Informe provisional - Informe núm. 326, Noviembre 2001

trade unionists; large-scale dismissals of

• unionists pursuant to strike action; physical
• assault on a trade union leader
  321. 321 In communications dated 23 February 2001, the International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Associations (IUF) presented a complaint of violations of freedom of association against the Government of Indonesia. It supplied additional information in communications dated 16 and 22 March 2001. The IUF submitted new allegations in communications dated 24 July as well as 15 and 16 October 2001.
  322. 322 The Government supplied its observations in communications dated 15 June and 31 August 2001.
  323. 323 Indonesia has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 324. In its communication dated 23 February 2001, the IUF states that it is presenting a complaint on behalf of its Indonesian affiliate, the Shangri-la Hotel Independent Workers’ Union (SPMS), against the Government of Indonesia for violations of Conventions Nos. 87 and 98.
2. 325. More specifically, the IUF explains that the SPMS in Jakarta initiated negotiations with the management in September 2000 regarding the establishment of a pension scheme, the granting of an annual indemnity and the equitable distribution of a percentage of gratuities. The negotiations held with the management on 30 October and 1 and 22 November were unproductive.
3. 326. On 11 December 2000, the management stated that it refused to have the President of the union and elected delegate, Mr. Halilintar Nurdin, attend the scheduled negotiations, and that it intended to reopen the issue that had previously been agreed upon as to the matters under discussion. The principle of setting up a picket line on 31 December 2000 was the subject of a vote on 14 December. On 20 December, the management prohibited any posting or distribution of leaflets in the hotel.
4. 327. On 22 December 2000, the management laid off Mr. Halilintar Nurdin before dismissing him and prohibited him from entering the hotel in order to do his work. The hotel employees met together in the hotel lobby and signed a petition protesting this action. At 4 p.m., the management decided to transfer the guests to other hotels in Jakarta; at 6 p.m. the management declared the hotel closed and locked out all the employees. In a communication of 10 January 2001, the union stated that the management had bribed a representative of the Ministry of Labour in order to facilitate the dismissal of the President of the union, Mr. Halilintar Nurdin.
5. 328. On 26 December 2000, at 1.15 a.m., approximately 350 members of the police force attacked the striking workers and, at the request of the hotel management, had the hotel evacuated by force. Approximately 20 unionists, including the IUF representative in Indonesia, Hemasari Dharmabumi, were detained at the police station for a day.
6. 329. At the beginning of January 2001, the management sent approximately 400 trade unionists a letter stating that their participation in the strike would result in their losing their jobs unless they were prepared to resign from the union. Since then, the management has refused to take part in any negotiations.
7. 330. On 20 February 2001, Muhammed Zulrahman, treasurer of the union and an employee of the hotel, was hospitalized after having been attacked by the head of the hotel’s bodyguards. The police released one of the assailants without laying any charges. On the same day, Governor Sutiyosa, who is in charge of the administration of the city of Jakarta, announced that he would put at the hotel’s disposal special security forces in the event the management succeeded in reopening the hotel with non-striking workers.
8. 331. The IUF asserts that despite the union’s repeated requests, neither the Ministry of Labour nor the labour tribunal intervened concretely to protect the workers’ rights to freedom of association and to bargain collectively. In the IUF’s view, the Indonesian Government failed to meet its obligation to ensure respect for the laws of Indonesia concerning freedom of association and protection of trade unionists, particularly regarding the use of a lockout as a means of resolving a collective dispute, and the collective dismissal of over 400 employees due to their trade union membership. It also denounces the use of governmental police forces to assist the employer and to break up the collective protest action of the employees.
9. 332. In its communication dated 16 March 2001, the IUF refers to a letter dated 15 March 2001, sent by it to the President of Indonesia. In this letter the IUF expresses its grave concern at the reported planned reopening of the Shangri-la Hotel in Jakarta on 17 March 2001. The IUF requests the President to use his good offices to persuade the management of the Shangri-la Hotel to postpone this reopening. It explains that the current situation can only be made more difficult as a result of an act that could be interpreted as blatant provocation. Reopening at a time when locked-out workers continue to exercise their legitimate right to protest the denial of their fundamental rights can only increase the atmosphere of tension and crisis.
