Informe definitivo - Informe núm. 265, Junio 1989

1. 104. The Committee has already examined this case and submitted interim
   • conclusions to the Governing Body which were approved at its 241st Session,
   • November 1988 (see 259th Report, paras. 679-708). The Government sent further
   • observations on the case in a communication dated 16 February 1989.
2. 105. Indonesia has not ratified the Freedom of Association and Protection of
   • the Right to Organise Convention, 1948 (No. 87); it has ratified the Right to
   • Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 106. At its November 1988 meeting, the Committee noted that this case
   • involved a general allegation by the International Confederation of Free Trade
   • Unions (ICFTU) of restrictions on trade union rights in Indonesia based on the
   • following specific criticisms of the industrial relations legislation: (1) ban
   • on the right to organise in trade unions for all public servants, teachers and
   • employees of government-owned or controlled corporations; (2) insufficient
   • protection against anti-union discrimination and interference contrary to
   • Articles 1 and 2 of Convention No. 98; (3) restrictions on collective
   • bargaining contrary to Article 4 of Convention No. 98; (4) restrictions on the
   • exercise of the right to strike.
2. 107. As regards the first allegation which specifically concerned public
   • servants, the Committee noted the Government's response that since conditions
   • of employment for public sector employees are set by special laws and
   • regulations, collective agreements as a trade union function do not apply. It
   • also noted the Government's reference to the sole civil servants' association,
   • KORPRI, as having a negotiating role between civil servants and their
   • employer, the Government. While noting the Government's general assertion that
   • the principles of freedom of association are contained in Indonesian statutes,
   • the Committee regretted the lack of detailed information on KORPRI, in
   • particular on the alleged influential role played in it by the authorities,
   • evidenced by the fact that the Minister of Internal Affairs is Chairman of
   • KORPRI's Central Board.
3. 108. As regards the alleged denial of the right to organise in unions facing
   • employees of government-owned or controlled corporations, of state enterprises
   • and teachers, the Committee again noted the Government's general assertion
   • that freedom of association exists but that it appeared that any associations
   • formed could not pursue trade union objectives.
4. 109. As regards Articles 1 and 2 of Convention No. 98, the Committee noted
   • that the Committee of Experts on the Application of Conventions and
   • Recommendations had been calling on the Government for many years to
   • strengthen its legislative provisions against anti-union discrimination so as
   • to accord protection to workers at the time of recruitment and during
   • employment against prejudicial acts carried out by employers or interference
   • by their organisations in the establishment of workers' organisations. While
   • noting the Government's general denial of these shortcomings and its reference
   • to the Pancasila philosophy for industrial relations, the Committee reiterated
   • the Committee of Experts' request that more specific provisions be enacted to
   • ensure full conformity with the requirements of Articles 1 and 2 of Convention
5. No. 98.
6. 110. As for the alleged restrictions on collective bargaining, the Committee
   • noted that the Government supplied certain statistics on collective labour
   • agreements and company regulations. However, it observed with concern that -
   • despite KORPRI's potential involvement in negotiations - the Government had
   • clearly stated that collective agreements were not applicable for public
   • sector workers. The Committee recalled that, under Article 6 of Convention No.
7. 98, only public services engaged in the administration of the State are not
   • covered by the Convention's provisions.
8. 111. Lastly, as regards the alleged restrictions on the right to strike, the
   • Committee noted with concern the very extensive list of non-essential services
   • and industries scheduled in Presidential Decision No. 123 of 1963 in which
   • strike action is banned (including state-run agencies such as tourist hotels,
   • department stores and the Ancol pleasure park). While noting the Government's
   • claim that withdrawal of these services could be detrimental to human life and
   • that strikes should only be used as a last resort, it recalled the principle
   • that strikes may be restricted or prohibited in essential services in the
   • strict sense of the term, namely, where an interruption would endanger the
   • life, personal safety or health of the whole or part of the population.
