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

943. The complaint is contained in a communication of the Indonesian Association of Trade Unions (ASPEK Indonesia) dated 28 March 2006.

1. 944. The Government sent its observations in communications dated 8 and 9 March and 21 September 2007.
2. 945. 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. 946. In a communication dated 28 March 2006, ASPEK Indonesia alleges that the Government violated Conventions Nos 87 and 98 by its acts and omissions concerning the rights to freedom of association and collective bargaining of the employees of PT Securicor Indonesia, which is headquartered in Jakarta. The employees concerned are represented by the Securicor Trade Union of Indonesia, an affiliate of ASPEK Indonesia.
2. 947. According to the complainant, on or about 23 July 2004, PT Securicor Indonesia announced that it would merge with Group 4 Falck. In violation of Convention No. 98 and sections 116 and 136 of Manpower Act No. 13/2003, PT Securicor Indonesia refused to enter into negotiations with the trade union representing its employees with regard to the terms and conditions of employment of the workers in the merged enterprise.
3. 948. On 15 April 2005, in response to the employer’s refusal to negotiate for the preceding nine months, the Securicor Trade Union of Indonesia gave written notice to the employer and the local Office of Manpower, as required by Indonesian law, to the effect that it intended to conduct a strike. Over 600 employees began a strike on 25 April 2005 both in Jakarta and Surabaya. On the following day, in violation of Conventions Nos 87 and 98, section 28 of Act No. 21/2000 Concerning Trade Unions, and sections 143 and 144 of Act No. 13/2003, the employer posted a photograph of the union President Fitrijansjah Toisutta, and a written order that he would not be permitted to enter company premises, in an attempt both to intimidate supporters of the strike, and to deny the union officer the ability to represent members of the union.
4. 949. On 9 May 2005, the employer issued a written list of 35 union members supporting the strike whom the company declared suspended from employment pending a request for termination. On 25 May 2005, the employer, through its attorney, Elza Syarief, issued a written list terminating the employment of 203 union members. These actions by the employer took place in retaliation against employees for exercising their legal right to strike, in violation of Conventions Nos 87 and 98, section 28 of Act No. 21/2000 and section 144 of Act No. 13/2003. On 8 June 2005, the President Director of PT Securicor Indonesia stated, in a letter distributed to all union members and posted in the employer’s premises, that the union’s request to negotiate the terms and conditions of employment was an attempt to “blackmail” enterprise management and threatened that the company would pursue “civil case[s] for damages” against the strikers and their leadership.
5. 950. Beginning on or about 18 July 2005, the police of the Republic of Indonesia, South Jakarta Office, ordered approximately ten union officers and members supporting the strike to appear for interrogation. Those questioned were asked to identify other union members who supported the strike. The union President Fitrijansjah Toisutta and members Tri Muryanto and Edi Putra were required to return for questioning twice per week for the next two months, and on 7 July 2005 were named as “suspects” for the crime of committing “unpleasant acts” against the company. Beginning on or about 18 August 2005 until 30 September 2005, the same three union members were required to report twice per week for interrogation by the Prosecuting Attorney for South Jakarta concerning the same charges. On 12 December 2005, a court began to hear charges against Mr Toisutta. The trial was subsequently suspended but the charges were still pending at the time of the complaint. According to the complainant, the above are contrary to Conventions Nos 87 and 98 as well as national legislation (section 143 of Act No. 13/2003).
6. 951. According to the complainant, beginning on or about 25 April 2005 and up until the time of the complaint, the employer had attempted to coerce and intimidate union members supporting the strike by making phone calls to spouses and other family members and telling them to convince strikers to return to work. During the same period, selected strikers were offered special jobs with the company if they would return to work and tell others to do the same. According to the complainant, the above are contrary to Conventions Nos 87 and 98 as well as national legislation (section 144 of Act No. 13/2003).
7. 952. The complainant adds that the Securicor Trade Union of Indonesia participated in mediation meetings with the local Office of Manpower regarding the industrial dispute which resulted in a written recommendation, on 8 June 2005, No. 3447/-1.835.5, recommending that the company reinstate all workers to their previous positions. The employer refused to implement the mediator’s recommendation, prompting the union to file a complaint before the National Dispute Resolution Committee (P4P). On 18 July 2005, the P4P ruled that the strike was legal and that the employer should rehire all terminated union members to their former positions. The P4P did not, however, provide redress for any of the other violations committed by the employer and did not even invoke the Indonesian law that addresses freedom of association (Act No. 21/2000). The employer refused to implement the order of the P4P and appealed the decision to the High Court for State Administrative Affairs. In a decision, of 12 January 2006, No. 248/G/2005/PT.TUN.JKT, the High Court for State Administrative Affairs rejected the challenge and upheld the P4P’s recommendation. The employer again refused to implement the decision and on 30 January 2006 filed an appeal at the Supreme Court of Indonesia. In the meantime, 238 workers remained illegally terminated pending the court appeal.
