Caso individual (CAS) - Discusión: 1993, Publicación: 80ª reunión CIT (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.