBSI, Mr. Muchtar Pakpahan, and considered that demands should be made with the same force for the liberation of other detained trade unionists. He said that now, more than ever, it was necessary to undertake in-depth reflection on the role of the ILO and of the Conference Committee in particular. The country was undergoing a financial, political and economic crisis with grave consequences for the economies of other countries, not only in Asia, but also in Latin America and Africa. He emphasized that prolonged reflection was required on the possibilities for ILO action at the present time in view of the changes facing those economies. Growth in Indonesia had been based on the violation of trade union rights and the denial of the basic rights of workers. This was a model which did not work and had a negative effect on the rest of the world. He emphasized in particular that the fundamental role of the ILO was to prevent social injustice. If the ILO's principles were not applied, crises such as the one which had happened in Indonesia, would continue to occur. In conclusion, he observed that reflection of this nature was particularly necessary as the twenty-first century approached and in view of the globalization of the economy, if the ILO wished to prevent social crises the world over.

The Worker member of the Netherlands congratulated the Minister of Manpower for commencing his political career with such a stirring deed as the ratification of Convention No. 87. He hoped that the Minister would address the problems relating to the application of Convention No. 98 with similar urgency. Many of these problems had been raised by the Committee of Experts for many years, yet the Government had done virtually nothing over the previous 12 months to respond to these criticisms. The major development during that time had been the adoption of a new Labour Bill. The previous year, he had personally requested the Government to request the views of the Office on the Bill and to transmit those views to Parliament. Unfortunately, the Government had not done so and the Office's comments on the draft text had not been taken into account. As a result, the Minister of Manpower had to face up to a situation in which the new legislation did not provide better protection of the rights guaranteed by the Convention. Moreover, the Bill conflicted with many of the fundamental provisions of Convention No. 87, which the Government had just decided to ratify. He therefore welcomed the Government's request for ILO technical assistance. He called upon the Government representative to answer a number of points: first, while welcoming the ratification of Convention No. 87, he noted that the question of ratification had not been submitted to Parliament and that trade unions and employers had not been consulted on this very important matter. He therefore hoped that the Government would not ratify other Conventions in the same hasty manner, but that it would do so after due consultation with the competent authorities and the representative organizations of workers and employers. Second, was the Government aware that many of the basic elements of the national situation were not in conformity with Convention No. 87 and would a new Labour Bill be developed which took its provisions into account? Did the Government agree that such important guarantees as the right to organize should be contained in the basic labour legislation, rather than in ministerial regulations, as was currently the case? Regarding the introduction of trade union pluralism in practice, would the SBSI only be able to be present in enterprises in which other trade unions (such as the SPSI, which had been the official single trade union) were not established? That would give the SPSI, which had enjoyed a government-granted monopoly position, an unjustified advantage. He suggested that a vote might be organized in the various workplaces so that the workforce could determine the organization by which it wished to be represented or that the workforce might be represented in collective negotiations by more than one organization. The resolution of these questions was vital for the development of genuine industrial relations in the country in the coming years. Moreover, while welcoming the Government's decision to extend the right to organize to civil servants, he wondered how their long-standing government-imposed attitude of neutrality and abstension of independent interest representations by representative trade union organizations would be overcome in practice. This was a practice of more than 30 years. He also wondered what would be done to overcome the more serious problem of all: the Government's security approach to industrial relations, which consisted of military supervision and interference in all trade union activities including strikes, demonstrations, presence at union meetings and the holding of union office by retired military personnel. This attitude of oppression and dependence instilled into the workers over the past three decades could not be abolished overnight. Finally, he requested the Government to indicate its attitude with regard to the continued imprisonment of political prisoners, and particularly trade union activists, including Dita Indah Sari, head of the Centre for Indonesian Workers' Struggle, who was kept under appalling conditions and three members of the SBSI local of Serang, West Java supported by a project of his organisation, namely Messrs. Sumantri, Suseno and Mahmud Hadi who had been released after a period of detention last Spring, but who were now facing criminal charges for activities which, according to ILO standards, were purely trade union activities. In conclusion, he appealed to the Government and the Office to further much more ILO involvement in IMF policies in the country so as to ensure that the social consequences for workers were taken into account when designing structural adjustment policies in the present traumatic economic development.

The Worker member of Greece recalled that Indonesia had been at the top of the list of countries which did not respect any freedoms since at least 1968. The Conference Committee had had occasion to confirm this when examining the application of other Conventions, including Convention No. 29. The changes which had occurred since the last session of the Committee of Experts offered real hope in this respect. They had already had an affect on the situation in practice, as illustrated by the liberation of Muchtar Pakpahan, whom the Conference Committee and the plenary had both had the opportunity to welcome. This progress should be recognized without any false euphoria. All the prisoners of conscience and opinion had to be freed, not just trade unionists. In the same way, workers from neighbouring countries needed to be treated with dignity. A direct contacts mission would be a sound initiative, since no delay in the provision of technical cooperation should be allowed to serve as a pretext for putting off the necessary measures. Admittedly, it would be premature to demand firm and detailed responses immediately from the Government on all the aspects of the case. Nevertheless, the Committee's conclusions should emphasize the need to give real effect in practice to ratified Conventions. They should also take note of the new developments and provide for a re-examination of the case next year to ascertain whether the promises which had been made had been put into practice.

The Employer member of the United States supported certain points made by the Worker member of the United States. He hoped that the Committee's report would emphasize the importance of workers being able to choose freely organizations to represent their interests and that employer-dominated organizations were counterproductive to a sustainable successful enterprise. He felt also that balanced legislation would help enable cooperation in the workplace, leading to economic success and, in turn, social well-being.

Another Government representative endorsed the concern expressed by the previous speakers that it had been necessary to spend so much time on this case, which had been examined by the Conference Committee on at least five occasions. Although the Government had reaffirmed its commitment to review the labour legislation, it needed to be understood that many of the labour laws had been inherited from periods long ago. For this reason, it had accepted the ILO's direct contacts mission in November 1993 to assist in clarifying the situation. One of the objectives of the new Labour Act No. 25/1997 had been to replace all the various Ordinances and Acts from previous eras, as well as to cover more recent issues such as labour market information, manpower planning and productivity. He reaffirmed that the advice given by the ILO direct contacts mission had been used and consultations had been held with the social partners and the relevant institutions concerning the Act. The process of formulating legislation in his country was similar to that in most other countries, in that draft texts were prepared by the Government after consultation with the competent institutions, including the social partners, before being enacted by Parliament. On this issue, Parliament had consulted the representatives of employers' and workers' organizations, including the SBSI, and NGOs. In addition, the comments made by trade unionists from all over the world had been passed on to Parliament and taken into consideration. The outcome of discussions between members of Parliament and the Government had been Act No. 25/1997, and the Government had done its best to accommodate the interests of all sectors of society. The Act would soon be followed by two Bills, the first on trade unions and the second on labour disputes. Detailed provisions relating to industrial relations could be included in these texts. The Minister of Manpower had set up a team the previous week to begin the process of the drafting of the Trade Union Bill. The new Minister had therefore made substantial progress in his short time in office. In response to the questions put by the Worker member of the Netherlands, he stressed that, in the context of the discussions that had been held with the social partners concerning the ratification of the four remaining basic ILO Conventions, it had initially been intended to ratify Convention No. 138 before the others, but had then been decided that Convention No. 87 should be ratified first in order to prepare the ground for the withdrawal of Ministerial Regulation 3/1993, which had been the subject of many of the Committee of Experts' comments. The Government would then proceed to the ratification of the remaining basic ILO Conventions in discussion with the social partners. With regard to the comments concerning trade union monopoly, he noted that there were over 1,000 independent trade unions in the country at the company level. Of the 160,000 enterprises in the country with 25 or more employees, the SPSI was represented only in 10,000, leaving much scope for independent trade unions in the remaining enterprises. In this respect, he pointed out that Act No. 25/1997 facilitated the possibility of having more than one trade union in an enterprise. More details on this issue could be included in the new Trade Union Bill, mentioned above. On the subject of prisoners, he reaffirmed the Government's commitment to review the situation of all those held in prison, especially for political reasons or because of their trade union activism. A progressive release of prisoners had been commenced, with more to come. He added, that the so-called "security approach" to trade union activities could now be discounted. In conclusion, he expressed his appreciation of all the comments made by the members of the Committee and emphasized that significant progress had been made by the new Government over a very short period, including the release of Mr. Pakpahan, the withdrawal of Ministerial Regulation 3/1993 and the ratification of Convention No. 87. His Government would welcome ILO technical assistance to speed up the work of complying with the comments of the Committee of Experts. The Government was endeavouring to do its best, but it had to be realized that it was not possible to change everything in such a short time.

Visit of Mr. Muchtar Pakpahan, President of the Trade Union Confederation Serikat Buruh Sejahtera Indonesia (SBSI)

The Chairman of the Committee on the Application of Standards welcomed Mr. Pakpahan, praised his trade union work in Indonesia carried out in a very difficult situation where there had been fear for his life. The Chairman recalled that this Committee had been carefully watching over the situation of Mr. Pakpahan and his organization, SBSI, for a number of years.

Mr. Pakpahan made the following statement:

Mr. Chairman, honourable delegates, dear brothers and sisters, first of all, I want to thank you Mr. Chairman, the Chairman of the Employers' group, and, in particular, my dear friend and brother, Willy Peirens, for giving me the honour and the joy of addressing you this evening.

It is a great honour for me because I can participate in the Committee on the Application of Standards of the ILO. But it is even more a joy for me, because at long last I have the chance to thank you officially on behalf of the SBSI for all that this Committee has done for the workers of Indonesia.

I thank the Workers' group because you have been faithful to the trade union mission and values. I thank the Employers' group because you have upheld the principles of the right to organize with honour. I thank the numerous Governments for your various interventions in support of the SBSI. To all of you I say, Trimakasih.

You, the honourable members of this Committee, have followed more closely than others the evolution of the SBSI in Indonesia. You know more than anyone else what we have gone through since 1992.

The SBSI tried to exercise its right to organize within the difficult context of dictatorial rule and a single official union. We tried to organize so that we could really defend the workers. Because of this we were put into prison, some of us were even tortured, our meetings were disrupted, our members were dismissed from their jobs, our offices were ransacked, our documents were seized ... Honourable members of this Committee, I will stop here because you know the story well.

On May 21, 32 years of Soeharto's dictatorial rule came to an end. After six years of sustained government harassment against the SBSI, all of a sudden we are experiencing changes at a breathtaking pace. I was released from prison some two weeks ago and the Government's monolithic union policy has been broken. The Government has committed itself to officially register the SBSI and to ratify several key ILO Conventions.

Despite these rapid changes, the reformation movement in Indonesia is demanding deeper changes in society. The movement is demanding the reform of the political bill, a speedy transition towards democracy through free and fair elections, and clean government in Indonesia. In addition to this, the SBSI is demanding, firstly, the release of all prisoners of conscience. Secondly, a complete reform of the legal framework and a new labour legislation that is in conformity with ILO labour standards. But above all, we demand the effective application of all the Conventions signed by the Indonesian Government.

So even though there has been progress, Mr. Chairman, we have to be vigilant. This is why, on behalf of the SBSI, I call on this honourable Committee to follow very closely the observance of all the commitments of the Indonesian Government now and in the future. We ask you to work for the release of all prisoners of conscience. We ask you to help us to ensure that the new labour legislation is in complete conformity with ILO Conventions and protects workers from repression, interference of the Government, anti-union discrimination and promotes collective bargaining. In this respect, we ask you to give us the necessary technical assistance, as soon as possible, to help us draft a new labour legislation for a democratic Indonesia, and to help us develop a democratic climate where these rights are really applied in practice.

Mr. Chairman, I am very touched by my presence in this Committee. I wish to end by paying homage to the Committee and to the ILO supervisory system especially as we commemorate this year, the 50th anniversary of Convention No. 87. This Committee is the conscience of the world of work. When you are in prison, you have no voice and you have no face. But Mr. Chairman, this Committee gave me a voice and made me visible. But above all else, the work of this Committee gave me strength. Strength to persevere and to stand up for what is right and what is just.

To stand up for freedom of association in Indonesia. Thank you.

The Committee noted the statement made by the Government representative and the discussions which took place in the Committee. It recalled that the Committee of Experts had been formulating comments for several years on the lack of sufficient measures to ensure protection against anti-union discrimination and interference, as well as the divergencies between the legislation and the promotion of collective bargaining called for by Article 4 of the Convention. The Committee noted with interest the positive steps recently taken by the Government, including the release from prison of some but not all trade union leaders and activists and the ratification of Convention No. 87. The Committee noted, however, that there were still a number of obstacles in the legislation impeding the full application of Convention No. 98. In these circumstances, the Committee urged the Government to take the necessary measures to repeal the severe restrictions imposed on free collective bargaining. It further urged the Government to take sufficient steps to ensure full protection of workers against acts of anti-union discrimination and to protect workers' organizations from acts of interference by the employer. The Committee noted that the Government had requested ILO technical assistance. The Committee expressed the firm hope that with the assistance of an ILO direct contacts mission the legislative and practical obstacles to free collective bargaining and a full application of the Convention would be removed. It trusted that the Government would supply next year a detailed report to the Committee of Experts on the concrete measures taken to bring the legislation into conformity with the Convention.

Visit of Mr. Muchtar Pakpahan, President of the Trade Union Confederation Serikat Buruh Sejahtera Indonesia (SBSI)

The Chairman of the Committee on the Application of Standards welcomed Mr. Pakpahan, praised his trade union work in Indonesia carried out in a very difficult situation where there had been fear for his life. The Chairman recalled that this Committee had been carefully watching over the situation of Mr. Pakpahan and his organization, SBSI, for a number of years.

Mr. Pakpahan made the following statement:

Mr. Chairman, honourable delegates, dear brothers and sisters, first of all, I want to thank you Mr. Chairman, the Chairman of the Employers' group, and, in particular, my dear friend and brother, Willy Peirens, for giving me the honour and the joy of addressing you this evening.

It is a great honour for me because I can participate in the Committee on the Application of Standards of the ILO. But it is even more a joy for me, because at long last I have the chance to thank you officially on behalf of the SBSI for all that this Committee has done for the workers of Indonesia.

I thank the Workers' group because you have been faithful to the trade union mission and values. I thank the Employers' group because you have upheld the principles of the right to organize with honour. I thank the numerous Governments for your various interventions in support of the SBSI. To all of you I say, Trimakasih.

You, the honourable members of this Committee, have followed more closely than others the evolution of the SBSI in Indonesia. You know more than anyone else what we have gone through since 1992.

The SBSI tried to exercise its right to organize within the difficult context of dictatorial rule and a single official union. We tried to organize so that we could really defend the workers. Because of this we were put into prison, some of us were even tortured, our meetings were disrupted, our members were dismissed from their jobs, our offices were ransacked, our documents were seized ... Honourable members of this Committee, I will stop here because you know the story well.

On May 21, 32 years of Soeharto's dictatorial rule came to an end. After six years of sustained government harassment against the SBSI, all of a sudden we are experiencing changes at a breathtaking pace. I was released from prison some two weeks ago and the Government's monolithic union policy has been broken. The Government has committed itself to officially register the SBSI and to ratify several key ILO Conventions.

Despite these rapid changes, the reformation movement in Indonesia is demanding deeper changes in society. The movement is demanding the reform of the political bill, a speedy transition towards democracy through free and fair elections, and clean government in Indonesia. In addition to this, the SBSI is demanding, firstly, the release of all prisoners of conscience. Secondly, a complete reform of the legal framework and a new labour legislation that is in conformity with ILO labour standards. But above all, we demand the effective application of all the Conventions signed by the Indonesian Government.

So even though there has been progress, Mr. Chairman, we have to be vigilant. This is why, on behalf of the SBSI, I call on this honourable Committee to follow very closely the observance of all the commitments of the Indonesian Government now and in the future. We ask you to work for the release of all prisoners of conscience. We ask you to help us to ensure that the new labour legislation is in complete conformity with ILO Conventions and protects workers from repression, interference of the Government, anti-union discrimination and promotes collective bargaining. In this respect, we ask you to give us the necessary technical assistance, as soon as possible, to help us draft a new labour legislation for a democratic Indonesia, and to help us develop a democratic climate where these rights are really applied in practice.

Mr. Chairman, I am very touched by my presence in this Committee. I wish to end by paying homage to the Committee and to the ILO supervisory system especially as we commemorate this year, the 50th anniversary of Convention No. 87. This Committee is the conscience of the world of work. When you are in prison, you have no voice and you have no face. But Mr. Chairman, this Committee gave me a voice and made me visible. But above all else, the work of this Committee gave me strength. Strength to persevere and to stand up for what is right and what is just.

To stand up for freedom of association in Indonesia. Thank you.

Individual Case (CAS) - Discussion: 1997, Publication: 85th ILC session (1997)

The Government has supplied the following information:

1. The Government has sent communications to the ILO dated 22 September, 23 September and 26 October 1994, and 18 January 1995, and 5 September 1996. As stated repeatedly in these reports, the Government has and continuously pays great attention to the workers' protection and welfare. The existing labour laws and regulations provide adequate protection of workers' rights to organize and collective bargaining. However, the Committee on Freedom of Association has requested further information from the Government.

The right to organize in Indonesia is fully recognized under the Indonesian Constitution and laws. The 1945 Constitution, article 28, states that: "Freedom of association and assembly, of verbal and written expression and the like, shall be prescribed by law". In addition, Act No. 14 of 1969 on The Provisions Respecting Manpower, article 1, states that "All manpower shall have the right to establish and become a member of a workers' union". Other regulations that reveal the right to organize are Act No. 22 of 1957 on the Settlement of Labour Disputes and Act No. 12 of 1964 on Termination of Employment in Private Undertakings. Act No. 22 of 1957, article 2, paragraph (1), states that: "If a labour dispute arises, the trade union and the employer shall seek to settle the dispute peacefully by negotiation".

Article 3, paragraph (1), of this Act states that: "If the negotiation between the disputing parties does not result in a settlement and they do not intend to submit their dispute to be settled by arbitration to an arbitrator or Board of Arbitration, then such situation must be notified to the official in writing by both, or either one of the parties". In addition, paragraph (2) of article 3 states that: "The notification as meant in the preceding paragraph shall be regarded as a request to the official concerned, which must be granted, to conciliate and seek a settlement of the disputes".

Article 6, paragraph (1), of this Act states that: "If in a dispute one of the parties intends to take action against the other party, such intention shall be notified in writing to the other party and to the Chairman of the Regional Committee. This notification shall also give details of the outcome of negotiations on the matters in dispute between the employees and the employers concerned, as presided over or conciliated by the official or stating that a request for negotiation was rejected by the second party, or that the second party has failed twice within two weeks to respond to the invitation of the first party to negotiate on the matters in dispute".

Article 8, paragraph (1), of this Act states that: "The Regional Committee in its endeavour to settle a labour dispute shall do everything possible having regard to the law, existing agreements, custom, justice, and the interests of the State".

Furthermore, article 1, paragraph (1), of Act No. 12 of 1964 states that: "The employer shall do his best to prevent termination of employment." Yet paragraph (2) of this article mentions "Termination of employment is prohibited: (a) while the worker is not able to perform work due to sickness, certified by a doctor, over a period not exceeding 12 (twelve) consecutive months, and (b) while the worker is prevented from performing work due to his fulfilling his duties towards the State as determined by law or the government or to the performance of his religious duties as commanded by his religion and approved by government".

Article 2 of this Act states that: "If, following such endeavours, the termination of employment cannot be avoided, the employer shall discuss his intention to do so with the worker's organization concerned or with the worker himself, should the worker not be a member of a workers' organization." Article 3, paragraph (1), further states that: "Should the discussion referred to in article 2 clearly fail to bring about agreement, the employer may dismiss the worker concerned only after having obtained a permit from the Regional Committee for the Settlement of Labour Disputes (Regional Committee), respecting individual dismissals and from the National Committee for the Settlement of Labour Disputes (National Committee) respecting mass dismissals. A dismissal is considered to be a mass dismissal if, in an undertaking, the employer has terminated the employment of ten or more workers within a period of one month, or has affected a series of terminations indicative of an intention to achieve mass dismissal." Moreover, article 5, paragraph (1), of Act No. 12 of 1964 mentions: "A request for a permit to dismiss, together with the reasons for termination, shall be submitted in writing to the Regional Committee within whose jurisdiction the residence of the employer is located, in respect of individual dismissals, and to the National Committee in respect of mass dismissals. In deciding upon a request to terminate employment the Regional or National Committee, as the case may be, shall take into account the condition and development of the labour market and the interests of both the worker and the undertaking (article 7, paragraph (1)). In granting a permit the Regional Committee or the National Committee, as the case may be, may also lay down the obligations of the employer to the worker regarding severance pay, service pay and other compensation of other kinds". The fixing of the amount of severance pay, service pay and other compensation shall be laid down by Ministerial Regulation. Such regulation, to be made by the Minister of Manpower, shall also provide a wage concept formula upon which to base the payment of severance pay, service pay and other compensation.

Article 8 of this Act states that: "The worker, the employer, or the worker's or employer's organization concerned, may appeal to the National Committee against refusal by a Regional Committee to issue a permit of dismissal, or a conditional permit, within 14 days of such refusal having been received by the parties concerned. The National Committee shall deal with such appeals in accordance with the appeal procedure laid down for the settlement of such labour disputes. Termination of employment without such a permit shall be null and void, ipso jure."

2. The development of trade unions. The right of each person to organize and to express opinions, both oral and written, is secured and regulated under Indonesian laws and regulations including the 1945 Constitution. In addition, Indonesia has also ratified ILO Convention No. 98 of 1949 on the Right to Organise and Collective Bargaining as stated in Act No. 18 of 1956. Act No. 21 of 1954 provides stipulations on collective agreements between trade unions and employers.

Conclusions of the Committee on Freedom of Association were very critical on the freedom of Indonesian workers to organize. The Government of Indonesia feels it is important to present the historical background on trade unionism in Indonesia which tended towards a consensus for unification.

During the period of Dutch colonialism, the trade union movement was initiated by Dutch employees in the Government offices and private enterprises such as the Nederlands Indische Onderwijs Genootschap, 1897, Postbond or Post Workers' Union, 1905, Suikerbond or Sugar Workers' Union, 1906, and Cultuurbond or Agriculture Workers' Union, 1907.

The early stage of the trade union movements among Indonesian workers was inspired by the national movements such as Budi Utomo or Association of Scholars led by Budi Utomo, 1908, the Serikat Dagang Islam or Moslem Traders' Association, 1911, the Partai Komunis Indonesia or Indonesian Communist Party, 1920, and the Partai Nasional Indonesia or Indonesian National Party, 1927. Along with those movements, several trade unions were established such as Perserikatan Guru Hindia Belanda or Teachers' Association, 1912; Spoorbond or Train Workers' Union, 1913; Perserikatan Pegawai Pegadaian Bumi Putera or Pawning Employees' Association, 1914; Serikat Pegawai Pekerjaan Umum or Public Works Employees' Association, 1917; and Serikat Pegawai Hindia Belanda or Government Employees' Association, 1930.

In 1919, Perserikatan Pegawai Pegadaian Bumi Putera (PPBP) organized its first congress in Bandung. The congress came to the conclusion that all existing trade unions should be united into one organization. Then they established Persatuan Pergerakan Kaum Buruh (PPKB) or Association of Labour Movements as the only federation in the country.

Secondly, soon after independence in August 1945, several groups established new trade unions. One of them was Barisan Buruh Indonesia (BBI) or the Indonesian Labour Movement. It was established on 19 September 1945 and claimed that all existing trade unions were its members. The Indonesian Labour Movement (BBI) held its first congress on 17 November 1945 in Solo. At this congress a conflict arose. One group advocated that the existing labour organizations should remain as a socio-economic movement. The second group held a congress in Madiun on 21 May 1946 and established Gabungan Serikat Buruh Indonesia (GASBI) or Federation of Indonesian Trade Unions, with the aim of raising the living standards of union members.

On 29 November 1946, GASBI and another federation of trade unions, namely Gabungan Serikat Buruh Vertikal (GASBEV), or Federation of Joint Vertical Trade Unions, merged and established an organization called Sentral Organisasi Buruh Seluruh Indonesia (SOBSI) or Federation of Indonesian Workers' Organization. In May 1947 this organization held a congress in Malang. From this time, this organization was directed towards communism and affiliated to the Partai Komunis Indonesia (PKI) or Indonesian Communist Party. It was proven that SOBSI was involved in the uprising revolt led by the Communist Party in Madiun in September 1948, as well as in the abortive coup of Gerakan 30 September/PKI or the 30 September Movement in 1965.

During the period from 1946 to 1960 trade unions grew quickly because most of the existing political parties established trade unions. The main objective of the political parties was to use these trade unions to recruit the maximum number of members in the interest of their own parties, particularly as they were facing the first general election in 1955. Since the struggle of the trade unions was apparently for the political interest of their respective parties, the struggle for the workers was neglected. At that time, a number of organizations were established. Among them were Serikat Buruh Islam Indonesia (SBII) or Indonesian Moslem Labour Union, 1947, which affiliated to Partai Masyumi or Masyumi Moslem Party; Gabungan Serikat Buruh Revolusioner Indonesia (GASBRI) or the Federation of Indonesian Revolutionary Workers, 1948, which affiliated to Partai Murba or Murba Party; Serikat Buruh Muslimin Indonesia (SARBUMUSI) or Indonesian Islamic Labour Union, 1955, which affiliated to Nahdatul Ulama or Nahdatul Ulama Moslem Party/Society; and Kesatuan Buruh Marhaen or Marhaen United Workers, 1956, which affiliated to Indonesian National Party, etc. There were approximately 150 national trade unions, hundreds of local trade unions, and seven federations of trade unions. Almost all of the existing trade unions focused on political activities, ignoring their main function, which was to improve the social welfare of the workers and their families. Therefore, in 1960, there was a move to establish the Organisasi Persatuan Pekerja Indonesia (OPPI) or Indonesia Workers' Organization to unite all existing trade unions. This was opposed by SOBSI, an organization affiliated to the Communist Party (PKI). However, in 1961, Sekretariat Bersama Perjuangan Buruh Pelaksana Trikora (Sekber Buruh) or the Joint Secretariat of Workers' Movement on West Java was established in order to unite trade unions with respect to endeavours to return West Irian to the Republic of Indonesia.

