Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 348, Noviembre 2007

907. The Committee last examined the substance of this case at its November 2006 meeting when it presented an interim report to the Governing Body [see 343rd Report,

• paras 929–967, approved by the Governing Body at its 297th Session].
  908. 908 The BWI transmitted additional information in a communication dated 18 December 2006. The Government furnished new observations in communications dated 8 and 9 March, 29 August and 21 September 2007.
  909. 909 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. Previous examination of the case

1. 910. At its November 2006 session, the Governing Body approved the following recommendations in the light of the Committee’s interim conclusions [see 343rd Report para. 968]:
2. – The Committee requests the Government to provide information on the precise representation of both the SP MM and the SP Kahutindo at the time that the bargaining was taking place.
3. – The Committee requests the Government to conduct an independent investigation into the allegations of anti-union dismissal of Mr. Surya and if they are found to be true, to provide appropriate redress for the damages suffered, including through his possible reinstatement.
4. – The Committee requests the Government and the complainants to clarify whether the settlement agreement was signed on behalf of all 701 dismissed workers or only 211, the number referred to by the complainant, and to provide a copy thereof. In addition, the Committee requests the Government to carry out an independent investigation immediately into the circumstances under which the settlement agreement with the imprisoned union leaders was reached and to report back on the outcome.
5. – As regards the allegation of the non-renewal of 300 labour contracts following the strike action, the Committee requests the complainants to provide additional information in response to the Government’s assertion that there are no fixed-term contracts at PT Musim Mas.
6. – As concerns the allegations of physical assault on Mr. Sutari, the Committee requests the Government to institute immediately an independent judicial inquiry into these allegations 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 in this respect.
7. – The Committee requests the Government to carry out an independent inquiry without delay into the conduct of the various parties during the strike action, including the allegations of injuries suffered by two workers when a company truck drove through the picket line, 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 in this respect.
8. B. The complainants’ additional allegations
9. 911. In a communication dated 18 December 2006, the BWI provided its reply to the Committee’s request for additional information in response to the Government’s assertion that there were no fixed-term contracts at PT Musim Mas [343rd Report, para. 968(d)]. According to the information obtained by BWI from its affiliate, All-Indonesian Federation of Wood, Forestry and General Workers’ Union (SP Kahutindo), the existence of contract workers and daily workers in the enterprise is very clear. Contract workers are mainly employed in the pruning/harvesting and nursery divisions. The BWI attaches company records which indicate the names of workers and their job position; the records show that the company uses the abbreviation “BRG” for “Borongan” which means “outsourcing” next to “Panen” (pruning/harvesting) or “Perawatan” (nursery). The complainant also attaches copies and translations of two fixed-term contracts, one for pruning and one for the nursery, in which it is clearly indicated that the workers in question are employed for a fixed period of time. The contracts provide that these workers are not covered by social security and medical and accident compensation – which is one of the reasons, according to the complainant, why the trade union members went on strike.
10. 912. The complainant adds that, as from 2004, truck drivers and stockers have also become daily workers without any work agreement. For this category of workers, the appointment is only made orally without any issuance of a letter of appointment. They are indicated in the company records by the abbreviation “BHL” (buruh harian lepas/literally translated as “freelance daily worker”). Just like the abovementioned workers, they are not covered by social security and medical and accident compensation.
11. C. The Government’s reply
12. 913. In communications dated 8 and 9 March 2007, the Government indicates that there was an administrative settlement of Mr Sutari’s case on the basis of the request of the Manpower Office of the District of Palelawan, while the criminal proceedings initiated by the district police led to a decision by the District Court of Kampar Regency imposing a six-month prison sentence.
13. 914. The Government also indicates that there was no representative from SP Kahutindo in the collective bargaining negotiations for the adoption of the collective labour agreement (CLA). The Musim Mas Workers’ Union (SP MM) represents the majority as shown by the list of its members and therefore, it has the right to be the sole representative of the workers in negotiations.
14. 915. The Government also indicates that the case involving Mr Surya caused disadvantage to the company because it had to temporarily stop its activity.
