Informe provisional - Informe núm. 331, Junio 2003

1. 473. The complaint is set out in a communication of 25 November 2002 supplemented by 30 appendices. In support of its complaint, the Chemical, Energy and Mine Workers’ Union sent two sets of additional information through communications of 25 January and 28 February 2003. A third set of additional information, also dated 28 February 2003, was received on 1 April.
2. 474. The Government replied to the complaint in a communication dated 25 February 2003 and was invited to submit its observations on the three communications containing the additional information submitted by the complainant. Both the complainant and the Government have sent an English version of the collective labour agreement in force in the Bridgestone Tyre Indonesia Company for the period 2001?03.
3. 475. Indonesia has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), as well as the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 476. The complainant alleges that the Bridgestone Tyre Indonesia Company has infringed trade union rights, in contravention in particular of the provisions of Conventions Nos. 87 and 98 and article 28 of Act No. 21 concerning trade unions, by suspending (“schorsing” in the national legal terminology) four union officers and seeking authorization from the competent authorities to dismiss them. The four union officers concerned are:
   • – Mr. Sarno H., chairperson of the union section of the company’s factory in Bekasi;
   • – Mr. Hazrial Nazar, chairperson of the union section of the company’s factory in Karawang;
   • – Mr. Juli Setio Raharjo, chairperson of the union section of the company’s head office in Jakarta;
   • – Mr. Machmud Permana, secretary of the union section of the company’s factory in Bekasi.
2. 477. The complainant submits that the company should be instructed to set aside its decisions of suspension. Further, the Government should be asked to handle the matter to rectify the weakness of the enforcement of labour law, the length and complexity of the labour law settlement process as well as the competent authorities’ bias against workers.
3. 478. The facts of the case and the contentions presented by the complainant can be summarized as follows.
   • Background
4. 479. Under article 27(1) of the collective labour agreement in force in the Bridgestone Tyre Indonesia Company, negotiations on the review of the basic salary started at the beginning of March 2002. Since no agreement had been reached by the end of the month, both parties agreed to submit the matter for mediation to the officer of the Department of Manpower of the Bekasi district.
5. 480. At the same time, a union officer (most likely from the Bekasi factory although there is no explicit specification from the complainant), pressed by the workers to give explanations on the negotiations, sought the authorization of the company to hold a meeting. During the meeting, the workers suggested calling a strike. The union representative replied that such an initiative would be contrary in particular to the agreement concluded between the local union and the company, designated by the complainant as an agreement concerning the effort to prevent strike action.
6. 481. On 27 March 2002, the three chairpersons of the union sections of the Bekasi and Karawang factories and of the head office in Jakarta, as well as the secretary of the union section of the Bekasi factory, issued a communication on the union letterhead. This communication contained three sets of instructions (to use the terminology of the complainant) to the workers: (1) no overtime as of 28 March until the April salary increase; (2) work should continue as usual; (3) on the national holiday (29 March) work should be performed in accordance with the applicable working calendar. The complainant indicates that overtime payment represents 40-50 per cent of the total wage. The aim of the communication was therefore to enable the company to save money and thereby to grant workers a percentage of basic salary increase higher than 25 per cent.
7. 482. In accordance with article 10 of the collective labour agreement, the distribution of the union’s communication to workers had to be authorized by the general affairs manager. On 28 March 2002, the latter refused to put his visa on the communication and returned it to the union. Since explanations had been given on the contents of the communication at the meeting organized by the union, it appears that these oral instructions were considered to be sufficient. The communication was eventually distributed (a copy of the communication in the national language is appended to the complaint, signed by the four officers; the name of the general affairs manager is written down but there is no signature below it).
8. 483. On 1 April 2002, the company management asked the union to send back the communication for its signature but, according to the complainant, never returned it. On the same day, the chairperson of the union section of the Bekasi factory, Mr. Sarno, was summoned by the director of the factory in the presence of the general affairs manager. The director of the factory questioned the lack of distribution of the union’s communication to the president director of the company and asked explanations on its contents. He added that the level of production was decreasing because the workers were not working on overtime.