9. 112. On this same point, the Committee noted that the Government made no
   • specific comment on the ICFTU's allegation that Act No. 22 of 1957 on the
   • settlement of labour disputes sets up a system of compulsory arbitration which
   • makes strikes impossible in practice, apart from stating that strikes should
   • be used only as a last resort. It recalled its position on conciliation and
   • arbitration procedures which are not agreed to by both parties to the
   • industrial dispute, namely, that the substitution, through legislative means,
   • of compulsory arbitration for the right to strike as a means of resolving
   • labour disputes can be justified only in certain circumstances, in particular
   • in essential services in the strict sense of the term (i.e. those whose
   • interruption would endanger the life, personal safety or health of the whole
   • or part of the population).
10. 113. On the basis of the Committee's conclusions summarised above, the
    • Governing Body approved the following interim recommendations:
      • a) As regards the alleged ban on the right to organise in trade unions
    • applying to public servants and all state employees working in
    • government-owned or controlled enterprises, and teachers, the Committee
    • recalls that all workers, without distinction whatsoever, should enjoy the
    • right to establish organisations to further and defend their interests.
      • b) It requests the Government to supply more information on the activities
    • of the KORPRI (the civil servants' association), the PGRI (the teachers'
    • association) and any other associations set up for public and para-public
    • servants to protect their interests, e.g. in collective bargaining, grievance
    • procedures.
      • c) The Committee requests the Government to review the legislative monopoly
    • situation establishing KORPRI as the sole association for civil servants so as
    • to permit civil servants to join organisations of their own choosing.
      • d) The Committee reiterates the observations of the Committee of Experts on
    • the Application of Conventions and Recommendations as regards the legislative
    • shortcomings for full observance of Articles 1 and 2 of Convention No. 98 and
    • as regards the limits on collective bargaining inconsistent with Article 4 of
    • the same Convention; it draws these aspects of the present case to the
    • attention of the Committee of Experts.
      • e) The Committee requests the Government to take steps for the amendment of
    • Presidential Decision No. 123 of 1963 which contains a too broad list of
    • services deemed to be essential, in which strike action is prohibited, but
    • which go beyond the Committee's definition of essential services.
      • f) The Committee requests the Government to supply more detailed
    • observations on the allegation that Act No. 22 of 1957 on the settlement of
    • labour disputes sets up a system of compulsory arbitration which in fact makes
    • strikes impossible.
    • B. The Government's further observations
11. 114. In a letter dated 16 February 1989, the Government repeats that freedom
    • of association and collective bargaining in labour matters are fully respected
    • in Indonesia since they are embodied in the Constitution and other
    • legislation. It asks that full consideration be given to the fact that
    • Indonesia is "now in the process of development towards the most suitable
    • pattern" of applying these rights, especially because historical experiences
    • have indicated that freedom of expression without full responsibility has
    • resulted in huge problems which endangered the integrity of Indonesia as a
    • State.
12. 115. Turning to the Committee's specific recommendations made in November
13. 1988, the Government explains that as regards the right to organise in trade
    • unions of government or public enterprise employees, it fully secures the
    • rights to organise for every citizen either to be or not to be a member of any
    • organisation, including a trade union. But in spite of this, any public
    • servant or employee of public enterprises should obey the existing
    • regulations, one of which is the requirement of being a member of KORPRI
    • ("Korps Pegawai Republik Indonesia" or Civil Servants' Corps). The Government
    • states that those who do not intend to become a member of KORPRI should decide
    • not to be a public servant or employee of public enterprises. Freedom of
    • choice to be a member of government service or a state enterprise employee is
    • a basic human right of every citizen, which is highly appreciated in
    • Indonesia. It explains that KORPRI is a "corps" and cannot be considered as a
    • workers' organisation or trade union, whereas the Teachers' Association of the
    • Republic of Indonesia (PGRI) is a professional organisation which aims at
    • developing education, improving professionalism of teachers, and contributing
    • concepts for better educational development. According to the Government,
    • members of PGRI may also become members of KORPRI, and members of KORPRI may
    • also be members of PGRI. Likewise, there are members of the All-Indonesian
    • Workers' Federation (SPSI) who are members of KORPRI and PGRI. Although KORPRI
    • and PGRI are not trade unions as such, the protection of their members is
    • their main duty and responsibility based on the Decision of the Central Board
    • of KORPRI No. Kep. 50/K-X/PP/84 on the Organisational Structure and Working
    • Procedures. The Central Board of KORPRI and its secretariat at all regional
    • levels have established the Bureau of Employee Relations which is responsible
    • for giving guidance, developing employee relations and settling any disputes
    • among the members of KORPRI, in all the public enterprises owned by the
    • central and regional governments. KORPRI has also set up a Bureau of Legal Aid
    • (on the basis of the above-mentioned Decision of 1984) which is responsible
    • for efforts and activities relating to legal assistance needed by KORPRI's
    • members. There have been a lot of disputes settled satisfactorily by the
    • KORPRI Bureau of Employee Relations.