15. 916. Also according to the Government, the process concerning the settlement reached was in line with labour regulations and the settlement covered all the 701 employees involved. The Government attaches a copy of the settlement in the form of a payment invoice.
16. 917. The Government refutes that new employees were hired immediately after the strike, but adds that the company did acknowledge that they hired new employees to replace those who left work for more than nine days due to the strike. The total number of such workers is 701. The Government considers that contract workers did not exist in the company since they were on strike. Contract labour was recruited long after the strike process had been taken care of by the office responsible for manpower through a mediation process, in view of the need to avoid any delays in delivering orders to buyers.
17. 918. Finally, the Government indicates that, under the agreement between the company PT Musim Mas and the union (represented by the central committee of SP Kahutindo), all the points of contention relative to labour relations were resolved through agreement of the parties on 7 June 2006. The agreement was witnessed by the Manpower Office of Riau Province.
18. 919. In a communication dated 29 August 2007, the Government sent additional information, in particular, a summary of improvements agreed upon between PT Musim Mas and the
19. PT MM trade union in the new collective agreement which covers the period 3 February 2007 to 2 February 2009:
20. (a) Medical benefits: medical entitlement for out of company clinic treatment for workers and dependants (wife and three children); up to 4.5 months Provincial Sectoral Minimum Wages per year; massage for sprains up to Rp.200 per worker annually (in addition to company clinic which was already provided for in the previous collective agreement).
21. (b) Maternity benefits: normal childbirth allowance increased by Rp.100,000 (from
22. Rp.400,000 to 500,000); caesarean childbirth allowance increased by Rp.1 million (from Rp.2 million to 3 million); delivery by midwife covered for the first time up to Rp.500,000 per case.
23. (c) Tertiary education for workers’ children: the company undertook to provide scholarships to workers’ children in tertiary education.
24. (d) Bipartite cooperation board: establishment of regular meetings between management and the union to channel aspirations, improve housing facilities, safer work environment and standards of living.
25. (e) Transportation and accommodation costs borne by company so that four union representatives can meet the Government Manpower Department twice a year.
26. (f) Severance pay: increases in severance payment in case of termination of employment.
27. (g) In addition to the above, the company unilaterally provided the following as a matter of policy: increases in survivors’ benefit and burial place provided within the plantation; financial assistance for religious celebrations and festivals; establishment of a workers’ cooperative to facilitate purchases; supply of rice to workers and their families at the beginning of every month; tools and security apparel provided by the company.
28. 920. The Government also provided details on the case of Mr Marlin Sutari: on 15 January 2005, Mr Sutari and his supervisor had a fight over a warning letter. Mr Sutari punched the supervisor in the face and injured him. The incident was witnessed by several people in the supervisor’s office. He was sentenced to six months’ imprisonment by the Lower Court of Bangkinang on 7 June 2005. On 28 May 2007, a mutual agreement was signed between Mr Sutari and PT Musim Mas and he was paid severance pay amounting to Rp.3,919,350. The agreement was registered in the Industrial Relations Court and the Lower Court of Pekan Baru on 14 August 2007.
29. 921. The Government also provided details on the case of Hadi Surya: Mr Surya was a security guard and as a result was required to rotate between different posts just like all his colleagues, and had signed an agreement to this effect. On 8 June 2004, he was given a first warning letter as he did not attend martial arts practice. On 29 June 2004, he was given a second warning letter as he did not report for duty from 21 to 23 June 2004. On 5 July 2004, he was given a third warning letter as he did not report for duty from 1 to 3 July 2004. On 10 August 2004, the Labour Department at Pelalawan Regency authorized his dismissal and ordered the payment of compensation amounting to Rp.4,826,775. Mr Surya appealed to the higher court, the Riau Province Committee for Industrial Dispute Settlement (P4D) at Pekan Baru. On 24 February 2005, the P4D authorized PT Musim Mas to dismiss Mr Surya and pay him compensation amounting to Rp.14,658,800. PT Musim Mas appealed to the highest court, the Central Dispute Settlement Committee (P4P) in Jakarta; on 30 May 2005, the P4P authorized the dismissal and ordered the payment of compensation amounting to Rp.6,272,275. On 5 September 2005, a mutual agreement was reached between the parties to accept the P4P verdict. The agreement was registered in the Industrial Relations Court at Pekan Baru on 19 July 2006.