10. 333. The IUF points out that the situation at the Shangri-la Hotel is the subject of widespread interest within the international community. In the event that the Shangri-la Hotel management is not willing to postpone the opening, there is clearly a risk that tensions will rise dramatically and an attendant risk of violence against those who would choose to exercise their legitimate right of protest. The IUF emphasizes that in this situation the Indonesian Government will necessarily be held fully accountable for any violence by private or state security forces that might be inflicted on those workers. The IUF therefore urges the President to act as a guarantor of the rights of those workers who are currently locked out of the hotel and being denied their rightful employment. It also asks the President to ensure that those workers are provided protection in the event that anyone seeks through force to prevent them from fully exercising their rights.
11. 334. In its communication dated 22 March 2001, the IUF claims that the Government’s mediation efforts have not been followed up by the hotel management. In effect, the hotel management sabotaged tripartite negotiations with the Ministry of Manpower and Transmigration by refusing to deliver to the union (the SPMS) an invitation by the Ministry on the talks. The invitation was only delivered by the hotel to the SPMS on Tuesday, 20 March 2001, while talks to discuss the dispute had been set for Wednesday, 14 March 2001. The IUF claims that the hotel management must have received the letter to be delivered to the union before 14 March and considers that the management intentionally tried to hide the letter.
12. 335. The IUF adds that the SPMS comprises nearly 500 employees of the hotel who were dismissed after holding a strike pursuant to which the management closed the hotel for almost three months. The hotel reopened on Saturday, 17 March 2001. Meanwhile, the issue of the dismissals of the workers affiliated with the SPMS is going through an arbitration process at the government-sanctioned Central Committee for the Settlement of Labour Disputes (P4P), which has yet to hand down its decision. According to the IUF, only 232 SPMS members have accepted severance payment and officially resigned from the hotel, while 273 others continue to demand reinstatement.
13. 336. In its communication dated 24 July 2001, the IUF makes more detailed allegations in respect of the dispute at the Shangri-la Hotel. The IUF also attaches letters and other documentation in support of its allegations. First of all, it contends that the reasons presented by the company for the dismissal of Mr. Halilintar Nurdin, Chairperson of the SPMS, are merely an excuse for a greater purpose, namely the disintegration of the union established independently within Hotel Shangri-la Jakarta. In relation to this, the Government through the Ministry of Manpower and Transmigration has supported the management’s attempt to break the union. This anti-union attitude is further illustrated by the fact that the Ministry granted the company the permission to terminate the working relationship of hundreds of workers who are members of the SPMS, in order to assist the management in the process of breaking the union. This is proven by the large number of testimonies from workers who were intimidated when they were summoned for registration for re-employment, as they were made to sign an affidavit conveying their resignation from the membership of the SPMS (affidavit testifying the occurrence of this event is enclosed by the IUF).
14. 337. The IUF further claims that the workers did not hold an illegal strike. The spontaneous protest in the afternoon of 22 December 2000 was attended by representatives of each outlet, the objective of which was to protest against the management’s suspension and subsequent dismissal over Mr. Halilintar Nurdin. Since only representatives were present, the protest did not involve all members of the SPMS who were on duty at the time. Since it did not involve all union members, the protest was not intended to cause a cessation of all hotel activities. The strike held due to the management’s refusal to negotiate was planned to be held on 31 December 2000 as stated in the signed notification from SPMS dated 27 December 2000 and submitted to the proper authorities. The management had in fact anticipated the occurrence of the non-premeditated spontaneous protest as the union members’ response to the dismissal of their Chairperson as apparent from the fact that from the early morning of 22 December 2000 the management had prepared an increase in the number of security personnel and had requested the presence of police and military personnel to be on guard. The majority of SPMS members kept working as usual until they were sent home or dismissed by the company on 23 December 2000 because the company announced that the hotel was temporarily closed (lockout). Several hours following the workers’ spontaneous protest, a function in commemoration of the anniversary of the South Korean independence organized by the South Korean Embassy was still held from 7 pm to 9.30 pm.