Thirdly, the Communist Party and SOBSI continued to disintegrate trade unions in Indonesia. The disintegration among trade unions increased and reached its peak with the rebellion of the 30 September Movement of the Indonesian Communist Party (G30S/PKI).

Learning from this experience, soon after the abortive coup of the Communist Party in 1966, trade union leaders realized that in order to make the trade union movement stronger, they had to unify themselves, and they should not put the trade union movement under any political party. For this reason, the trade union leaders established Keszatuan Aksi Buruh Indonesia (KABI) or the Coordinated Indonesian Workers' Movement in early 1966. KABI struggled for political goals while socio-economic aspects of trade unions in Indonesia were handled by Sekber Buruh. On 1 November 1969 the spirit of Indonesian unionism reasserted itself again through the establishment of Majelis Permusyawaratan Buruh Indonesia (MPBI) or the Indonesian Trade Union Congress. This organization was established as a forum for dialogue on labour matters and to improve the general atmosphere of the labour movement. The MPBI was based on Pancasila and the Indonesian Constitution of 1945. Its members consisted of 21 trade unions.

Freedom of expression and of establishment of trade unions in Indonesia has developed. Workers' unions are independent and obviously do not depend on, nor are they influenced by, any organization or party. This shows great progress up to early 1973 when most trade unions in Indonesia were part of political organizations or parties. Their movement very much depended on political parties. As a result, the trade unions were unable to create and to implement sound industrial relations, and were unable to struggle for the improvement of workers' social welfare.

In the 1970s, the Government of Indonesia encouraged the leaders of all political parties to simplify their organizations. The parties finally agreed to reduce the number of political parties. Several parties merged to establish Partai Persatuan Pembangunan or the Development Unity Party and several others merged to establish Partai Demokrasi Indonesia or the Indonesian Democratic Party. The Functional Group or Golongan Karya (GOLKAR) also operated as a political party. This simplification had an effect on the trade unions, as most lost their parent bodies in the political parties. In this situation, the MPBI held a seminar in Tugu on 21-28 October 1971. All representatives of trade unions participated in the seminar and reconfirmed the necessary characteristics of the labour movement in Indonesia as follows:

- firstly, the labour movement must not be influenced by any political parties;

- secondly, trade union activities must be focused on socio-economic issues;

- thirdly, the existing trade unions must be reorganized and united through persuasive approaches;

- fourthly, the organizational structure of the labour movement must be improved; and

- fifthly, trade unions must not depend on external budget resources.

The seminar successfully exposed the idea of focusing the labour movement on its proper functions, responsibilities, and unification. As the follow-up to this seminar, the MPBI held a plenary meeting on 24-26 May 1972 to discuss reformation and simplification of the existing trade unions. They were encouraged to merge and establish one new organization of workers.

The determination to establish a single trade union federation in Indonesia was expressed in the Declaration of All Indonesia Workers' Unity in Jakarta on 20 February 1973, and following that, the Federasi Buruh Seluruh Indonesia (FBSI), or Indonesian Workers' Federation, was established. The trade union leaders agreed to set up a new system of trade unionism based on the following provisions:

- workers' organizations or trade unions were based on industrial sectors or trade;

- no trade union should affiliate to any political party;

- there should be only one trade union in each enterprise affiliated to an appropriate Serikat Buruh Lapangan Pekerjaan (SBLP) or industry-based trade union.

All existing 21 trade union federations agreed to merge into FBSI, namely:

(1) Gabungan Serikat-Serikat Buruh Islam Indonesia (GASBINDO, Federation of Moslem Workers' Organization);

(2) Kesatuan Buruh Pancasila (KUBU PANCASILA, Pancasila Workers' Union);

(3) Konsentrasi Nasional Gerakan Karya Buruh (KONGKARBU, National Concentration of Workers' Movement);

(4) Gabungan Organisasi Buruh Serikat Islam Indonesia (GOBSII, Federation of Moslem Workers' Society Organization);

(5) Kesatuan Buruh Marhaenis (KBM, Marhaenis Workers' Union);

(6) Kongres Buruh Islam Merdeka (KBIM, Independent Moslem Workers' Congress);

(7) Sentral Organisasi Buruh Republik Indonesia (SOBSI, Central Organization of Workers of the Republic of Indonesia);

(8) Gerakan Buruh Muslim Indonesia, (GERBUMI, Indonesian Moslem Workers' Movement);

(9) Gabungan Serikat Buruh Indonesia (GSBI, Federation of Indonesian Labour Union);

(10) Serikat Buruh Muslimin Indonesia (SARBUMUSI, Indonesian Moslem Labour Union);

(11) Persatuan Karyawan Buruh Indonesia (PERKABI, Association of Indonesian Workers);

(12) Kesatuan Pekerja Kristen Indonesia (KESPEKRI, Association of Christian Workers);

(13) Federasi Buruh Islam Indonesia (FBII, Federation of Moslem Workers);

(14) Persatuan Organisasi Buruh Islam Indonesia (PORBISI, Association of Indonesian Moslem Labour Organizations);

(15) Federasi Buruh Kerakyatan Indonesia (FBKI, Workers' Association of Indonesian Common People);

(16) Sentral Organisasi Buruh Pancasila (SOB PANCASILA, Central Organization of Pancasila Workers);

(17) Ikatan Karyawan Muhammadiyah (IKM, Muhammadiyah Workers' Association);

(18) Kongres Buruh Seluruh Indonesia (KBSI, Congress of all Indonesian Workers);

(19) Kesatuan Karyawan Buruh (KEKARBU, Association of Workers);

(20) Persatuan Guru Republik Indonesia (PGRI, Indonesian Teachers' Association);

(21) Serikat Pekerja Pegawai Pos, Telepon dan Telegraf (SSPPT, Post, Telephone and Telegraph Trade Union).

The Government appreciated the consensus of the above-mentioned trade union leaders and issued Manpower Ministerial Decision No. 286 A/DDII/DPHK/1974 on 11 March that recognized the FBSI as the only "Federation" in Indonesia, as the result of the merger of the previous federation and trade unions.

Since the establishment of the FBSI, trade union leaders have endeavoured to strengthen the unionism of Indonesian workers through the new organization. Consolidation and reformation of workers' organizations continued as the organization of workers needed to be based on industrial sectors or professional fields. The FBSI represented Indonesian workers at both national and international levels.

In its early stage, the FBSI consisted of 19 Serikat Buruh Lapangan Pekerjaan (SBLPs) or industrial-based trade unions. However, in 1973 the Congress of Indonesian Teachers' Association (PGRI) declared itself an independent professional organization and left the FBSI. Then, in 1976 the Congress of Serikat Buruh Transport (Transportation Workers' Union) split into three SBLPs namely the Serikat Buruh Angkutan Jalan Raya or Inland Transportation Workers' Union, the Serikat Buruh Angkutan Sungai, Danau dan Ferry or River, Lake and Ferry Transportation Workers' Union, and the Serikat Buruh Transport Udura or Air Transportation Workers' Union. As a result there were 21 SBLPs namely:

(1) Serikat Buruh Pertanian dan Perkebunan (SBPP, Farm and Plantation Trade Union);

(2) Serikat Buruh Minyak, Gas Bumi dan Pertambangan Umum (SBPMU, Oil, Gas and Mining Trade Union);

(3) Serikat Buruh Rokok dan Tembakau (SBRT, Cigarette and Tobacco Trade Union);

(4) Serikat Buruh Makanan dan Minuman (SBMM, Food and Beverage Trade Union);

(5) Serikat Buruh Tekstil dan Sandang (SBTS, Textile and Cloth Trade Union);

(6) Serikat Buruh Perkayuan (SBP, Wood Trade Union);

(7) Serikat Buruh Percetakan dan Penerbitan (SB Perpen, Printing and Publishing Trade Union);

(8) Serikat Buruh Farmasi dan Kimia (SBFK, Pharmacy and Chemical Trade Union);

(9) Serikat Buruh Logam dan Keramik (SBLK, Metal and Ceramic Trade Union);

(10) Serikat Buruh Asembling Mesin dan Perlengkapan (SBAM, Machine and Equipment Assembly Trade Union);

(11) Serikat Buruh Karet dan Kulit (SBKK, Rubber and Leather Trade Union);

(12) Serikat Buruh Elektronik (SBE, Electronic Trade Union);

(13) Serikat Buruh Bangunan dan Pekerjaan Umum (SBBPU, Building and Public Works Trade Union);

(14) Serikat Buruh Niaga, Bank dan Asuransi (SB NIBA, Commerce, Bank and Insurance Trade Union);

(15) Serikat Buruh Pariwisata (SBPAR, Tourism Trade Union);

(16) Serikat Buruh Maritim (SBM, Maritime Trade Union);

(17) Serikat Buruh Pelaut Indonesia (SPI, Indonesian Seafarers' Union);

(18) Serikat Buruh Angkutan Jalan Raya (SBAJR, Inland Transportation Trade Union);

(19) Serikat Buruh Angkutan Sungai, Danau dan Ferry (SBASDF, River, Lake and Ferry Transportation Trade Union);

(20) Serikat Buruh Transport Udara (SBTU, Air Transportation Trade Union);

(21) Serikat Buruh Kesehatan (SB KES, Health Trade Union).

The Government appreciates the attitude and spirit of the trade union leaders to be associated in one federation, the FBSI. During its Second National Congress held in Jakarta on 26-30 November 1985, the FBSI agreed on a decision to change the name and organizational structure of FBSI to a unitary organization to be called the Serikat Pekerja Seluruh Indonesia (SPSI) or All Indonesian Workers' Union. As the continuation of the FBSI established on 20 February 1973, the SPSI now moved to merge the workers' unions of the various industrial sectors. The SPSI is a professional organization of workers based on Pancasila.

The objective of this organization is to unify workers and to foster a sense of collective purpose of workers, to protect and maintain workers' interests and rights, and to improve social welfare and conditions of work. Meanwhile, the SPSI has a responsibility to mobilize workers to fulfil their obligations, as well as to be disciplined, productive, innovative and responsible.

The SPSI was set up as a unitary organization with only one central executive board consisting of nine departments, namely:

(1) Department of Agriculture and Plantation;

(2) Department of Metals, Electronics and Machines;

(3) Department of Textiles and Garments;

(4) Department of Tourism, Food and Beverages;

(5) Department of Pharmacy and Health;

(6) Department of Chemicals, Energy and Mining;

(7) Department of Trade, Banking and Insurance;

(8) Department of Public Works and Forestry;

(9) Department of Transportation.

As a result of this restructuring, there were several trade union leaders who were not elected as executive members of the SPSI or to any position in a department. They became frustrated, and then made every effort to come back to the old organization in the form of a federation. Some of them established a trade union called "Sekretariat Bersama SBLP" (Joint Secretariat of SBLP), and the others established "Serikat Buruh Merdeka Setia Kawan" (Independent Trade Union of Solidarity). Both organizations had no members or followers and no longer survive.

The Third National Congress of SPSI in November 1990 decided to restructure SPSI by changing the nine departments to 13 sectoral unions. Each sectoral trade union has its own central and regional executive board. Meanwhile, the provincial and district executive boards of SPSI retain the function as coordinators of the sectors at regional levels. The return to a federation structure together with the establishment of independent and democratic industrial sector-based unions was agreed as the way forward to facilitate the creation of close relations between workers and their unions and of more effective representation. These changes were reconfirmed by the Board of Executives of SPSI at its national meeting held in October 1994. The sectoral trade unions are:

(1) building construction and public works;

(2) timber;

(3) trade, banking and insurance;

(4) publishing and printing;

(5) tourism;

(6) food, beverages and cigarettes;

(7) chemicals, energy and mining;

(8) metal, electronics and machines;

(9) textiles, garments and leathers;

(10) transportation;

(11) seafarers;

(12) agriculture and plantations;

(13) pharmacy and health.

In November 1995, the SPSI held the Fourth National Congress. Prior to that Congress, each sectoral trade union held its respective national conference. The conferences of: Cigarettes, Tobacco, Food and Beverage Trade Union held on 2 August 1995; Wood and Timber Trade Union on 23-27 August 1995; Building Construction and Public Workers' Trade Union on 12-15 September 1995; and the other nine sectoral trade unions held their national conferences in September 1995. The culmination of those activities was the Fourth National Congress of SPSI held in November 1995. In the framework of improving workers' understanding of their rights and obligations, the SPSI has set out a Doctrine for Indonesian Workers, which emphasizes that in executing their rights, workers should also realize their obligations. They should realize that workers and employers have mutual interests and common goals.

In conclusion, it was the decision of the trade union leaders to set up their own organizations whether as a federation, unitary or a confederation. On several occasions, they tended to unite into one trade union or federation.

Factory-based independent trade unions

In response to both domestic and foreign criticism on the freedom of workers to establish their own organizations, the Minister of Manpower issued Regulation No. 1 on 17 January 1994. Based on this regulation, workers may establish an independent and democratic union in each company freely and without any requirement of affiliating with another trade union. According to the data available, presently, there have been about 1,200 independent unions at the company level. The newly established company union is only required to submit information on its organization status and members of its executive to the Ministry of Manpower. At the same time, soon after the union is established, it is able to perform its functions and negotiate with employers for drafting collective agreements. Each factory-based trade union can stay as an independent union without necessarily affiliating with the FSPSI, or it may decide to join the FSPSI. As an independent union, each factory-based trade union is not encouraged to join a political party or other association. Each individual worker has, of course, the right to express his political aspirations through political parties. Each worker is also eligible to join existing relevant professional associations such as the Indonesian Economists' Association, the Indonesian Engineers' Association, the Indonesian Public Administration Association, and others. However, such political organizations and professional associations should not be involved in handling labour or industrial relations problems in certain companies or to take over or to duplicate the function of a trade union.

The essence of Conventions Nos. 87 and No. 98 is that all workers in each company have the right to establish trade unions. The main purpose of that trade union is to negotiate with employers for better standards of living for those workers and their families. These criteria have been followed by the FSPSI and the 1,200 independent factory-based trade unions or Serikat Pekerja Tingkat Perusahaan, SPTP.

Serikat Buruh Sejahtera Indonesia

The so-called Serikat Buruh Sejahtera Indonesia was formed in April 1992 by elements of political parties, the human rights movement and legal aid. So far we have not been able to prove that this organization is established by the workers or their representatives at the company level. Moreover, we have not been able to prove that its objective is to pursue collective labour agreements. From its inception up to the present, evidence shows that the SBSI is more concerned with politics than labour issues. The court will decide whether the SBSI has a right to exist or not.

Therefore, if the SBSI should exist, it should be categorized as a non-governmental organization rather than a trade union. As an NGO, it may follow Law No. 8, of 1985, on the Principles of Social Organization. As an NGO, SBSI, of course, may have particular programmes relating to labour issues such as to empower trade unions through workers' education, to help trade unions in court, etc., but it should not duplicate or take away the roles and functions of trade unions.

Manpower policy within the last four years

(1) In executing its role and function, particularly in the Sixth Five Years Development, the Government issues a manpower policy called "Sapta Karya Tama Pelita VI" (Seven Priorities of Manpower Policy in the Sixth Five Years Development). This policy contains seven priorities as follows: manpower planning; information systems and integrated labour market; professional independent young labour force; apprenticeship programme; industrial relations and protection of workers; overseas employment services; organizational development, development of productivity centre, reformatic training, and workers' cooperative. Recently, the last three priorities were added, making ten priorities or "Dasa Karya Tama".

(2) Under Act No. 3 of 1992, the scope of the workers' social security programme is expanded, i.e. to include a health insurance scheme. In addition, Act No. 11 of 1992 requires employers to include their workers in a pension fund scheme. Each company is also obliged to set up a committee for occupational safety and health.

(3) The Regional Wage Committee, whose members are drawn from tripartite elements, has long been established in each province. This committee conducts surveys on the minimum physical needs (MPN) and submits recommendations on setting the regional and sectoral minimum wage. Based on those recommendations, the regional minimum wage has been increased from time to time. It is recorded that the average minimum wage increased from 48.5 per cent of MPN in 1990 to 63.6 per cent of MPN at the end of 1993, to about 92.49 per cent of MPN in 1996. The regional minimum wages (RMW) in effect since April 1997, increased by more than 10 per cent on average as compared to the RMW of 1996.

(4) Participation of workers' and employers' organizations in various institutions have continuously increased such as in the bipartite bodies, national and regional tripartite bodies, national and regional committees for labour dispute settlement, national and regional committees on occupational safety and health, national and regional training councils. The workers' unions continuously and actively exercise their rights through formulation of collective labour agreements in each company.

(5) Government, employers' and workers' organizations have closely established cooperation through their own programmes and activities to promote, develop, and draw community awareness to create a conducive climate for industrial peace and company development. It takes a long time to make employers and workers, as well as the industrial community, aware of their obligations in implementing such industrial relations.

The strategic steps taken in this respect are the following:

- consistent implementation of law enforcement;

- establishment of organizational unit of SPSI at company level (UK-SPSI), factory-based trade union (SPTP) and of collective labour agreement (CLA);

- settlement of industrial disputes based on the existing regulations;

- improving the function of the bipartite cooperative body;

- paying more attention to the social welfare of workers and establishment of committees on occupational safety and health (P2K3).

Law enforcement

There are about 160,000 companies in the country employing 10 persons or more. There are about 1,300 labour inspectors including 350 who have structural occupations and 950 who have operational occupations. Labour laws are enforced based on direct visits of inspectors, as well as on company reports submitted as required by Act No. 7 of 1981. In 1996, inspectors conducted direct visits to over 3,000 companies. Based on these inspections it was found that 1,600 companies in 1996 violated the existing provisions on working norms; 28 of them were brought to court and were fined, and 1,572 were issued a warning letter.

Development of industrial relations

There are about 60,000 companies in Indonesia employing 25 workers or more. Of those companies, organizational units of SPSI (UK-SPSI) were established in 12,750 companies covering 2.14 million workers. In addition, independent factory-based trade unions (SPTP) were established in about 1,200 companies covering about 60,000 workers. Employers' associations of Indonesia (APINDO) were established in 292 districts covering 2,000 companies. Collective labour agreements were agreed and formulated in about 11,000 companies covering about 2 million workers.

In 1996, there were 890 strikes involving about 500,000 workers, resulting in the loss of over 5 million working hours and of US$ 1 million.

Industrial disputes

The number of industrial disputes handled by the Industrial Dispute Settlement Committee at central level (P4P) during November 1996 was three cases, two of which have been settled. Industrial dispute settlement is regulated under Act No. 22 of 1957. Meanwhile, the cases of termination of employment handled by this committee during November 1996 were 111 involving 2,712 workers; in October 1996 there were 153 cases involving 1,179 workers. Among 264 cases in October and November 1996, 115 cases involving 2,228 workers have been settled. Settlement of termination of employment is regulated under Act. No. 12 of 1964.

Social welfare

Implementation of a minimum regional wage has been recently regulated under Manpower Ministerial Decision No. 2 of 1996. This decision is designed to improve the social welfare of workers where the basic calculation is according to minimum life needs. In November 1996 no companies applied for postponement of the implementation of a minimum regional wage. However, up to November 1996, the total number of companies applying for postponement of the implementation of a minimum regional wage was 797.

Up to December 1996, the membership in Workers' Social Security Scheme/Programme (ASTEK) was 65,778 companies covering 10,316,520 workers.

The number of workers' cooperatives as of December 1996 was 5,291 and the number of family planning programmes at the company level was more than 2,400 units covering about 111,000 workers.

Committee on Occupational Safety and Health

Committees of Occupational Safety and Health (P2K3) were established in about 11,000 companies as of December 1996. In 1996 there were 2,080 cases of occupational accidents, resulting in 1,686 injuries and 41 deaths.

In addition, Government representatives informed the Committee that, in response to the conclusions of the Committee on Freedom of Association at its session in November 1996, the tripartite partners in Indonesia had conducted a series of meetings to consider the amendment of a number of Ministerial Regulations referred to in the report of the Committee of Experts, including Ministerial Decision No. 438 of 1992, Ministerial Regulation No. 3 of 1993 and Ministerial Regulation No. 1 of 1994. New draft legislation to replace the above provisions were now in the process of completion. However, they believed that before discussing the legal provisions in detail, it was necessary to provide the Committee with information on the historical development of trade unionism in Indonesia. In so doing, they referred extensively to the written information submitted on this case. Referring to a number of articles quoted from the Constitution and several labour laws, they stated that there were extensive provisions protecting the right of workers to organize and to bargain collectively.

They explained that the purpose of providing complete information on the historical development of trade unionism in Indonesia was to ensure the Conference Committee of the commitment of the Government of Indonesia to accommodate and protect the interests of Indonesian workers and of the consensus that they reached through their organization. The information provided showed that trade unionism in Indonesia was not static, but responded to the changing national and international environment. Trade unions in Indonesia were open to change, bearing in mind their struggle for unity and their concerted efforts for the betterment of their members. In this light, the workers, employers and Government in Indonesia had intensively reviewed several labour laws over the past three years which they realized were no longer relevant to present and future economic and social conditions.

Following the holding of a series of meetings and the completion of the necessary procedural steps, a new Bill on manpower had recently been submitted to Parliament. The Bill was expected to be an umbrella law covering and refining the provisions of Act No. 1 of 1951 bringing the Labour Act into operation, Act No. 21 of 1954 on the Conclusion of Collective Bargaining Agreements between Trade Unions and Employers, Act No. 22 of 1957 on the Settlement of Labour Disputes, Act No. 12 of 1964 on Termination of Employment in Private Undertakings and Act No. 14 of 1969 on the Basic Provisions respecting Manpower. The new Bill was more comprehensive, simpler and more concise, more flexible and easier to understand than the previous legislation. In this context, they noted that it was the custom of the parliamentary system in Indonesia to invite the views of society, and particularly of related institutions and organizations, on draft legislation. Several NGOs and institutions had organized a workshop to discuss the Bill, the results of which would be submitted to Parliament.

In response to the conclusions of the Committee on Freedom of Association, the Indonesian tripartite partners had agreed to draft a single Ministerial Regulation to cover the three Ministerial Instruments referred to above. The tripartite partners had agreed in this respect that the following principles should be contained in the new regulation: trade unions at the company level should be established by the workers for the workers at that company; trade unions should be established on a voluntary and democratic basis; trade unions at the company level could remain as single independent trade unions or could join a national industrial trade union; and single independent unions at the company level could directly conduct negotiations with employers only by sending notification of their establishment to the regional office of the Ministry of Manpower. Consensus still needed to be achieved on a number of matters, including the definition of democratic principles for workers and the issue of whether a company-level trade union belonging to an industrial trade union should be registered at the company level or through its national headquarters. The Government representatives were optimistic that these matters would be resolved in a relatively short period of time.

In conclusion, they emphasized that all Indonesian laws were available to public and international institutions. The ILO Office in Djakarta would have access to any legislation that was not supplied directly to the Committee of Experts by the Government. However, they took the opportunity to submit a copy of Act No. 8 of 1974, regulating the terms and conditions of employment of public servants, to the Conference Committee.

The Employers' members recalled that the issue of the application of Convention No. 98 by Indonesia had been raised on many occasions by the Conference Committee and the Committee of Experts. The last occasion on which the case had been discussed by the Conference Committee was in 1995. The observation by the Committee of Experts was basically a repetition of earlier comments. The problems in question related to the application of the Convention in both law and practice. The situation was aggravated by practical problems in individual cases involving the extreme use of force of all kinds. Many of these individual cases were described in the report that the Committee on Freedom of Association had submitted to the Governing Body. It was a matter of particular concern that in these cases the persons concerned had been treated in a manner which was not at all in line with the provisions of the Convention. This failure to give effect to the Convention in practice was symptomatic of the fact that it was not correctly applied in law. It was therefore unfortunate that the lengthy statement by the Government representatives had contained only historical information on the development of trade unions, but had largely failed to address the questions raised by the Committee of Experts in its report and the Conference Committee in 1995.

Referring to the lack of protection against acts of anti-union discrimination, the Employers' members noted that workers could be dismissed on the ground of lack of harmony in industrial relations, and that in practice trade union membership could be considered to constitute such a lack of harmony in industrial relations. Although there existed a Ministerial Regulation of 1992 which provided that membership of a trade union could not constitute a reason for dismissal, these provisions did not appear to be implemented in practice. Even though the Committee of Experts had pointed to the need to simplify and clarify the legal provisions in this respect, no new information had been provided by the Government representatives on this point.

Referring to the comments of the Committee of Experts on the need to adopt specific legislative provisions to protect workers' organizations against acts of interference by employers or their organizations, the Employers' members stated that the regulations to which the Government representatives had referred did not contain sufficient protection in this respect. Better legislation was therefore needed to provide more effective protection.

On the question of the restrictions placed on free collective bargaining, the Employers' members noted that workers' organizations needed to cover a particular number of enterprise units in order to be able to engage in collective bargaining. Even though the Convention itself did not contain detailed provisions on this issue, such requirements were placed at a very high level so that collective bargaining became almost impossible in practice. Nevertheless, the Employers' members acknowledged that, since this question had been raised in the 1991 report of the Committee of Experts, the requirements in question had been reduced. They therefore recognized that some movement had been made in the right direction, although more rapid change was required. They regretted, however, that the Government representative did not provide new information in this respect.

The Employers' members had understood from the statements made by the Government representatives that the consultation process with regard to the new Bill on these matters was near completion and that the proposed legislation would soon be submitted to parliament. However, the Government representatives had not provided information on whether the problems referred to by the Committee of Experts would be addressed and resolved by the new legislation. Furthermore, although the Government representatives had provided the Conference Committee with a copy of Act No. 8 of 1974, regulating the terms and conditions of employment of public servants, it should be pointed out that such legislation should have been provided to the ILO many years ago. It was also to be regretted that the Government of Indonesia had not availed itself of ILO technical assistance to address these problems at an earlier stage and that the Government representatives had not taken advantage of the opportunity provided by this discussion of the case to respond to the conclusions of the Committee on Freedom of Association. The Employers' members suggested that technical assistance from the ILO might help to speed up the process of improving the application of the Convention, both in law and in practice. There was a great need to amend the legislation and the Government should endeavour to take the necessary action.