30. 922. The Government forwarded copies of the various settlements signed between PT Musim Mas and SP Kahutindo, including:
31. (a) Copy of the agreement signed on 7 June 2006 between, on the one hand, PT Musim Mas and, on the other, the SP Kahutindo branch in PT Musim Mas and the Central Board of the SP Kahutindo federation, with regard to 211 of the 701 workers who had not yet accepted the decision of the P4P authorizing their dismissals. According to the agreement, SP Kahutindo accepts the P4P decision of 5 December 2005 authorizing the dismissals of its members and undertakes to call on the remaining workers to accept the decision by signing a mutual agreement. It also accepts the dismissal of the six imprisoned SP Kahutindo leaders following the P4P ruling authorizing the termination of their employment. The parties agree that the outcome of the criminal trial shall be accepted and that all complaints and appeals shall be withdrawn. It is provided that the agreement has been entered into truthfully and without any coercion from any party. The agreement was witnessed by the Indonesian Manpower Office, District of Palalawan, Riau Province.
32. (b) Copy of a parallel agreement signed the same day, 7 June 2006, in which the company undertakes to pay Rp.250 million to the union as help for the dismissed members.
33. (c) Copy of the individual settlements signed between the employer and each of the 211 dismissed workers who had not accepted the P4P decision. The agreement provides that the parties accept the termination of employment and the payment of severance pay and that the dismissed worker undertakes to vacate the house he occupied at the latest three days after the signing of the agreement.
34. (d) Copy of the settlement signed with the imprisoned leaders of the SP Kahutindo branch in PT Musim Mas. The agreement provides that the company acknowledges and accepts the existence of SP Kahutindo in PT Musim Mas and unobstructed freedom of association in PT Musim Mas, whereas the union leaders accept the legal proceedings against them. Both parties undertake not to take any further legal action in the future.
35. 923. The Government forwarded a letter addressed by the management of PT Musim Mas to the Director of the ILO Standards Department pursuant to a visit carried out by the latter to the plantation. In the letter, the enterprise declares that it accepts the existence of SP Kahutindo in the enterprise and undertakes not to discriminate against the 701 dismissed workers in its consideration and selection of new workers when vacancies arise.
36. 924. The Government forwarded a copy of the decision of the P4P No. 1797/2149/132-12/IV/PHK712-2005 dated 6 December 2005 authorizing the dismissal of 701 workers/members and leaders of the SP Kahutindo branch at PT Musim Mas, for having staged an illegal strike; the strike was found to be illegal because the notification period was not respected and the announced venue had changed; moreover, during the strike, damage was caused to company assets and security guards and managers were injured (nevertheless, the injuries were minor according to Dr Verdini of the local clinic, who testified that the two victims could continue work); the company summoned the workers to return to work on 14, 16, 19 and 20 September 2005; the workers ignored the summons and therefore the company considered that they had resigned as provided for in Act No. 13 of 2003. The company submitted a request for approval of termination to P4P through the Manpower Officers of Pelalawan Regency; the mediator in charge of the case had found that the strike was illegal, however, the decision to approve the termination pertained to the P4P and therefore recommended that the case be submitted to the P4P; with regard to the violation of statutory rights alleged by SP Kahutindo, the mediator found that the union had not provided any evidence of such violations; the P4P granted approval for termination of the 701 workers as of 30 September 2005 and ordered PT Musim Mas to pay severance pay.
37. 925. The Government also forwarded a copy of the decision of the Bangkinang District Court No. 404/PID.B/2005/PN.BKN dated 3 February 2006 sentencing five of the six SP Kahutindo leaders to imprisonment (two years for Robin Kimbi and Masri Sebayang and 14 months for Suyahman Als Yahman, Akhen Pane and Saprudin) for causing damage to company property and injuries to Mr Gunawan Siregar (Personnel Manager) and Mr Dadang Junaidi (security guard) during the strike; the Court took into consideration as attenuating circumstances the fact that the defendants were young, well-behaved during the trial, had dependants and had never been punished before.