15. 338. The IUF then contests the fact that workers had occupied the hotel lobby. An occupation is a coercive act of taking control over a thing or place. The workers in their protest had never coercively taken control of the hotel lobby. There was no act of compelling other parties to leave the premises; there was an attempt to hinder other parties from entering the hotel lobby. From 23 December 2000 the workers were the ones present in the hotel lobby not because they had compelled other people to leave but because the company had emptied the lobby and the whole of the hotel (lockout). The emptying and evacuation of guests from hotel premises carried out by the company had actually disadvantaged the workers, as it reduced their bargaining position which initially was intended to impel the company to fairly negotiate with them.
16. 339. The IUF also contests that the workers’ protest caused the cessation of hotel activities. The company had executed a lockout on 23 December 2000. The temporary closing of the hotel by the company was accompanied by the evacuation of guests staying at the hotel, the cancellation of various functions and events previously ordered, and sending home or temporarily dismissing workers who were still working on that day. To secure hotel premises from the potential access or other parties to take advantage of the situation (theft or looting), the following day on 24 December 2000, workers through hotel security personnel closed the entrance to the main lobby of the hotel as a security precaution. When the hotel entrance was closed by the hotel security, the hotel was already empty and non-operational due to the lockout executed by the company the day before.
17. 340. Finally, the IUF asserts that the workers had not even in the slightest caused physical damage to hotel facilities and neither had they broken hotel glass doors. The company had never officially filed charges concerning the damages to the police. The glass door was broken by the police in the early morning of 26 December 2000 at 1.15 am when hundreds of police personnel rushed into the hotel, attacked the workers, and evacuated the workers to the Central Jakarta Police Station (testimony of a hotel security guard is enclosed by the IUF). The police had also caused more damage when they searched the hotel premises and when they carried out what they called a “sweeping” causing damage to hotel employee lockers (the written complaint of the SPMS of the damage to the lockers of its members is enclosed by the IUF). According to the IUF, the company was aware of the fact that the damage, particularly that to the employee lockers, was not caused by the workers. And therefore, the company awarded compensation for the damaged lockers to resigning workers in the amount of Rp.300,000.00 each (the testimony of receipt of locker compensation is enclosed by the IUF).

B. The Government’s reply

1. 341. In its communications dated 15 June and 31 August 2001, the Government provides the following observations. First of all, it explains that the SPMS (Reformation Tourism Workers’ Union) was previously established in the Shangri-la Hotel, Jakarta, and its President was Mr. Halilintar Nurdin. This union and the management had successfully set up a collective labour agreement (CLA) that among others covered, inter alia, matters concerning bonus, premium, service charge and pension scheme. The SPMS then changed its name to SPM (Independent Workers’ Union). Mr. Halilintar Nurdin remained President of this union as well.
2. 342. On 7 September 2000, this union initiated negotiations with the management for renewal of the CLA that was to expire on December 2001. Based on Act No. 21 of 1954 on labour agreements, negotiation for renewal of the CLA should be conducted at least three months before the prevailing CLA expires. The negotiation for improvement of the CLA is connected with the existence of Manpower Ministerial Regulation No. 02 of 1999 on service charge that states that the distribution of service charge should be based on “seniority”. There is no further explanation about the term “seniority”. Therefore, the workers understand seniority to be based on the length of service.