14. 116. As regards the particular situation of teachers, the Government states
    • that protection by PGRI of its members' rights and interests against unfair
    • treatment by superiors is ensured through the use of the principle of mutual
    • understanding (brotherhood). This method is used because most teachers,
    • schoolmasters, school inspectors and officers of the Department of Education
    • and Culture are PGRI members. There have been cases where schoolmasters of
    • elementary schools and a Board member of PGRI in West Java had been downgraded
    • by the Head Provincial Office of the Department of Education and Culture and
    • which were settled by PGRI leading to their rehabilitation to the previous
    • ranks and positions. The PGRI Bureau of Legal Aid always takes action on such
    • cases of unfair treatment, injustice, violence, etc.
15. 117. Since these two organisations are not workers' organisations or trade
    • unions, the Government states that it is impossible to negotiate towards or to
    • conclude collective labour agreements for KORPRI and PGRI members. Conditions
    • of work and salary of public servants are regulated by government regulations,
    • and public enterprise employees are subject to government regulations or
    • ministerial decrees, or to the legislation specifically issued for the
    • enterprises concerned. However, it points out that in the formulation of
    • company regulations for public enterprises, KORPRI representatives from the
    • respective company are also involved in the discussions. In addition, it
    • stresses that many employees of enterprises which are fully or partly owned by
    • the Government are members of trade unions. For example, the General Labour
    • Agreement signed on the one hand by plantation enterprises in Sumatra and on
    • the other hand by the All-Indonesia Workers' Federation (the principal private
    • sector trade union) in North Sumatra Province covers labour matters concerning
    • plantation enterprises owned by the Government. Moreover, according to the
    • Government, if an employee wishes to resign from membership of KORPRI and
    • become a member of a trade union, he or she is entitled to do so in those
    • enterprises fully or partly owned by the Government. For instance, the
    • workers of PT. Semen Cibinong are organised in a trade union.
16. 118. Regarding the observation made by the Committee of Experts on the
    • Application of Conventions and Recommendations, particularly on Articles 1 and
17. 2 of Convention No. 98, the Government states that it is applying these
    • provisions, except in relation to employees of government and state-owned
    • enterprises who have decided themselves to be members of KORPRI. It adds that
    • Article 4 of Convention No. 98 is fully respected by the Government and many
    • efforts have been made to promote and encourage collective bargaining and
    • voluntary negotiations between unions and employers on conditions of work and
    • terms of employment. One of these efforts is the publication of Ministerial
    • Decree No. 01/MEN/1985 on the procedures to conclude collective labour
    • agreements; other efforts have also been made to improve knowledge about and
    • escalate the dissemination of information in favour of the wide use of
    • collective labour agreements at enterprise level. In fact, states the
    • Government, the development of collective labour agreements at enterprise
    • level is one of the target priorities of national development in the field of
    • labour policies.
18. 119. As regards Presidential Decree No. 123 of 1963, which the Committee
    • considers as inhibiting the right to strike of the unions, the Government
    • points out that it was issued over 25 years ago and is no longer relevant to
    • the current situation of the society. The Government indicates that the Decree
    • established the detailed lists of governmental agencies, enterprises and
    • development projects which were identified as vital at that period of time; at
    • present, however, many of those governmental agencies, enterprises and
    • development projects are no longer in operation. The number of workers
    • employed in the areas listed in that Decree only amounts to about 170,000
    • persons. In any case, states the Government, industrial relations based on the
    • spirit of brotherhood obviously do not see strikes as an urgent requirement.