38. 926. Finally, in a communication dated 21 September 2007, the Government indicates that all six SP Kahutindo leaders have been released after having served their term. Thus, Messrs Kimbi and Sebayang were released on 2 April 2007 and Messrs Suyahman, Pane, Saprudin and Towo were released on 24 October 2006.

D. The Committee’s conclusions

1. 927. The Committee recalls that this case concerns allegations that, since its establishment, the BWI’s affiliate, SP Kahutindo, has faced constant harassment and repeated violations of trade union rights by the employer, PT Musim Mas. In particular, it alleges the employer’s refusal to recognize SP Kahutindo; establishment of a rival “yellow” union by the employer; dismissal of 701 workers and eviction of these workers and their families from their housing on the plantation estate, following a legal strike; non-renewal of contracts of 300 contract workers following the same strike; arrest of six trade union leaders; intimidation, harassment and disciplinary transfer of trade union members and officials. The complainant asserts that these violations took place with the complicity of the police forces and that the labour authorities failed to intervene to protect workers’ rights.
2. 928. The Committee recalls that during the previous examination of this case, it requested the Government to provide information on the precise representation of both the SP MM and the SP Kahutindo at the time that the bargaining was taking place. The Committee takes note of the new information provided by the Government. Based on this information as well as the allegations of the complainants which have not been contested by the Government, the Committee observes that the local union of SP Kahutindo was established at PT Musim Mas oil palm plantation and processing plant in October 2004 and registered on 9 December 2004 with 1,183 members out of a total workforce of 2,000, including 300 contract workers. During this period, the enterprise management negotiated a collective agreement with the union which had been previously established in the enterprise, the SP MM; the agreement entered into force on 1 December 2004 and had a duration of two years, until 30 November 2006. The Committee observes that the SP Kahutindo was established in PT Musim Mas three months before the entry into force of this agreement and was registered as a majority union only a few days after its entry into force. The Committee also notes that the enterprise management refused the SP Kahutindo’s request to renegotiate the collective agreement and contended that the collective agreement negotiated with the SP MM was valid until its expiration. Finally, the Committee takes note of the last collective agreement negotiated between PT Musim Mas and SP MM for the period 3 February 2007 to 2 February 2009.
3. 929. The Committee recalls that according to the complainants, the SP MM is a “yellow” union established by the enterprise management in mid-2003 in order to counter the establishment in early 2003 of an initial union in the plantation, the local Indonesian Prosperous Workers’ Union (SBSI), which was eventually disbanded by its officers in 2004 due to the harassment they had to face. Among these instances of harassment, the Committee had referred during the previous examination of this case in particular to the transfer of Mr Surya to a new post, situated about 15 km from his house and his subsequent dismissal in July 2004 for absenteeism allegedly as a retaliation measure for his refusal to sign a document stating that he was a member of the SP MM. The Committee recalls in this respect that while authorizing the dismissal of Mr Surya, the P4D found that his transfer to a new post was “improper” and that given the distance to work and the non-provision of transport by the employer, “it was natural that the employee did not report to work as hoped by the employer”. Moreover, the P4D did not apparently examine the allegation that his transfer was a retaliatory measure for his refusal to join the SP MM. The Committee further notes from the latest information provided by the Government that after an appeal lodged by PT Musim Mas on 30 May 2005, the P4P authorized the dismissal in the final instance and ordered the payment of compensation amounting to
4. Rp.6,272,275. On 5 September 2005, Mr Surya and PT Musim Mas reached an agreement to accept the verdict.
5. 930. The Committee further recalls that during the previous examination of this case, it had focused among the various allegations of harassment against SP Kahutindo members, on those concerning the beating allegedly inflicted upon Mr Marlin Sutari by his superiors and the Chief of Security and his subsequent arrest for assault, as well as the lack of follow-up to the complaint that he filed with the police. The Committee notes that in its latest communication, the Government indicates that there was an administrative settlement of Marlin Sutari’s case on the basis of the request of the Manpower Office of the District of Pelalawan; thus, on 28 May 2007, a mutual agreement was signed between Mr Sutari and PT Musim Mas and he was paid severance pay amounting to Rp.3,919,350; on the other hand, the criminal proceedings initiated by the District Police led to a decision by the district court of Kampar Regency imposing upon Mr Sutari a six-month prison sentence for having injured his supervisor.