9. 484. On 5 April 2002, the local union and the company rejected a proposed increase of the basic salary submitted by the Department of Manpower of the Bekasi district. The parties brought the matter before the Regional Labour Disputes Settlement Committee. On 26 April 2002, the committee decided on a basic salary increase of 26.59 per cent. On the same day, the president director summoned a meeting with the three chairpersons of the union sections and the secretary of the local union of the Bekasi factory. During this meeting, the decision of the Regional Labour Disputes Settlement Committee was accepted by all the parties. The president director indicated that workers should be ready to work on overtime to increase production. The secretary of the local union of the Bekasi factory informed him that a letter withdrawing the previous union’s communication on overtime had been prepared. The general affairs manager put his signature on the union’s new letter (a copy of which, in the national language, is attached to the complaint). This letter informed workers of the agreement reached on the basic salary increase and of the withdrawal of the previous instruction concerning overtime. The letter was distributed the same day and bore the signature of the three chairpersons of the local unions as well as of the secretary of the local union in the Bekasi factory. On 26 April 2002, as well, an agreement on the basic salary increase (appended to the complaint in the national language) was signed between the union – represented by Mr. Sarno – and the company.
   • Decisions of suspension of the four
   • union officers by the company
10. 485. On 21 May 2002, the complainant indicates that the company called a bipartite meeting without giving any details of the agenda. On 22 May 2002, the meeting was held in the presence of Mr. Sarno H., Mr. Machmud Permana, Mr. Hazrial Nazar and Mr. Juli Setio Raharjo. All of them were invited to the meeting in their personal capacity and not as union representatives. The four union officers were informed that, as a result of the communication of 27 March sent out by the union during the negotiations on the basic salary increase, and in particular the instruction concerning overtime, the production target had gone down. As a consequence, the company decided to suspend them pending their dismissals. These sanctions were notified in writing to each of the four employees through four decisions of the president director. On the same day, the president director also requested from the competent authorities the authorization to proceed with the dismissal.
11. 486. The complainant indicates that, in support of the suspensions and the requests for dismissal, the president director invoked mistakes on the part of the four union officers – amounting to criminal actions – under article 67 of the collective labour agreement, which relates to a “major violation act”. Thus they were accused, among other things, of persuading the employer and workers to conduct an action “contrary to the law and morals”, of intentional damage to the company’s assets and good name and reputation, and of leak of information. In a subsequent letter to the union (appended to the complaint), the president director indicated that the four employees were dismissed as workers of the company and not in their capacity of union officers. In a declaration made in front of some workers of the company, as well as in front of the Minister of Manpower and Transmigration, the president director explained that the three years of Mr. Sarno’s leadership and that of his colleagues created problems for the company; hence, the procedures of dismissal decided by the company’s headquarters in Japan.
12. 487. The complainant adds that the decisions of suspension were supplemented by the following measures. First, the four union officers were prohibited from entering the company premises although in principle they were still considered union officers; the exercise of their union activities was thus impeded since the union’s premises were located inside the company. Further the suspension was decided at first with partial pay (amounting to a 25 per cent wage cut) from 23 May until 22 November 2002 and then without pay (salary and benefits).
    • Infringements of trade union rights
13. 488. In the complaint, the following arguments are presented. First, the decisions of suspension as preliminary steps to the dismissals are contrary to the collective labour agreement, a number of provisions of the national legislation on trade union rights and, in particular, article 28 of Act No. 21 of 2000 which protects workers against acts of anti-union discrimination in the course of their employment, as well as Conventions Nos. 87 and 98. The complainant points out that the company’s accusations were made outside any legal process and in particular in the absence of a thorough investigation to establish whether there was any foundation to the accusations. Such accusations damage the good name and reputation of the four employees. The complainant also underlines that, during the three years of the union officers’ activities, a number of agreements had been reached with the president director and, in particular, the collective labour agreement and the agreement on wages. In general, workers’ welfare improved during this period and ultimately this was beneficial to the company. The complainant underlines also that the four employees suspended were representatives of a union duly recognized by the company and with whom it had just reached an agreement on the basic salary increase. Finally, the complainant contends that the suspension without pay of the four union officers is contrary to article 6(4) of Manpower Ministerial Decree No. 150/2000.
