Observación (CEACR) - Adopción: 2007, Publicación: 97ª reunión CIT (2008)

The Committee takes note of 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 with regard to police violence, dismissals and acts of retaliation against strikers. The Committee requests the Government to provide its observations thereon.

The Committee takes note of the entry into force of the Industrial Relations Dispute Settlement Act No. 2 of 2004.

1. Civil liberties. The Committee’s previous comments concerned the issuance of Guidance on the Conduct of Indonesian Police concerning Law Enforcement and Order in Industrial Relations Disputes with ILO technical assistance, and the need to ensure its practical implementation.

The Committee notes that in its 2006 comments, the ICFTU refers to continuing police interference in industrial disputes in order to break up strikes in various companies and the interrogation of trade union leaders on the basis of an old colonial law prohibiting vague and unspecified “unpleasant acts” against employers.

The Committee notes that the Government indicates that the cases to which the ICFTU refers have been settled by the parties and adds that pursuant to the issuance of the Guidance, the police are allowed to be present during the settlement of industrial disputes but their role is to remain at a distance strictly for security purposes. The Government states that the police no longer play any part in the settlement of the disputes.

The Committee asks the Government to continue to provide information on measures taken, including the specific instructions given to the police so as to ensure that the danger of excessive violence in trying to control demonstrations is avoided, that arrests are made only where serious violence or other criminal acts have been committed, and that the police are called in a strike situation only where there is a genuine and imminent threat to public order.

2. Right to organize of civil servants. In previous comments, the Committee had requested the Government to specify any act or regulation ensuring the implementation of the right to organize of civil servants pursuant to section 44 of Act No. 21 of 2000, which proclaims that civil servants shall enjoy freedom of association and that the implementation of this right shall be regulated in a separate Act. The Committee notes that the Government’s report does not contain any information in this regard. In previous communications the Government had indicated that such Act had not yet been adopted. The Committee requests the Government to indicate in its next report the steps taken for the adoption of an Act guaranteeing the exercise of the right to organize to civil servants pursuant to section 4 of Act No. 21 of 2000, and to indicate the manner in which civil servants organize in practice, while the adoption of legislation is pending, including statistics on the number of civil servants’ organizations at various levels.

3. Right to organize of employers. The Committee had requested the Government to provide a copy of any rulings made concerning the right to organize of employers pursuant to section 105(1) of Manpower Act No. 13 of 2003, which grants this right to employers and adds that “rulings concerning entrepreneurs’ organizations shall be determined and specified in accordance with valid statutory legislation”. The Committee notes that the Government’s report does not contain any information in this regard. In previous communications, the Government had indicated that employers’ organizations are regulated by Act No. 1 of 1987, concerning the Chamber of Commerce and Industry (KADIN). The basic internal regulation of KADIN states that APINDO (the main employers’ association) is a branch of KADIN dealing with industrial relations and labour issues. The Committee requests the Government to provide a copy of Act No. 1 of 1987, as well as the internal regulation of KADIN, in its next report and to specify whether in general, other employers’ organizations can be established independently of the KADIN.

4. Conditions for the exercise of the right to strike. In previous comments, the Committee had noted that for a strike to be considered legal it must be carried out subsequent to “failed negotiations” (section 3 of Ministerial Decree No. KEP. 232/MEN/2003) and that negotiations shall be considered failed only if both sides make a declaration to this effect in the negotiation minutes (section 4 of the abovementioned Decree). Noting from the Government’s report that the right to strike is a basic right that should be carried out legally, orderly and peacefully as a consequence of failed negotiations, the Committee once again recalls that the conditions stipulated in the law for the exercise of the right to strike should not be such that the exercise of this right becomes very difficult or even impossible in practice. The Committee requests the Government to indicate in its next report the measures taken or contemplated to amend section 4 of Ministerial Decree No. KEP. 232/MEN/2003 so that a finding as to whether negotiations have failed, which is a condition for the lawful staging of strikes, can be made either by an independent body or be left to the unilateral determination of the parties to the dispute.

5. The Committee further notes that the ICFTU indicates that the law contains further restrictive conditions for the exercise of the right to strike; for instance, a requirement to indicate the ending time of the strike before its commencement. Noting that the Government has not responded to these comments, the Committee once again requests the Government to provide its observations in this respect.

6. Exhaustion of mediation/conciliation procedures. The Committee notes from the comments made by the ICFTU that the Industrial Relations Dispute Settlement Act No. 2 of 2004 imposes as a precondition for the lawful staging of strikes, a lengthy mediation procedure. The Committee notes from the Government’s reply to the ICFTU comments that the strike is a basic right that should be carried out legally, orderly and peacefully as a consequence of failed negotiations, and as long as these conditions are fulfilled, the worker does not break the law. The Committee observes that sections 3(2), 4(4), 15 and 25 of the Industrial Relations Dispute Settlement Act No. 2 of 2004, appear to establish: (i) an initial period of 30 working days during which an attempt should be made to settle disputes through bipartite negotiations (section 3(2)); (ii) an (unspecified) time period during which the parties are invited to file their dispute to the Manpower Office and select either conciliation or arbitration, and if they fail to select either one, seven working days within which the Manpower Office will transfer their dispute to mediation (section 4(4)); (iii) an additional 30 working days reserved to mediation (section 15); (iv) 30 working days reserved to conciliation (section 25); or (v) if mediation/conciliation fails, sections 5 and 14 provide that one of the parties may refer the dispute to the Industrial Relations Court for arbitration (see in this regard, the Committee’s comments under Convention No. 98).