19. 120. Lastly, the Government points out that the right to strike is fully
    • guaranteed by Act No. 22 of 1957 and Act No. 14 of 1969 in which the machinery
    • for strikes is well laid down. In fact, strikes are continuously occurring
    • despite their marked decrease from time to time. According to the Government,
    • the recorded data concerning strikes over the last four years are: in 1985, 78
    • strikes; in 1986, 73 strikes; in 1987, 37 strikes; and in 1988, 36 strikes.
    • These data evidence the fact that strikes still exist, even though industrial
    • peace has significantly improved. The trend of strikes has been substantially
    • decreasing due to the practice of mutual deliberation to obtain consensus, and
    • the effective means of settling disputes has been felt to be of much help. The
    • Government holds that compulsory arbitration does not exert coercion on the
    • disputing parties to achieve the settlement, but is rather a means of finding
    • an amicable solution based on the existing regulations and practices. Under
    • the present system, the disputing parties in a bipartite situation will
    • conduct negotiations by themselves to achieve an agreement and, if no solution
    • is found after the government conciliator has assisted, the dispute can be
    • filed with regional or national committee for labour disputes settlement.

C. The Committee's conclusions

1. 121. On the first issue, the Committee observes with regret that, despite
   • the Government's repeated reference to texts ensuring the right of every
   • citizen to join or not to join any organisation, including a trade union,
   • according to the Government's clear words, a very large section of the
   • workforce in Indonesia does not have freedom to form or join a workers'
   • organisation of its own choosing. The workers involved are government
   • employees, and the Government indicates that they can only join KORPRI, a body
   • "which cannot be considered as a workers' organisation or trade union" and
   • which is translated into English as the "Civil Servants' Corps". At the same
   • time, the Committee observes that, according to the Government, employees of
   • public enterprises owned or controlled by the State do enjoy freedom to
   • unionise.
2. 122. The Committee notes that the texts referred to by the Government are
   • worded very generally. For example, the 1945 Constitution provides, in article
3. 28, that "Freedom of association and assembly, of expressing thoughts and of
   • issuing writing and the like, shall be prescribed by statute"; Act No. 14 of
4. 1969 on the Basic Provisions Respecting Manpower, in section 11, states that:
5. "(1) All manpower shall have the right to establish and to become a member of
   • a manpower union. (2) A manpower union shall be established in a democratic
   • mannner" and in section 12: "A manpower union shall have the right to conclude
   • a labour agreement with any employer" ("employer" meaning, according to the
   • Elucidation which accompanies Act No. 14, public or private entities); and
   • Ministerial Regulation No. PER-01/MEN/1975 on the Registration of Labour
   • Organisations stipulates, in section 2, that "Workers' organisations which may
   • register at the Department of Manpower ( ... ) are those taking the form of a
   • federation of trade unions as meant in section 1c) above, which is represented
   • in at least 20 provinces and has a membership of not less than 15 trade unions
   • as meant in section 1b) above"; section 1 defines the various types of
   • organisations as:
     • a) labour organisation means an organisation voluntarily established by and
   • for workers as a trade union or federation of trade unions;
     • b) trade union means an organisation voluntarily established by and for
   • workers consisting of units within a field of industrial activity which belong
   • to a central body;
     • c) federation of trade unions means a workers' organisation the membership
   • of which consists of trade unions as meant in b) above. (It appears from the
   • most recent (1989) observation of the Committee of Experts on the Application
   • of Conventions and Recommendations made under Convention No. 98 that
   • Ministerial Regulation No. PER-01/MEN/1975 has been replaced by a 1987
   • Ministerial Regulation which apparently changes the registration procedures
   • but not the definitions.)
