Seguimiento dado a las recomendaciones del Comité y del Consejo de Administración - Informe núm. 340, Marzo 2006

Effect given to the recommendations of the Committee and the Governing Body

1. 114. The Committee examined this case, which concerns several freedom of association violations at the Jaya Bersama Company such as its refusal to recognize the plant-level trade union affiliated to the Federation of Construction, Informal and General Workers (F-KUI), the anti-union dismissals of 11 trade union members, including all the officials, and acts of intimidation against employees, at its March 2005 meeting [see 336th Report, paras. 498-539]. The Committee made the following recommendations:
   • (a) The Committee requests the Government to take the necessary steps to ensure that the company recognizes the F-KUI plant-level trade union and engages in collective bargaining concerning the terms and conditions of employment of the workers in good faith, and to keep it informed in this regard, including by providing details of any negotiations undertaken in the company.
   • (b) The Committee requests the Government to amend the legislation and to take the necessary steps to ensure that allegations of anti-union discrimination are examined in the framework of national procedures which are prompt, impartial and considered as such by the parties concerned, and to keep it informed in this regard, including by forwarding copies of any decisions taken in relation to this particular matter.
   • (c) Noting the repeal of Act No. 22/1957 and Act No. 12/1964, by Act No. 2/2004, the Committee requests the Government to provide clarification of the procedure relating to the dismissal of trade union officials in Indonesia.
   • (d) The Committee expects that if the allegations of anti-union discrimination are found to be justified within the framework of national procedures, the 11 workers will be reinstated in their posts without loss of pay. If the court were to decide that, although the allegations of anti-union discrimination were justified, reinstatement was not possible, the Committee expects the court to order appropriate redress, taking into account both the damage incurred by the 11 workers and the need to prevent the repetition of such situations in the future, through the imposition of adequate compensation. The Committee requests to be kept informed in this respect.
2. 115. In communications dated 1 September and 1 November 2005, the Government states that the investigation carried out by the labour inspectorate showed that there was no infringement of freedom of association in the company. Although the labour inspectorate found that various other labour laws had been infringed, there were no indications that the company had obstructed the establishment of the trade union. The Government underlines that, in fact, a company trade union was registered in July 2003, and the company has never complained of its establishment. The Government adds that the company had not yet applied the collective labour agreement. Concerning the dismissal of the 11 trade union members and officials, the Government maintains that these dismissals were not due to their trade union activities. Indeed, the Government states that the dismissals were in line with paragraphs 150 and 172 of Act No. 13/2003 and that the decision of the Committee for Labour Dispute Settlement, which states that the company is allowed to dismiss the 11 workers by giving them severance pay, had become legally binding as the parties failed to lodge an appeal. The Government also indicates that dismissals are not treated differently when it comes to trade union officials as long as their dismissal is not due to their trade union activities.
3. 116. In a communication dated 10 March 2006, the Government indicated that the P.D. Jaya Bersama Company had not yet responded to the decision of the Central Committee for Labour Dispute Settlement concerning the severance pay granted to the 11 terminated workers. After an investigation by labour inspectors concerning the implementation of the decision (report No. 1706/1.712.51 dated 2 March 2005), subpoenas were delivered to seven persons requiring them to appear in court as witnesses on the issue of the payment of the severance pay. However, they failed to appear and allow the issue to be investigated. Thus, the labour inspector is not yet able to proceed with the case on the basis of articles 13-26 of Act No. 22/1957 concerning labour dispute settlement. Moreover, on 30 January 2006, the Government in coordination with the Confederation of Indonesian Prosperous Labour Unions/KSBSI tried to obtain a decision by the North Jakarta Regional Court ordering the execution of the decision of the Central Committee for Labour Dispute Settlement. Unfortunately, however, the Court found it difficult to assess the company’s assets in order to have the capital auctioned.
4. 117. The Committee notes the information provided by the Government. Concerning the issue of the recognition of the plant-level F-KUI trade union by the company, the Committee, while noting the Government’s indication that the company had never complained of the establishment of the union which was registered in July 2003, recalls from the previous examination of the case that according to the findings of the Manpower and Transmigration Municipal Office (MTMO) labour mediator, the company did not “agree with the establishment of the trade union”. The Committee notes with regret that the Government does not provide any information on steps taken to ensure that the company recognizes the F-KUI plant-level trade union and effectively engages in collective bargaining, particularly in light of information that no collective labour agreement is applied yet in the company. The Committee once again requests the Government to take the necessary steps to ensure trade union recognition and encourage collective bargaining in good faith between the company and the plant-level F-KUI trade union.
5. 118. Concerning the allegations that the dismissals of the 11 members and officials of the plant-level F-KUI trade union were motivated by anti-union discrimination, the Committee recalls from the previous examination of this case that a combination of factors suggests that the issue of trade union discrimination was not fully reviewed by the Central Committee for Labour Dispute Settlement in its decision on this case. The Committee recalls that the Central Committee approached this case in relation to the general law relating to dismissals, rather than as a matter concerning freedom of association; the Central Committee found that the dismissals were caused by seasonal fluctuations in work, and confined itself to increasing the severance pay of each of the dismissed workers. The Committee deeply regrets that the Government provides no information on any procedures commenced for the examination of the specific allegations of anti-union discrimination against the company, despite the clear conclusion of the MTMO mediator that the company did not agree with the establishment of the trade union and as a result terminated the 11 workers’ employment. In light of the information provided by the Government, however, that these workers had not appealed against the decision of the Central Committee, the Committee would urge the Government to ensure in the future sufficient mechanisms for preventing and remedying acts of anti-union discrimination. Finally, with regard to the difficulties encountered in the execution of the decision of the Central Committee ordering the payment of severance pay to the 11 dismissed workers, the Committee requests the Government to continue to take all necessary measures to obtain execution of this decision and to keep it informed in this respect.
6. 119. The Committee notes with regret in this context that the Government provides no information on any measures taken or contemplated to ensure that allegations of anti-union discrimination are examined in the framework of national procedures which are prompt, impartial and considered as such by the parties concerned. The Committee once again urges the Government to take the necessary legislative measures so as to guarantee such procedures and requests to be kept informed in this respect.