The Committee notes that the text of Act No. 2 of 2004 does not explicitly indicate whether the parties may stage strikes while mediation/conciliation is under way or whether they should wait for these lengthy procedures to be concluded before they may lawfully stage industrial action. The Committee notes that the requirement to exhaust procedures extending beyond 60 working days (three months), as a precondition for a strike to be staged lawfully, would render the exercise of the right to strike very difficult or even impossible in practice. The Committee requests the Government to indicate measures taken or contemplated to amend sections 3(2), 4(4), 15 and 25 of the Industrial Relations Dispute Settlement Act No. 2 of 2004 in a way that: (i) reduces the time period accorded to mediation/conciliation proceedings in cases where the exhaustion of mediation/conciliation constitutes a condition for the lawful exercise of the right to strike; or (ii) ensures that the exhaustion of mediation/conciliation is not a precondition for the lawful exercise of the right to strike.

7. Objectives of strikes. The Committee had asked the Government to indicate whether workers may exercise industrial action in protest of social and economic policy without penalty. It notes that the Government’s report does not contain any information in this regard. It observes, however, that it would appear from sections 3 and 4 of Ministerial Decree No. KEP. 232/MEN/2003 (see above), that the possibility of strikes is linked to the negotiation of an enterprise-level collective agreement; moreover, it would appear from information provided by the Government in its report under Convention No. 98 that federations and confederations do not engage in negotiations at above-enterprise levels. The Committee observes that the above appears to exclude the possibility of staging industrial action on general, social and economic policy questions. The Committee recalls that although purely political strikes do not fall within the scope of freedom of association, organizations responsible for defending workers’ socio-economic and occupational interests should, in principle, be able to use strike action to support their position in the search for solutions to problems posed by major social and economic policy trends which have a direct impact on their members and on workers in general, in particular as regards employment, social protection and the standard of living (General Survey of 1994 on freedom of association and collective bargaining, paragraph 165.) The Committee requests the Government to indicate in its next report the measures taken or contemplated so as to allow trade union federations and confederations to engage in industrial action linked to questions of general social and economic policy.

8. Restrictions on the right to strike in essential services. The Committee notes from the ICFTU comments that section 5 of Ministerial Decree No. KEP.232/MEN/2003 provides that strikes at “enterprises that cater to the interests of the general public and/or enterprises whose activities would endanger the safety of human life if discontinued are declared illegal” (Ministerial Decree KEP.232/MEN/2003), without specifying what types of enterprises are included in this classification, thus leaving the matter to the Government’s discretion. According to the ICFTU, strikes have been prohibited in practice in the public sector, essential services and enterprises serving the public interest. The Committee notes that according to the Government, in line with the explanatory note on section 139 of Manpower Act No. 13 of 2003, enterprises serving the public interest and/or enterprises whose activities when interrupted by strikes endanger the safety of human life, are hospitals, the fire department, the railway service, enterprises in charge of sluices, those in charge of regulating air traffic and those in charge of sea traffic. In this regard, the Committee refers the Government to its comments below concerning the railway service.

9. Restrictions on the right to strike in the railway service. The Committee had requested the Government to take the necessary measures so as to ensure that railway employees may fully exercise the right to strike without penalty. The Committee notes that the Government’s report does not contain any information in this regard. In previous reports, the Government had indicated that the explanatory note on section 139 of Manpower Act No. 13 of 2003, provides that only railway intersection officers are included among the workers that relate to public safety since they have specific duties which differ from those of other railway workers; consequently, they can go on strike as long as someone is on duty. Recalling that railway services generally cannot be considered as an essential service, the Committee requests the Government to indicate in its next report the measures taken or contemplated so as to ensure that section 139 of Manpower Act No. 13 can only be used to restrict the right to strike of railway intersection workers.

10. Sanctions for strike action. In previous comments, the Committee had requested the Government to amend its legislation so as to ensure that the sanctions for illegal strike action are not disproportionate, given that heavy sanctions can be imposed, under section 185 of the Manpower Act, for violations of section 139 of the Manpower Act (one to four years’ imprisonment and/or a fine from Rp.100,000,000 to Rp.400,000,000). The Committee notes that the Government’s report does not provide information in this regard and once again requests it to amend the sanctions imposed under section 185 of the Manpower Act for illegal strike action in violation of section 139 of the Manpower Act so as to ensure that such sanctions are not disproportionate to the seriousness of the offence. The Committee would point out in this regard that any violent act can always be punished under the general penal law. However, penal sanctions for participation in a peaceful strike action should not be resorted to.