The Workers' members noted with regret that the case of Indonesia had been discussed in 1979 and four times during the 1990s, namely in 1991, 1993, 1994 and 1995. Notwithstanding the direct contacts mission which had taken place in November 1993, the situation remained preoccupying. The Committee on Freedom of Association, which had dealt with this case a number of times, had formulated very severe conclusions in which it deeply deplored and emphasized the gravity of allegations which had showed that the general situation had not improved, but continued to be characterized by increasingly serious violations of fundamental human rights and trade union rights in Indonesia. The terms used by the Committee of Experts reflected its grave concern. It insisted, in particular, that the Government should indicate the measures taken to strengthen the protection of workers against acts of anti-union discrimination and that it adopt specific legislative provisions to protect workers' organizations. The Workers' members deplored that the Government's reply, although long, did not contain any information in response to the repeated requests made by the Committee of Experts. Furthermore, they noted that the written and oral replies of the Government contained significant contradictions. While the Government insisted on the independence of the trade union movement in relation to the political parties, the SPSI, the official trade union, was closely directed and influenced by the authorities. In addition, in qualifying the SBSI as a non-governmental organization, the Government was in direct contradiction to the conclusions and recommendations of the Committee on Freedom of Association, which urged the Government to eliminate immediately all obstacles preventing the recognition and registration of the SBSI as a trade union. The members of the SBSI and its leaders were systematically subjected to anti-union measures, such as arrests, imprisonment or harassment. In the period since the Committee on Freedom of Association had examined the case, the list of allegations of anti-union measures had lengthened. According to the information that had been obtained, many local trade union leaders of the SBSI had recently been intimidated by the police or the army. The chairman and the vice-chairman of the local SBSI organization in Binji had been arrested and interrogated. During the course of 1996, the activists and leaders of different branches and regional federations of SBSI had been intimidated and their property often confiscated. The chairman of SBSI, Mr. Muchtar Pakpahan, had been arrested on 30 July 1996 in spite of the fact that the Supreme Court had acquitted him and that all legal charges against him had been dropped. He had been kept in detention for over a year in spite of his poor health.

The Workers' members endorsed the observations of the Committee of Experts. The system of industrial relations in Indonesia was such that the anti-union measures against organizations which escaped Government control had become normal practice. The information and statistics supplied by the Government on the increasing number of collective agreements and trade unions at the company level did not prove either the true nature of the trade union movement or the success of collective bargaining. Indeed, it was necessary to take into account the content of these agreements to verify that they actually covered conditions of work and wages. According to information available to the Workers' members, the provisions of the draft law referred to by the Government representatives were in breach of Article 3 of the Convention by authorizing greater interference by the public authorities. The Workers' members deplored the fact that the Government had not replied to the precise questions raised by the Committee of Experts and insisted that Indonesia take the necessary measures in the very near future to bring its legislation and practice into conformity with the Convention. They emphasized that the Government could benefit from the technical assistance of the ILO in this respect. They stated that the authorities must free the imprisoned trade unionists, particularly Mr. Pakpahan and cease acts of anti-union violence and intimidation. Finally, they proposed that serious consideration should be given to sending a mission to Indonesia in the very near future and that this case should be examined once again next year to identify any progress achieved. If no progress was made, they suggested that the case of Indonesia should then be included in a special paragraph.

The Workers' member of Indonesia provided the Committee with some additional information on Ministerial Decree No. 438 of 1992 concerning the guidelines for the establishment of workers' unions in a company. The decree made no reference to dismissal or regroupment, but merely regulated the method of establishing workers' unions at the plant level. It stipulated that where there were 25 workers at the respective company, such workers could form a union by themselves without any intervention from third parties.

The speaker also said that the national convention of the All Indonesia Workers Union (SPSI) in September 1995 had concluded that there was an urgent need to reform and restructure the Indonesian trade union movement to make it more effective and professional in its efforts to protect the interests of workers. There were now 13 industrial unions affiliated to the new Federation (FSPSI). The national convention of the SPSI had also decided to urge the Government to review much of its labour legislation in accordance with recent economic developments. Based on this conclusion, the Indonesian Government had submitted to Parliament a Bill on manpower which revised eight existing labour Acts and six ordinances. The FSPSI had submitted its first response to the Bill, which covered, among other matters, dispute settlement machinery, compulsory and voluntary arbitration, mediation and conciliation, the establishment and recognition of unions, the Tripartite Consultative Council and the Bipartite Consultative Council, women workers, child labour, wage protection, employment relations, the contract of employment, the informal sector and migrant workers. The FSPSI had also conducted a three-day workshop, attended by the representatives of some NGOs and by academics, leading to the preparation of further comments. A further seminar would be held for the preparation of the final draft of the Bill. The National Tripartite Joint Consultative Body had also discussed the possibility of reviewing Ministerial Decree No. 438 of 1992, as well as Ministerial Regulation No. 3 of 1993 on workers' union registration and Ministerial Regulation No. 1 of 1994 on the establishment of in-house unions. There were still some differences of opinion on the criteria for establishing unions, the structure of industrial unions (including independent unions), the right to bargain collectively and other trade union functions to further the interests of the workers. The National Tripartite Joint Consultative Body also intended to organize a workshop to examine how universal principles could be set out in the new ministerial regulation on the right of workers to join unions, workers' participation in the industrial relations framework as well as their right to training, to a fair wage and to collective bargaining. In view of this progress, there were good grounds for believing that the Tripartite Joint Consultative Council would be ready to undertake a permanent review of labour legislation in an era of economic globalization, without harming the values and way of life of society.

The Government member of Iceland, on behalf of the Governments of Finland, Denmark, the Netherlands, Norway, Sweden, the United Kingdom and Iceland, deplored the growing number of violations of human rights at workplaces. Both the Committee of Experts and the Committee on Freedom of Association, in its 1996 examination of Case No. 1773, used strong words to express their deep concern with regard to the persistent and continuing violations of trade union rights in Indonesia and, more precisely, the seriousness of allegations referring to the murder, disappearance, arrest and detention of trade union leaders and workers. The Governments of the Nordic countries, the Netherlands and the United Kingdom shared this deep concern and strongly urged the Government of Indonesia to take all necessary measures to bring the situation into conformity with the provisions of Convention No. 98. Finally, the personal situation of the SBSI President, Mr. Muchtar Pakpahan, raised serious concern. He expressed their common wish to join those who had already appealed to the Government of Indonesia so that his civil, political and trade union rights be respected in every way.

The Workers' member of the Netherlands recalled that this case had been examined on twelve occasions by the Committee of Experts and on five occasions in the Conference Committee. Moreover, the Government had not furnished the detailed report requested by the Conference Committee in its conclusions to the long discussion held in 1995. In 1996, the Conference Committee had deferred discussion of the case due to severe time constraints. However, the Government had misrepresented this to its national press as proof that the ILO was now satisfied with the manner in which the Convention was implemented in the country. The Workers' members had, in 1996, expressed the wish to include the case of Indonesia on a list of cases for discussion in 1997. They were particularly concerned that the Government had stated time and time again that the criticism of the Committee of Experts, since 1979, was unfounded. He pointed to a certain inconsistency in the points raised by the Committee of Experts in its reports since 1979. Certain issues, such as the role of the army in dispute settlement and in labour matters in general, had been raised on some occasions, but not others. The same was true as concerned the denial of the right to organize for workers in the public sector.

With regard to the protection of workers against anti-union discrimination, the Government had denied over the years that there were any problems with the relevant legislation and had stated that new legislation was not necessary, as the law afforded good protection against anti-union discrimination. Nevertheless, for almost 20 years the Committee of Experts and the Conference Committee had been telling the Government that this was not the case. In this respect, he noted that additional information supplied by the Experts, workers and employers had been ignored. It was not in this manner that such a case should be dealt with by government in the ILO supervisory system. Current examples of anti-union discrimination included the dismissals of SBSI and AJI (Independent Journalists' Association) members and activists by their employers.

On the question of protection against acts of interference by employers, the only development registered was the revision of Ministerial Decision No. 1109 of 1986 by Decision No. 438 of 1992. The Government, which had previously maintained that the 1986 Decision afforded adequate protection, had then implicitly said the contrary in 1993 by admitting that it was no longer compulsory for workers to obtain permission from their employer to set up a union. Moreover, despite the fact that both the Committee of Experts and the Conference Committee considered that the revised Indonesian legislation continued not to provide adequate protection against acts of interference by the employer, the Government refused to take any further action. By way of illustration of the influence exercised by employers over trade union activities in practice, he informed the Committee that the president of SPSI from 1985 to 1995 had been the president of the employers' federation for the textile industry in West Java at the time he was elected to his trade union position.

The situation was identical as regards restrictions to collective bargaining. The Government had stated that its legislation was not in conflict with the provisions of the Convention and that the Committee of Experts did not understand the national conditions in member States. Despite changes to the excessive requirements for the registration of trade unions set out in Ministerial Regulation No. 5 of 1987, the new Regulation, No. 3 of 1993, still contained formidable obstacles which, according to the Committee of Experts, were in violation of the Convention. In fact, what the Government had done was to create a trade union monopoly for the FSPSI and its sectoral unions, similar to what had existed in Eastern European countries before 1989. In 1995, the Conference Committee had urged the Government to dismantle all restrictive registration requirements for the establishment of trade unions.

Not only had the Government shown very little political will to adopt the changes to the law requested by the ILO for almost 20 years but its record of application of the Convention in practice was appalling. It had also engaged in crude and brutal violations of the Convention in practice for many years. Over the past five years, it had relentlessly harassed, intimidated, arrested, jailed and victimized leaders, activists and members of the SBSI, a trade union to which the Government refused to grant recognition. The fate of its general chairman, Muchtar Pakpahan, was widely known, despite the fact that the Governing Body had repeatedly stated that Mr. Pakpahan was a genuine trade union leader who should be released forthwith and allowed to continue with his trade union work. Another example was that, based on the official State doctrine of the "dual function" of the army, retired military personnel continued to take positions in the government-backed trade union central organization, the FSPSI, and its sectoral unions. After denying this practice for years, the Government had later argued that it was the right of retired army personnel to take employment, become members of a union and be elected to trade union office. However, the real situation was that these army pensioners were selected for these functions by a special army department in view of the Government's preoccupation with security. Finally, he recalled that the security forces continued to interfere brutally in strikes and workers' demonstrations. Indeed, the presence of police and security personnel at trade union meetings and other activities was so widespread that it was almost considered to be a fact of trade union life.

Although the Government maintained that workers were free to set up their own company trade unions, it had been confirmed to him that if such trade unions expressed the intention to join the SBSI, their existence would immediately be forbidden.

Despite the acceptance by the Government of a direct contacts mission in November 1993 and a subsequent technical assistance mission, it had to be concluded that the few changes in legislation made by the Government did not go far beyond developments of a merely cosmetic nature, as the representative of the US Government had stated in 1995. He urged the Government to ask for ILO advice on the text of the new Bill submitted to Parliament, and to bring the ILO's views on the proposed legislation to the attention of the Indonesian Parliament. He fully subscribed to the conclusion drawn by the Workers' Vice-Chairperson while drawing attention to the fact that among the jailed trade unionists there were three leaders and activists of the Independent Journalists' Association (AJI).

The Workers' member of Thailand stated that the history of this case illustrated well the attitude of governments in his region. The case provided a pertinent and topical example of both the Indonesian Government's insensitivity to working people in local circumstances in Indonesia. The Chairperson of the Worker's group had already covered many aspects of the case, but he wished to concentrate on the SBSI and its general chairman Muchtar Pakpahan. As concerned the SBSI, the authorities had refused to register the SBSI on several occasions, even though it had fulfilled the necessary criteria. He recalled that the Committee on Freedom of Association had urged the Government to remove immediately all obstacles to registration and to the official recognition of the SBSI. He stressed that Muchtar Pakpahan had been arrested on 30 July 1996 on charges which alleged that he had been linked to the serious civil disturbances of 27 July 1996. Charges of subversion could result even in the death penalty. Yet, even though the official Indonesian Human Rights Commission said that the Government and its security forces were responsible for the July civil disturbances, Muchtar Pakpahan remained in prison. All legal experts following the trial which started in December 1996 considered that Muchtar Pakpahan was not granted a fair trial and that basic rules of justice were violated. The trial continued until he was hospitalized. After concerted national and international pressure, he was authorized to be treated in a civilian hospital, as long as he personally paid expenses. The Government had indicated that the trial would resume as soon as he was able to go back to prison. It was clear that these legal procedures and multiple sentences were linked directly to his union activities. In addition, many union members and members of SBSI were frequently harassed, interrogated and deprived of their freedom. He concluded by insisting that the necessary measures be taken to change the legislation and national practices to bring them into conformity with the provisions of the Convention. Unless significant progress was noted, he proposed, like several other speakers, that Indonesia be mentioned in a special paragraph in the examination to be made by this Committee in 1998.

The Government member of the United States emphasized the long-standing concern of his country regarding this case. Based on the observation of the Committee of Experts, along with the conclusions and recommendations of the Committee on Freedom of Association in Case No. 1773, he expressed his concern that sufficient progress had not been made. In some respects, there was even reason to fear that the situation was worsening. The case of labour leader Muchtar Pakpahan was particularly troubling and he called upon the Government of Indonesia to ensure that he received adequate medical treatment. Both the Committee on Freedom of Association and the Committee of Experts pointed out that there were significant and long-standing weaknesses in Indonesian labour law, coupled with serious problems of enforcement of the legislation. Such a situation led, inevitably, to human rights violations the likes of which had been presented in some detail. He strongly urged the Government of Indonesia to continue the process of consolidating and amending its labour law, and to ensure that the new legislation was in full conformity with Convention No. 98, as well as other core labour standards. He recalled that technical assistance was available from the ILO in this respect. In addition, he strongly urged the Government to take immediate steps to prevent violence and other anti-union measures against Indonesian trade unionists. Convention No. 98 could not possibly be fully applied in an atmosphere where basic human rights were not first protected and promoted. He stressed that his Government would not hesitate to recognize and condemn the Indonesian Government's violations of fundamental workers' rights and human rights and strongly hoped that positive steps would be taken as quickly as possible by the Government of Indonesia to improve respect for the rights of workers.

The Government member of Canada expressed concern over the findings of the Committee of Experts with regard to the situation in Indonesia and stressed the importance that her country attached to the case of Mr. Muchtar Pakpahan, and in particular the necessity that he received just and fair treatment in any legal proceedings, as well as adequate medical care. This issue had been raised repeatedly with the Indonesian authorities by the Embassy of her country in Djakarta, as well as by the Department of Foreign Affairs, including at the ministerial level. She urged the Indonesian authorities to respect fully their obligations under the ILO Constitution and under ratified Conventions.

The Workers' member of France regretted that for a number of years the Committee of Experts had reported intolerable acts of interference with regard to the right of workers to freedom of association in Indonesia, in enterprises at both the regional and national level. The report contained allegations of serious anti-union discrimination, including intimidation, interrogation, molestation, illegal custody, imprisonment, dismissal and even the disappearance of members of the SBSI. These were not isolated incidents. These acts had become systematic and concerned the entire Indonesian territory. The Government, through the police, the army, and unidentified employers' groups, regularly put pressure on workers who wanted to form unions. If they did not renounce this right, individual or collective dismissal followed. On several occasions the local unions were ransacked and files taken or destroyed. The arrest and imprisonment of Muchtar Pakpahan came about as a result of such systematic anti-union policies. Since his first imprisonment in 1995, Mr. Pakpahan had been in jail for nearly one year, charged with endangering the security of the State. He was still detained to this day, and his failing health had become life-threatening. Despite the censure by international trade unions and various interventions made by European governments and NGOs, no action had been taken by the authorities. The speaker added that none of the reasons provided by the Government of Indonesia elucidated the serious and repetitive violations of the terms of Convention No. 98, ratified in 1957. The Indonesian Government must clearly account for these deliberate acts against the right of workers to freedom of association and to collective bargaining and not limit their arguments to more general accusations. This was especially true for the acts of anti-union discrimination against the leaders of the SBSI. Moreover, the president of the SBSI, Mr. Muchtar Pakpahan must be freed immediately. Finally, the Indonesian Government must adopt very rapidly specific provisions which would bring their legislation in line with the provisions of the Convention. It was regrettable that the information furnished by the Government was not more explicit; this cast a doubt on its seriousness.

The Workers' member of Japan emphasized the serious nature of the case, which related to violations of the rights of workers and the labour movement. Countries which ratified the Convention had the obligation to bring their law and practice into conformity with its provisions. Although the report of the Committee of Experts had raised four principal points and the Government had been requested to respond to them, it had not provided specific information on these matters, nor had it taken action in practice to give effect to the recommendations of the Committee of Experts. An important measure of the Government's willingness to adopt measures to give meaningful effect to the Convention in law and practice would be an improvement in the situation as concerned the right of public servants to bargain collectively. It was perhaps due to the legacy of Asian dictatorships that many people in the region looked to the public service as a model of employment. If the Convention was not applied in full to public servants, this would provide an excuse for employers to impose restrictions in the private sector. The Government should endeavour to play the role of a good employer which respected international labour standards, and particularly the right to collective bargaining in the public sector, in accordance with the Convention. He hoped that the Government would respond to the requests of the Committee of Experts in a rapid and faithful manner on these very serious points by taking the necessary measures to implement the Convention.

The Workers' member of Colombia, stated that, in spite of the declarations of good will made by the Government representatives, the workers were very concerned at the persistence of the anti-union policies in Indonesia. In the developing countries, there was frequently a tendency for undue interference in the activities of workers' organizations, restrictions on the right to collective bargaining and the submission of trade unions by employers. This phenomenon was attested to by the Committee of Experts in the case of Indonesia. He emphasized that these restrictions on the right of freedom of association and collective bargaining were unacceptable. He emphasized that national development could not be achieved without respect for workers' rights and expressed serious doubts about the positive industrial relations climate described by the Government representatives. With regard to the numerical restrictions imposed by the legislation in order to have free access to collective bargaining, he stated that these measures could not be described in any way as protecting the right to collective bargaining. Nor was it possible to speak of respect for freedom of association, when the official practice was to resort to intimidation and aggression, through detention and the confiscation of property. He hoped that the Government would free the trade union activists and leaders and that it would give full guarantees of the exercise of trade union rights.

The Workers' member of Pakistan joined with other speakers of the Workers' group and indicated his deep preoccupation concerning the situation of workers' rights in Indonesia. This preoccupation was even greater because Indonesia should, given the importance of the seat it held on the Governing Body, be an example for other governments. Whereas on the contrary, for a number of years, the Committee of Experts, the Committee on Freedom of Association and this Committee had noted serious violations of the principles of freedom of association, in law and in national practice. More precisely, the Committee of Experts had brought to light the contradictions between legislation and the provisions of the Convention which protected workers against anti-union discrimination, interference by employers or their organizations with regard to union activities, and restrictions on the right to collective bargaining. The Committee on Freedom of Association had emphasized the seriousness of violations of workers' rights committed by public authorities who had systematically resorted to anti-union measures including dismissal, arrest, harassment and other physical or mental violence. He insisted that the Government take the necessary measures, without delay, to amend the legislation so that it conformed to the provisions of the Convention and pleaded that the Government liberate jailed union members immediately, recalling that trade unions could function only where democratic values were properly respected.

The Government member of Germany declared that he fully supported the statement of the Government member of Canada.

The Government representative of Indonesia welcomed the time available for discussion of this case. His delegation had endeavoured to provide the Committee with as much information as possible in order to improve its understanding of the whole situation in Indonesia. However, in order to cover all the matters raised by the previous speakers, including information on individual cases, he welcomed the opportunity to respond to the points that had been raised during the discussion.

The Government representative stated, that, in response to several delegates' requests for information on particular cases, information had been communicated on related questions raised during the Committee's discussions in 1994 and 1995, and to the Committee on Freedom of Association. This information would not be repeated: the information provided on this occasion had been limited to the topic under discussion.Those who were interested in having access to the information should consult the Office. His delegation had been advised by the Secretariat to provide general information on this occasion and to submit information relating to individual cases to the Committee on Freedom of Association. This explained why the written information provided had not contained information on individual cases. It was also for that reason that 4 copies of information concerning individual cases had been submitted for disbursement to the Workers' and Employers' groups, the Chairperson and the Office.

In response to the comments made by the Employers' members, the speaker stated that the information presented was intended to respond to the conclusions of the Committee on Freedom of Association, as they appeared in the report of the Committee of Experts. The conclusions asked the Government to refine 3 Ministerial regulations. His delegation had stated that the tripartite partners had discussed and drafted a new regulation to cover the 3 regulations mentioned. It had also to be noted that the tripartite partners had been involved, over the last 3 years, in formulating draft labour legislation.

Also in response to the comments of the Employers' members, he said that his delegation had already confirmed in 1995 that all workers at the enterprise level had the right to establish trade unions and only needed to provide notification so that they could be registered and engage in collective bargaining. The restrictions referred to by previous speakers were no longer applied, with the result that there were now hundreds of independent unions at the company level which concluded collective agreements. There was no requirement for such unions to be affiliated to the SPSI. Trade unions could therefore exist on their own at the company level. His country had engaged in a tripartite process for the refinement of existing legislation, including the development of one ministerial regulation to cover the three previous regulations. It was the objective of tripartite consultation to seek consensus positions on what was best for the country, particularly in a situation of great change, when laws and regulations might no longer be relevant to current and future national needs. Tripartite consultation had led up to the submission of a Bill to Parliament, which would in turn invite the opinion of the people on the subjects that it covered. The SPSI had formulated its opinion on the provisions of the Bill and had organized a workshop on that matter. It was to be hoped that a Bill could be adopted that would take into consideration the best way of protecting the interests and rights of workers. In this respect, while appreciating the value of ILO advice, he made it clear that the function of the ILO was not to draft legislation for every country.

He disagreed with the Workers' members that there had been an increase in violations of the provisions of the Convention. The information on the historical background of the trade union movement in his country had been provided to explain the aspirations of Indonesian workers to unity and concerted effort. They believed that their country could be strong if it were united. Although the case of Muchtar Pakpahan was often raised by officials from foreign governments, trade union organizations and the ILO, he stated that they could have the opportunity to meet him. He was being treated in a very good hospital by the best doctors and he informed the Committee of the telephone number at which he could be reached. He reminded the Committee that Mr. Pakpahan was being held under criminal charges and that his case was not related to trade union matters.

In response to the comments made by the Workers' member of the Netherlands on the involvement of the security forces in dealing with demonstrations and riots denoted as labour issues, the speaker referred to the information provided to this Committee in 1994 and 1995 which had explained: the division of work between the security forces and the Ministry of Manpower; the way to distinguish labour and industrial relations issues from political issues and personal interests; and the way to distinguish individual cases from the policy of the Government. It was necessary to have a good understanding of the history. Most Indonesian workers had directly experienced great suffering and hardship due to the lengthy oppression of the colonial power and during the revolution. The colonial power played the strategy of divide and conquer and the conditions were made even worse and painful because some Indonesian traitors did not feel guilty in betraying their fellow Indonesians. That explained why Indonesia tended to maintain unity and why the security forces were traumatized by the continuing efforts to exercise the policy of divide and conquer.

The speaker stated that, after having observed the work of the Committee for 12 years, it appeared that, if a problem arose between a government or its security forces and an organization, the Committee had a tendency to put into question the government or the security force. The Committee had never examined whether the organization concerned observed good conduct or not. It was to be wondered why the Committee tended to put into question the security force, even though it was conducting its role correctly, but not the organization which was not observing good conduct.

He cited a number of examples from his personal experience to prove that meetings were held freely and without interference from the police or security services. Where workers' organizations were engaged in legitimate activities, they had nothing to fear from these forces. He regretted that many speakers had reached erroneous conclusions on this matter due undoubtedly to misperceptions and misinformation. The SPSI would be ready to substantiate the fact that the action of the police and security forces did not amount to interference in trade union activities.

The Employers' members, although recognizing that the Government representatives had provided the Committee with information, were not convinced that it was the right type of information or that it was related to the problems raised by the Committee of Experts. With regard to the comments of the Government representatives concerning the desirability of trade union unity, they recalled that this was a matter to be decided upon by the workers themselves. Single trade union organizations only became problematic when they were imposed by the government. Indeed, the intention of the Convention was to prevent such situations. The Employers' members therefore requested the Government to respond to all of the points raised by the Committee of Experts and the Committee on Freedom of Association and to send all of the relevant information to both bodies. The Government representatives had indicated that Indonesian legislation might not be perfect. This could be due to misunderstandings of the requirements deriving from the Convention. It would therefore be very useful if the Government would agree to receive detailed technical assistance from the ILO on the matters raised by the Committee of Experts.

The Workers' members considered inadmissible the declaration by the Government representative concerning Mr. Muchtar Pakpahan and other trade union leaders. In order to maintain the position that the problems raised did not concern the application of the Convention, the Government held on to a reasoning according to which the SBSI represented a security risk only on the ground that it was not recognized by the SPSI. The reasoning was unacceptable as, according to the Committee on Freedom of Association, the SBSI fulfilled all the conditions required for being recognized as a trade union. The content of the debate in the present Committee demonstrated that this case was well known and that it troubled the members of all three groups, as it touched upon basic workers' rights. It was all the more regrettable that the Government had continued for several years only to provide evasive responses to the Committee of Experts. The Government representative had expressed the hope that the present Committee would close the discussion on this case. But, in order to do so, the Government should provide detailed and complete responses, in writing, to the observations by the Committee of Experts and finally give effect to the conclusions adopted by the Committee on Freedom of Association as well as the conclusions adopted two years ago by the present Committee. Regarding the Bill that had been mentioned, the Workers' members had at their disposal distressing information and the Government should also provide full information on this subject for consideration by the Committee of Experts.

The Committee took note of the information communicated by the Government representative and of the detailed debate which subsequently followed. The Committee further noted that the Committee on Freedom of Association had expressed that not enough protection existed against acts of anti-union discrimination, nor against interference by employers in the functioning of workers' organizations and that serious restrictions remained on the right to bargain collectively. The Committee observed with deep concern that the discrepancies between the Convention on the one hand, and legislation and national practice on the other, had continued for many years. The Committee also observed that the Government had not given sufficient proof of a willingness to comply with the provisions of this core Convention, as it had not requested technical assistance in this respect. The Committee expressed its deep concern over this situation and asked the Government urgently to amend the legislation and to report on the measures taken or envisaged in this respect. The Committee urged the Government to ensure full respect of the civil liberties essential for the full implementation of the Convention. The Committee voiced its wish to be able to examine this case next year.