    • Events subsequent to the decisions of suspension
14. 489. On 22 May 2002, the four union officers organized a meeting to inform the union of the company’s decisions. On the same day the production of goods stopped as a result of a movement launched by the workers to express their solidarity with the four union officers. The following day the four union officers sought the intervention of the Minister of Manpower and Transmigration to settle their case. The Minister promised to do so but, at the same time, requested the officers to urge workers to resume work. This was done through the local union officers but to no avail. The four union officers wrote to the president director to ask for the withdrawal of his decisions. They also expressed concern about the stoppage and suggested settlement of the matter through the bipartite mechanism. On 25 May 2002, the four union officers were informed that the Minister set a deadline for the resumption of work on 27 May; if this deadline was not met, the Minister indicated that it would not intervene to settle the case of the four union officers. On 25 May 2002, workers were urged to resume work in a joint appeal signed by the chairperson, the secretary of the union section of the Bekasi factory, as well as by the president director; as a result, workers took up their duties on the same day.
15. 490. On 27 May 2002, the union, the president director and the general affairs manager were summoned by the Minister of Manpower and Transmigration to settle the case relating to the four union officers. In the course of the meeting, the president director indicated that the decisions had been taken by the top management in Japan because of the problems created by the four union officers were detrimental to the company and its workers. The general affairs manager underlined that the union’s communication instructing workers to refuse to work overtime decreased the level of production and was perceived as a threat by workers. For its part, the union pressed for the reinstatement of the four officers and promised to remain open to any suggestion and advice from the company on the conduct of the union’s activities. The Minister suggested that the matter be settled through a bipartite meeting. The president director refused this suggestion, underlining that the matter should be processed according to the applicable legislation. The Minister maintained his position and appointed the Manpower Officer of the Bekasi district to act as a facilitator; the two sides gave their agreement to this appointment. A meeting was held subsequently on 10 June 2002 but the parties were not able to reach an agreement. In these circumstances, on 26 June 2002 the Minister of Manpower and Transmigration ordered the Department of Manpower and Transmigration to process the requests for dismissal of the four union officers under Act No. 21 of 2000.
16. 491. The complainant further submitted to the competent authorities allegations of infringements of trade union rights on the part of the company. On 16 July 2002, the Director of “Working Norm Control/Supervision” of the Department of Manpower undertook an investigation.
    • National procedures implemented
17. 492. The additional information submitted by the complainant gives some general indications as well as details on the procedures implemented in each individual case.
18. 493. The complainant indicates that the Director of “Working Norm Control/Supervision” of the Department of Manpower and Transmigration undertook the investigation into the allegations of trade union infringements by the company, in accordance with article 28 of Act No. 21. Nonetheless, at the date of the submission of the complaint, the investigation had not led to any result and the process followed was unclear. Further, in a letter of 20 January 2003 written to the “inspector general” of the Department of Manpower of the Ministry of Manpower and Transmigration Ministry, the complainant requested the interruption of the dismissal because the investigation on the violation of trade union rights was under way. The complainant also underlines that the “director-general of Manpower Control and Supervision” of the Department of Manpower and Transmigration suggested to the Manpower District Office to postpone the dismissal process and that the opposite suggestion was made by the another official of the same department.
19. 494. In the third set of additional information, the complainant indicates that it requested the competent bodies in charge of examining the dismissal requests made by the company, to interrupt the procedures. The reason given was that the real issue at hand was one of anti-union discrimination and that, therefore, it should be referred for decision to the civil court once the investigation had been completed. The complainant underlines that the investigation process is very slow.
20. 495. The following indications can be made on the national procedures implemented in respect of the four union officers concerned.