6. 123. It is thus clear that there is no specific ban on unionisation of
   • public servants (and other government employees) contained in the legislative
   • texts referred to by the Government and available to the Committee. However,
   • the situation in practice, in the Government's own words, seems to be quite
   • different and it follows that there is a violation of the basic freedom of
   • association principle that all workers - without distinction whatsoever -
   • should be able to form and join organisations of their own choosing.
7. 124. Leaving aside for the moment the question of compulsory membership of
   • KORPRI, the Committee must now examine the nature of workers' organisations
   • existing in Indonesia for government employees, whether these bodies be called
   • "corps" or "associations", in view of the Committee's previous decisions in
   • similar cases. In one case, the Committee decided that registration as a
   • society under the Societies Act of the country concerned of a civil servants'
   • association did not guarantee to the workers concerned the right to be
   • represented by a body to promote and defend their occupational interests (see
8. 230th Report, Case No. 1189 (Kenya), paras. 679-688). In another case where a
   • government deprived a particular category of public service workers of their
   • previously enjoyed right to belong to a trade union, the Committee found that
   • the possibility for them to join "a departmental staff association" to be
   • approved by the director of the employing institution did not satisfy the
   • requirement that workers should be able to establish and join organisations of
   • their own choosing without previous authorisation (see 234th Report, Case No.
9. 1261 (United Kingdom), paras. 343-371).
10. 125. In the present case, the Committee notes that, according to its basic
    • statute, KORPRI has the following functions or activities:
      • a) to encourage and initiate modernisation by performing constructive
    • activities and efforts;
      • b) to motivate improvement in the performance of public services;
      • c) to advise and make recommendations to the Government concerning all
    • matters relating to the aims and main tasks of KORPRI;
      • d) to accommodate, analyse, and communicate the interests of its members in
    • accordance with the government regulations and policies;
      • e) to organise efforts and activities for the development and maintenance
    • of the material and spiritual welfare of its members and their families.
    • It also notes the Government's description of KORPRI's Bureau of Employee
    • Relations and Bureau of Legal Aid, which appear to work successfully in
    • settling disputes in general rather than labour disputes. In addition, from
    • information available to the Committee, KORPRI's activities during the
    • celebration of its 17th anniversary included hospital and orphanage visits,
    • blood donations, family planning and drug abuse lectures, sports games and
    • choir competitions (see Indonesian Observer of 24 November 1988). The
    • Committee concludes from this that KORPRI does not meet the requirements of
    • the principle that all workers should have the right to form and join
    • organisations of their own choosing to defend their occupational interests.
11. 126. As for the other bodies for government employees which exist, for
    • example, to cover teachers, the Committee notes that the Government describes
    • the PGRI as a "professional organisation" which is "not a trade union as
    • such". From information available to the Committee it notes that the
    • objectives of the PGRI as set out in its Constitution are:
      • a) to achieve the realisation of the ideals of the 17 August 1945
    • Proclamation of Independence of the Republic of Indonesia;
      • b) to participate actively in Indonesian national development, especially
    • in the fields of education and culture by giving assistance to the setting-up
    • and management of the educational and cultural programmes in accordance with
    • the government policy;
      • c) to upgrade the attitude, quality and activities of the teaching
    • profession and to find ways and means for better welfare of its members.
    • The Government's description of the PGRI's activities also shows that this
    • association is a professional organisation which aims at developing education,
    • improving the professionalism of teachers and contributing concepts for better
    • educational development. In consequence the Committee considers that PGRI does
    • not completely fulfil the functions of a trade union aiming at promoting and
    • defending the interests of its members.
12. 127. Turning to the monopoly situation held by KORPRI as regards all
    • government employees (by virtue of Presidential Decree No. 82 of 1971), the
    • Committee notes the further information supplied by the Government to the
    • effect that civil servants can join other associations but must, if they
    • choose employment in the public service, join KORPRI. This does not change the
    • position stated at its earlier examination of this case. In November 1988, the
    • Committee clearly pointed out that "a situation in which an individual is
    • denied any possibility of choice between different organisations by reason of
    • the fact that the legislation permits the existence of only one organisation
    • in the area in which he carries on his occupation, is incompatible with the
    • principles of freedom of association" (para. 701). The ILO supervisory bodies
    • have acknowledged that while it is generally to the advantage of workers and
    • employers to avoid proliferation of competing organisations, a monopoly
    • situation imposed by law is at variance with the principle of free choice of
    • workers' and employers' organisations (see in this connection General Survey
    • on Freedom of Association and Collective Bargaining, 1983, paras. 136-138).