6. 931. The Committee further recalls from the previous examination of this case, that after having gone on strike on two occasions claiming the redress of several violations of statutory rights which had been certified by the local Manpower Office (the Government contests this allegation, indicating that inspections carried out by the labour inspector on 11 and 12 November 2005 and by the Provincial House of Representatives and the Provincial and Regional Manpower Offices on 14 and 15 November 2005, concluded that the company did not violate the minimum labour standards), the SP Kahutindo lodged a third strike notice on 6 September. However, learning of the company’s intention to hire replacement workers, the union began the strike on 13 September earlier than the announced date. The complainants report that 100 replacement workers were hired by the company, something the Government refutes, stating that replacement workers were not hired during the strike, but only after 701 workers were dismissed for having left work for more than nine days due to the strike. The Committee further notes that on 22 September 2005, the company initiated dismissal proceedings against 701 workers, which were officially authorized by the P4P on 16 December 2005.
7. 932. According to the complainants, on 26 December 2005, the company employed armed local and paramilitary police to evict workers and their 1,000 family members from the plantation housing estate. However, the Committee also notes from the text of the individual settlements which were signed – pursuant to the agreement of 7 June 2006 between SP Kahutindo and PT Musim Mas – with the 211 of the 701 workers who had not accepted the P4P decision authorizing their dismissal, that one of the terms of the agreement was to return the premises provided by the company within three days, something that does not corroborate the allegations of violent eviction.
8. 933. During the previous examination of the case, the Committee had noted that while the complainants alleged the non-renewal of the labour contracts of 300 workers in addition to the dismissal of 701 permanent workers, the Government refuted this allegation by stating that the company did not employ fixed-term contract workers. The Committee notes that in its latest communication, the Government refers to “contract workers” and “contract labour”. The Committee also takes note of the latest evidence provided by the complainants in this regard, which shows that fixed-term contract workers are employed in the pruning/harvesting and nursery divisions of the plantation. In addition, drivers are daily workers without a written contract.
9. 934. The Committee further recalls from the previous examination of this case, that the Government had not refuted the allegations relating to the following facts: on 15 September 2005, the crowd of workers pushed the refinery gate off of its rails; as a result, the company’s management lodged a complaint with the police. Six SP Kahutindo leaders (Messrs Robin Kimbi, Chairperson of the union, Saprudin, Sruhas Towo and Akhen Pane, Vice-Chairpersons, Suyahman, Union Secretary, and Masri Sebayang, Secretary of a branch union) were arrested by the police and charged with violation of article 170 of the Criminal Code. All six trade union leaders have been convicted of crimes against public order for causing damage to persons or property and sentenced to prison terms ranging from between 14 months and two years by the Bangkinang District Court on 3 February 2006 (Mr Towo was sentenced on 17 March 2006). The sentence was confirmed on appeal by the District Court of Riau on 18 April 2006. The Committee notes that according to the Government’s communication dated 21 September 2007, all the leaders have now been released after having served their term.
10. 935. The Committee further recalls that on 7 June 2006 a settlement agreement was reached between PT Musim Mas and the SP Kahutindo. The Committee notes from the information provided by the complainants and the Government, that the company agreed to pay US$123 (the equivalent of six weeks’ salary), to a group of 211 workers who had not accepted the P4P decision authorizing their dismissal; in return for this, the workers undertook to accept the P4P decision and vacate the premises given by the company. The Committee further observes that the complainants alleged that the 211 workers had to drop their right to appeal the illegal dismissals as a result of the settlement. In this respect, the Committee notes that it does not emerge from the facts provided by the complainants that the 211 workers had filed an appeal in the interval between 26 December 2005 when the P4P issued its decision and 7 June 2006 when the settlement was signed. Furthermore, the Committee observes with regard to the complainants’ contention that part of this settlement involved a separate written renunciation by the six prisoners of their right to appeal their criminal convictions to the Indonesia Supreme Court, that there is no information as to any appeal lodged between the time when the sentence was confirmed on appeal on 18 April 2006 and the signature of the settlement on 7 June 2006 – however, the text of the agreement provided by the Government provides that both parties agree to withdraw any pending legal actions.