    • Mr. Hazrial Nazar (chairperson of the local union
    • in the Karawang Factory)
21. 496. At a first stage of the procedure, the Manpower District Officer of the City of Karawang, acting as a mediator, suggested Mr. Nazar’s reinstatement with a warning letter. The company rejected this suggestion and the case was brought before the Regional Labour Disputes Settlement Committee. The Committee handed down a decision of dismissal on 8 January 2003. Extracts of the decision – in a translated version – are reflected in the documentation submitted by the complainant.
22. 497. According to these extracts, the company indicated that the dismissal was justified because of the instruction contained in the communication of 27 March signed by Mr. Nazar and the disruption created by this instruction. The company considered that Mr. Nazar’s conduct infringed several provisions of the collective labour agreement and that he committed a serious violation of the agreement and that his dismissal was thus justified under article 67. For his part, Mr. Nazar rejected the company’s arguments that he had infringed these provisions, maintained that the instruction was compatible with article 20 of the agreement and claimed that the decision of suspension and the request for his dismissal were contrary to a number of provisions of the national legislation and to Conventions Nos. 87 and 98. The Committee found that by circulating the instruction without the company’s authorization, in his capacity of union officer, Mr. Nazar infringed several provisions of the collective labour agreement. Considering that a warning letter was sent to Mr. Nazar – a factual point challenged by the complainant – and that the latter showed no sign of amending his conduct, the Committee concluded that his dismissal could not be avoided and that final payments should be made to him.
23. 498. The Committee eventually cancelled its ruling by a decision of 4 February 2003 – notably because it was based on a warning letter, which did not exist; a letter of apology was sent to Mr. Nazar on this account. The Committee issued a second decision on 11 February 2003 on the referral of the matter to the National Labour Disputes Settlement Committee.
    • Mr. Sarno H. and Mr. Machmud Permana, respectively chairperson and secretary of the local union
    • of the Bekasi factory
24. 499. The case of Mr. Sarno and that of Mr. Permana were brought on 22 January 2003 before the Manpower District Officer of the City of Bekasi, acting as a mediator. The Manpower District Officer submitted a recommendation on 18 February 2003 to the parties. The text of this recommendation has been translated and communicated by the complainant. It can be summarized as follows. In support of its decisions, the company gave similar explanations to the ones given in the case of Mr. Nazar, adding that the 27 March communication had been distributed without its authorization. The two union officers concerned underlined that the 27 March instruction had been issued and distributed in their capacity as union representatives. They recalled the purpose of the instruction, that they had sought the company’s authorization for its distribution but that its management could not put its signature on the instruction.
25. 500. The mediator took the view that the distribution of the instruction without prior authorization of the company infringed article 10 of the collective labour agreement. In this respect, the company’s decisions to suspend the two officers and request their dismissal could be understood. On the other hand, the mediator noted that the warning letter, provided for under the national legislation, had not been sent to the two union officers. In these circumstances, the mediator suggested that the company reinstate Mr. Sarno and Mr. Permana with a warning letter.
    • Mr. Julio Setio Raharjo chairperson of the local union
    • of the head office in Jakarta
26. 501. In submitting its additional information on 25 January 2003, the complainant simply indicates that the mediation process has not yet been conducted in this particular case. In its third set of additional information, the complainant indicates that the Manpower District Office of the City of Jakarta organized a last meeting on 21 February 2003 between the parties.
    • B. The Government’s reply
27. 502. While noting the importance and the seriousness of the case, the Government mainly submits in its reply of 25 February 2003, information on the implementation of the national procedures.
28. 503. At the outset, it underlines that under the national legislation local governments have authority to settle labour-related problems but that, given the importance of the matter, the central Government took some measures falling directly under its authority.
29. 504. Concerning the facts of the case, the Government confirms that the difficult negotiations on a salary increase sparked off the whole case. It also states that the company and the union had concluded an agreement whereby each party agreed not to take any action that might influence the negotiation process. Faced with the absence of an agreement, the union issued its 27 March instruction requesting workers not to work overtime. Some workers refused to follow this instruction and were subject to acts of intimidation; this created anarchy. On 26 April 2002 the company agreed to a wage increase and the union’s instruction was withdrawn.
