Observación (CEACR) - Adopción: 2009, Publicación: 99ª reunión CIT (2010)

The Committee notes the comments made by the International Trade Union Confederation (ITUC) in a communication dated 26 August 2009 with regard to arrests and violence by the police, dismissals and acts of retaliation against strike actions. The Committee requests the Government to provide its observations thereon.

Trade union rights and civil liberties. In its previous comments, concerning allegations of excessive violence and arrests in relation to demonstrations and police involvement in strike situations, including the interrogation of trade union leaders pursuant to an old colonial law prohibiting vague and unspecified “unpleasant acts” against employers, the Committee requested the Government to continue to provide information on measures taken, including 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.

In this regard, the Committee notes the conclusions and recommendations of the Committee on Freedom of Association in relation to Case No. 2585 (see 353rd Report, March 2009, paragraphs 120–123) concerning allegations of human rights abuses and notes that the Committee on Freedom of Association trusted that the Government would: (i) issue appropriate instructions to prevent the danger of trade unionists being arrested by the police for normal trade union activities; (ii) repeal or amend sections 160 and 335 of the Criminal Code on “instigation” and “unpleasant acts” so as to ensure that these provisions cannot be used abusively as a pretext for the arbitrary arrest and detention of trade unionists; and (iii) continue to take all the necessary measures to educate the police in relation to its action in industrial relations contexts.

The Committee notes the Government’s statement that the police role in strikes has been established in Kapolri Regulation No. 1/2005. Recalling that legitimate trade union activities should not be used as a pretext for arbitrary arrest or detention, the Committee requests the Government to provide the information requested in its previous observation and to take the necessary measures to repeal or amend sections 160 and 335 of the Criminal Code.

Right to organize of civil servants. In its previous comments, the Committee requested the Government to take the necessary steps to guarantee the exercise of the right to organize to civil servants, and to indicate the manner in which civil servants organize in practice, including statistics on the number of civil servants’ organizations at various levels. The Committee notes the Government’s indication that it has not specifically regulated the right to organize for civil servants but that their right to organize and express opinions is covered by the Corps of Indonesian Civil Servants (KORPRI), which is a neutral organization that does not take sides for a certain political party. Recalling the conclusions of the Committee of Freedom of Association in Case No. 1431 (see 265th Report, May 1989, paragraphs 104–137) that “KORPRI does not meet the requirements of the principle that all workers should have the right to form and join organizations of their own choosing to defend their occupations’ interests”, the Committee expresses the hope that the Government will adopt an Act guaranteeing the exercise of the right to organize to civil servants, pursuant to section 4 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, so as to bring the legislation into full conformity with the Convention and requests the Government to indicate progress made in this regard.

Right to organize of employers. The Committee had requested that the Government provide a copy of Act No. 1 of 1987, as well as the internal regulation of the Indonesian Chamber of Commerce and Industry (KADIN), and specify whether other employers’ organizations could be established independently of the KADIN. The Committee notes Act No. 1/1987 transmitted by the Government and its indication that there is no stipulation in regulation proscribing employers from establishing organizations other than the KADIN. The Committee will examine Act No. 1/1987 once it is translated and requests the Government to provide information on any other employers’ organizations that exist in addition to the KADIN.

Conditions for the exercise of the right to strike. In its previous comments, the Committee requested the Government to take the necessary measures 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. The Committee notes the Government’s comments that section 4 of Ministerial Decree No. KEP.232/MEN/2003 has not been amended because it is not an obstacle to the execution of strikes, as is illustrated by the many strikes that have taken place. The Government explains that the purpose of the Ministerial Decree is not to prohibit strike actions, but to regulate the procedure for strikes according to section 140 of Act No. 13/2003. The Committee notes the Government’s statement that trade unions and workers themselves could determine when strikes would start and end and that, thus, strikes will be carried out according to their expectations.

Noting that the Government did not comment in detail on the legislative conditions for the calling of a strike, 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 once again requests the Government to take steps to ensure that the legislation is in conformity with the Convention by repealing or amending the various conditions included in the strike procedure set out in Ministerial Decree No. KEP.232/MEN/2003.

Exhaustion of mediation/conciliation procedures. The Committee had requested the Government to take the necessary measures to amend the legislation to ensure that mediation/conciliation proceedings, that currently took more than 60 days, did not operate as a precondition for the lawful exercise of the right to strike. The Committee notes the Government’s information that it has not amended sections 3(2), 4(4), 15 and 25 of the Industrial Relations Dispute Settlement Act No. 2 of 2004. Recalling that a requirement to exhaust procedures that extends beyond 60 working days (three months), as a precondition for a lawful strike, would render the exercise of the right to strike very difficult or even impossible in practice, the Committee once again 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.