11. 936. While taking due note of the fact that the six SP Kahutindo leaders have now been released, the Committee can only regret the sentencing of these six trade union leaders to heavy prison sentences for derailing of a gate and minor injuries, as well as the fact that the Court seemingly did not take into consideration the industrial context in which these acts occurred among other attenuating circumstances. The Committee recalls that although the principles of freedom of association do not protect abuses consisting of criminal acts while exercising the right to strike, all penalties in respect of illegitimate actions linked to strikes should be proportionate to the offence or fault committed.
12. 937. Furthermore, while taking due note of the settlements reached between PT Musim Mas and SP Kahutindo and its individual members, the Committee also regrets that the P4P found it appropriate to authorize the dismissals of 701 SP Kahutindo members, including the leaders of the trade union, albeit for a strike which was found to be illegal, without taking into consideration the impact that these dismissals might have on the continuing existence of the trade union in the enterprise. The Committee further regrets the apparent non-renewal of the contracts of another 300 workers who were SP Kahutindo members, allegedly as a result of their participation in the same strike.
13. 938. In this respect, the Committee takes note of the letter addressed by PT Musim Mas to the Director of the International Labour Standards Department (forwarded by the Government) in which PT Musim Mas states that it recognizes the existence of SP Kahutindo in the enterprise and that it will not discriminate in the future against the 701 dismissed workers if they seek employment with the company to fill in arising vacancies. The Committee requests the Government to keep it informed of the status of SP Kahutindo in PT Musim Mas and of any future decision by the enterprise to re-employ the members of SP Kahutindo who were dismissed as a result of the strike of 13 September 2005.
14. 939. Finally, while taking due note of the various settlements reached between the parties in this case, the Committee can only express regret with regard to the stance of the authorities and, in particular: the fact that none of the bodies responsible for dispute settlement appear to have examined the allegations of anti-union discrimination put forward by the union; the absence of any inquiry into the allegations of violent intervention by the police and the employer during the course of the strike including injuries suffered by two workers when a company truck drove through the picket line and the absence of a Government reply in this regard; the lack of follow-up on the complaint that Mr Sutari allegedly filed with the police and the absence of a Government reply in this regard; the decision of the P4D to authorize the dismissal of Mr Surya although it found at the same time that “it was natural that the employee did not report to work as hoped by the employer”.
15. 940. The Committee recalls that in a previous case concerning Indonesia, it regretted that the authorities acted uniquely as a mediator without fully investigating the allegations of acts of anti-union discrimination and expressed the expectation that the Government would ensure more comprehensive protection against such acts in the future [Case No. 2451, 343rd Report, para. 926]. The Committee considers that the role of the Government in relation to acts of anti-union discrimination and interference is not confined to mediation and conciliation but also includes, where appropriate, investigation and enforcement in order to ensure effective protection against acts of anti-union discrimination and interference and, in particular, ensure that such acts are identified and remedied, that guilty parties are punished and that such acts do not reoccur in the future. The Committee recalls that 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 [Digest of decisions and principles of the Freedom of Association Committee, fifth edition, para. 820]. The basic regulations that exist in the national legislation prohibiting acts of anti-union discrimination are inadequate when they are not accompanied by procedures to ensure that effective protection against such acts is guaranteed [Digest, op. cit., para. 818]. The Committee considers finally, that for a settlement to be considered just by all sides, any alleged violations of trade union rights should be fully investigated and elucidated. The Committee once again expresses the firm expectation that the Government will take all necessary measures to establish a mechanism for the examination of allegations of anti-union discrimination and employer interference which is expeditious, inexpensive and fully impartial [Digest, op. cit., para 820] and has the confidence of all parties, thus ensuring effective and comprehensive protection against such acts in the future in conformity with Conventions Nos 87 and 98. The Committee requests the Government to keep it informed of developments in this respect.
16. 941. The Committee encourages the Government to fully utilize the ILO technical assistance available to it.