3. 343. The Government then indicates that prior to negotiations between management and the workers, guidance on the meaning of the mentioned provision was given by inviting officials/mediators of the District Office of the Department of Manpower, Central Jakarta, in order to reach mutual understanding on the mentioned regulation. This guidance meeting was attended by two persons who were employees of the Grand Hyatt Hotel and of the Regent Hotel. These two persons knew Mr. Halilintar Nurdin but were not invited by the management to the meeting. The presence of the mentioned persons created a disorderly situation that was followed by the dissatisfaction of other workers with the explanation of the provisions in question.
4. 344. Moreover, on 8 December 2000, in a workers’ union meeting, Mr. Halilintar Nurdin humiliated the general manager of Shangri-la Hotel and his secretary. The mentioned humiliation is proven by a statement signed by a number of participants of the meeting. On 11 December 2001, there was a meeting between the management and Mr. Halilintar Nurdin who was accompanied by a number of executive members of SPMS. The meeting was designed to obtain clarification on the humiliation made by Mr. Halilintar Nurdin as such action is classified as an infringement of article 18, paragraph 1, point (f) of Manpower Ministerial Regulation No. 150/Men/2000 on termination of employment, service period award, severance pay and compensation pay and of the provisions stipulated under the CLA of Shangri-la Hotel.
5. 345. On 12 December 2000, the management found a poster made by Mr. Halilintar Nurdin. As the poster shows a picture of a bomb, it was considered as an intimidation by the management. Nevertheless, in the meetings that followed on 22 and 23 December 2000, when a strike and a further meeting at the District Office of the Department of Manpower were going on, Mr. Halilintar Nurdin kept attending as the President of the workers’ union. The management never prevented Mr. Halilintar Nurdin from attending the meetings on employment issues between the management and SPMS.
6. 346. However, on 22 December 2000, the management decided to suspend Mr. Halilintar Nurdin as an employee of the hotel based on serious violations of provisions stipulated under the CLA. These violations include:
   • – provoking other employees to strike by putting up an intimidating poster;
   • – inviting outsiders who were not employees of the Shangri-la Hotel to a guidance programme without prior notification to the management;
   • – humiliating the general manager and his secretary through his statement of 8 December 2000;
   • – carrying out disturbing acts that created a sense of dissatisfaction and distrust among employees of the Shangri-la Hotel and disturbed industrial peace.
7. 347. The Government points out that the suspension in question was based on article 47.2.3 of the prevailing CLA of Shangri-la Hotel that states that each employee of the Shangri-la Hotel who seriously violates provisions stipulated under the CLA and under existing employment regulations may be directly terminated from employment. On the same date (22 December 2000), about 500 employees affiliated with the SPMS went on strike and demonstrated at the Shangri-la Hotel. The demonstration was carried out by occupying areas of the hotel and by closing all entrance doors to the hotel as well as by searching all people coming in and going out of the hotel. Such action frightened guests of the hotel. The management closed the hotel because of such actions by the employees from 22 to 26 December 2000.
8. 348. Furthermore, the allegation that a bribe was paid to officials of the Department of Manpower amounting to Rp.5,500,000 is not true. The sum of money was delivered to Mr. Nefo Dradjati, Director of HRD of Shangri-la Hotel, as severance payment to Mr. Nuril Fuadi, whose case was being processed at the Regional Committee for Labour Dispute Settlement on 1 September 2000. It was predicted that his case would lead to a decision of severance payment. The total amount of that money was calculated to be Rp. 5,500,000. However, since Mr. Nuril Fuadi appealed for his case to a higher court, the severance payment has not yet been given. None of the officials of the Department of Manpower received such money.
9. 349. The Government explains that the evacuation of the workers was carried out by the police since the employees affiliated with SPMS had occupied the hotel area. The police carried out an investigation suspecting that criminal action had occurred in the hotel. Meanwhile, about 20 members of the SPMS and the representative of IUF in Indonesia, Ms. Hemasari Dharmabumi, were arrested and detained for a day merely to obtain information on the chronology of the suspected criminal action in the hotel.