Objectives of strikes. In its previous comments, the Committee requested the Government to take the necessary steps so as to allow trade union federations and confederations to engage in industrial action linked to questions of general social and economic policy. The Committee notes the comments of the Government that strikes can be conducted as long as they are related to employment matters as regulated by rules and regulations concerning employment. The Committee notes once again that this appears to exclude the possibility of staging strikes on general social and economic policy, and recalls that 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 to 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. The Committee requests the Government to indicate in its next report any measures taken or contemplated to ensure that trade union federations and confederations may engage in industrial action linked to questions of general social and economic policy.

Restrictions on the right to strike in the railway service. In its previous comments, the Committee requested the Government to take the necessary measures so as to ensure that railway service workers may fully exercise the right to strike without penalty. The Committee notes the Government’s comment that section 139 of Manpower Act No. 13 is not only related to railway workers but also to workers in hospitals, fire brigades, watergate controllers, air traffic control and flare men, as strikes of these workers would endanger human safety. Recalling once again that railway services generally cannot be considered as an essential service, the Committee requests the Government to indicate steps taken or contemplated to ensure that the only railway workers encompassed by section 139 of Manpower Act No. 13, and so with a limited right to strike, are railway intersection workers.

Sanctions for strike action. The Committee requested the Government to take the necessary measures to ensure that sanctions for illegal strike action were not disproportionate to the seriousness of the offence. The Committee notes the Government’s comment that section 185 of the Manpower Act does not regulate criminal conviction for violation of section 139 of the Manpower Act but applies only to specified sections. The Committee recalls that no penal sanction should be imposed against a worker for having carried out a peaceful strike and therefore measures of imprisonment should not be imposed on any account. Such sanctions could be envisaged only where during a strike, violence against persons or property or other serious infringements of rights have been committed, and can be imposed pursuant to legislation punishing such acts. Nevertheless, even in the absence of violence, if the strike modalities had the effect of making the strike illegitimate, proportionate disciplinary sanctions may be imposed against strikers. The Committee therefore requests the Government to take the necessary measures in order to amend its legislation so as to bring it into conformity with the principle above.

The Committee requested the Government to take the necessary measures to ensure that striking workers were not considered to resign by virtue of not having responded to back-to-work orders from employers, prior to a finding by an independent body that the strike in question is illegal. The Committee notes the information provided by the Government that the implementation of Ministerial Decree No. KEP.232/MEN/2003 relating to back-to-work orders allows for recourse to the industrial cooperation court, which avoids any possible arbitrariness on the part of employers. Recalling that the practice in the Ministerial Decree results in the situation that workers run the risk of dismissal while the legality of a strike is not settled, the Committee once again requests the Government to amend section 6(2) and (3) of Ministerial Decree No. KEP.232/MEN/2003 to ensure that employers can only issue back-to-work orders to workers after an independent body has determined that the strike is illegal.

Dissolution and suspension of organizations by administrative authority. In its previous comments, the Committee had requested the Government to take the necessary steps so as to provide for means other than loss or suspension of trade union rights for delays in notification of changes in the union’s constitution or by-laws, or failure to report overseas financial assistance. The Committee notes the Government’s indication that it has no plans to repeal sections 21 and 31 of the Trade Union/Labour Union Act (Law No. 21 of 2000) in the context of complexities in drafting and amending employment legislation. Recalling that the sanction of suspension for failure to report changes in a union’s constitution or by-laws (pursuant to sections 21 and 42 of the Act) is clearly disproportionate and that the result of sections 31(1) and 42 is tantamount to requiring previous authorization for the receipt of overseas funds, 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.

The Committee had requested the Government to take the necessary steps to ensure that administrative dissolution or suspension of trade unions do not take effect until a final decision has been handed down by the Administrative Court in case of appeal. The Committee notes the information provided by the Government that, if trade unions, federations or confederations do not fulfil the minimal requirements which are regulated in sections 5(2), 6(2) and 7(2) of Law No. 21 of 2000, they will not have the right to be recorded by the governmental institution responsible for manpower. The Committee further notes the Government’s statement that, by not fulfilling the minimal requirements, there is no base to initiate a case to the State Administrative Court (PTUN). The Committee once again recalls that measures of dissolution and suspension of trade unions by administrative authority involve 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, to avoid the risk of arbitrary action. The Committee once again requests the Government to indicate in its next report the measures taken or contemplated so as to ensure that organizations affected by measures of dissolution or suspension by the administrative authority have a right of appeal to an independent and impartial judicial body, and that such administrative decisions do not take effect until that body issues a final decision.

The Committee reminds the Government that if it so wished it may take advantage of technical assistance from the International Labour Office in relation to the issues raised in these comments.