Individual Case (CAS) - Discussion: 1995, Publication: 82nd ILC session (1995)

A Government representative, referring to Case No. 1756 before the Committee on Freedom of Association, stated that the Government had sent its responses to the ILO dated 23 March, 10 May and 23 May 1994, and continued to pay the greatest attention to the protection and welfare of the workers. Under Act No. 3 of 1992, the social security programme for workers and its implementation had been expanded, while Act No. 11 of 1992 required employers to include their workers in their company's pension fund scheme. Each company was also under the obligation to set up a committee for occupational safety and health. Regional wage committees had long been established in each province whose members were derived from tripartite elements. The role of these committees was to conduct surveys on the minimum physical needs (MPN) and to make recommendations on the setting of the regional and sectoral minimum wage. Based on those recommendations, the regional minimum wage was raised from time to time. Thus, the average minimum wage has increased from 48.5 per cent of the MPN in 1990 to 63.6 per cent of the MPN by the end of 1993 and reached around 100 per cent of the MPN on 1 April 1995.

The existing labour laws and regulations provided adequate protection to the workers' rights to organize and to bargain collectively. Workers' and employers' organizations in various institutions have developed steadily. Their participation and role at national, regional and company levels were continually increasing, such as in the bipartite institutions, national and regional tripartite bodies, national and regional committees for labour dispute settlements, national and regional committees on occupational safety and health, national and regional productivity councils, national and regional wage councils, national and regional training councils. At the same time, the workers' unions had been actively exercising their rights through the formulation of collective labour agreements in each respective company.

In the framework of facilitating the growth of trade unions, the Minister of Manpower issued Regulation No. 1 on 17 January 1994. Based on that regulation, workers may establish an independent, democratic and genuine union in each respective company free from any obligation to be affiliated to other trade unions such as SPSI. During the last 18 months, about 800 independent and democratic trade unions had been established at company level. Each newly established trade union was required merely to submit information on its organizational status and the members of its executive to the Ministry of Manpower. At the same time, soon after the union was established, it was able to perform its functions and to negotiate with employers for the drafting of a collective agreement. In other words, those trade unions were not subject to any restrictions with regard to the number of their branches or their membership in order to be qualified to conduct negotiations and collective bargaining. The Government, the employers' organizations and the workers' organizations in Indonesia had been successful in establishing close cooperation through their own programmes and activities to promote, develop and draw the community's attention to the industrial relations system, with a view to creating industrial peace and to promoting the development of the company. A wide opportunity was given to workers at the plant level to establish trade unions enabling them to negotiate collective labour agreements. In the absence of a trade union or collective agreement, each company was required to have company regulations, approved by the Ministry of Manpower. With the steady increase in the number of unions and of collective negotiations, more company regulations would be replaced by the collective labour agreements.

Finally, the Government of Indonesia, in cooperation with the ILO, had formulated a five-year work-plan in the field of employment training and of industrial relations as well as of workers' education. The tripartite elements would be involved in each activity. The Government looked forward to the ILO's contribution to the realization of this plan in the very near future. Through this combined effort, it hoped to speed up the establishment of more independent, democratic and genuine trade unions in Indonesia.

The Workers' members regretted that the Government representative of Indonesia had not provided the sort of information which the Committee of Experts required in their report. They recalled that the Committee of Experts had been raising observations concerning the application of this Convention since 1979, and the case had been discussed in the Conference Committee in 1986, 1991, 1993, 1994 and again in 1995. In addition, a direct contacts mission was undertaken in November 1993 with a view to advising on measures to be taken to improve the application of Convention No. 98, and at that time the Committee of Experts indicated that the Office was ready and willing to provide technical assistance with respect to matters raised concerning this particular Convention.

Coming to measure the Government's response to the points raised in the Committee of Experts' latest report, the Government representative merely repeated what was contained in last year's report. But since then, there had been the conclusions of the Committee on Freedom of Association which were approved by the Governing Body in November 1994, and the issues raised by the Committee of Experts. First of all, concerning the protection against acts of anti-trade union discrimination, it was quite clear that according to the Committee of Experts, the measures taken by the Government to settle cases of workers' dismissals did not guarantee adequate protection to workers where anti-trade union discrimination was involved. The employer was allowed under the law to invoke "lack of harmony in working relationships", and this vague concept had been used to justify the sacking of workers who were merely exercising their right to organize. The Experts recalled that one of the recommendations of the direct contacts mission was to guarantee by fact and by law protection against anti-trade union discrimination by employers. The Government promised last year to amend that legislation and to invoke the assistance of the ILO. However, the Workers' members did not get any impression whatsoever that in fact the promise that was made last year to commence amending the legislation with the help of the ILO had commenced. They wanted a clear indication from the Government that the present legislation was going to be amended and they had not had such an indication.

In the second part of the Committee of Experts' observation concerning protection against acts of interference by employers, a number of points were raised for which there was no reply from the Government representative.

The third point raised concerned a whole series of restrictions placed by the Government on unions regarding the membership requirements that they must reach before they were allowed the right to bargain. All these restrictions were in contravention of Convention No. 98 and should be removed. But again there was no indication from the Government except the reference to the Minister of Manpower Regulation No. 1 of 1994 about which this Committee already had full details last year, and it was not convinced that it dealt with the situation as revealed by the Committee of Experts.

In addition, there was only one recognized trade union in Indonesia, and while there was nothing wrong with that if that was what the workers wanted, one must not, however, legislate on that point or insist by creating such complicated regulations so that it became impossible for any union to be formed because of the restrictions and the interference of the military. For many years, the Workers' members had a distinct impression that the role of free trade unions in this country was severely restricted. There had been trials of trade unionists, charged with incitement to disobey government orders following labour demonstrations, and there was a widespread belief, supported by Amnesty International, that these trials fell far short of widely accepted international standards of fairness.

The Workers' members were encouraged to learn from the Government's statements that there had been various measures introduced, that the minimum wage was raised, that social security was being improved and that a five-year programme of training and education was being implemented. However, what was missing from that statement was some positive evidence or even some promises which would be kept that there would be changes in the legislation recommended by the Committee of Experts, and, more importantly, that there would be a change in practice because the Workers' members were seriously disturbed by what was taking place in this country at the present moment.

The Employers' members, in recalling that this case had been before the Committee on several occasions in the past, noted that the Government representative reported on general developments in her country, on changes as far as social policy was concerned, but gave very little indication on those points which were raised by the Committee of Experts in their report: the absence of provisions to protect workers against acts of anti-union discrimination; the absence of sufficiently detailed legislative provisions to protect workers' organizations against interference by employers; and restrictions on free collective bargaining.

The Employers' members were concerned in the first instance that workers could be dismissed because of a lack of harmony in the working relationship. Indeed, this was a very broad and general statement, and in practice it was resorted to in cases of union membership of the worker. The Government had for some time been drawing attention to a Ministerial Decree, dating back to 1992, which explained that trade union membership was not a ground for dismissal. Last year the Government representative accepted a suggestion made by the Experts that this should be strengthened and clarified in law, so that it should be expressly stated in a piece of legislation that union membership must not be a ground for dismissal. This involved turning into a statutory provision something which was already covered in a Decree, and then seeing that this was actually also implemented in practice. The question remained open in this connection as to whether the International Labour Office's technical assistance might be required all the more so, as from what the Government stated last year, its aim coincided with what the Committee of Experts was asking it to do.

As regards the possibility and the extent to which employers could interfere in trade union activities, the Government again stated that there was a Ministerial Decree which made this interference impossible, but the Experts were asking for information on the extent to which this ministerial decision was actually applied in practice and for the strengthening of the legislation in this regard. So it was not a situation where there was no protection whatsoever but rather there was a request for clarification and strengthening of rules and regulations, and a request to ensure that what existed on paper was actually applied in practice. However, on this point, no further information had been given by the Government representative.

The third point of concern for the Committee of Experts was the various requirements for a trade union to be able to engage in collective bargaining or to be registered. Convention No. 98 did not contain any detailed provisions in this regard but a number of standards could be derived from it, since the aim of the Convention was to promote free collective bargaining wherever possible. It was known exactly how many workers and what sort of percentage of membership was required in Indonesia in order for a trade union to be allowed to engage in collective bargaining. The comparison of these figures with those contained in the report of the Committee of Experts for 1991 revealed a considerable change in the right direction. For example, in 1991, the requirement was that a union had to be represented in 20 provinces and 100 districts, and now it was only five and 25 respectively. As for company units, the requirement in 1991 was 1,000 and that had now dropped to 100. The Employers' members requested the Government to submit the specific figures in a written report and to indicate whether it was planning any further change in this connection.

The members of this Committee had always agreed in the sense that a single trade union was always a breach of the Convention, if it was prescribed by law, and an indicator of that would be, for example, if one specific trade union was referred to in the law. However, there was no comment on this particular subject in the report of the Committee of Experts, and according to the Government representative, there was a large number of newly established trade unions which could readily be registered without undue complications and could proceed to engage in collective bargaining virtually immediately.

All in all, there was clearly still need for change in the situation, for greater clarity and strengthening of legislation and for better controls as to actual practical application. Therefore, the Employers' members requested the Government representative of Indonesia to deal with these specific points in a written report and to provide replies to these questions and, above all, to indicate whether the Government was planning any further change and improvement in the near future along the lines of what this Committee had asked it to do, because the Employers believed it to be necessary.

The Workers' member of Indonesia provided information about developments in the All-Indonesia Workers' Union (SPSI). In early October 1994, SPSI conducted its Second Convention which adopted the new structure of SPSI from one that was unitarian to a federation consisting of 13 industrial unions. Two of them were already affiliated to international trade secretariats: the All-Indonesia Seafarers' Union, affiliated to the International Transport Workers' Federation, and the All-Indonesia Timber and Forestry Workers' Union, affiliated to the International Federation of Building and Woodworkers' Union. The other 11 industrial unions had already contacted respective international trade secretariats and would invite them to their own national Congresses, which would be held between July and October of 1995 before the Congress of SPSI.

On the other hand, workers who were not interested in affiliating to SPSI also had, on the basis of Ministerial Decree No. 1/1994, the right to organize and bargain collectively through established independent, democratic and genuine trade unions in their respective companies.

In the case of SBSI, the All-Indonesian Prosperity Workers' Union, the speaker recalled the statement made by the group leader of the ICFTU mission to Indonesia, that SBSI was not a real trade union movement, but only a group of people who were very sympathetic to the struggle of the workers.

The Workers' member of the Netherlands supported the statement made by the Workers' spokesman and particularly insisted that the law should not recognize any one trade union by name. With the changes recently made by the Indonesian Government on the right to organize, the new law made it possible to establish the enterprise-level unions which were not affiliated to the SPSI, but if they wanted to form federations, it was in that law that they should affiliate to the SPSI, which was mentioned by name in contradiction to the classical principle which had been established by the Committee of Experts, by this Committee, by the Committee on Freedom of Association, and supported also by the Employers' members.

The speaker regretted that the Committee of Experts left a couple of points out in the report as compared to the report of last year. He considered that there was no reason to leave out the question of the military because interference of the Government and of the military in labour conflicts and in trade union affairs was a basic illness of the Indonesian trade union movement. As long as that key problem existed, the Committee of Experts should pay attention to it.

Another point which was left out was compulsory arbitration. One of the bad things about the arbitration system in Indonesia was that, when trade union leaders or activists dismissed for their defence of workers' interests won their case in arbitration courts, they were never reinstated in their jobs and the most they obtained in Indonesia was compensation and for the rest they were usually put on a blacklist without the possibility of finding another job. That was the real situation, and therefore it was very important that the point of the Indonesian arbitration system was kept under surveillance by the Committee of Experts. The speaker strongly urged the Experts not to drop these two points, unless they had good reasons to do so, which were not present in the report this year.

The Experts' report made it clear that there were definite and long-standing weaknesses in Indonesian labour law. There were also definite efforts of the Indonesian Government to improve the minimum wage, for example, and that should be noted by this Committee. On the other hand, it should remain aware of the possibility that much of the changes advertised by the Government might be window-dressing and the Workers' members would take a position giving them the benefit of critical doubt, a wait-and-see attitude, first see and then believe.

Despite all the shortcomings in labour law criticized by the Experts, the basic weakness in Indonesia was the enforcement of the law, and if it came indeed to protection against anti-union discrimination, interference by employers in internal trade union affairs, restrictions in collective bargaining, there were many examples of non-enforcement. The basic problem was that the Government did not make a great effort to see that legislation was being enforced, and that had been the main reason for an enormous wave of strikes against non-payment of the legal minimum wage in the past few years. As in the past, it was very important that the Committee of Experts continued to take a close look at that. The same applied to the right to organize and bargain collectively, the heart of this Convention, which the speaker illustrated by two examples. By the end of last year journalists in Indonesia set up an independent journalist association, the AJI. That organization by its mere existence came into competition with the official government-controlled journalists' organization, the PWI, and was severely repressed. Several of the leaders were arrested and put in jail, a long list of people mentioned by name were dismissed or deprived of membership in the PWI because the membership of the PWI was declared incompatible with the membership of this independent association. The editors of the newspapers and magazines had been instructed by the Indonesian Government to dismiss people who were members of the AJI. The AJI was a professional organization wanting to represent the interests of workers in their profession, and it should not have been possible to suppress an organization only because it was parallel to the official government-recognized one.

The second example concerned the SBSI, which, in the eyes of the two trade union internationals represented at this Conference, the ICFTU and the WCL, was a genuine trade union. However, this organization was meeting with fierce repression of the Government which had refused to recognize it. It had warned employers and local authorities not to deal with this organization, which meant that it practically could not function at the enterprise level, and each and every worker declaring himself or herself to that union faced enormous risks, one of which was immediate dismissal. Despite all these obstacles the SBSI had definitely acquired a following, although, as was proved in the documentation underlying Case No. 1773 before the Committee on Freedom of Association, it was not a large organization.

Labour relations, as had been stated in this Committee previously, were seen by the Indonesian Government primarily as a security issue. Therefore, the Government wanted to strictly control the trade union movement and labour relations. This was why the police and the military interfered so often, and the retired military officers, many of them, were planted in the structure of the SPSI, the official union, at the regional and at the local level. This stemmed from an official state doctrine ("Dwi Fungsi") which specifically said that the military not only must have a role in the defence of the country but should also participate in the larger organizations in society. As long as this government doctrine existed, the military would remain in these positions. So the Government should be asked to withdraw this doctrine which would perhaps cure, in due time, one of the main diseases of the country's labour relations system. Was it ready to do that in due time?

The speaker addressed two other concrete questions to the Government of Indonesia: "If, under the new legislation, where workers can set up unions through their own choice, the SBSI sets up a union in a plant which is not yet organized, will that SBSI union have the right to organize and to bargain a collective labour agreement? In view of the future congress of the SPSI and of SPSI unions, will for once the Government refrain from interference in trade union elections?"

With respect to the conclusions that might be formulated by the Committee, he hoped that they would include the points concerning the military interference and the compulsory arbitration, and that the next report of the Committee of Experts would draw attention to the enormous gap in Indonesia between legislation and implementation of the law.

Finally, he hoped that the Committee would express strongly and firmly - as strongly and firmly as the Committee on Freedom of Association did - that the right to organize and bargain collectively should also indeed be open for other organizations than the official state-controlled organizations and that a strong appeal would be made here so that the Government would ensure that military intervention and its own intervention in any internal trade union affairs and labour matters as a whole would be stopped.

The Workers' member of Japan adopted the statement made by the Workers' spokesman and the Workers' member of the Netherlands. Having listened attentively to the statement made by the representative of the Indonesian Government, he noted that the promises given still stood largely as empty words, and some of the promises and some of the changes had brought very little improvement in view of the magnitude of the problem referred to in the report.

As regards the question of protection against acts of anti-union discrimination, the absence of such protection became even clearer in the light of the waves of strikes and demonstrations which took place last year in Indonesia. In fact, the lack of such protection was partly a cause of these industrial disputes. As regards protection of workers' organizations against acts of interference by employers, the complaints contained detailed examples not only of interference with workers' organizations by the employers but also by the Government itself. With respect to restrictions on collective bargaining, particularly in public services, the problem was that, in Indonesia, in the event that the Government owned more than 5 per cent of a company's stock, the company was considered to be a national enterprise and therefore workers had no right to form trade unions. A vast section of workers did not have freedom of association and were completely left out of any collective bargaining process.

While there were confusingly many so-called ministerial orders governing labour relations, the real problem arose from the absence of a single clear-cut labour law which complied with the ILO Convention. The speaker concluded that he was more pessimistic this year because of the statement made by the Government representative which had a very different tone from her speech last year.

The Government member of the United States noted that last year she had stated before the Committee that the situation in practice in Indonesia was far more serious than was apparent from a reading of the report of the Committee of Experts. She noted that once again the Government planned to cooperate with the ILO to bring its legislation and practice into conformity with the Convention, and welcomed the Government's indication that a number of legislative measures had been taken in cooperation with the ILO, but emphasized that the Government's intentions must be met with adequate and speedy action. She hoped that the specific recommendations made in reports of the Committee of Experts, the Committee on Freedom of Association and by the direct contacts mission would be taken very seriously and that changes far beyond those of a merely cosmetic nature would be made, thus leading to conformity with the Convention in the very near future.

Another Government representative, in responding to the observations of the Workers' members, pointed out that significant progress which occurred through gradual improvement over a period of time sometimes was more difficult to detect by those who had been witnessing the gradual progress through the entire period than by those observing only the difference between the circumstances at the beginning and the end of this period. In his view, this was what had occurred with respect to his country, which had been indicating examples of progress at the last two meetings of this Committee. For example, last year his Government had reported that the minimum wage was sufficient for 70 per cent of basic needs, and now it met 100 per cent of these needs. Last year, the number of independent company unions was about 100, but now it was about 800, an increase of 700 per cent. He asked whether any country in the world had experienced such great progress in such a short time. He then emphasized the amount of time that was needed in order to introduce new legislation. In 1991, it was indicated to the Government that it should review existing legislation, but only after 1992 was it able to begin this review. In 1994 Ministerial Decrees Nos. 1 and 15A were adopted, which represented great change, and he noted the reference by the Employers' members to the fact that some improvement had occurred. In outlining the process for preparing legislation in his country, he stressed the time needed to conceive of an idea for new legislation, to engage in tripartite consultation, to redraft legislation taking into account input from employers and workers, and to ask for further comments from them on the draft. The lengthy process involved in preparing new Conventions, which were adopted four to five years after the idea for a Convention was raised, was likened to the procedure involved in adopting new labour legislation in his country. For this reason he considered it unlikely that his Government would report on a new Labour Act in this Committee at next year's Conference. Five years ago three new bills were submitted to the Cabinet Secretariat. One of these, on Social Security, was adopted in 1992, but the remaining two bills were returned for refinement, and had recently been submitted once again to the Cabinet Secretariat. With the strong commitment of the Minister responsible he hoped that the redrafted bill would be selected as a matter of national priority among the approximately 50 other bills under consideration, but he said that it was unlikely that it would materialize as a law by next year's Conference. With regard to the restrictions on collective bargaining, he stated that it was now clear that where company-level unions had been formed and an executive established, they were not restricted from collective bargaining and entering into collective agreements. He drew a distinction between dismissal for engaging in trade union activities and dismissal for misconduct. The former was protected by the Trade Union Law, while the latter was not. The Committee of Disputes Settlement, composed of five employer, five government, and five worker representatives, was responsible for deciding whether dismissal was appropriate or not. With regard to demonstrations and strikes, he pointed out the difference between the practice elsewhere and in Indonesia, and gave as an example the announcement by the KLM crew during his flight from Indonesia that it would be engaging in a strike at a specific later date, and for a duration of from six to eight hours. In his country they had never experienced such a well-organized demonstration or strike, although they followed similar regulations on conducting strikes and demonstrations. This exemplified, in his view, the need for regulations that had clear objectives and clear demands of which both employers and employees were informed. In this way it would be clear what action should be taken to protect employers, workers and society. With reference to the invocation of a "lack of harmony in the working relationship", he pointed out that in many cases the workers themselves raised this question. He then reiterated that every trade union when established could engage in collective bargaining and negotiate collective agreements. With respect to the five-year plan, the minimum wage and pension funds, he noted that his Government would accelerate the realization of objectives for these activities and hoped to continue to make progress. In response to the observations of the Workers' member of the Netherlands regarding the naming of a particular trade union in the Regulation, he considered that there was nothing wrong with this as after a period of one year a new trade union could choose whether or not it wished to join the SPSI. If it felt that there was no need to do so, the trade union was free to make the decision not to join the SPSI. As stated before the Committee in 1991, 1993 and 1994 regarding military involvement, there had been a division of work between the country's security apparatus and the Ministry of Labour. If workers in their activities went beyond industrial relations matters, the security of the country became an issue. In this respect, it was not concerned at all with the industrial relations system, but was a matter of the role of the military in security aspects and national development. With reference to the requirement of a permit for conducting meetings, he said that such permits were needed so that the security apparatus would be informed. To explain the need for such permits, he gave an example of a church meeting held in 1992 which could have resulted in the death of many persons if the security apparatus had not been present. Although the security apparatus should not be present at meetings, it should be aware that they were taking place so that it could quickly settle down any problems that might arise. With respect to the enforcement of labour legislation, from 1994 to 1995, 183 companies were brought to court regarding violations of regulations of minimum wage legislation and, of these, 21 employers were penalized. He then emphasized that the Government did not have a list of workers dismissed from companies for engaging in trade union activities. He did not know whether employers who interviewed potential workers were actually aware, during the recruitment process, of the practices and backgrounds of employees, and stated that the Government had no information regarding dismissal for such reasons and discrimination against such workers who sought re-employment. On the other hand, when an employer violated labour legislation, the Government published this information so that society was aware. For this reason, he suggested that, if a blacklist did exist, it was of employers rather than of workers. With regard to the establishment of AJI as a competitor of a recognized trade union of journalists, he was unaware of this matter and noted that the AJI had never reported to the Ministry of Manpower regarding its existence. He suggested that the Workers' delegates of his country might give relevant information. The Government had already communicated information to the Committee of Experts concerning the SBSI and the riot in Medan, and he had documentation on this matter available to all those who wished to have further information. He noted that information had already been given on the public service to this Committee in 1991, 1993 and 1994. He emphasized the very particular relationship that existed between his country and the United States, and noted the intensive communication that had occurred in 1992 at which time a total of 25 kg of documentation was provided. In the past, the Government had invited a delegation of the Government of the United States to come to Indonesia on two or three occasions. Another mission from the United States was expected at the end of June or early July 1995, and his country would be pleased to provide as much information as necessary. In response to the statement of the Workers' member of the Netherlands regarding the involvement of the military in the executive of the SPSI, the latter would hold a congress by the end of this year prepared by all branches and regional executives, and he thought that they had certain criteria on who could be elected to the executive of the SPSI and how such elections were to be conducted.

The Workers' member of the Netherlands asked the Government representative again whether, under the revised legislation, a non-SPSI trade union could be established at the enterprise level, choose to join the SPSI and then proceed to negotiate collective agreements on behalf of workers in that enterprise.

In response, the Government representative stated that he had not yet considered whether workers could set up a central union other than the SPSI. If they were to do so pursuant to a democratic decision, and it was their right to do so, it was possible. From his personal point of view, as this type of trade union was just beginning to develop, little was known in this area. Such trade unions needed to be mature enough to do this. The Government wished to see leadership of this kind of trade union grow from within to accommodate this, and for this reason it was making considerable efforts to prepare leadership of trade unions through workers' education. He considered that they should be allowed to decide on the above matter later.

The Workers' members agreed with the suggestion of the Employers' members that a written report on all the issues raised in the report of the Committee of Experts and in this Committee would be helpful. They were grateful for the contribution made by the Government member of the United States, but remarked that it would have been helpful if this report had been given at the commencement of the discussion on this case, so that there would have been time to prepare a proper response, as the report could open up a new debate. They stressed that there had not been a satisfactory reply by the Government representative to the questions raised. The nature of the three bills submitted to the Cabinet Secretariat five years ago was unclear. They assumed that in addition to the bill on social security there was a bill on collective bargaining and on trade unions. They suggested that the reference by the Government representative to the 50 other bills pending was made to provide the Government with an opportunity to return next year to explain that it was unable to announce progress because the bills had been sent back. In their view, the example given of the need for the security apparatus to be present at the church meeting gave the Committee an understanding of the situation in that country. They noted that there had been no promises made by the Government to institute changes of the substantial nature required. Although the Employers' members and the Government member of the United States had noted some small changes, and the Workers' members agreed that one or two tiny changes had been made, the Workers' members stated that the situation had basically not changed and was not going to change. They said that the Comittee could not change the nature of a society of a country, or bring about fairness, reason and democracy in it, but it could indicate the manner in which Conventions were to be applied and what might be the democratic role that could be adopted in respect of this Convention. They suggested that the Government representative tell his Government that these issues must be dealt with during the next year. They stressed that they were seriously disturbed and deeply concerned about the way trade unionism was practised in his country, and hoped that the Government would provide a detailed written report in reply to the Committee of Experts and to this Committee. They hoped that the conclusions would convey the deep concerns of the Workers' members on the issues raised and the apparent failure of the Government to meet the requirements of the Committee of Experts not just this year but for many, many years.

The Employers' members noted that there had been a very extensive and detailed debate which in parts was highly interesting, and had given a great deal of insight into these issues, which went well beyond those contained in the report of the Committee of Experts. They noted the readiness of the Government representative to address some of the points in some depth, although he did not have a solution to offer for all of the problems.

The Committee noted the report of the Committee of Experts, the information provided by the Government representative on the application of the Convention, as well as the discussion. The Committee felt deeply concerned that, in spite of the direct contacts mission that went to Indonesia in November 1993, the discussion within the present Committee last year, and the technical advisory mission that went to Indonesia in January 1995, much progress was yet to be achieved to ensure in law and in practice the full application of the Convention. The Committee felt encouraged by the information furnished during the meeting by the Government representative, inter alia, on the formation of more trade unions. However, the Committee urged the Government to take specific measures to guarantee protection against anti-union discrimination in fact and law, to ensure de facto non-interference by the employers in workers' organizations, and to establish a regime of laws, rules and practice by dismantling all restrictive registration requirements and thereby creating a free environment for formation of unions without hindrance. The Committee further called upon the Government to furnish a detailed report to the Committee of Experts on specific further measures taken by it with reference to the matters mentioned in the report of the Committee of Experts and to fully comply with all the parameters of Convention No. 98 and to guarantee collective bargaining.