30. 505. On 23 May 2002, the company decided to suspend the four workers, who were also union officers, for actions incompatible with the collective labour agreement. The company also forbade these workers from entering its premises, thus preventing them from exercising their union activities since the union is located inside the company’s premises.
31. 506. Concerning the procedures followed, the Government considers that it can be concluded that article 28 of Act No. 21 concerning workers’ protection against acts of anti-union discrimination has been implemented. More specifically, it underlines that the four workers submitted a complaint to the “Directorate of the norm labour inspection” of the Department of Manpower. As a result, investigations were carried out, in the course of which the four workers and some witnesses were heard. The Government indicates that, “it is considered” that the decisions of suspension are not compatible with the provision of articles 28(a) and 42 of Act No. 21 of 2000. Nevertheless, the Government indicates that the investigation report was submitted on 7 September 2002 to the police headquarters according to the applicable national procedure. The Government adds that the regions of Bekasi, Karawang and Jakarta considered that the company’s request for dismissal might have to be processed only once the investigation of the central Government was achieved. The head of the local office of Manpower and Transmigration in Bekasi sought some information on the progress of the investigation. In his response of 26 November 2002, the director-general of the “Industrial Relations and Labour Standards” of the Department of Manpower and Transmigration underlined that the investigation and the dismissal should be carried out in accordance with the national legislation. According to the Government, both matters should be settled without intervention from any other parties. As a general comment on the procedure, the Government underlines that Act No. 21 of 2000 is a new Act and that the investigation into the infringements of trade union rights is examined under the existing procedures. It adds that the Department of Manpower and Transmigration has recently coordinated with the police headquarters to submit the results of the investigation to the Attorney’s Office and that the matter may be further processed at the level of the state court.

C. The Committee’s conclusions

1. 507. The Committee notes that the present case concerns the initiation of dismissal procedures by the Bridgestone Tyre Indonesia Company in respect of four workers who are officers of the union recognized by the company and who are currently suspended without pay from their work.
2. 508. The Committee notes that the complainant has submitted detailed information on the substantial and procedural aspects of the case while the Government’s reply at this stage makes some points of a factual nature and describes the national procedures currently under way. The Committee requests the Government to solicit information from the employers’ organizations concerned with a view to having at its disposal their views, as well as those of the enterprise concerned, on the questions at issue.
3. 509. From the information at its disposal, the Committee considers that the following elements can be usefully identified. First, the case stems from difficult negotiations on a salary increase, between the local union and the company. In this context, the four union officers, representing the local union in the salary negotiations, issued a communication on 27 March 2002 whereby workers were asked to refuse to work overtime and to continue their work according to the normal working time; recourse to overtime in the company seems to be rather important for maintaining production up to a certain level. From the information given both by the complainant and the Government, albeit in different terms, this communication had quite an impact. On 26 April 2002, an agreement on the salary increase was eventually reached and the union withdrew the appeal made to workers in respect of overtime. Through four decisions, dated 22 May 2002, emanating from the chairperson of the company, the union officers who had signed the 27 March communication were suspended from their work for infringement of the collective labour agreement; the same day, the company sought from the competent authorities the authorization to dismiss them.
4. 510. The Committee notes that the company’s decisions resulted in two kinds of processes. The first one is the procedure engaged by the company in order to obtain the authorization to dismiss the four union officers. The Committee notes that the matter falls within the ambit of the local administration’s authority. A second process was initiated by the complainant, on behalf of the four union officers, for infringements of trade union rights by the company. The Committee notes that this process finds its legal basis notably in article 28 of Act No. 21 of 2000 concerning trade unions and which relates to workers’ protection against acts of anti-union discrimination by employers. In this regard, the Committee notes, on the one hand, the Government’s remarks that allegations made under article 28 are tackled under the procedure that existed at the time of the entry into force of the Act and, on the other hand, the complainant’s comments that the procedure followed in their case is unclear. The Committee notes that the central administration has been designated to deal with the allegations of anti-union discrimination. The Committee has taken note in this regard of the Government’s declaration that, given the seriousness and the importance of the case, it has taken measures pertaining directly to the exercise of its authority. Further, the Committee notes that the link between the two processes raised some questions on the part of the local authorities. The Government’s view seems to be that both processes should follow their course in accordance with the applicable legislation.