10. 350. The Government then refers to correspondence allegedly sent by the management to a number of SPMS members to ask them to resign from their union. According to the Government, what actually happened was that in early January 2001 the management sent a letter to the employees involved in the illegal strike and the demonstration and occupation of the hotel area, stating that they had committed a serious violation of the provisions of the CLA and that their cases would be processed through the District Office of the Department of Manpower.
11. 351. Meanwhile, the security guards of the hotel never assaulted Mr. Zulharman on 20 February 2001. The fact was that Mr. Zulharman was involved in fighting with an unknown party who was absolutely not related with the events that had occurred in the Shangri-la Hotel.
12. 352. The Government indicates that that case of Shangri-la Hotel resulted in the application for termination of employment of 580 workers submitted by the management. The application for termination of employment was divided into the cases of 420 workers and of 159 workers which were brought to the Central Committee for Labour Dispute Settlement (P4P) and the case of one person (Mr. Halilintar Nurdin) which was brought to the Regional Committee for Labour Dispute Settlement (P4D). Both committees gave permission to the employer to terminate the employment of the workers who had not already resigned on their own initiative because they considered that occupation of the hotel lobby could disturb hotel activities and even result in losses for the employer, morally and materially. Although P4D considered that Mr. Halilintar’s actions in his capacity as union leader could be classified as a serious offence, the P4P considered that the actions of the workers under its jurisdiction could not be classified as serious offences. Hence, they were entitled to severance and service payments as well as compensations in accordance with the provisions of the prevailing ministerial regulation.
13. 353. In conclusion, the Government stresses that it is striving to improve its industrial relations climate including through the elaboration of three draft laws, one of which (the Trade Unions Act of 2000), has already been enacted. The Labour Dispute Settlement Bill is currently being debated by Parliament. The Government is also attempting to improve the composition of P4P. However, since Indonesia is still in a period of transition, there are many constraints to be found in the process of improvement. Finally, the Government indicates that it will send its reply in due course to the new allegations of the IUF in its communication dated 24 July 2001.

C. The Committee’s conclusions

1. 354. The Committee notes that the allegations in this case concern the large-scale dismissals of members of the Shangri-la Hotel Independent Workers’ Union (SPMS), an affiliate of the complainant, pursuant to strike action undertaken by employees of the hotel. The allegations also relate to violent police intervention to break the strike and to evacuate the hotel lobby of the striking employees leading to the arrest and detention of approximately 20 unionists. Finally, the allegations involve the physical assault on the SPMS’s treasurer by the head of the hotel’s bodyguards and the release by the police of one of the assailants without laying any charges.
2. 355. As regards the alleged large-scale dismissal of SPMS members pursuant to strike action undertaken in the Shangri-la Hotel in December 2000, the Committee notes that according to the complainant’s more recent communication, approximately 500 hotel employees were dismissed. The Committee observes that the Government’s statement that the management of the Shangri-la Hotel had applied to the Central and Regional Committees for Labour Dispute Settlement for the termination of employment of 580 workers involved in the strike action and that both committees gave permission to the employer to terminate the employment of those workers who had not already resigned on their own initiative. The Committee further notes the Government’s statement that the workers were terminated because their actions were deemed to be offences although not serious ones thereby entitling them to severance and service payments as well as compensation.