Individual Case (CAS) - Discussion: 1994, Publication: 81st ILC session (1994)

The Government supplied the following information:

1. Act No. 14 of 1969 on the Basic Provisions respecting Manpower is a comprehensive law which includes industrial relations aspects. Although the provisions of the Act are still relevant in the Indonesian situation of labour standards, the Government realizes that it needs some adjustment to accommodate recent developments in industrial relations, particularly in facing the Second Long-Term Development. Therefore, the Government of Indonesia decided to review and revise the labour legislation. This programme consists of Act No. 14 of 1969 and Act No. 1 of 1951. Apart from that, the need was realized to have brand new regulations on employment and apprenticeship. So for the past five years, the Government has been working on four texts of labour legislation simultaneously. As the Government realizes that this programme is a very big job and a very delicate process, it has stated its intention to get technical assistance from the ILO.

2. The Minister of Manpower Regulation No. 01/1994 concerning Trade Unions at Company Level (SPTP) gives a wide opportunity to workers at the plant level to establish an organization with no obligation to join any particular organization. This organization will be able to bargain and negotiate a collective labour agreement with their employers.

Some provisions in this regulation stipulate the following:

Article 4(1). Workers at plant level with no fewer than 25 members may establish a workers' organization, unless there already is an existing trade union in the company concerned.

Article 17. A workers' organization at company level has the right to bargain and to negotiate a collective labour agreement based on the existing regulation.

Thus, this new regulation gives a broader opportunity to the workers at plant level whether they prefer to establish the organization under this regulation or whether they would like to join the existing trade union, i.e. SPSI.

3. The law and regulation in Indonesia guarantee workers' protection against anti-union discrimination and employer intervention in union membership. Even the 1945 constitution secures the freedom to organize and to express opinion.

4. The protection against anti-union discrimination is explicitly stated in the following:

(a) Article 8, paragraph (a) of the Minister of Manpower Regulation No. 04/1986 and Circular Letter of the Director General for Industrial Relations and Labour Standards No. 113/M/BW/1990 in which it is stated that:

The permit to terminate an employment shall not be given under the condition that the termination is conducted on the basis of the establishment or union membership.

(b)Ministerial Manpower Decree No. 438 of 1992 explained that the employer shall not take any unfavourable action towards the workers on the basis of trade union membership whether as union official or as a member of trade union.

5. Regarding the proposal to give more penalties for those who act against labour law including provision of the principle of freedom to organize, the Government declares to share this idea and it has been discussed and decided accordingly.

6. In line with the Government's intention to implement labour regulation, it has conducted law enforcement through the court.

7. The Government agrees that industrial relations mainly concern workers' and employers' interests. Therefore, in January 1994, it has withdrawn Minister of Manpower Decree No. 342 on Guidance for Conciliation in the Settlement of Industrial Disputes, particularly in facing various cases respecting overtime pay, strike, contract workers, termination of employment and the change of ownership of the company and replaced it with Minister Decree No. 15A on Guidance for the Settlement of Industrial Disputes and Termination of Employment at Company Level and Conciliation. The latest Decree replaces three Ministerial Decrees, i.e. No. 342/1984, No. 1108/1986, No. 120/1988, all of them concerning industrial dispute settlement. By doing so, the process of industrial dispute settlement in Indonesia has been simplified.

In addition, the Government representative stated that an overall review of national legislation concerning the right to organize and to bargain collectively was an enormous task. It was being undertaken with a view to coping with the need for just and democratic industrial relations. In this regard and in response to the recommendations of the direct contacts mission that had taken place from 21 to 27 November 1993, the Department of Manpower had taken some necessary measures, including a series of national seminars on employment and poverty elimination, reviewing labour laws and ways and means of implementing of the Pancasila Industrial Relations system, and on the wage system. Through these seminars, important inputs and views for the review of labour legislation were collected from related government institutions, employers, trade unions, national NGOs, universities as well as experts from other countries and the ILO. The 75th anniversary of the ILO was marked by the signing of the Memorandum of Understanding concerning the five-year programme of cooperation between the Government and the ILO, which showed the Government's full awareness of the importance of ILO technical assistance in improving the national legal system in compliance with international labour standards. Indonesia had always recognized and accepted the universal validity of basic workers' rights not only because it was a Member of the United Nations and the ILO but also because those rights were deeply rooted in the national consciousness and were embodied in the country's state philosophy and Constitution, and in its legislation. The speaker also referred to Ministerial Decrees No. 1 and No. 15A of 1994 noted in the written information submitted to the Committee, and indicated that Ministerial Decree No. 15A restated the non-involvement of the security apparatus in dealing with labour affairs or disputes. The Government was in the process of drafting a comprehensive law on strikes, which would give a clear definition on the involvement of police in the handling of demonstrations to prevent them from engaging themselves in interference in purely labour strikes. The draft law on strikes had been tabled for in-depth study to the national inter-departmental advisory committee. She also noted the Government's efforts to awaken the workers' consciousness of their rights by seriously promoting educational programmes for workers. The Government had encouraged the establishment of trade unions based on industrial sectors in order to achieve better representation and effectiveness and to meet the needs of workers. She considered that the huge number of workers with low levels of education and lack of adequate information could cause ignorance of their basic rights and stressed that, while fundamental workers' rights were indeed universal, their expression and implementation in the national context should remain the competence and responsibility of each government. The speaker noted the recent establishment of two national advisory bodies to deal with issues of fundamental human rights including workers' rights, namely the Independent National Commission on Human Rights and the Inter-departmental Committee on Human Rights. She stated that it had never been a deliberate intention or the policy of the Government to allow violations of the fundamental rights of workers, although full enjoyment of such rights remained elusive due to public ignorance. For this reason, the nationwide promotion of fundamental ILO standards had been set as the priority task of these two institutions. She concluded by confirming her Government's strong commitment to protect and promote workers' right to organize and bargain collectively with their own employers in their respective enterprises and to promote the role of trade unions within the framework of a sound and harmonious industrial relations system at every company.

The Employers' members referred to the direct contacts mission and, in particular, to the recommended measures, which were summarized in the report of the Committee of Experts. They underlined the rather positive results of this mission, and especially that the question was no longer that of principles or of fundamental gaps, but rather the question of improvement and perfection of the situation. In addition, they were pleased with the spirit of cooperation and collaboration with the ILO, which the Government demonstrated during this mission as noted in the report of the Committee of Experts. Besides, they emphasized the different approaches contained in the report and stated that, in their opinion, neither the Committee of Experts nor the Conference Committee should request the adoption of dissuasive sanctions; they should rather call for effective measures that they were able to examine. They concluded by insisting that the Government should clearly indicate the changes in practice and request necessary technical assistance of the ILO.

The Workers' members had the impression that the Government wanted to take steps forward according to the written and oral information it had provided to the Committee. Addressing themselves to the written information, they stated, as a first point, that they did not think five years would be necessary for the preparation of the four legal texts mentioned, especially if the Government benefited from the technical assistance of the ILO; as to the second point, it seemed unacceptable for them that freedom of association and the right to collective bargaining were limited to the enterprise level and that companies with fewer than 25 persons were excluded; besides, a trade union monopoly of the All Indonesia Workers' Union (SPSI) was already installed, even though plural enterprise unions could exist: the question was whether a central union could be freely established; as to points three and four, they referred to the remarks of Workers' members last year and also to the arrests of trade unionists during the previous week, and questioned how the workers were effectively protected in practice against anti-union discrimination and the intervention of the employers; as to point five, they referred to the recommendations of the direct contacts mission and requested the Government to indicate measures taken on the subject and their juridical value; as to point six, the Workers' members wondered who had access to courts and by what means; and finally, as to point seven, as to whether the contents of the new regulation contained more freedom for negotiation. In comparing the reply of the Government and the recommendations of the direct contacts mission, the Workers' members considered that there remained still much to do, even though the supplied information permitted a certain optimism. Since the practice noted was unfortunately rather discouraging, the Committee could not but make conclusions clearly requesting the necessary modifications to legislation, full information on the decisions and changes in practice declared, and hoping that a profound reform would be started and could be noted especially as concerns the recommendations of the direct contacts mission.

The Workers' member of the Netherlands, speaking also on behalf of several Workers' members, including those of Norway and Sweden, stated that the initiative of the Government to invite a direct contacts mission was a clear departure from their position in previous years that this was a minor case. It should be welcomed but the Government should now clearly commit itself to implement the recommendations of the mission and profit from the technical assistance that the ILO could provide. In addition, the situation should be followed, keeping in mind that collective bargaining should be carried out by freely chosen representatives. In this regard, the speaker recalled the situation in Indonesia, where the trade unionists had encountered difficulties in organizing themselves into independent trade union federations such as the SBSI and in expressing themselves; where collective agreements were concluded by the SPSI, a union controlled by the State and which include retired military people in its local and regional bodies; and where the police or armed forces intervened in trade union activities. Despite certain changes in legislation (and regulations) made recently, he thought that interventions were still allowed under other pieces of legislation. In conclusion, he stated that the Committee should request the Government to apply the recommendations of the direct contacts mission in their entirety and to profit from the technical cooperation of the ILO. In this regard, the conclusions of the Committee should fix a time limit - one or two years - for the detailed information to demonstrate progress made in law and practice.

The Workers' member of Japan welcomed the positive tone of the information supplied by the Government and referred to the recommendations of the direct contacts mission, in particular, the suggestion that measures should be taken to avoid to the maximum the intervention of the police and armed forces. He requested the Government's assurance in this regard.

The Government member of the United States expressed the concern that the situation in practice was far more grave than was apparent in the Committee of Experts' observations, and referred to accounts of widespread and extremely serious repression of trade unionists in Indonesia. She noted that her Government was very concerned about the worker rights situation in Indonesia and had strongly urged the Government to invite an ILO direct contacts mission. She welcomed the Government's cooperation and collaboration with the ILO direct contacts mission, as well as the positive remarks made by the Government representative. She encouraged the Government to follow up the recommendations made by the direct contacts mission with the further assistance of the ILO so as to bring the national legislation and practice into conformity with the Convention.

The Workers' member of Indonesia considered that the development of his union (the All Indonesia Workers' Union "SPSI") was now much more satisfactory and encouraging compared with 44 years ago and referred to the Declaration on the unity and integrity of Indonesian workers of 1973, which was the basis of "FBSI" that later became SPSI. He mentioned, in addition to the Ministerial Decrees No. 1 and No. 15A of 1994, Ministerial Decree No. 3 of 1993 on the registration of trade unions. He further stated that the legislation reaffirmed workers' freedom of association without Government and employer interference, and that security forces were prohibited from interfering in the industrial conflict. He also noted that the SPSI had a new structure of "federation" supported by 13 industrial sectors, some of which were affiliated to international sectoral trade unions. In addition he provided some data: the establishment of 11,484 units (compared to 11,000 in March 1993) in the approximately 40,000 companies which had permission to establish trade unions; 8,437 collective bargaining agreements signed (7,000 in March 1993), some of them in the Government-owned plantation enterprises; 2.2 million members who paid the contribution (1.9 million in March 1993). He pointed out that 80 per cent of strikes took place in companies without a trade union and that they usually concerned normative matters such as the minimum wage and the freedom to establish a trade union, while in companies that had SPSI units, demands in strikes were generally above the minimum normative level.

The Workers' member of the United States noted certain information concerning interference: the Indonesian Prosperity Trade Union "SBSI", established in April 1992, reported that the first congress was broken up by soldiers who seized their offices and the premises of the congress; despite the revocation in January 1994 of a 1986 law which allowed employers to use security forces to intervene in labour disputes, the coordinating agency for national stability continued its military intervention in labour disputes whenever it felt "security" was threatened, for example, violent interventions by the military, officers confiscating posters and banners and being ominously present at the negotiations, kidnapping of workers and arrests of trade union leaders, even very recently. He hoped that these actions would finally cease and that the military would withdraw permanently and completely from its involvement in labour matters, as recommended by the Committee of Experts.

The Workers' member of Pakistan referred to the recommendations of the direct contacts mission and emphasized that the Ministerial Decree No. 1 of 1994 should be abrogated. In addition, he supported the view expressed by the Workers' member of the Netherlands regarding collective bargaining.

The Employers' member of Indonesia, after recalling last year's discussion, informed the Committee that the workers and employers had been invited by the Government to participate in strengthening some regulations to ensure a better compliance with the Convention in response to the recommendations of the direct contacts mission, as was indicated by the Government representative. He was pleased with the Government's efforts to respond to the observations made by the Committee of Experts.

Another Government representative emphasized that there had been continuous, consistent and significant development of the condition of labour in his country, at least during the last 25 years, including the right to organize. He stated that the Ministerial Decree No. 1 of 1994 meant that there was no monopoly in the trade unions, and that there could be thousands or even ten thousand unions in the country. In less than four months after the direct contacts mission, the Government had already issued one Ministerial Decree and one Ministerial Regulation, because the elaboration of laws would take a long time. The Government was preparing for the simplification and the consolidation of the whole system with the technical assistance of the ILO. The speaker did not think that there was any contradiction in the two Ministerial decrees, which were consistent in promoting freedom of association and the right to bargain collectively with the respective employers at the plant level. He insisted that there was no trade union monopoly any more, because it was by consensus of all the leaders of workers in the early 1970s that they united themselves into one federation that is FBSI, which became SPSI. Regarding the involvement of security and military forces, he stated that even if there were some retired army personnel who held positions in the SPSI, they did not have any functional relations any more. He pointed out that distinction should be made between the industrial relations issues and the non-industrial relations issues: while the former was always the responsibility of the Ministry of Manpower, the security aspect should be considered in the latter, if there is threat to the national stability or dignity. He also considered that a worker violating laws related to industrial relations issues or something else should not be excused of being brought to court only because he was a worker. He finally confirmed that the efforts to simplify and consolidate the existing provisions would be continued and that progress should be awaited as to the measures for the implementation of the two Decrees.

The Committee took note of the detailed written and oral information provided by the Government representative and the discussion that ensued. The Committee welcomed the fact that a direct contacts mission had been to Indonesia in November 1993 to examine and discuss the measures to be taken to ensure the application of the Convention. Consequently, the Committee expressed the firm hope that this direct contacts mission would be followed by promising developments and that the Government would indicate, in its next detailed report on the application of the Convention, the specific measures effectively taken by the Government to codify and simplify labour legislation ensuring effective protection against anti-trade union discrimination acts and interference and to eliminate legislative restrictions on the right of workers to determine their working conditions through collective bargaining. The Committee hopes that the next report of the Government will indicate decisive progress in the legal and practical application of the Convention, if necessary with the assistance of the International Labour Office.

Individual Case (CAS) - Discussion: 1993, Publication: 80th ILC session (1993)

The Government has communicated the following information:

1. Protection against acts of anti-union discrimination

(a) Based on Presidential Decree No. 1 of 1980 on the Report of Obligations concerning Employment Opportunity, employers should report to the Government if they plan to hire workers. This report should include the number of workers requested, as well as their qualifications, age and education. There is no clause whereby the workers concerned should or should not be involved in membership of a trade union or any particular trade union. This regulation is consistent with section 2 of Act No. 14 of 1969 which states that "In the enforcement of this Act and the implementing regulations to carry out this Act, there shall be no discrimination". If a jobseeker is discriminated against on the ground of his membership of an organization, he can report to the Ministry of Manpower, and basing himself on Act No. 14 of 1969, the official of the Ministry of Manpower can compel the employer to accept this particular jobseeker.

(b) Act No. 14 of 1969 states that "Every worker has the right to establish and become a member of a trade union". To guarantee this principle, the Ministry of Manpower issued Circular Letter No. 113/M/BW/90 which states that termination of employment connected with the establishment of membership and management of a trade union will not be permitted.

(c) On the basis of Act No. 12 of 1961 on Termination of Employment in Private Undertakings, no worker shall be dismissed without the approval of the Ministry of Manpower. If an employer requests the dismissal of a worker or workers due to his or their membership or involvement in a trade union, the Ministry of Manpower will not approve the termination.

2. Protection of workers' organizations against interference from employers

(a) Ministerial Decision No. 1109/Men/1986 has been revised by Ministerial Decision No. 438/Men/1992 on Guidance for the Establishment and Development of Trade Unions in the enterprise. This revision has been discussed by the tripartite body so that the aspirations of all parties concerned could be articulated and accommodated.

(b) Based on this new regulation, it has been stipulated that when workers intend to establish a trade union in a company, they are under no obligation to request permission from the employer. They merely have to inform the employer of their intention. If an employer interferes with the plan to form a trade union, the workers or the executives of the union at branch level should report to the Ministry of Manpower. The Ministry of Manpower will then ensure that the respective employer does not interfere with the establishment of the proposed trade union.

3. Restrictions on collective bargaining

In line with the previous clarifications given by the Government, Ministerial Regulation No. 5 of 1987 has been reviewed and replaced by Ministerial Regulation No. 3 of 1993 on the Registration of Trade Unions. This Regulation is based on the consensus and decisions of the tripartite body. In the new Regulation, there is a very substantial reduction in the formalities required in order to qualify for registration. Requirements for registration are aimed at protecting the interests of the workers and at maintaining the quality of the collective labour agreement.

In addition, a Government representative stated that his Government had already given a thorough explanation in 1991 on the same subject that was the object of the Committee of Experts' questions at the moment. Although Indonesia had increased the quality of life of its workers through the development of better working conditions, the Committee should acknowledge that these conditions were still based mainly on old regulations inherited from Dutch colonialism. However, review of these regulations was taking place in order to serve the interest of the people. To this end, Ministerial Decision No. 1109 of 1986 and Ministerial Regulation No. 5 of 1987 had just been revised by Ministerial Decision No. 438 of 1992 and Regulation No. 3 of 1993 respectively, with the consensus of a tripartite body. He concluded by stating that the subject under discussion was very minor as compared with a number of cases which were very substantial but which were not even recorded in this Committee.

The Workers' members pointed to the series of comments made by the Committee of Experts at the outset of its observation according to which there had not been sufficiently effective and dissuasive sanctions to protect workers against acts of anti-union discrimination at the time of recruitment and during the employment relationship. The observation similarly pointed to the absence of sufficiently detailed provisions to protect workers' organizations against acts of interference. They stressed that the oral and written information provided by the Government would have to be submitted to the Committee of Experts for evaluation, since this information purported to respond to the Experts' observation. Particular attention had to be directed to the two legislative texts referred to by the Government, especially the Ministerial Decision No. 1109 of 1986, as revised by Ministerial Decision No. 438 of 1992, which provided that an employer would not be allowed to take any action which would prove disadvantageous to the workers in relation to their activities, as well as to the membership and management of a trade union at the enterprise level.

The Employers' members, recalling that this case had been discussed in 1986 and 1991, stated that it appeared that some steps had been taken to meet the obligations under the Convention. However, they had some doubts about this. The first problem concerned the issue of anti-union discrimination at the time of recruitment and during employment. Although there was the Act No. 14 of 1969 which stated categorically that there would be no discrimination, there was no indication of any cases having been brought. If there was a right under the law not to be discriminated against, it was to be expected that some cases had been lodged in this respect. The Employers' members were thus interested in obtaining information from the Government as to whether there had been any such cases. The second problem concerned the protection of workers' organizations against interference, and it appeared that a revised Ministerial Decision No. 438 of 1992 prohibited such interference. However, since the Employers' members were concerned with actual practice, they once again wondered if there had been any cases brought concerning this regulation. Finally, with regard to the broad restrictions on collective bargaining, the Government vaguely stated that these had been substantially reduced. The Employers' members considered that some clarification was required, because in order for the right to collective bargaining to be meaningful, workers had to have access to the process and there was nothing before this Committee that indicated that this was even feasible. Therefore the Government still had to go much further in order to meet the requirements of the Convention.

The Workers' member of Japan noted first that, according to the information made available to him by several trade union organizations, including the ICFTU, the protection and guarantees provided for under the Convention were not applied in public services and state enterprises. Secondly, he wondered what the definition of a state enterprise was. According to the same information, if the Government owned more than 5 per cent of shares in an enterprise, this was then considered to be a state enterprise and its employees were not afforded the protection guaranteed by the Convention.

The Employers' member of Indonesia confirmed the statement made by the Government representative. He referred to the existence of regulations which protected workers against anti-union discrimination and guaranteed that every worker had the right to establish and become a member of a trade union. Moreover, these regulations guaranteed that the termination of employment based on the membership or mangement of a trade union would not be permitted by the Ministry of Manpower, thus ensuring job security. Finally, these regulations protected workers' organizations from interference by employers since the workers only had to inform the employer if they wished to establish a trade union at the company level, and did not need to obtain prior authorization from the employer.

The Workers' member of Indonesia described the history of the trade union movement in Indonesia, pointing out that by 1959 there were approximately 100 national trade unions, 150 local unions and seven federations. But he doubted that the system was of real benefit to the workers because, in the following decade, only a further 200 industrial unions were created at the plant level and only 17 collective labour agreements signed. In addition, the activities of the unions had been influenced by political interest rather than the principles of real trade union movement. On 20 February 1973, every prominent trade union leader in Indonesia finally agreed to sign a declaration of unity of Indonesian workers and merged their organizations into one single body, the All-Indonesia Labour Federation (FBSI). The new structure of the trade union movement in 1973 enabled the unions to become more effective but still in line with the democratic system. During the following 12-year period, approximately 6,500 industrial uinions were created at the plant level from the previous number of only 200 and the number of collective agreements increased to approximately 4,000. At the second national congress of the FBSI in 1985, the participating delegates decided to change the structure of the organization from a federation into a unitary one, and to change the name from FBSI to SPSI. After an eight-year period of the SPSI the total number of industrial unions at the plant level could be expected to progress to 11,000 and the number of collective labour agreements increased to 7,000, some of which were signed in the plantations. However, although the SPSI had made progress, it still faced problems because 15 per cent of the population lived below the poverty line and some workers were not well organized in the small and medium-scale industries.

The Workers' member of the Netherlands reminded the Committee that this case had not only been considered by the Committee of Experts and this Committee for many years, but that there had also been a complaint presented some years ago to the Committee on Freedom of Association. The Government, however, had taken very limited action with respect to the conclusions of all the three bodies. While it was true that Indonesia was a complex country with enormous economic and social problems, the Government had accomplished many things in the fields in which it wanted to. Apparently, this will was not so strong with regard to freedom to bargain collectively. In this respect, the Government felt entitled to flexible implementation of international labour standards and this was why it did not see the point of changing the system. Although the Workers were in favour of trade union unity which was the best way to represent and defend their interests, they did not accept that the decision to create and maintain trade union unity was a government affair, which was the case here. In practice, if organizations other than the "official" trade union centre were set up in Indonesia to defend workers' interests and to bargain collectively for them, then the Government refused to register them as trade unions, although they could be registered as mass organizations. However, registration as a trade union was necessary for collective bargaining purposes. It was clear that the Government wanted only the SPSI to be the organization representing Indonesian workers. Referring to interference in trade union activities, he stressed that such interference came not only from employers, but also from the army in Indonesia. Army officers were active in all mass organizations including unions. They did so on the basis of an official state ideology of "dual functioning" of the army in society. A significant number of retired army officers held leading positions in the trade union movement at the local and regional level, with the aim of exercising control over the movement. In his opinion, military involvement in trade unions was not conducive to their free and democratic functioning. Finally, on the question of trade union monopoly he first wished to know if the Government was prepared to register as a trade union an organization called the SBSI, which had organized many workers in the past year and which wanted to be recognised as a trade union. He could provide documents proving that employers threatened their workers that they should not have dealings with the SBSI. Secondly, he pointed out that under the new Law on registration of unions reviewing the old one of 1987, if a trade union centre wanted to be registered with the Ministry of Labour, it had to organise at least 100 unions at enterprise level and to total at least 10,000 members. Moreover it should count at least 25 branch level managers (by which it appeared that full time officers were meant) in 25 districts, and 5 regional level managers in 5 of the 27 provinces. If a trade union wanted to be registered under the new law it had to count at least 10 registered industrial unions. In other words, a national centre that wants to be registered has to be able to prove 100,000 members, 250 "managers" at the industrial level in 25 districts and 50 regional "managers" in 5 provinces.

The Government representative, in response to the comments made by the Workers' and Employers' members, stated that his Government would, as in the past, try its best to comply with the implementation of this Convention. However, there had never been any cases pertaining to issues of anti-union discrimination. He maintained that the Indonesian case was very minor as compared with a number of other cases which were much more substantive but which were not even recorded in the report of the Committee of Experts. Referring to the points made by the Workers' member of the Netherlands he pointed out first that with respect to the workers outside the SPSI there were close to 100 non-governmental organizations (NGOs) in Indonesia. Although the number of persons involved were less than 50, they had been invited to give their views in relation to the new Ministerial Decision and Regulation. Some of their ideas had been included in the new regulations. Regarding the dismissal of workers for their trade union activities, he reiterated that nobody could be dismissed in Indonesia without the approval of the Government. He concluded by stating that there was no intention on the Government's part of limiting the right of the workers to organize and to bargain collectively.

The Workers' member of Japan intervened again to request clarification from the Government. The Workers' member of the Netherlands intervened once more to reiterate his previous stance on the case and requested clarification once again from the Government. With a view to the request for concrete cases made by the Employers and the reply of the Government that there were no such cases, the Workers' member of the Netherlands stated that he could indeed document a number of relevant cases and offered to send them to the Office.

The Committee took note of the written and oral information provided by the Government representative in relation to issues that have been discussed over a number of years. It regretted to note that the Government considered that the national legislation was not contrary to the Convention as regards protection against acts of anti-union discrimination and protection of workers' organizations against acts of interference by employers. It took due note of the information provided by the Government according to which the 1993 Ministerial Regulation of on the registration of trade unions had reduced the conditions required for registration, and thus, participation in collective bargaining. The Committee urged the Government to take appropriate measures to ensure that workers and workers' organizations could exercise trade union rights without fear of anti-union reprisals and without any risk of interference on the part of employers. The Committee invited the Government to provide the ILO with a copy of the Ministerial Regulation of 1993 so that the Committee of Experts could make a full assessment of the progress reached in bringing this part of the legislation into conformity with the Convention. The Committee expressed the firm hope that progress would be reached in the very near future.

Individual Case (CAS) - Discussion: 1991, Publication: 78th ILC session (1991)

The Government has communicated the following information:

1. Protection against acts of anti-union discrimination

In relation to Case No. 1431, the Government recalls that Act No. 14 of 1969, on the Basic Provisions Respecting Manpower states that all workers shall have the right to establish and become members of trade unions. This Act stipulates that trade unions shall be established in a democratic manner. The Government guarantees that there is no restriction for any worker to become a member of a trade union.