5. 511. From the additional information communicated by the complainant, the Committee notes that the dismissal procedures have evolved differently in each individual case but that no dismissal has been authorized yet. With respect to the allegations of infringement of trade union rights, an investigation has been carried out, a report produced, but no firm decision has been taken yet. The Committee notes the declaration of the Government that it has taken steps for the transmission of the investigation report to the Office of the Attorney with a view to its possible submission to the state court. The Committee also notes the “General Inspector’s” letter of 4 March 2003 attached to the third set of additional information submitted by the complainant; according to this letter, as it has been translated by the complainant, the allegations of infringement of trade union rights have been forwarded to the chairperson of the civil court.
6. 512. The Committee notes that, in support of its decisions, the company contended that the four union officers have infringed the collective labour agreement and that, according to the additional information submitted by the complainant, the company considered this to be a serious violation of the agreement under article 67. The Committee notes, from the complaint, that the company invoked a number of violations of the collective labour agreement that were apparently unrelated to the union activities of the four workers. On the other hand, the Committee notes, from the additional information submitted by the complainant, that the competent bodies handling the four dismissal procedures seem to have referred solely, in their conclusions, to the 27 March communication signed, issued and withdrawn by the four workers in their capacity of union officers. Therefore, in order to pronounce itself on this case in full knowledge of all the facts, the Committee requests the Government to submit its observations on the three sets of additional information submitted by the complainant and in particular on the description given therein of the dismissal procedures.
7. 513. Without prejudice to the foregoing, the Committee notes that the Government’s reply indicates that the case raises – at least in part – a question of anti-union discrimination by pointing out that the legal basis for the procedure implemented by the central Government is Act No. 21 of 2000 concerning trade unions and, in particular, its article 28. The Committee has duly taken note of the Government’s remark that “it is considered” that the suspension is incompatible with articles 28(a) and 42 of Act No. 21, although it is not possible at this stage to determine when and by whom this conclusion was made. In these circumstances, the Committee would like to recall the following principles of freedom of association. No person shall be prejudiced in his employment by reason of his trade union membership or legitimate trade union activities, whether past or present [see Digest of decisions and principles of the Freedom of Association Committee, 4th (revised) edition, 1996, para. 690]. Further, respect for the principles of freedom of association clearly requires that workers who consider that they have been prejudiced because of their trade union activities should have access to means of redress, which are expeditious, inexpensive and fully impartial [see Digest, op. cit. para. 741].
8. 514. The Committee notes that ten months after the submission of the allegations of infringement of trade union rights, the procedure has not been concluded and that it will go through additional stages which, apparently, are not fully ascertained. On the other hand the Committee notes that the workers concerned have not received any salary for a little more than six months and are most likely prevented from seeking other employment since they have not been dismissed. The Committee notes the Government’s comments that there is no specific procedure for the examination of allegations of anti-union discrimination and draws the Government’s attention that it can avail itself of the technical assistance of the Office in this regard. Furthermore, in light of the principles recalled above, the Committee requests the Government to take the necessary steps to ensure that the procedure implemented in this respect reaches its conclusion without delay and in a fully impartial manner and to submit its observations thereon. The outcome of the procedure, especially if the allegations of anti-union discrimination were found to be justified, will have a substantial impact on the dismissal procedures; indeed, at one point, the local authorities were apparently of the view that they could only proceed with the dismissal procedures once the investigation into the allegations of anti-union discrimination had been concluded. In these circumstances, the Committee requests the Government to take the necessary measures so as to guarantee that the procedure concerning the allegations of anti-union discrimination takes precedence over the dismissal procedures. The Committee also requests the Government to examine ways of providing adequate assistance to the four workers concerned until a final judgement has been rendered and to ensure that all the national procedures implemented in the present case are brought to a speedy conclusion. Finally, the Committee requests the Government to send its observations on the complainant’s contention that the suspension without pay is contrary to article 6(4) of Manpower Decree No. 150/2000.