13. 128. The Committee would once again request the Government to review
    • Presidential Decree No. 82 of 1971 so as to make possible the establishment of
    • organisations to represent their occupational interests outside the
    • established structure, which would not prevent KORPRI from continuing to play
    • its welfare role as at present.
14. 129. Secondly, as regards Article 4 of Convention No. 98 and the limited
    • negotiating role available to the workers' organisations which exist for
    • government employees and employees of public corporations, the Committee takes
    • note of the Government's further description of how terms and conditions of
    • employment are set in the public sector. The Committee can only regret that
    • this information confirms its earlier understanding that both the legislation
    • and practice are not in conformity with the Convention on this point. Since
    • such a large segment of the wage-earning population (over half according to
    • the ICFTU's allegations) is thus deprived of the right to bargain
    • collectively, the Committee urges the Government to re-examine its legislation
    • so as to recognise the right to bargain collectively to those public servants
    • who are not engaged in the administration of the State (in accordance with
    • Articles 4 and 6 of Convention No. 98). In its review, the Government should
    • take special account of the Committee's jurisprudence which has held that
    • teachers, administrative staff of national teaching services, the staff of
    • national radio and television institutes, employees of the postal and
    • telecommunications services and, more generally, employees of nationalised
    • undertakings should enjoy the right to collective bargaining enshrined in
    • Article 4 of the Convention (see Digest of Decisions, 1985, paras. 599-602 and
15. 597).
16. 130. On a related point, the Committee observes that in its most recent
    • observation made concerning Article 4 of the Convention, the Committee of
    • Experts continued its criticism of the level of bargaining available to
    • private sector trade unions (bargaining is available only to registered
    • federations and registration requires coverage of at least 20 provinces and 15
    • trade unions). At the same time, however, it noted the Government's assurance
    • that the legislation in question had been repealed and replaced. This
    • Committee trusts that the Government will review the bargaining situation in
    • relation to the Committee of Experts' current criticisms and that the
    • examination will include the public employees' right to negotiate as set out
    • in the above paragraph.
17. 131. Thirdly, as regards Articles 1 and 2 of Convention No. 98 the Committee
    • notes that, contrary to the Government's statement that KORPRI members are not
    • protected by these Articles, Government Circular Letter No. Ed.1/DP/1978 of 22
    • February 1978 expressly extends protective legislation to employees of
    • government-owned or controlled companies. It also notes that the Committee of
    • Experts, in its most recent observation, again requested the Government to
    • adopt more specific legislative protection against all acts of anti-union
    • discrimination (Article 1) and against acts of interference by employers and
    • their organisations (Article 2). As it is clear from the Committee of Experts'
    • observation that legislation already exists covering several aspects of these
    • Articles which, in turn, means that relatively simple legislative additions
    • need be made, the present Committee considers that this aspect of the case
    • should be followed up by the Committee of Experts.
18. 132. Fourthly, the Committee notes that the Government acknowledges that
    • Presidential Decree No. 123 of 1963 (containing a too broad list of
    • enterprises and services in which strikes are banned) is out of date and at
    • present only applies to about 170,000 persons. The Government should
    • accordingly have no difficulty in repealing the text, or at least in amending
    • the schedule of services so as to ensure that strikes are prohibited only in
    • essential services in the strict sense of the term, namely those whose
    • interruption would endanger the life, personal safety or health of the whole
    • or part of the population (see Digest of Decisions, para. 394, and General
    • Survey, para. 214).