2. Protection of workers' organisations against acts of interference by employers

The Minister of Manpower decree No. 120/1988 on the Code of Conduct for the Prevention and the Settlement of Labour Disputes, states that employers shall respect the right of their workers to become members of trade unions, and the right of their workers to establish trade unions. It also states that employers are not allowed to prevent their workers from becoming members of trade unions, either during the time of recruitment or during their employment.

3. Restrictions on collective bargaining

In order to cope with new developments, the Minister of Manpower Regulation No. 05/1987 is now being reviewed. Improvements have also been made in public companies and some have been able to conclude collective agreements. The structure of these companies has been reorganised, so that the boards have been elected by workers through democratic elections. These companies are: PT. Kaltim Prime Coal in East Kalimantan, PT. Multi Harapry Infama in East Kalimantan, PT. Tamilo Harma in East Kalimantan, PT. Allied Indo Coal in South Kalimantan, and Trectonin Indonesia in West Sumatra.

In addition a Government representative referred to his Government's written communication and highlighted several points. Firstly, that Act No. 14 of 1969 on the Basic Provisions respecting Manpower gave workers the right to establish and join trade unions and stipulated that union should be established in a democratic manner. Secondly, on protection of workers' organisations against acts of interference by employers, he stated that Ministerial Decree No. 120 of 1988 adopting a Code of Conduct for the prevention and settlement of labour disputes provided that employers should respect the workers' right to become union members and to form unions, and prohibited employers from preventing workers becoming members either at the time of recruitment or during employment. Thirdly, on restrictions on collective bargaining, he repeated that Ministerial Regulation No. 05 of 1987 was now being renewed. There had also been improvements in public companies, some of which had been able to conclude collective agreements; the structure of such companies had been reorganised so that the workers could democratically elect the board members.

The Workers' members noted that the Committee of Experts had been making comments since 1979 on the same points found in this year's report: absence of sufficiently specific legislative provisions to protect workers against acts of anti-union discrimination; the same for protection of their organisations; and lastly, restrictions on free collective bargaining. The Government sent reports and supplied additional information, but the concrete situation has hardly changed at all. The Experts considered that the measures taken under the Ministerial Decree of 1988 were not sufficient to provide adequate protection and the same applied for the second point, where they requested information on the practical application of the texts in question. On the third point, the Experts were clear; they regretted that the new text did not subtantially change the system for registering unions. When one read the written communication referred to by the Government representative, one was obliged to note that no real replies to these three questions were given. The Workers' members wanted to know the legal status of a code of conduct since the Government's report referred to one. They considered that it was absolutely necessary to insist that the Government did not simply continue to recall the same things in its reports, but that it take measures to reply to the comments and to bring the legislation into full conformity with the requirements of the Convention.

The Workers' member of Indonesia described the history of trade unions in Indonesia, pointing out that by 1959 there had been approximately 100 national trade unions registered with the Ministry of Labour, 150 local unions and 7 federations. But he doubted that this system was of real benefit to the workers because in the following decade only a further 200 industrial unions were formed and only 7 collective labour agreements signed. In addition, the activities of the unions had been influenced more by political interests than the principles of a real trade union movement. On 20 February 1973, every prominent trade union leader in Indonesia finally agreed to sign a declaration of unity of Indonesian workers and merged their organisations into one single body, the All-Indonesia Federation of Trade Unions (FBSI). It held its first national congress in 1981, deciding to further unite all Indonesian workers and to increase the number of national level unions. Its second national conference in 1985 showed that delegates were able to democratically choose and elect a new leadership; other decisions of this congress included (a) changing the term "labourer" to "worker" in accordance with the 1945 Constitution; (b) changing the structure of the organisation of unions from industrial to territorial districts; (c) changing the name from FBSI to SPSI, the All-Indonesia Workers' Union. Those leaders not re-elected formed the Joint Secretariat of Industrial Unions who, at the third national congress in 1990, were invited to take part in certain working groups. However, it became clear that this body had no support at its base and appeared to be more influenced by the personal interests of its leaders. As for Ministerial Regulation No. 05 of 1987 which repealed the 1975 Ministerial Regulation, he pointed out that this regulation had been submitted by the trade union for discussion in the National Tripartite Forum. He hoped that it would be changed so that the SPSI could fully carry out its activities on behalf of the workers.

The Workers' member of the Netherlands noted that the Committee of Experts had recorded divergencies between the Indonesian legislation and the Convention in 1979, 1982, 1983, 1986, 1987 and this year. Each time the Government had been requested to bring the legislation into line with the Convention, but nothing had happened. He regretted that the Committee of Experts' report, in mentioning Case No. 1431 persented by the International Confederation of Free Trade Unions (ICFTU) to the Committee on Freedom of Association, had not used a lot of the information about the lack of free collective bargaining in Indonesia contained therein; in his view that would have been very helpful to this Committee. The conclusions in that case, namely that civil servents and workers in government-owned or partially government-owned enterprises did not have the right to organise in trade unions and therefore did not have the right to negotiate their working conditions. The workers in such companies had to belong to a special organisation the "KORPRI" which could not carry out trade union functions and which was under the leadership of government ministers from the respective sectors. The Governing Body of the ILO had expressly asked the Government to grant this category of workers the right to bargain collectively as members of trade unions, functioning freely and independently of government parties and other institutions in line with the ILO's principles. He asked the Government representative whether the Government would, in view of these conclusions and recommendations, grant to workers in public sector state-owned companies the right to organise in normal trade unions and whether it would promote collective bargaining in the public sector.

On the subject of free and independent unions, the speaker referred to the dual function given officialy to the Indonesian Army: in addition to the normal duties undertaken by armies in other countries, Indonesian army officers had to be active in mass organisations such as unions. A significant number of retired army officers held leading positions in the trade union movement at the local and regional level; the very level where collective bargaining was most relevant. He believed that there was no country in the world where unions enjoyed such significant support from the army in their day-to-day work. He was worried about the situation and felt that military involvement in trade unions was not conducive to their free and democratic day-to-day functioning. He wanted to hear from the Government representative on this point as well.

Referring to the numerical criteria mentioned by the Committee of Experts since its report in 1979, the speaker noted that since September 1990 there existed a new, small trade union centrecalled "Solidarity". He was not surprised by the Indonesian Workers' member's reaction to the emergence of this new union and believed he was entitled to his own views. But the Government's reaction was a different matter: the new union had requested recognition in order to be able to carry out union work, in particular collective bargaining, but the Government had apparently refused it. Leaders of the new union had, from time to time, been arrested and questioned. At the very opening of this Session of the Conference, its General-Secretary had just been released, after having been abducted and kept in detention for a few days. That was the incident behind the statement made by the Workers' Vice-Chairman at the opening session referring to the presidency of this Session of the Conference. These cases of arrest and intimidation might not be immediately relevant to this Convention, but the speaker referred to a Jakarta Post report of some days ago referring to a high-ranking government official advising local authorities and companies not to provide facilities to this new union. Therefore he asked the Government representative whether the Government did indeed object to unions other than the SPSI, in particular as regarded collective bargaining.

The Workers' member of Japan agreed with the previous speaker as he had good reasons to doubt whether not only the right to bargain collectively, but also the right to organise, was guaranteed in Indonesia. The Government representative had tried to assure the present Committee that the law on registration provided guarantees for all workers, however there was other legislation which placed major limits on the free exercise of the right to organise in trade unions. This affected all public servants and all employees of public enterprises. In Indonesia, public enterprises were widely defined to include all companies in which the State had a holding of 5 per cent or more. The workers there were obliged to join the officially created body called "KORPRI", which, he understood, was headed by a cabinet minister and could not engage in basic trade union activities. Despite the Government's written reply, he felt that the Government did interfere in the affairs of the unions. His impression was confirmed by the 1990 survey of violations of trade union rights just published by the ICFTU which reported that the Government exerted a strong influence over the only legally recognised trade union centre, the SPSI. The Minister of Labour was a member of the SPSI consultative council and retired military officers occupied important leadership positions in its regional and national structures. In view of all this, the speaker suggested that the Government representative should supply further information so that the Committee of Experts would be able to examine the case not only under Convention No. 98, but also in the light of the principles of Convention No. 87.

The Employers' members noted that although the Experts had been commenting on this case for some time, it was only in 1986 that the present Committee had dealt with it. Unfortunately, there was no extensive information available, but according to the Experts the Government had recognised its obligations and had adopted regulations; the only question was whether they were adequate. In three particular areas there were doubts about this. Firstly, the Convention called for "adequate" protection and the Experts asked whether there were any further provisions, particularly protecting workers at the time of recruitment and during the employment relationship against anti-union discrimination. The Government needed to look again at the questions and reply in a further report. As for the protection of workers' organisations against interference by employers, the Committee of Experts requested copies of two possibly relevant texts and it was part of the normal practice to satisfy such request promptly. On the requirement that unions be registered before being authorised to engage in collective bargaining, the Employers considered that the available information was not sufficient. They entirely agreed with the Experts' request that the Government re-examine its legislation on this point. They stressed that the Government should provide sufficient information so that the Committee of Experts could make an appraisal of the actual state of affairs both as regarded the law and practice.

The Workers' members of Pakistan, recognising the problems facing the large countries in Asia such as Indonesia having big labour forces, appreciated the statement made by the Indonesian Workers' member. But, at the same time, he recalled that Indonesia had ratified Convention No. 98 and that the Committee of Experts had specifically asked for information on three areas: protection against anti-union discrimination, against interference by employers and registrating for collective bargaining purposes. He believed that the contradictions existing between the law and practice and the Convention should be rectified as had been urged by the Workers' members.

Another Government representative repeated that Indonesian law was sufficient in protecting the right to organise and the right to bargain collectively in line with the Convention. Restrictions on the right to strike in so-called essential areas had been withdrawn and he believed that there was very good protection against anti-union discrimination. Employers were not allowed to restrict the existence of unions at the plant level. In reply to the intervention of the Workers' member of the Netherlands, he pointed out that in every country in the world, after military officers had retired they became normal citizens and, if they became employers, they could join employers' associations and if they were workers they were also free to organise themselves. They had the same right as other workers to be elected as officers of a trade union. Referring to the Employers' doubts about government interference in unions, he believed that there was no restriction when workers wished to strike; but if the workers' action became excessive and aimed at destroying the enterprise, then something had to be done to protect the interests of the public, of the enterprises and of society as a whole. Therefore the action of law enforcement bodies should not be called a kind of interference, but should be seen as a means of protecting the workers, as well as the interests of the employers and the public. On the question of registrating, he repeated that certain requirements were necessary for recognition at national level. But organisations which were not yet able to fulfil these requirements could still exist even without national recognition. According to the speaker, there were a number of such organisations existing without registration and carrying out activities. Thus he stressed that registration was necessary only if the organisation wanted national recognition. Lastly, he pointed out that "KORPRI" could function as a trade union if it wished to, that is, if that was the consensus of the public servants employed in the enterprises or organisations involved. His Government had already reported that a number of public sector state-owned enterprises had trade unions functioning which had concluded collective agreements.

The Workers' member of the Netherlands asked the following question: if a trade union federation is not registered by the Government at the national level, it is possible for unions set up at the enterprise level belonging to that federation to negotiate collectively with the management in that enterprise?

The Workers' member of Greece asked the Government representative to clarify his statement concerning the possibility of the election of an employer as a head of a trade union. If it is the case that an employer can influence workers to vote for him then such a situation should be described as deplorable in the conclusions.

The Workers' member of France, with reference to the statement of the Government representative concerning the negative consequences of the right to strike for the national economy, asked for clarifications of the Government's conception of the right to strike and its exercise.

The Workers' member of Senegal asked the Government representative about the retirement age for the military in his country.

The Employers' member of Indonesia, with regard to the question of protection of the trade unions against acts of interference by employers, pointed out that there are regulations issued by the Government which do not allow the employers to interfere with the trade union activities and make it very difficult to dismiss a worker since he is entitled to compensation in case of dismissal.

The Government representative, answering the question put by the Workers' member of the Netherland, pointed out that there is no restriction whatsoever at the management level and gave an example of ASTRA group which is a big conglomeration of enterprise. Answering the question put by the Workers' member of Greece, he explained that there could be no confusion about the employers and workers in practice, but in every collective agreement they specify the different categories. In case of the absence of a trade union and a collective agreement, the national law requires each enterprise to have a company regulation in which a question of who belongs to the staff or to the management level and who belongs to the workers' level should be specified. As regards the right to strike, the speaker stated that the strike should be notified to the Government and then could be recognised as a legal strike, whereas a strike without any notification is illegal. Answering the question on the retirement age for the military, the Government representative pointed out that it is normally 42 years of age for the lower level, 48 years for the medium level (which could be prolonged up to 50 years) and 55 years of age for the officers.

The Committee took note of the report of the Committee of Experts, of the written and oral information supplied by the Government representative and of the discussion which took place in the Committee. It also noted that for a number of years the Committee of Experts had been making comments on the absence of adequate protection against acts of anti-union discrimination, and against acts of interference, as well as against restrictions for registration of trade unions, which have had the effect of imposing resctrictions on collective bargaining. The Committee noted certain developments in regard to acts of interference and asked the Government to provide information on practice in this field. It regretted that the law practice in the field of anti-union discrimination and access to collective bargaining are still not in full conformity with the requirements of the Convention. Consequently, the Committee expressed the firm hope that the Government will take in the very near future all the necessary measures in order to bring the legislation into full conformity with the Convention and will report as soon as possible any progress made in this regard.

Observation (CEACR) - adopted 2023, published 112nd ILC session (2024)

Observation (CEACR) - adopted 2022, published 111st ILC session (2023)

Observation (CEACR) - adopted 2017, published 107th ILC session (2018)

Observation (CEACR) - adopted 2016, published 106th ILC session (2017)

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

Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes the information contained in the Government’s report and regrets to note that it has provided no reply to the comments made by the International Trade Union Confederation (ITUC) in a communication dated 27 August 2007. The Committee notes comments made by the ITUC in a communication dated 26 August 2009.

Articles 1 and 2 of the Convention. Protection against acts of anti-union discrimination and employer interference. The Committee’s previous comments concerned the need to ensure effective and rapid protection against acts of anti‑union discrimination and employer interference in practice, having noted a stark contrast between laws which appear to conform to the Convention and a suggested failure to provide protection against anti-union discrimination and interference in practice. In particular, the Committee requested the Government to indicate concrete measures taken, after discussions with workers’ and employers’ organizations, in this regard; and to provide data on the number of complaints of anti-union discrimination filed with the labour inspectorate and the courts, and the steps taken to investigate these complaints and impose remedies where appropriate, as well as the average duration of proceedings.

The Committee notes the Government’s comments that protection against discrimination is regulated by Act No. 21 of 2000 concerning trade unions and that alleged violations were always handled by consultation and law enforcement, with most cases solved in bipartite consultations. The Committee further notes that the Government indicates that the time taken to process the law (investigations) is regulated by the law on criminal procedure.

The Committee regrets that the Government has not provided detailed information on complaints of anti-union discrimination filed with the labour inspectorate and courts. It observes once again that a lack of findings of anti-union discrimination by the labour inspectorate and the courts, combined with the conclusions and recommendations of the Committee on Freedom of Association in a series of cases (Cases Nos 2236, 2336, 2441, 2451, 2472 and 2494), cause a certain concern. In this regard, the Committee further notes that the ITUC in its comments of 2007 and 2009 refers to cases of anti-union discrimination. The Committee once again requests the Government to indicate in its next report concrete measures taken, after discussions with the most representative workers’ and employers’ organizations, to ensure effective and rapid protection against acts of anti-union discrimination and employer interference in practice. It also requests the Government to provide data on the number of complaints of anti-union discrimination filed with the labour inspectorate and the courts, and the steps taken to investigate these complaints and impose remedies where appropriate, as well as the average duration of proceedings. The Committee invites the Government to make full use of ILO technical assistance in this regard, as well as training for the authorities competent to deal with cases of anti-union discrimination and employer interference.

Article 2. Protection against acts of interference. The Committee’s previous comments concerned the need to amend section 122 of the Manpower Act so as to discontinue the presence of the employer during a voting procedure held in order to determine which trade union shall have the right to represent the workers in an enterprise. The Committee notes that the Government once again indicates that it has not amended section 122 of the Manpower Act and that it considers that employers and the Government are present only as witnesses during voting and have no effect on the voting by trade unions and workers. Recalling the need to ensure adequate protection against acts of interference in practice, the Committee once again requests the Government to indicate in its next report the steps taken to amend section 122 of the Manpower Act so as to suppress the presence of the employer during voting procedures.

Article 4. Promotion of collective bargaining. In its previous comments, the Committee had requested the Government to amend sections 5, 14 and 25 of Act No. 2/2004 concerning Industrial Relations Dispute Settlement, which enable either of the parties to an industrial dispute to file a legal petition to the Industrial Relations Court for final settlement of the dispute if conciliation or mediation failed. The Committee notes the information provided by the Government that in order to strengthen sections 5, 14 and 25 of Act No. 2/2004, it published Minister of Manpower and Transmigration Regulation No. 31/MEN/XII/2008 concerning guidance of industrial relations dispute settlement through bipartite consultation. According to the Government, this Regulation clarifies that bipartite consultation is consultation between workers/labour unions/labour organizations with employers to settle industrial relations disputes in a company. The Government further states that, therefore, in cases of industrial relations disputes, bipartite consultation must be conducted before mediation, conciliation and arbitration. The Committee notes the Government’s information that Act No. 2/2004 only defines the existence of voluntary arbitration, rather than compulsory arbitration, as arbitration can only be conducted if it is agreed by the parties to the dispute.

The Committee observes, however, that Act No. 2 refers both to voluntary arbitration and, in sections 5, 14 and 25, to compulsory arbitration by allowing one of the parties to a dispute to file a petition to the Industrial Relations Court. Noting that the ability of one or other of the parties to a dispute to refer the dispute to the Court constitutes compulsory arbitration, the Committee recalls that compulsory arbitration at the initiative of one party to the dispute cannot be considered to promote voluntary collective bargaining. The Committee once again requests the Government to indicate in its next report the measures taken or contemplated to amend sections 5, 14 and 25 of Act No. 2/2004 concerning industrial relations dispute settlement so as to ensure that compulsory arbitration may be imposed only where it is agreed upon by both parties to the dispute.

Requirements for the exercise of collective bargaining. The Committee notes that the comments submitted by the ITUC indicate that, under section 119 of the Manpower Act, in order to negotiate a collective agreement, a union must have membership equal to more than 50 per cent of the total workforce in the enterprise or receive more than 50 per cent support in a vote of all the enterprise’s workers on its demands. The Committee notes that unions not attaining 50 per cent support in such a vote could only engage in collective bargaining after a period of six months is passed since the vote. The Committee considers that these provisions render the exercise of collective bargaining difficult for these unions and requests the Government to repeal the requirement for a delay of six months before which minority unions may bargain collectively.

The Committee further notes that the ITUC indicates, without specifying the legislative provision, that collective agreements must be concluded within 30 days after the beginning of negotiations or must be submitted to the Manpower Ministry for mediation, conciliation or arbitration. The Committee requests the Government to provide its comments in response.

Federations and confederations. In its previous comments, the Committee had requested the Government to indicate whether federations and confederations had the right to collective bargaining. The Committee notes the Government’s indication that section 25(1) of Act No. 21/2000 states that trade unions, federations and confederations with a record number have the right to: negotiate a collective labour agreement with the management; represent workers in industrial dispute settlements; represent workers in manpower institutions; establish an institution or carry out activities related to efforts to improve workers’ welfare; and carry out other manpower or employment-related activities that are in conformity with prevailing law. It further notes that section 27 of Act No. 21 regulates the obligations of trade unions, federations and confederations. The Committee notes that the Government indicates that, as a result, there is no rule or regulation prohibiting federations and confederations from engaging in collective bargaining. The Committee requests the Government to provide in its next report data concerning the number and type of current collective agreements that were signed by federations or confederations of trade unions.

Export processing zones (EPZs). In its previous observation, the Committee had requested the Government, pursuant to allegations of violent intimidation and assault of union organizers, and dismissals of union activists in the EPZs, to provide information thereon as well as on the number of collective agreements in force in the EPZs and the percentage of workers covered. The Committee notes the collective labour agreement between a pharmaceuticals enterprise and what appears to be an enterprise-level trade union transmitted by the Government, and notes with regret that the Government has not provided further information concerning allegations of intimidation and assault of union organizers, dismissals of union activists, the number of collective agreements in force in EPZs and the percentage of workers covered. The Committee once again requests the Government to indicate in its next report the measures taken to collect statistical information on collective bargaining in EPZs and to provide data concerning the number of collective agreements and workers covered. It further requests the Government to provide specific information on the number of complaints of anti-union discrimination and employer interference in EPZs and the relevant investigation/remediation measures.

Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee notes that, in its report, the Government has not transmitted the text of Ministerial Decision No. 48/Men/2004, previously requested by the Committee. The Committee once again requests the Government to provide a copy of this text which, according to previous information provided by the Government, has been adopted pursuant to section 133 of the Manpower Act in order to specify the requirements and procedures for making, extending, changing and registering a collective work agreement.

Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee notes the information contained in the Government’s report as well as its reply to the comments made by the International Confederation of Free Trade Unions (ICFTU, now ITUC – International Trade Union Confederation) in 2006. The Committee notes the comments made by the ITUC in a communication dated 27 August 2007 and requests the Government to provide its observations thereon.

Articles 1 and 2 of the Convention. Protection against acts of anti-union discrimination and employer interference. The Committee’s previous comments concerned the need to improve the system of protection against anti-union discrimination. In particular, the Committee had expressed the hope that Act No. 2 of 2004 concerning industrial relations dispute settlement would strengthen the effectiveness of the mechanism of protection against anti-union discrimination upon its entry into force in 2006, and requested the Government to provide information on steps taken by the labour inspectorate to this effect (number of visits, types of violations found, steps taken including penalties imposed, etc.), as well as any cases brought to the judicial bodies against alleged acts of anti-union discrimination and the decisions reached.

The Committee notes with interest the entry into force of Act No. 2 of 2004 which sets up a new system of tripartite labour courts, replacing the previous system of labour dispute committees. Under the new law, settlement of industrial disputes is first to be sought through bipartite negotiation. If no resolution is reached at this level, a mediator or conciliator can be brought in within 30 days. If that too fails, the dispute can be brought before the Industrial Relations Court and a verdict should be issued within 50 working days of the first hearing of the case. In case of acts of dismissal, an appeal is acceptable to the Supreme Court, which must make its ruling within 30 days.

The Committee also notes the numerous instances of anti-union discrimination and interference enumerated by the ICFTU and the ITUC in their comments. The Committee notes that although the Government’s report refers to approximately 15,000 company visits by the labour inspectorate from 1 January 2006 to 1 June 2007, it also indicates that no finding of anti-union discrimination was made and that the various instances of discrimination and interference alleged by the ICFTU were either due to illegal activity on the part of the trade unionists concerned, or that the disputes have been settled by the parties with the assistance of the competent bodies. The Committee also recalls from previous comments that the Government had indicated in its previous report that there had been no anti-union discrimination cases judged by the courts and no proposal, complaint, permission or dismissal because of workers’ membership in a trade union. The Committee finally notes that in its report the Government refers to the need to provide training on the provisions of Act No. 2 of 2004 to all stakeholders, including the judiciary, trade unions and employers, in order to widely understand the substance of the Act and ensure its implementation.

The Committee notes the conclusions and recommendations reached by the Committee on Freedom of Association in a series of recent cases concerning acts of anti-union discrimination and interference (Cases Nos 2236, 2336, 2441, 2451, 2472 and 2494). The Committee observes that on all cases brought before it the Committee on Freedom of Association observed, often with regret, that the administrative authorities failed to make an investigation into allegations of anti-union discrimination and interference, that the industrial dispute settlement bodies failed to address these allegations, and that the proceedings pending in some cases were excessively long; as a result, the Committee on Freedom of Association repeatedly urged the Government to take additional measures to ensure effective and comprehensive protection against acts of anti-union discrimination and interference and in particular, ensure that the role of the Government in relation to such acts is not confined to mediation and conciliation but also includes, where appropriate, investigation and enforcement.

The Committee notes that there is a stark contrast between, on the one hand, the text of the laws, for example, Acts Nos 21/2000 and 2/2004, which appear to conform with the Convention, and on the other hand, the communications of workers’ organizations and the findings of the Committee on Freedom of Association which depict a different situation, akin to a substantial failure to provide protection against anti-union discrimination and interference in practice. In these circumstances, the Committee observes that the apparent lack of findings of anti-union discrimination on behalf of the labour inspectorate and the courts in a number of cases, constitute grounds for a certain concern and deserve closer attention and analysis in a tripartite context.

In these circumstances, the Committee requests the Government to indicate in its next report concrete measures taken, after discussions with the most representative workers’ and employers’ organizations, to ensure effective and rapid protection against acts of anti-union discrimination and employer interference in practice. It also requests the Government to provide data on the number of complaints of anti-union discrimination filed with the labour inspectorate and the courts, and the steps taken to investigate these complaints and impose remedies where appropriate, as well as the average duration of proceedings. The Committee recalls that technical assistance is at the Government’s disposal and invites the Government to make full use of such assistance, including for training purposes, so as to ensure the practical implementation and eventual improvement of the new system for the resolution of industrial disputes under Act No. 2/2004.

Article 2. Protection against acts of interference. The Committee’s previous comments concerned the need to amend section 122 of the Manpower Act so as to discontinue the presence of the employer during a voting procedure held in order to determine which trade union shall have the right to represent the workers in an enterprise. Furthermore, noting that the ICFTU referred to an important number of acts of interference in trade unions’ affairs, the Committee had requested the Government to supply statistics on the number of complaints lodged and the most frequent problems examined.

The Committee notes that the Government does not provide any statistical information and indicates that it does not intend to amend this Article which has been in force for only three years. The Government adds that in practice there is no problem, as there has been no case where employer interference has been observed; the relations between employers and workers at the company level in the context of the country is one of family relationships and the role of the employer during the voting process is to offer assistance when required.

The Committee refers to the comments made above with regard to the need to ensure adequate protection against acts of interference in practice. It once again requests the Government to indicate in its next report the steps taken to amend section 122 of the Manpower Act so as to suppress the presence of the employer during voting procedures.

Article 4. Promotion of collective bargaining. 1. In its previous comments, the Committee had requested the Government to amend sections 5, 14 and 25 of Act No. 2/2004 concerning Industrial Relations Dispute Settlement, which enable either of the parties to an industrial dispute to file a legal petition to the Industrial Relations Court for final settlement of the dispute if conciliation or mediation failed.