11. The Committee notes from the ICFTU comments that according to section 6(2) and (3) of Ministerial Decree No. KEP.232/MEN/2003, in case of an illegal strike, the employer may make two written appeals within a period of seven days for workers to return to work, and if the workers do not respond, they are considered as having resigned. According to the ICFTU, such appeals are commonly used by employers as intimidation tactics against strikers. The Committee notes from the facts of cases brought before the Committee on Freedom of Association (e.g. Case No. 2472, 348th Report), that employers have the possibility to issue written appeals, and in case of non-response, consider workers as having resigned, pending a final finding as to the legality of the strike by an impartial body; in these cases, the employer may suspend the workers in question while waiting for the finding of illegality by the competent body, at which point, the employer is authorized to dismiss the workers retroactively. The Committee observes that as a result of this practice, along with the numerous and stringent legal requirements which make the staging of legal strikes very difficult if not impossible in practice, workers run the risk of dismissal within a context of uncertainty as to the lawfulness of their strike; all of this is likely to intimidate workers into abandoning the strike. Under these conditions, the Committee is of the view that the issuing of back-to-work appeals by the employer should be possible only after a final finding by an independent body that a strike is indeed illegal and not pending such a decision. The Committee requests the Government to indicate in its next report the measures taken to amend section 6(2) and (3) of Ministerial Decree No. KEP 232/MEN/2003 to ensure that employers may not issue appeals to striking workers to return to work prior to a finding by an independent body that a strike is illegal.

12. Dissolution and suspension of organizations by administrative authority. The Committee had noted that if trade union officials violate either section 21 or 31 of the Trade Union/Labour Union Act No. 21 of 2000 – by either failing to inform the Government of any changes in the union’s constitution or by‑laws within 30 days or failing to report any financial assistance coming from overseas sources – serious sanctions can be imposed under section 42 of the Trade Union/Labour Union Act, namely, the revocation and loss of trade union rights or suspension. The Committee had requested the Government to repeal the reference to sections 21 and 31 in section 42 of the Trade Union/Labour Union Act so as to provide for means other than suspension of trade union rights for rectifying delays in notification. The Committee further noted that legislation requiring authorization for a national trade union to accept financial assistance from an international organization of workers infringes the right to affiliate with international organizations of workers and to benefit from such affiliation, and requested the Government to provide further details on the manner in which the obligation to report any financial assistance coming from overseas is applied in practice. The Committee notes that the Government’s report does not contain any information in this regard. The Government had indicated in the past that it still applied regulations obliging trade unions to report any financial assistance coming from overseas, according to section 31 of the Trade Union/Labour Union Act, in order to secure that the assistance is utilized for the improvement of the welfare of the union members and not for other improper purposes. Moreover, the sanction provided under section 42 is aimed to ensure that trade unions have administrative discipline and has never been applied until now.

While noting the fact that section 42 has never been applied and that according to the Government it mainly serves a dissuasive purpose, the Committee considers that the sanction of suspension for a failure to report a change in the trade union’s constitution or by-laws (as a result of sections 21 and 42 of the Trade Union/Labour Union Act) is clearly disproportionate and that section 31(1) read together with section 42 is tantamount to requiring previous authorization for the receipt of funds from abroad, which is contrary to Articles 3 and 6 of the Convention (on the contrary, there is no infringement of the Convention if, for example, the supervision is limited to the obligation of submitting periodic financial reports (see General Survey on freedom of association and collective bargaining, 1994, paragraph 125)). The Committee once again requests the Government to indicate in its next report the measures taken or contemplated so as to repeal the reference to sections 21 and 31 in section 42 of the Trade Union/Labour Union Act.

13. In previous comments, the Committee had noted that section 42 of Trade Union/Labour Union Act No. 21 of 2000, also provides for the administrative sanction of revocation of a trade union’s record number (and consequent loss of trade union rights) in the event of trade union membership falling below the required minimum. In particular, the Committee had noted that there is a possibility to appeal to a judicial body against the governmental institutions that take such a decision under Act No. 5 of 1986 on the Administrative Court, and had requested the Government to indicate whether the appeal suspends the effect of the sanction until a judgement has been handed down and to provide a copy of Act No. 5 of 1986. In previous reports, the Government had indicated that the appeal did not have the effect of suspending the sanction and that Act No. 5 of 1986 had been amended by Act No. 9 of 2004.

The Committee, noting that the latest report by the Government does not provide any information in this regard, once again notes that measures of dissolution and suspension of trade unions by administrative authority involve a serious risk of interference in the very existence of organizations and should therefore be accompanied by all the necessary guarantees, in particular due judicial safeguards, in order to avoid the risk of arbitrary action. Thus, the organization affected by such measures must not only have the right of appeal to an independent and impartial judicial body, but the administrative decision should not take effect until that body hands down a final decision (see General Survey on freedom of association and collective bargaining, 1994, paragraph 185). The Committee requests the Government to indicate in its next report the measures taken or contemplated so as to ensure that measures of dissolution or suspension of trade unions by the administrative authority do not take effect until a final decision has been handed down by the Administrative Court in case of appeal.