19. 133. Lastly, the Committee has carefully examined the further information
    • supplied by the Government on the impact of Act No. 22 of 1957 on the
    • incidence of strikes, and the provisions of the Act itself. It understands
    • that the system in force for the settlement of labour disputes follows either
    • of the following patterns:
20. (1) Both or either of the parties to a dispute, if the dispute is not
    • referred to arbitration, requests in writing the aid of a conciliation officer
    • to settle the dispute; if unsuccessful the officer refers the dispute to a
    • tripartite regional settlement committee; its decision (which is binding and
    • can be enforced through the normal judicial procedure for civil judgements)
    • can be appealed by either party to the tripartite central committee for the
    • settlement of labour disputes whose decisions are binding and enforceable if
    • not reversed or suspended by the Minister of Labour on the grounds "that such
    • action is necessary for the maintenance of public order or to protect the
    • interests of the State".
21. (2) Both parties can refer a dispute to arbitration voluntarily or on the
    • recommendation of a conciliation officer or regional settlement committee;
    • once "legalised" (approved) by the tripartite central committee for the
    • settlement of disputes, the arbitration award can be enforced in the same way
    • as a decision of the central committee and is not subject to review.
      • Fact-finding can be used as a subsidiary procedure in arbitration.
    • 134. The Committee notes in this connection that sections 13 and 14 of Act
22. No. 14 of 1969 provide, respectively: "Exercise of the right to strike, to
    • demonstrate and to lock out shall be determined by legislative regulation" and
    • "Standards relating to the termination of employment and the settlement of
    • labour disputes shall be determined by legislative regulation". Under section
23. 6 of Act No. 22 of 1957 on the settlement of labour disputes, if either party
    • to a dispute intends to take "measures" (lock-outs or strikes) against the
    • other party, notice (specifying, inter alia, a lack of co-operation over two
    • weeks in negotiations involving the conciliation officer) must be given to the
    • other party and to the chairman of the regional committee who must acknowledge
    • this in writing within seven days of his receipt of the notice; only when the
    • party concerned has received this written acknowledgement can the "measures"
    • be taken. In addition, according to section 23 of the Act, it shall be
    • unlawful for an employer or worker to take reprisals (or measures resembling
    • reprisals) in connection with a dispute or during its settlement.
24. 135. In view of the above description, the Committee concludes that
    • industrial action may be taken only after bipartite consultations have failed
    • and the regional committee informed. The total time-lag involved can be as
    • long as three weeks, or even longer if bureaucratic procrastination intervenes
    • between delivery of the advice notice and its actual conveyance to the hands
    • of the chairperson of the regional committee. Any action attempting to
    • circumvent this process incurs a penalty of three months' imprisonment or a
    • fine. In addition to this, the Committee recognises that the parties face the
    • risk of having a conciliated agreement overturned by the Minister or of having
    • an unsatisfactory settlement imposed on them through compulsory arbitration
    • against which they cannot appeal.
25. 136. In the Committee's opinion, despite the criteria written into the Act
    • concerning these two latter points, the situation is open to criticism. In the
    • first case, section 17 provides that the Minister's discretion to overturn a
    • conciliated settlement shall be taken only after consultation with the other
    • Ministers whose departments are represented on the tripartite central
    • committee for settlement of disputes, but the fact remains that he has full
    • freedom to decide in the final instance if there is a need to maintain public
    • order or protect the interests of the State. This discretion is too broad.
    • Secondly, section 19(3) does provide that in the arbitration procedure, the
    • parties themselves chose the arbitrator or members of the arbitration board,
    • but this does not temper the fact that non-appealable arbitration can be
    • forced on the parties leaving them without recourse to strike action. The
    • Committee thus recalls that it accepts limitations on recourse to strike
    • action only in the case of public servants acting in their capacity as agents
    • of the public authority, or in essential services in the strict sense of the
    • term (namely, where an interruption would endanger the life, personal safety
    • or health of the whole or part of the population) or in cases of serious
    • national crisis. While it takes due note of the fact that in the present case
    • strikes are theoretically possible in the early stages of conciliation and a
    • small number apparently take place in practice, it requests the Government to
      • re-examine the legislation in question so as to ensure that workers'
    • organisations may have recourse to the right to strike as a means of promoting
    • and protecting the interests of their members.