The Committee notes from the Government’s report that it has no intention of amending these provisions as, so far, there is no indication that anybody is being treated unfairly in the process of settling industrial disputes. The mechanism established by Act No. 2/2004 privileges bipartite settlement of disputes, and in practice 80 per cent of all cases are settled in this manner (in 2006, out of approximately 115,000 industrial conflicts, 90,000 were settled through bipartite negotiations).

The Committee once again recalls that compulsory arbitration at the initiative of one of the parties to an industrial dispute raises problems from the point of view of Convention No. 98 as it cannot be considered to promote voluntary collective bargaining. Compulsory arbitration should be possible only (i) if it is at the request of both parties to the dispute; (ii) in the case of disputes in the public service involving public servants engaged in the administration of the State; or (iii) in essential services in the strict sense of the term. The Committee once again requests the Government to indicate in its next report the measures taken or contemplated to amend sections 5, 14 and 25 of Act No. 2/2004 concerning industrial relations dispute settlement so as to ensure that compulsory arbitration may be imposed only where this is in accordance with the above.

2. Federations and confederations. In its previous comments, the Committee had requested the Government to indicate whether federations and confederations had the right to collective bargaining. The Committee notes from the Government’s report that the parties entitled to sign a collective agreement are the plant level trade union and the respective company. The Committee recalls that the right to bargain collectively should be granted to federations and confederations and that the choice of bargaining level should be made by the partners themselves since they are in the best position to decide this issue (see General Survey on freedom of association and collective bargaining, 1994, paragraph 249). Noting that the Government’s report does not provide any information in this regard, the Committee requests the Government to indicate in its next report the measures taken or contemplated so as to guarantee the right of federations and confederations to engage in collective bargaining and allow the parties to freely decide the level at which negotiations should take place.

Export processing zones (EPZs). In its previous observation, the Committee had requested the Government, pursuant to allegations of violent intimidation and assault of union organizers, and dismissals of union activists in the EPZs, to provide information thereon as well as on the number of collective agreements in force in the EPZs and the percentage of workers covered.

The Committee notes that the Government indicates that there are no specific data regarding the number of collective agreements in EPZs but that compared to other localities, the number of collective agreements in the EPZs seems to be balanced with that in other industrial estates. The Government indicates, moreover, that the same laws and regulations apply throughout the territory of Indonesia, including the EPZs. The Government conducts training programmes for unions and employers on how to negotiate collective agreements, the benefits of collective bargaining and how to be best represented in this process. EPZs are among the priority targets.

The Committee notes this information. It requests the Government to indicate in its next report the measures taken to collect statistical information on collective bargaining in EPZs and to provide data concerning the number of collective agreements and workers covered. It further requests the Government to provide specific information on the number of complaints of anti-union discrimination and employer interference in EPZs and the relevant investigation/remediation measures.

The Committee is addressing a request on another point directly to the Government.

Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes the comments of the International Confederation of Free Trade Unions (ICFTU) of 10 August 2006, which refer in part to pending issues relating to legislation and the application of the Convention in practice that are already under examination, as well as other matters. The Committee takes note of the recently received reply of the Government to the ICFTU’s comments. The Committee will examine the ICFTU’s comments and the Government’s reply thereto at its next session.

The Committee further notes Cases Nos. 2236 and 2336 in which the Committee on Freedom of Association considered matters relating to the law and practice concerning freedom of association and collective bargaining. The Committee will examine these issues in the context of the regular reporting cycle in 2007 and requests the Government to communicate the measures taken with respect to the recommendations of the Committee on Freedom of Association.

The Committee also requests the Government, in the context of the regular reporting cycle, to provide its observations for the Committee’s next session in November-December 2007 on all the issues relating to legislation and the application of the Convention in practice raised in its previous observation in 2005 (see 2005 observation, 76th Session).

Direct Request (CEACR) - adopted 2005, published 95th ILC session (2006)

Requirements and procedures with regard to collective agreements. The Committee once again requests the Government to transmit the text of Ministerial Decision No. 48/Men/2004, which according to previous information provided by the Government, has been adopted pursuant to section 133 of the Manpower Act in order to specify the requirements and procedures for making, extending, changing and registering a collective work agreement.

Federations and confederations. In its previous comments, the Committee had requested the Government to indicate whether federations and confederations had the right to collective bargaining. The Committee notes from the Government’s report that the parties entitled to sign a collective agreement are the plant level trade union and the respective company. The Committee recalls that the right to bargain collectively should be granted to federations and confederations and that the choice of bargaining level should be made by the partners themselves since they are in the best position to decide this issue [see General Survey on freedom of association and collective bargaining, 1994, para. 249]. The Committee requests the Government to indicate in its next report the measures taken or envisaged so as to guarantee the right of federations and confederations to engage in collective bargaining and allow the parties freely to decide the level at which negotiations should take place.

Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee notes the information contained in the Government’s report. It further notes the comments received from the International Confederation of Free Trade Unions (ICFTU) and the reply of the Government thereon.

Article 1 of the Convention. Protection against acts of anti-union discrimination. In its previous observation, the Committee had noted the comments made by the ICFTU with regard to frequent cases of anti-union discrimination handled in the framework of lengthy legal procedures which could take up to six years (before regional and national labour disputes resolution and the State Administrative Court on appeal). The Committee had noted the Government’s statement that it expected Act No. 2 of 2004 concerning Industrial Relations Dispute Settlement to improve the speed with which labour disputes would be processed.

The Committee notes from the Government’s report that so far, there have been no anti-union discrimination cases judged by the court and no proposal, complaint, permission or dismissal because of workers’ membership in a trade union. The Committee also notes that the implementation of Act No. 2 of 2004 concerning Industrial Relations Dispute Settlement, which was supposed to enter into force in January 2005, has been postponed to January 2006. The Committee requests the Government to provide information in its next report on the steps taken by the labour inspectorate in order to prevent and redress acts of anti-union discrimination in practice (number of visits, types of violations found, steps taken including penalties imposed, etc.). It also requests the Government to keep it informed of any cases brought to the judicial bodies against alleged acts of anti-union discrimination and the decisions reached. The Committee expresses the hope that Act No. 2 of 2004 concerning Industrial Relations Dispute Settlement shall strengthen the effectiveness of the current mechanism of protection against anti-union discrimination upon its entry into force, and requests the Government to provide information in this respect in its next report.

Article 2. Protection against acts of interference. In its previous observation, the Committee had requested the Government to amend section 122 of the Manpower Act so as to discontinue the presence of the employer during a voting procedure held in order to determine which trade union shall have the right to represent the workers in an enterprise. Furthermore, noting that the ICFTU referred to an important number of acts of interference in trade unions’ affairs, the Committee had requested the Government to supply statistics on the number of complaints lodged and the most frequent problems examined.

The Committee notes that the Government does not provide any statistical information and has not considered yet the amendment of this provision. The Committee once again requests the Government to indicate in its next report the steps taken to amend section 122 so as to exclude the presence of the employer during voting procedures and to supply statistics on the number of complaints of interference by employers in trade union affairs lodged in the last two years and the most frequent problems examined.

Article 4. In its previous comments, the Committee had requested the Government to amend sections 5, 14 and 25 of Act No. 2/2004 which enable either of the parties to an industrial dispute to file a legal petition to the Industrial Relations Court for final settlement of the dispute if conciliation or mediation failed.

The Committee notes from the Government’s report that the Act promotes bipartite deliberations and that before going ahead, the mediator, conciliator, arbiter as well as the Industrial Relations Court have to ask whether the dispute has been bipartitely deliberated. Moreover, the Act is the result of intensive discussions between the Government and members of the legislature after having received inputs from employers’ and workers’ organizations. Thus, the Government states that it has not given consideration to the amendment of sections 5, 14 and 25 of the Act.

The Committee once again recalls that compulsory arbitration at the initiative of one of the parties to an interests dispute raises problems from the point of view of Convention No. 98 as it cannot be considered to promote voluntary collective bargaining. Compulsory arbitration should be possible only: (i) if it is at the request of both parties to the dispute; (ii) in the case of disputes in the public service involving public servants engaged in the administration of the State; or (iii) in essential services in the strict sense of the term. The Committee once again requests the Government to indicate in its next report the measures taken or contemplated to amend sections 5, 14 an 25 of Act No. 2/2004 in accordance with the above principles, so as to bring its legislation into conformity with the Convention and, in the meantime, to provide information on the practical application of these provisions.

Export processing zones (EPZs). In its previous observation, the Committee had requested the Government, pursuant to allegations of violent intimidation and assault of union organizers, and dismissals of union activists in the EPZs, to provide information on the number of collective agreements in force in the EPZs and the percentage of workers covered. The Committee notes with regret that the Government does not provide any information in this respect and reiterates its request for information on the promotion of collective bargaining in EPZs.

The Committee is also addressing a request directly to the Government.

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

Requirements and procedures with regard to collective agreements. In its previous comments, the Committee requested the Government to provide a copy of any ministerial decision adopted pursuant to section 133 of the Manpower Act, which states that the provisions concerning the requirements and procedures for making, extending, changing and registering a collective work agreement shall be determined and specified by means of a ministerial decision. The Committee notes that the Government indicates that Decision No. 48/Men/2004 determines and specifies the provisions to apply the Manpower Act. The Committee requests the Government to provide a copy of this Decision.

Federations and confederations. The Committee once again requests the Government to indicate whether federations and confederations have the right to collective bargaining.

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

The Committee notes the Government’s report. It further notes the comments received from the International Confederation of Free Trade Unions (ICFTU) and the reply of the Government thereon. The Committee notes the promulgation of Act No. 2 on industrial relations dispute settlement, which will enter into force on 14 January 2005.

Article 1 of the Convention. Protection against acts of anti-union discrimination. With respect to its previous request to indicate whether in cases of anti-union dismissals (section 153 of Act No. 13 of 2003 concerning manpower) the affected workers have the right to obtain economic compensation, the Committee notes with interest section 153(2), pursuant to which, any anti-union dismissal is null and void; in such a case, the entrepreneur is obliged to re-employ the affected worker.

In its previous observation, the Committee requested the Government to supply statistics on the number of complaints lodged in the last two years and the most frequent problems examined. The Committee notes that the Government states that up until now, there have been no cases of anti-union dismissals lodged before the courts. The Committee notes that the ICFTU points out frequent cases of anti-union discrimination and explains that such cases are handled by the regional and national labour disputes resolution committees, decisions of which can be appealed to the State Administrative Court. The ICFTU indicates that legal procedures are long and could take up to six years. The Committee notes the Government’s statement that it expects Act No. 2 on industrial relations dispute settlement to improve the speed with which labour disputes are processed. The Committee requests the Government to keep it informed of the statistics of the number of complaints of anti-union discrimination lodged and examined by the courts.

Article 2. Protection against acts of interference. In its previous observation, the Committee requested the Government to amend section 122 of the Manpower Act so as to discontinue the presence of the employer during a voting procedure held in order to determine which trade union shall have the right to represent the workers in an enterprise. The Committee notes the Government’s statement that it has not considered amending this section, as it believes that the section is in conformity with people’s interests. The Committee also notes the Government’s indication that the courts have never judged any cases concerning infringement of freedom of association. Considering that the presence of the employer may affect the choice of the workers, the Committee once again requests the Government to amend section 122. It requests the Government to keep it informed of measures taken or envisaged in this respect.

Article 4. The Committee notes that, pursuant to sections 5, 14 and 25 of the new Act on industrial relations dispute settlement, if the dispute is not settled through conciliation or mediation, one of the parties can file a legal petition to the Industrial Relations Court. The Committee recalls that provisions which permit either party unilaterally to file a petition to court to settle the dispute do not promote voluntary collective bargaining. It recalls that compulsory arbitration at the request of only one party is only admissible for public servants and workers in essential services in the strict sense of the term. The Committee requests the Government to amend the abovementioned sections so as to bring its legislation into conformity with the Convention.

Export processing zones (EPZs). In its previous observation, the Committee requested the Government to provide information with regard to the allegations of violent intimidation and assault of union organizers, as well as dismissals of union activists in the EPZs. The Committee notes the Government’s statement to the effect that the allegations of intimidation of trade unionists in EPZs should be considered as merely singular cases and that discrimination and intimidation of trade unionists is not allowed and such cases are to be settled in accordance with the legislation. The Committee once again requests the Government to provide information on the number of collective agreements in force in the EPZs and the percentage of workers covered.

The Committee is also addressing a request directly to the Government.

Direct Request (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee takes note of the information contained in the Government’s report. It also notes the entry into force of the Manpower Act, Act No. 13 of 2003 (hereinafter "the Act"). In this respect, the Committee wishes to draw the Government’s attention to the following points.

Requirements and procedures with regard to collective agreements. Section 133 of the Manpower Act states that the provisions concerning the requirements and procedures for making, extending, changing and registering a collective work agreement shall be determined and specified by means of a ministerial decision. The Committee requests the Government to provide a copy of such ministerial decision as soon as it is adopted.

Federations and confederations. The Committee requests the Government to indicate whether federations and confederations have the right to collective bargaining.

Observation (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee takes note of the information contained in the Government’s report. It further notes the entry into force of Act No. 13 of 2003 concerning manpower.

The Committee notes the Government’s response to the comments of the International Confederation of Free Trade Unions (ICFTU). The ICFTU indicates that the new Manpower Act contains many provisions contrary to the principles of freedom of association and collective bargaining. It mentions that the workers in Indonesia have conducted widespread protests over the recent introduction of the Manpower Act. It further states that there are, in practice, numerous restrictions on the rights provided in the Convention.

The Committee notes that, according to the Government, the provisions of the Manpower Act are in line with the Convention. The Committee notes with interest that the Government intends, in cooperation with the ILO, to carry out awareness-raising activities continuously, including training in selected areas, aimed at providing the employers, workers/labourers and community with appropriate understanding of the Convention so that it can be applied properly.

Article 1 of the Convention. Protection against acts of anti-union discrimination. In a previous comment, the Committee noted with interest the provisions of Act No. 21 of 2000 concerning trade union/labour union with regard to protection against acts of anti-union discrimination. The Committee requests the Government to indicate whether the provisions of Act No. 21 of 2000 in this respect are still in force. It further requests the Government to indicate whether in cases of anti-union dismissals (section 153 of Act No. 13 of 2003 concerning manpower), the affected workers have the right to obtain economic compensation.

The Committee notes that the ICFTU refers to an important number of cases of anti-union discrimination and requests the Government to supply statistics on the number of complaints lodged in the last two years and the most frequent problems examined.

Article 2. Protection against acts of interference. The Committee notes that section 122 of the Manpower Act provides that a voting procedure must take place in order to determine which trade union shall have the right to represent the workers in an enterprise. This section establishes that the vote shall be witnessed not only by a government official, but also by the entrepreneur. Given that the presence of the employer may affect the independence of the workers, the Committee requests the Government to amend section 122 so as to suppress the presence of the employer to such a vote.

The Committee further notes that the ICFTU refers to an important number of acts of interference in trade unions affair. In this respect, the Committee requests the Government to supply statistics on the number of complaints lodged in the last two years and the most frequent problems examined.

Article 4. The ICFTU states that the law provides for unilateral recourse to arbitration in the event of an industrial dispute, which restricts the practical value of collective bargaining. The Government’s report contains no reply with respect to this comment from the ICFTU. The Committee notes that the procedures for the settlement of industrial disputes include mediation, conciliation and arbitration and that section 136(2) of Act No. 13 of 2003 mentions: "procedures for the settlement of industrial relation disputes that are determined and specified by legislation". The Committee requests the Government to indicate to which specific legislation this provision refers and to supply a copy if it is already in force. Furthermore, it recalls that compulsory arbitration at the request of only one party or of the authorities is only admissible for public servants and workers in essential services in the strict sense of the term.

In its previous comments, the Committee had noted that a Dispute Settlement Bill was being debated in Parliament. The Committee trusts that in the course of the legislative process, account will be taken of the abovementioned principle concerning compulsory arbitration. It requests the Government to provide a copy of the new legislation as soon as it is adopted.

Export processing zones (EPZs). The Committee requests the Government to provide information with regard to the allegations of violent intimidation and assault of union organizers, as well as dismissals for union activities in the export processing zones (EPZs) as reported by the ICFTU. The Committee also requests the Government to provide information on the number of collective agreements in force in EPZs and the percentage of workers covered.

The Committee is also addressing a request directly to the Government.

Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee notes the information supplied by the International Confederation of Free Trade Unions (ICFTU) in a communication dated 18 September 2002, concerning the application of the Convention. The Committee requests the Government to transmit, with its next report, its observations in this regard so that it may examine these points.

The Committee will also examine at its next meeting the other questions that were raised in its previous observation.

Observation (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee notes the information provided by the Government in its report. It further notes with satisfaction the entry into force of the Act of the Republic of Indonesia No. 21 Year 2000 Trade Union/Labour Union.

Article 1 of the Convention. In its previous comments, the Committee had requested the Government to ensure that legislation was amended to include provisions, accompanied by effective and sufficiently dissuasive sanctions, which strengthened the protection of workers against acts of anti-union discrimination at the time of recruitment or during the employment relationship. The Committee notes that, under the terms of section 28 of the Act, workers are protected against acts of anti-union discrimination by employers, in taking up employment and in the course of employment. The Committee further notes with interest that this protection extends to trade union members and leaders for acts of anti-union discrimination involving their dismissal, suspension, demotion, transfer or affecting their wages. It also notes that any violation of this provision is a criminal offence subject to the penalties laid down in section 43 of the Act, which imposes a prison sentence of one to five years and/or a fine of 100-500 million Indonesian rupiahs.

Article 2. In its previous comments, the Committee had requested the Government to adopt specific legislative provisions to protect workers’ and employers’ organizations against acts of interference by each other accompanied by effective and sufficiently dissuasive sanctions. The Committee notes that section 28 of the Trade Union/Labour Union Act prohibits employers from preventing workers from establishing a union, or from becoming administrators or members of a union, or from carrying out trade union activities by, amongst others, intimidating workers (paragraph (c)) or campaigning against the establishment of unions (paragraph (d)). The Committee notes that violations of these provisions are deemed to be a criminal offence and are also subject to the penalties laid down in section 43 of the Act.

Article 4. In its previous comments, the Committee had requested the Government to ensure that legislation was amended in order to lift the impediments to free collective bargaining. The Committee notes the Government’s statement that the draft Manpower, Development and Protection Bill and the draft Labour Disputes Settlement Bill, which were drawn up with ILO technical assistance, guarantee freedom of association and collective bargaining. The Government adds that these two Bills are currently being debated in Parliament for adoption. The Committee requests the Government to provide copies of these two laws as soon as they have been adopted.

Observation (CEACR) - adopted 1999, published 88th ILC session (2000)

The Committee takes note of the Government's report, as well as of the information supplied to the Conference Committee in June 1998 and the detailed discussion which took place thereafter. The Committee further notes the report of the direct contacts mission which visited the country in August 1998 and which had the mandate of assisting the Government in ensuring that its draft labour legislation was brought into full conformity with Conventions Nos. 87 and 98. Finally, the Committee notes the conclusions of the Committee on Freedom of Association in Case No. 1773 (see 316th Report, paragraphs 570-617, approved by the Governing Body at its June 1999 session).

In its previous observations, the Committee had noted with concern that the Manpower Act No. 25 of 1997 (Indonesian Labour Bill of 1997) did not ensure a better protection of the rights guaranteed by the Convention and had requested the Government to ensure that the draft legislation was amended in order to address the following points which were raised in the Committee's previous comments:

-- the need to strengthen the protection of workers so as to cover acts of anti-union discrimination at the time of recruitment or during the employment relationship (including dismissal and other forms of prejudicial action, such as transfers or demotions) accompanied by sufficiently effective and dissuasive sanctions (Article 1 of the Convention);

-- the need to adopt specific legislative provisions to protect workers' and employers' organizations against acts of interference by each other accompanied by sufficiently effective and dissuasive sanctions (Article 2); and

-- the need to lift the impediments to free collective bargaining (Article 4).

In this regard, the Committee notes the Government's statement that the implementation of Manpower Act No. 25 of 1997 has been delayed until 1 October 2000 during which time it is being reviewed with ILO technical assistance in order to ensure its conformity with Convention No. 98. The Government also indicates that a draft Trade Union Bill and a draft Labour Disputes Settlement Bill, which were drawn up with ILO technical assistance, have been submitted to the Cabinet Secretariat.

The Committee takes note of these legislative developments with interest and trusts that the draft legislation will ensure full protection of the rights guaranteed by the Convention. It requests the Government to send copies of the Manpower Act No. 25 of 1997, the draft Trade Union Bill as well as the draft Labour Dispute Settlement Bill once they have been adopted. It requests the Government to keep it informed of any developments in this regard.

Observation (CEACR) - adopted 1997, published 86th ILC session (1998)

The Committee takes note of the Government's report, as well as of the information supplied to the Conference Committee in June 1997 and the detailed discussion which took place thereafter. The Committee further notes with concern the gravity of the allegations of acts of anti-union discrimination submitted to the Committee on Freedom of Association in Case No. 1773, and the conclusions of this Committee in its most recent report in this case (see 308th Report, approved by the Governing Body at its 207th Session (November 1997)).

The Committee recalls that its comments concerned the following points:

-- the need to strengthen the protection of workers so as to cover acts of anti-union discrimination at the time of recruitment or during the employment relationship (including dismissal and other forms of prejudicial action, such as transfers or demotions) accompanied by sufficiently effective and dissuasive sanctions (Article 1 of the Convention);

-- the need to adopt specific legislative provisions to protect workers' and employers' organizations against acts of interference by each other (Article 2);

-- the restrictions imposed on the right to bargain collectively in the public and private sectors, especially the restriction on free collective bargaining still imposed by Regulation No. 03/MEN/1993 on registered trade unions, whereby only workers' organizations covering at least 100 units at the plant level, 25 organizations at the district level and five organizations at the provincial level, or 10,000 members throughout Indonesia, may conclude collective agreements.

The Committee notes that the Government merely indicates in its report how legislation as well as various regulations currently in force adequately protect the rights guaranteed by the Convention. Moreover, the Committee notes with concern that the provisions of the final draft of the Indonesian Labour Bill of 1997 do not ensure a better protection of the rights guaranteed by the Convention.

1. Protection against acts of anti-union discrimination. The Committee notes that under the terms of article 30 of the above draft Labour Bill, employers are prohibited from preventing workers from establishing trade unions at the company level or federations at the sectorial level and from becoming leaders and members thereof. Article 172 carries penalties of imprisonment and fines for whoever violates article 30. However, the Committee would recall that Article 1 of the Convention guarantees workers adequate protection against acts of anti-union discrimination at the time of recruitment and during the employment relationship including at the time of termination, and covers all measures of anti-union discrimination (dismissals, transfers, demotions and any other prejudicial acts). The Committee therefore would ask the Government to take the necessary measures to ensure that the draft Bill provides expressly for such protection before it is adopted. It requests the Government to inform it of any progress made in this regard in its next report.

2. Protection of workers' and employers' organizations against acts of interference by each other. The Committee notes with regret that the draft Labour Bill does not contain any provision to protect workers' organizations from acts of interference by the employer. The Committee would recall that Article 2 of the Convention aims to protect workers' and employers' organizations against acts of interference by each other in their establishment, functioning or administration. This provision particularly aims to protect workers' organizations against acts of interference intended to promote the establishment of these organizations under the domination of employers' organizations, or to support workers' organizations by financial or other means, with the object of placing such organizations under the control of employers or their organizations. The Committee therefore would ask the Government to take the necessary measures to ensure that the draft Bill provides for such protection. It requests the Government to inform it of developments thereof in its next report.

3. Restrictions on collective bargaining. The Committee notes that articles 48 and 49 respectively of the draft Labour Bill stipulate that a collective agreement shall be jointly made by the employer and the registered trade union and that such an agreement shall only be negotiated and established by the trade union supported by the majority of the workers within the company concerned. The Committee notes, however, that article 33(1) of the draft Bill stipulates that trade unions at the plant level as well as federations shall be registered in accordance with prevailing legal regulations and that this draft Bill does not appear to contain any provision repealing Ministerial Regulation No. 03/MEN/1993 which provides that, to be registered, a trade union must have at least 100 units at plant level, 25 organizations at the district level and five organizations at the provincial level; alternatively, it must have at least 10,000 members throughout Indonesia (section 2(a)). Section 2(b) provides that a federation must comprise at least ten such unions in order to be registered. The Committee would recall that these requirements are so stringent as to constitute a major obstacle to collective bargaining. The Committee would therefore request the Government to indicate in its next report whether Ministerial Regulation No. 03/MEN/1993 will be repealed by this draft Bill once it enters into force and, if this is not the case, to ensure that it is repealed so that impediments to free collective bargaining can in effect be removed.

Moreover, the Committee reiterates its request to the Government to provide a copy of Act No. 8 of 1974 which regulates the terms and conditions of employment of public servants.

The Committee expresses the firm hope that the Government will take the necessary measures to ensure that its legislation, including the draft Indonesian Labour Bill of 1997, is brought into conformity with the provisions of the Convention in the very near future. The Committee reminds the Government that the Office remains at its disposal to provide technical assistance in this regard.

Observation (CEACR) - adopted 1996, published 85th ILC session (1997)

The Committee notes with concern the gravity of the allegations of anti-union measures submitted to the Committee on Freedom of Association in Case No. 1773, and the conclusions of the Committee in March 1995 (see 297th Report, approved by the Governing Body at its 262nd Session), in March 1996 (see 302nd Report, approved by the Governing Body at its 265th Session) and again in November 1996 (see 305th Report, approved by the Governing Body at its 267th Session).

Under these conditions, the Committee is bound to repeat its observation concerning the following points:

- the need to strengthen the protection of workers provided by section 3(a) of the Guidelines for the Establishment and Building of a Worker Union in a Company (Decree No. 438/MEN/1992), against acts of anti-union discrimination at the time of recruitment or during the employment relationship (including dismissal and other forms of prejudicial action, such as transfers or demotions) accompanied by sufficiently effective and dissuasive sanctions (Article 1 of the Convention); - the need to adopt specific legislative provisions to protect workers' organizations against acts of interference by employers or their organizations with regard to their establishment, functioning or administration, and particularly against acts of interference intended to promote the establishment of workers' organizations under the domination of employers' organizations, or to support workers' organizations by financial or other means, with the object of placing such organizations under the control of employers or employers' organizations, since Decree No. 438/MEN/1992 does not contain any provision to this effect (Article 2); - the restriction on free collective bargaining still imposed by Regulation No. 03/MEN/1993 on registered trade unions, whereby only workers' organizations covering at least 100 units at the plant level, 25 organizations at the district level and 5 organizations at the provincial level, or 10,000 members throughout Indonesia, may conclude collective agreements; - the restrictions imposed on the right of public servants to bargain collectively.