3. 356. It would appear to the Committee from the information at its disposal that in effect the 580 SPMS members were dismissed by the management of the Shangri-la Hotel for their involvement in strike action in late December 2000. There is nothing to indicate to the Committee that the strike action in question was illegal. The hotel industry is not an essential service in the strict sense of the term in which strikes can be prohibited. Moreover, the reasons put forward by the labour dispute settlement committees, namely that the occupation of the hotel lobby by striking unionists disturbed hotel activities and resulted in material and moral losses for the employer do not, in the Committee’s view, constitute sufficient grounds justifying the termination of employment of the unionists concerned. In this respect, the Committee would draw the Government’s attention to the principle that the dismissal of a worker because of a strike, which is a legitimate trade union activity, constitutes serious discrimination in employment and is contrary to Convention No. 98. When trade unionists or trade union leaders are dismissed for having exercised the right to strike, the Committee can only conclude that they have been punished for their trade union activities and have been discriminated against [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 591 and 592]. Furthermore, it would not appear that sufficient protection against acts of anti-union discrimination, as set out in Convention No. 98, is granted by legislation in cases where employers can, in practice, on condition that they pay the compensation prescribed by law for cases of unjustified dismissal, dismiss any worker if the true reason is the worker’s trade union membership or activities [see Digest, op. cit., para. 707]. In this respect, the Committee notes the complainant’s statement that only 232 SPMS members have officially resigned from the hotel, while 273 others continue to demand reinstatement. Noting that the Government does not provide its observations in this regard, the Committee would request the Government to indicate exactly how many dismissed SPMS members are demanding reinstatement in their jobs at the Shangri-la Hotel; it further requests the Government to take steps to ensure the reinstatement of those persons if they so wish.
4. 357. Turning to the allegation that the abovementioned police intervention on 26 December 2000 resulted in the arrest and detention of approximately 20 unionists, including the IUF representative in Indonesia, the Committee notes the Government’s statement that in effect about 20 SPMS members and the IUF representative in Indonesia were arrested and detained for a day merely to obtain information on the chronology of suspected criminal events in the hotel. The Committee fails to see what criminal activities could have been committed by unionists occupying the lobby of a hotel that was completely evacuated of its guests and employees by the management a few days earlier. In this regard, the Committee reminds the Government that the arrest and detention, even if only briefly, of trade union leaders and trade unionists for exercising legitimate trade union activities constitute a violation of the principles of freedom of association. Moreover, measures depriving trade unionists of their freedom on grounds related to their trade union activity, even where they are merely summoned or questioned for a short period, constitute an obstacle to the exercise of trade union rights [see Digest, op. cit., paras. 70 and 77].
5. 358. Regarding the alleged assault on Mr. Muhammed Zulharman, treasurer of the union, by one of the hotel’s bodyguards, and the release by the police of one of the assailants without any charges being laid, the Government contends that the security guards of the hotel never assaulted Mr. Zulharman on 20 February 2001. According to the Government, Mr. Zulharman was involved in fighting with an unknown party who was absolutely not related with the events that had occurred in the Shangri-la Hotel. The Committee notes nevertheless that the Government does not deny that Mr. Zulharman was assaulted resulting in his subsequent hospitalisation. In this regard, the Committee would recall that the rights of workers’ and employers’ organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of these organizations, and it is for governments to ensure that this principle is respected. Moreover, in the event of assaults on the physical or moral integrity of individuals, the Committee has considered that an independent judicial inquiry should be instituted immediately with a view to fully clarifying the facts, determining responsibility, punishing those responsible and preventing the repetition of such acts [see Digest, op. cit., paras. 47 and 53]. Consequently, the Committee would urge the Government to establish without delay an independent judicial inquiry into the physical assault in Mr. Zulharman on 20 February 2001 with a view to fully clarifying the facts, determining responsibility, punishing those responsible and preventing the repetition of such acts. It requests the Government to keep it informed of the results of such an inquiry
6. 359. As regards the allegation that the management had bribed a representative of the Ministry of Labour in order to facilitate the dismissal of the union President, Mr. Halilintar Nurdin, the Committee notes that the Government categorically refutes this allegation. The Committee would request both the complainant and the Government to provide further clarification on this issue.
7. 360. In order to pronounce itself on this case in full knowledge of all the facts, the Committee would request the Government to transmit a copy of the collective labour agreement (CLA) prevailing during the time of the dispute at the Shangri-la Hotel, as well as the observations of the national organizations of workers and employers involved in this dispute.
8. 361. Finally, noting that the Government has not replied to the complainant’s new allegations contained in communications dated 24 July as well as 15 and 16 October 2001, the Committee requests the Government to provide its observations thereon without delay.