Furthermore, the Committee once again requests the Government to provide a copy of Act No. 8 of 1974, which regulates the terms and conditions of employment of public servants.

The Committee reminds the Government that the ILO is at its disposal to provide technical assistance and expresses the firm hope that the Government will provide information in its next report on the measures which have been taken in practice, in the very near future, to bring its law and practice into conformity with the provisions of the Convention. It also requests the Government to indicate the measures taken, in particular: to strengthen the protection of workers against acts of anti-union discrimination, enforced by sufficiently effective and dissuasive sanctions; to adopt specific provisions to protect workers' organizations against acts of interference by employers or their organizations; and to eliminate the restrictions imposed on free collective bargaining.

[The Government is asked to supply full particulars to the 85th Session of the Conference.]

Direct Request (CEACR) - adopted 1995, published 82nd ILC session (1995)

Restrictions on the right of public servants to bargain collectively: The Committee notes from the Government's latest report that there are no mixed committees where employers' and workers' organizations covering public servants are able to negotiate their terms and conditions of employment. The Government does, however, refer to Act No. 8 of 1974 which regulates the terms and conditions of civil servants' employment in the employees' interests.

The Committee would ask the Government to supply a copy of the said Act as well as any valid collective agreements concluded in state companies covering workers employed by the State working in state-owned enterprises in order to allow it to examine the conformity of law and practice with Articles 4 and 6 of the Convention.

Observation (CEACR) - adopted 1995, published 83rd ILC session (1996)

The Committee takes note of the Government's report, as well as of the oral information supplied to the Conference Committee in June 1995 and the discussion which took place there.

The Committee recalls that its comments concerned the following points:

- the need to strengthen the protection of workers, provided by section 3(a) of the Guidelines for the Establishment and Building of a Worker Union in a Company (Decree No. 438/MEN/1992), against acts of anti-union discrimination at the time of recruitment or during the employment relationship (including dismissal as well as other forms of prejudicial action such as transfer or demotion) accompanied by effective and dissuasive sanctions (Article 1 of the Convention);

- the need to adopt specific legislative provisions to protect workers' organizations against acts of interference by employers or their organizations in their establishment, functioning or administration, in particular acts of interference which are designed to promote establishment of workers' organizations under the domination of employers' organizations, or to support workers' organizations by financial or other means, with the object of placing such organizations under the control of employers or employers' organizations as Decree No. 438/MEN/1992 does not provide for specific regulations to that effect (Article 2);

- the restriction on free collective bargaining still imposed by regulation No. 03/MEN/1993 on registered trade unions whereby only workers' organizations covering at least 100 units at plant level, 25 organizations at the district level and five organizations at the provincial level or 10,000 members throughout Indonesia may conclude collective agreements;

- the restrictions imposed on the right of public servants to bargain collectively.

The Committee notes that the Government only indicates in its report that the latest regulations enacted (Ministerial Regulation No. 03/MEN/93 on registered trade unions and Ministerial Regulation No. 01/MEN/1994 on trade unions at company level) are aimed at better ensuring in its legislation the protection of the provisions of the Convention. The Government adds that workers as well as employers are not fully aware of the purposes, functions and role endorsed by workers' organizations. In addition, the Committee regrets that the Government has not provided it with a copy of Act No. 8 of 1974 which regulates the terms and conditions of civil servants' employment.

The Committee, along with the Conference Committee, expresses the firm hope that the Government will provide it in its next report with information with regard to the measures actually taken in order to bring law and practice more in line with the provisions of the Convention, and in particular to strengthen the protection of workers against acts of anti-union discrimination accompanied by effective and dissuasive sanctions, to adopt specific provisions to protect workers' organizations against acts of interference by employers or their organizations and to eliminate the restrictions imposed on free collective bargaining. The Committee recalls that the Office remains at its disposal to provide technical assistance in this regard.

Observation (CEACR) - adopted 1995, published 82nd ILC session (1995)

The Committee takes note of the written and oral information supplied to the Conference Committee in June 1994 and the discussion which took place there. It further notes the conclusions of the Committee on Freedom of Association in Case No. 1756 (see 295th Report, paragraphs 398 to 423, approved by the Governing Body at its 261st Session, November 1994).

The Committee recalls that its comments have for a number of years concerned the following points:

-- the absence of specific legislative provisions accompanied by sufficiently effective and dissuasive sanctions to protect workers against acts of anti-union discrimination at the time of recruitment or during the employment relationship (Article 1 of the Convention);

-- the absence of sufficiently detailed legislative provisions to protect workers' organizations against acts of interference by employers or their organizations (Article 2);

-- the restriction on free collective bargaining whereby only federations covering at least 20 provinces and grouping a large number of trade unions may conclude collective agreements; and provisions preventing workers from engaging voluntarily in collective bargaining and concluding collective labour agreements through freely chosen representatives (Article 4).

1. Protection against acts of anti-union discrimination. The Committee notes from the conclusions of the Committee on Freedom of Association in Case No. 1756 that the measures taken by the Government to settle cases of worker dismissals did not guarantee adequate protection to workers against acts of anti-union discrimination since the legislation allows an employer to invoke "lack of harmony in the working relationship" to justify the dismissal of workers who are actually only exercising their fundamental right to organize. It recalls the recommendations of the direct contacts mission that steps should be taken, in law and fact, to guarantee workers effective protection against acts of anti-union discrimination by employers, including the adoption of provisions to remedy evidentiary difficulties and the strengthening of penalties and enforcement provisions in this regard. The Committee notes from the Government's statement in the Conference Committee that Ministerial Manpower Decree No. 438 of 1992 explained that employers shall not take any unfavourable action towards workers on the basis of trade union membership, whether as an official or a member. The Committee notes from the conclusions of the direct contacts mission that this Decree, along with a number of other regulations or guidelines providing for the protection of workers against acts of anti-union discrimination should be embodied in an Act so as to ensure more adequate protection under the law. Noting the Government's statement at the Conference Committee that it agrees with the proposal for strengthening sanctions and intends to amend the labour legislation, with the International Labour Office's assistance, the Committee urges it to take the necessary measures to provide expressly in the legislation protection for workers against acts of anti-union discrimination (including dismissal, as well as other forms of prejudicial action, such as transfer, demotion, etc.), accompanied by sufficiently effective and dissuasive sanctions.

2. Protection of workers' organizations against acts of interference by employers. In its previous comments, the Committee noted the Government's statement that the legislation, Ministerial Decision No. 438/1992, and the Code of Conduct eliminated the possibility of interference by employers. The Committee requested the Government to provide information on how the provisions of the Ministerial Decision No. 438 and the Code of Conduct were applied in practice. As no reply has yet been received from the Government in this regard, the Committee once again requests the Government to indicate in its next report the manner in which these texts are applied in practice so as to ensure the protection of workers' organizations from acts of interference by the employer and to provide information on the measures taken or envisaged to strengthen the legislation in this regard.

3. Restrictions on collective bargaining. The Committee notes the adoption of Minister of Manpower Decree No. 01/1994 concerning Trade Unions at Company Level (SPTP) which, according to the Government, gives a wide opportunity to workers at the plant level to establish an organization which will be able to bargain and negotiate a collective labour agreement, with no obligation to join any particular organization. The Committee notes that this regulation provides that the labour union can be established in companies which employ 25 or more workers, and/or where a labour union has not been formed (section 4(1)) and where more that 50 per cent of all workers have given their approval for the establishment (section 13). In this regard, it draws the Government's attention to paragraph 241 of its 1994 General Survey on Freedom of Association and Collective Bargaining in which it observes that, where the law stipulates that a trade union must receive the support of 50 per cent of the members of a bargaining unit to be recognized as a bargaining agent, a majority union failing to secure this absolute majority is denied the possibility of bargaining. In such a system the Committee considers that if no union covers more than 50 per cent of the workers, collective bargaining rights should be granted to all unions in the unit, at least on behalf of their own members.

The Committee further notes that Decree No. 01/1994 makes reference to the requirements of Regulation No. 3/1993 which provides that, to be registered, a trade union must have at least 100 units at plant level, 25 organizations at the district level and five organizations at the provincial level; alternatively, it must have at least 10,000 members throughout Indonesia. While these requirements are lower than those contained in the previous Regulation (No. 5/1987), they remain so stringent as to constitute a major obstacle to collective bargaining since very few trade unions can obtain their registration in these circumstances. The Government is therefore requested to indicate the measures taken or envisaged to amend Regulation No. 3 so that the requirements for registration are not excessive and so that trade unions can be recognized at the workplace for the purposes of collective bargaining according to objective and pre-established criteria which will not effectively result in impediments to free collective bargaining.

4. The Committee expresses the firm hope that the Government will take the necessary measures in the very near future to ensure in its legislation the protection of the provisions of the Convention and recalls that the Office remains ready and willing to provide technical assistance in this regard.

Direct Request (CEACR) - adopted 1994, published 81st ILC session (1994)

Restrictions on public servants, other than those excluded by Article 6 of the Convention, to bargain collectively: The Committee reiterates its request to the Government for detailed information on the existence and functioning of mixed committees where employers' and workers' organizations covering public servants are able to negotiate their terms and conditions of employment.

The Committee thanks the Government for supplying a copy of Ministerial Decision No. 438/1992 on the establishment and development of trade unions in enterprises.

Observation (CEACR) - adopted 1994, published 81st ILC session (1994)

The Committee takes note of the written and oral information supplied by the Government to the Conference Committee in June 1993 and the discussion which took place there.

The Committee recalls that its comments have for a number of years concerned the following points:

- the absence of specific legislative provisions accompanied by sufficiently effective and dissuasive sanctions to protect workers against acts of anti-union discrimination at the time of recruitment or during the employment relationship (Article 1 of the Convention);

- the absence of sufficiently detailed legislative provisions to protect workers' organizations against acts of interference by employers or their organizations (Article 2);

- the restriction on free collective bargaining whereby only federations covering at least 20 provinces and grouping a large number of trade unions may conclude collective agreements (Article 4).

The Committee notes that a direct contacts mission took place in Indonesia (21-27 November 1993), upon request from the Government "in order to advise on better implementation of the Convention". The main recommendations of the mission are summarized below:

1. The labour legislation should be consolidated and simplified, with substantive rights embodied in a labour or industrial relations Act, leaving details of implementation and procedure to regulations, adopted by virtue of a power established in the relevant legislation.

2. Legislative measures should be taken to repeal the provisions, and in particular article 2 of Regulation PER-03/MEN/1993, which prevent workers from engaging voluntarily in collective bargaining and concluding collective labour agreements through freely chosen representatives.

3. Steps should be taken, in law and in fact, to guarantee workers effective protection against acts of anti-union discrimination, and acts of interference by employers, in particular by:

- consolidating and simplifying the existing provisions on the subject;

- adopting provisions to remedy evidentiary difficulties;

- strengthening the penalties provided for violations of anti-union discrimination and interference provisions;

- streamlining and strengthening the enforcement provisions; and

- taking measures to avoid, to the maximum extent, the involvement of police and armed forces in labour disputes and, more generally, in labour matters.

The mission also pointed out that the Office is ready and willing to provide technical assistance in all the matters mentioned above.

Noting from the report that the Government demonstrated throughout the mission a spirit of cooperation and collaboration with the ILO, the Committee strongly hopes that the Government will soon give positive consideration to these recommendations, which parallel to a large extent the observations and recommendations it has been making for several years. It reiterates the offer of technical assistance mentioned above.

The Committee also addresses a direct request to the Government on another issue.

[The Government is asked to supply full particulars to the Conference at its 81st Session.]

Direct Request (CEACR) - adopted 1993, published 80th ILC session (1993)

Restrictions on public servants, other than those excluded by Article 6 of the Convention, to bargain collectively. The Committee notes the information supplied to the Conference Committee in June 1991 on the increased conclusion of collective agreements in public companies, but reminds the Government that it has not received a reply to the request made in its previous direct request for detailed information on the existence and functioning of mixed committees where employers' and workers' organizations covering public servants are able to negotiate their terms and conditions of employment. It accordingly repeats that request.

The Committee asks the Government to supply copies of the Circular Letter of the Director-General of Industrial Relations Development and Supervision of Labour Standards (No. B. 113 of 1990) concerning dismissal, and of the Ministerial Decision No. 438/1992 on Guidance and Development of Trade Unions in Enterprises, which it mentions in its reports.

Observation (CEACR) - adopted 1993, published 80th ILC session (1993)

With reference to its previous observations, the Committee takes note of the Government's reports, as well as of the written and oral information supplied to the Conference Committee in June 1991 and the discussion which took place there.

The Committee recalls that its comments have for a number of years concerned the following points:

- the absence of specific legislative provisions accompanied by sufficiently effective and dissuasive sanctions to protect workers against acts of anti-union discrimination at the time of recruitment or during the employment relationship (Article 1 of the Convention);

- similarly, the absence of sufficiently detailed legislative provisions to protect workers' organizations against acts of interference by employers or their organizations (Article 2);

- the restriction on free collective bargaining whereby only federations covering at least 20 provinces and grouping a large number of trade unions may conclude collective agreements, which is contrary to Article 4.

1. Protection against acts of anti-union discrimination. The Committee notes that the Government repeats its previous statements that the current legislative provisions provide sufficient protection at the time of recruitment and during the employment relationship. The Committee notes from the Government's report that the Circular Letter of the Director-General of Industrial Relations and Manpower Protection No. 113/M/BW/90 provides that the termination of employment connected with the establishment, membership and management of a trade union will not be permitted. It also notes that section 11(1) of Act No. 14/1969 states that "Every worker has the right to establish and become a member of a trade union" and that Ministerial Decision No. 120 of 1988 constitutes a "Code of Conduct" rather than a statutory protection of sufficiently dissuasive force. The Committee once again draws the Government's attention to the wording of Article 1 of the Convention, which refers to "adequate" protection against anti-union discrimination. In the Committee's opinion, the current compensation provisions alone are not sufficient to ensure such adequate protection and requests once again the Government to take appropriate measures accompanied by sufficiently effective and dissuasive sanctions so that workers can exercise their trade union rights without fear of anti-trade union reprisals. It would ask the Government to indicate in its next report the legislative provisions, especially concerning possible discrimination at the time of recruitment and during employment.

2. Protection of workers' organizations against acts of interference by employers. The Committee notes that the Government maintains that the legislation, the Code of Conduct, the workers' organizations' own rules and the checkoff arrangements eliminate the possibility of interference by employers. The Committee also notes that Ministerial Decision No. 1109/MEN/1986 has been revised by Ministerial Decision No. 438/1992, which provides that an employer will not be allowed to take any action which would prove disadvantageous to the workers in relation to their activities, as well as to the membership and management of a trade union at the enterprise level. It requests the Government to provide information on how the provisions of this Ministerial Decision as well as of the Code of Conduct are applied in practice, and on indications of any progress made towards strengthening the legislation on this point.

3. Restrictions on collective bargaining. The Committee notes that, according to the information provided to the Conference Committee, Ministerial Regulation No. 05/MEN/1987 (which does not substantially change the system for registration of trade unions and federations, and thus makes it difficult for them to be able to bargain) is to be reviewed. The Committee thus requests the Government to inform it in its next report of progress in reviewing this legislation so as to allow free collective bargaining in conformity with the Convention.

Direct Request (CEACR) - adopted 1991, published 78th ILC session (1991)

Restrictions on the right of public servants, other than those excluded by Article 6 of the Convention, to bargain collectively. The Committee takes note with interest of the information supplied by the Government in reply to its previous direct request, in particular to the effect that teachers - through their organisation, the PGRI - and employees in five state-owned corporations have been engaging in trade union activities as trade unions and particularly collective bargaining. It thanks the Government for supplying copies of recently concluded collective agreements, for example in the coal-mining sector.

Noting that certain other trade union organisations exist in the public sector apart from the KORPRI, to which public servants must belong by virtue of Presidential Decree No. 82 of 1971 (such as the PKBA for railway workers and the SSPT for postal workers), the Committee requests the Government to continue to supply information on the activities of such organisations showing that the requirements of Article 4 of the Convention are being applied in practice. In addition, the Committee would appreciate receiving detailed information on the existence and functioning of mixed committees where employers' and workers' organisations covering public servants, other than those excluded by Article 6, are able to negotiate collectively terms and conditions of employment.

Observation (CEACR) - adopted 1991, published 78th ILC session (1991)

Referring to its previous observations, the Committee takes note of the Government's report and the follow-up information supplied by the Government on Case No. 1431, noted by the Governing Body at its May-June and November 1990 Sessions (272nd Report, para. 19 and 275th Report, para. 19).

The Committee recalls that its comments had concerned the following points:

- the absence of sufficiently specific legislative provisions to protect workers against acts of anti-union discrimination at the time of recruitment or during the employment relationship (Article 1 of the Convention);

- similarly, the absence of sufficiently detailed legislative provisions to protect workers' organisations against acts of interference by employers or their organisations (Article 2);

- the restriction on free collective bargaining whereby only federations covering at least 20 provinces and grouping a large number of trade unions may conclude collective agreements, which is contrary to Article 4.

1. Protection against acts of anti-union discrimination. The Committee notes that the Government repeats its previous statements that the provisions of Act No. 12/1964 and of Ministerial Regulation No. PER.04/MEN/1986 implementing it do provide sufficient protection at the time of recruitment and during the employment relationship, but makes no reference to the Regulation on Work Agreement mentioned in its previous report as a possible means of supplementing the existing legislation. It also notes that the Code of Conduct adopted by virtue of Ministerial Decision No. Kep.120/MEN/1988 strengthens protection against dismissal. However, the Committee would recall in this connection that Article 1 of the Convention refers to "adequate" protection, and observes that while the current legislation goes quite some way towards granting this, the compensation provisions alone are not sufficient.

The Committee accordingly requests the Government to inform it of any measures envisaged or taken to provide specific protection against acts of anti-union discrimination at the time of recruitment (for example, is an employer's refusal to engage a worker because of his union membership covered by the Code of Conduct?) and during employment (the complaints procedure apparently available in Chapter IV(3) of the provisions set out in Ministerial Decision No. Kep.1109/MEN/1986 adopting a Manual on the establishment, development and protection of workers' unions, in case of transfers, demotions and other anti-union prejudicial measures seems insufficient).

2. Protection of workers' organisations against acts of interference by employers. The Committee notes that, according to the Government, Ministerial Regulation No. PER.05/MEN/1987 is still being reviewed, and that other texts protect unions against interference by employers, namely Ministerial Decision No. Kep.120/MEN/1988 adopting a Code of Conduct for the prevention and settlement of labour disputes and Ministerial Decision No. Kep.1109/MEN/1986. The Committee requests the Government to supply information on how these two latter texts are used in practice.

3. Restrictions on collective bargaining. The Committee thanks the Government for supplying a copy of Ministerial Regulation No. 05/MEN/1987 (repealing the 1975 Ministerial Regulation criticised in previous observations). It notes with regret, however, that the new text does not substantially change the system for registration of trade unions. While it is true that the requirement that the workers' organisation be a federation has been deleted, the requirement that the labour organisation cover at least 20 provinces remains, and a further requirement has been added, namely that it covers 100 districts and 1,000 "labour units within companies" (section 2). Since Regulation No. 49 of 1954 concerning the elaboration and conclusion of collective agreements and Regulation No. Per.02/MEN/1978 on company regulations and the negotiation of an arrangement for a collective agreement both refer to registered trade unions as having the right to conclude agreements, the Committee considers that these registration requirements impose a major obstacle on the right of workers' organisations to bargain collectively. The Committee requests the Government to re-examine its legislation to bring it into conformity with the Convention, and to inform the Committee in its next report of any progress towards this.

Direct Request (CEACR) - adopted 1989, published 76th ILC session (1989)

Restrictions on the right of public servants, other than those excluded by Article 6 of the Convention, to bargain collectively. The Committee notes the conclusions of the Committee on Freedom of Association regarding Case No. 1431, approved by the Governing Body at its 241st Session (November 1988).

Under the terms of Presidential Decree No. 82 of 1971, public servants (who, by virtue of the national legislation, include not only public servants engaged in the administration of the State, but also teachers, workers in state-owned enterprises or in which the State holds shares) must be grouped together in one organisation, known as KORPRI. According to the information supplied by the Government, this organisation is considered to be the only negotiating agent with the Government for the purpose of collective bargaining. The Government states that, although KORPRI can theoretically participate in negotiations, the terms and conditions of employment of workers in the public sector are regulated by special laws, so that collective agreements have no place there.

The Committee also notes that, although other trade union organisations exist in the public sector (the PKBA for railway workers, the SSPT for postal employees and the PGRI for teachers) these organisations do not appear to have the status of trade unions and do not seem in practice to be able to exercise the normal functions of trade unions, such as collective bargaining.

The Committee draws the Government's attention to the fact that, although the Convention does not cover public servants engaged in the administration of the State (Article 6 of the Convention), it applies to all other employees in the public sector, who, under the terms of Article 4, should be able to negotiate collectively their terms and conditions of employment.

The Committee requests the Government to supply information on the manner in which the occupational organisations referred to above are able to advance their occupational claims before their employers, and particularly on the existence of mixed committees where employers' and workers' organisations in these sectors are able to negotiate terms and conditions of employment.

Observation (CEACR) - adopted 1989, published 76th ILC session (1989)

The Committee notes the Government's report. It also takes note of the conclusions of the Committee on Freedom of Association with regard to Case No. 1431, approved by the Governing Body at its 241st Session (November 1988).

The Committee recalls that its comments concerned the following points:

- the absence of legislative provisions accompanied by civil remedies and penal sanctions to guarantee workers adequate protection against any act of anti-union discrimination at the time of recruitment or during employment (Article 1 of the Convention);

- the absence of legislative provisions accompanied by civil remedies and penal sanctions to give workers' organisations protection against any act of interference by employers or their organisations (Article 2);

- the restriction on free collective bargaining under the terms of Regulations No. 49 of 1954 and No. PER-01/MEN/1975 (referred to in Regulation No. PER-02/MEN/1978) under which only federations covering at least 20 provinces and gathering together 15 trade unions may conclude collective agreements, which is contrary to Article 4.

1. Protection against acts of anti-union discrimination. The Committee noted that the protection measures against dismissal on trade union grounds existed in the legislation, but that Article 1 of the Convention was not sufficiently implemented.

In its last reports, the Government states that Article 1 is being examined. It points out, however, that the Decision of the Director-General of Protection and Maintenance of Manpower No. 362/67 (point 6 of the Decision) and Ministerial Regulation No. PER-04-MEN-1986 (section 8) forbidding dismissal on trade union grounds are still in force and that the number of violations of these provisions is not significant. Furthermore, it emphasises that section 1(3) of the 1954 Act ensures both that employers do not discriminate against trade unionists and that trade unions are not in a legal position to coerce employers. In other terms, according to the Government, employers are not afforded special legal protection against a "dictatorial" attitude by trade unions. The principle of non-discrimination is in accordance with the 1945 Constitution and the philosophy of the Indonesian nation. Finally, the Government indicates that the Decision of the Director-General of Manpower No. 362/67 and Ministerial Regulation No. PER-04-MEN-1986 are the measures to implement Law No. 12/1964 respecting termination of employment in private enterprises. This means that the above Decisions and Regulations only cover dismissals and that the employer's obligations during the employment relationship are not covered by these texts.

The Government also refers to Law No. 22/1957 respecting labour disputes and emphasises that dismissals have to be approved by the tripartite committee responsible for the settlement of disputes and that this mechanism is intended to guarantee that termination of employment or other unfair practices concerning trade unions (membership and other trade union activities) are avoided. In cases of transfers, demotions or other measures which can be suspected of being anti-trade union, the union may bring the case to be examined by the tripartite committee responsible for the settlement of disputes. With regard to protection during employment, the Government states that it is currently preparing a Government Regulation on Work Agreement and that it hopes that some of these provisions will deal with the conditions of employment, which should be established at the time of recruitment.

2. Protection of workers' organisations against acts of interference by employers. The Government refers once again to the principles of the Pancasila concept in industrial relations and to Government Regulation No. 05/MEN/1987 which repealed Regulation No. PER-01/MEN/1975 respecting the registration of trade unions, which, however, has not been supplied to the ILO.

The Committee takes due note of all these indications, and particularly of the fact that the legislation contains provisions to protect workers against anti-union dismissals and, according to the Government, dismissals during the employment relationship. However, the Committee notes that the Committee on Freedom of Association, in Case No. 1431, concluded that the national legislation does not fully implement Articles 1 and 2 of the Convention. Consequently, it once again requests the Government to take specific measures, particularly through legislative provisions, accompanied by civil remedies and penal sanctions, in order to provide protection for workers against all acts of anti-union discrimination, not only in the event of dismissal, since that already exists in the legislation, but also more specifically during the period of employment and at the time of recruitment, and to give workers' organisations adequate protection against any acts of interference by employers and their organisations.

It requests the Government to supply detailed information in this respect in its next report together with the text of any laws that have been adopted, and in particular of Ministerial Regulation No. 05/MEN/1987.

3. Restrictions on collective bargaining. For several years, the Committee has been noting that only registered trade unions can undertake collective bargaining (section 1 of Ministerial Regulation No. PER-2/MEN/1978) and that a federation can only be registered if it covers at least 20 provinces and comprises 15 trade unions (Ministerial Regulation No. PER-01/MEN/1975). In the absence of registered trade unions, the terms and conditions of employment of workers are established by enterprise regulations, in accordance with the provisions of Ministerial Regulation No. PER-2/MEN/1978.

In its report, the Government states that Ministerial Regulation No. PER-01/MEN/1975 has been replaced by Ministerial Regulation No. 05/MEN/1987, which modifies the procedure for the registration of trade unions.

The Committee is not in a position to examine the significance of this text as it has not been supplied to the ILO. It therefore requests the Government to send a copy of the above text with its next report and to provide information on the measures that have been taken or are envisaged to remove the restrictions on collective bargaining and to promote the development of voluntary negotiation procedures for collective agreements between employers and their organisations and workers' organisations, and not only federations of registered trade unions, so that terms and conditions of employment can be settled in this way.