8. 953. Indonesian law (section 155 of Act No. 13/2003) mandates that employers continue to pay wages to workers while a labour dispute is in process. On 8 August 2005, the workers who had been on strike asked the Central Jakarta State Court to order the company to comply with its legal obligations to pay wages to the illegally terminated workers. The Central Jakarta State Court found in the workers’ favour on 15 August 2005 and, for purposes of implementation of the judgement, transferred the case to the South Jakarta State Court, in whose jurisdiction the company is located. Although the company paid two months of back wages (May–June 2005), it failed to pay the remaining owed wages and continued to withhold wages in violation of Indonesian law. On 2 February 2006, the workers requested that the Central Jakarta State Court issue a “fiat of execution” for the back wages for July 2005–January 2006. On 6 February 2006, the court ruled in favour of the employees and, on 7 February 2006, it passed the case on to the South Jakarta State Court for implementation. On 17 February 2006, the South Jakarta State Court passed an Aanmaning telling the company to pay the back wages; however, the court failed to issue a formal order. The judge stated that he did not believe that all of the wages needed to be paid despite the order from the Central Jakarta State Court. On 9 March 2006, the workers’ lawyers asked the South Jakarta State Court to seize the company’s assets to pay the back wages. They were still awaiting a response at the time of the complaint. Also on 9 March 2006, the workers reported the failure of the South Jakarta State Court to implement the order to the Judicial Commission which oversees the judiciary. However, upon arriving to file their complaint, they were informed that the Commission had already received an explanation of the court’s decision. The workers found it quite improper that the Commission received an answer to a complaint that had not been filed yet and that the answer came from the company’s attorney rather than from the court itself. The representative of the Commission went on to insult the workers, saying that their understanding of the matter was at kindergarten level while the understanding of the company’s attorney was based on his law degree.
9. 954. The complainant adds that the Indonesian judicial system suffers from endemic corruption, citing in support of its allegation reports and findings made by PriceWaterhouseCooper, Transparency International, the Political Risk Services Group, the World Bank, the United States State Department, Human Rights Watch and the International Commission of Jurists. According to the complainant, the failure of the judiciary to enforce the rule of law is particularly severe in labour cases like the one concerning PT Securicor Indonesia as business interests frequently influence the outcome of court cases due to corruption. Supreme Court decisions have historically been adverse to unions and the appeals process entails significant delays and continues to be used by employers in order to forestall, if not avoid, the enforcement of labour rights.
10. 955. Furthermore, citing Human Rights Watch and the United States Department of State, the complainant alleges that arbitrary detentions and discriminatory criminal prosecutions like those suffered by the union President Fitrijansjah Toisutta are widespread. Although Indonesia has made significant steps toward democracy, there has been a resurgence in the last years in the power of the military over social and political affairs as well as disturbing signs of a return to criminalization of dissent. Although the Indonesian Criminal Procedure Code contains provisions against arbitrary arrest and detention, the Code lacks adequate enforcement mechanisms and is routinely violated by the authorities. In particular, labour activists have repeatedly been targeted for interrogation, arrest, detention and prosecution. The police and military continue to intervene in labour matters, to protect employers’ interests.
11. 956. The complainant also refers to previous cases concerning Indonesia which have been examined by the Committee on Freedom of Association and in which the Committee concluded that the Government had failed to provide “expeditious, inexpensive and fully impartial” means of redress for violations of freedom of association rights [Case No. 2336, 336th Report, paras 498–539; Case No. 2236, 336th Report, paras 68–78, 335th Report paras 909–971]. The complainant also referred to previous cases involving illegal interrogation, detention and criminal prosecution by the Indonesian authorities [Case No. 2116, 326th Report, para. 357; Case No. 1773, 297th Report; Case No. 1756, 295th Report]. The complainant adds that, although the recommendations of the Committee on Freedom of Association in these cases have helped bring about several positive reforms in the labour law of Indonesia, the formal legal changes have failed to translate into labour rights in practice. Increased involvement by the ILO is critical if the formal improvements are to have any real impact.
12. 957. In conclusion, the complainant requests the Committee to advise the government to: (i) enforce the decision of the P4P and the High Court for State Administrative Affairs in accordance with the order to the State Court of Central Jakarta; (ii) order the employer to reinstate all union members terminated for supporting the strike, with full back pay and benefits necessary to make whole those union members who were terminated for the period they had been without employment at PT Securicor Indonesia; further instruct the employer that all union members terminated or “transferred” to another company (Group 4 Falck Indonesia) shall receive five times the amount of severance pay, reward pay for period of employment and compensation pay for entitlements that have not been used, according to what is stipulated under section 156 of Act No. 13/2003 for all previous years of service to PT Securicor Indonesia; (iii) order the employer to enter negotiations aimed at reaching a collective bargaining agreement with regard to the terms and conditions of employment in the newly merged company; (iv) order the Indonesian police and Prosecuting Attorney to stop criminalizing union activities and specifically, to stop the harassment, coercion and intimidation of union members by calling them for interrogation; (v) drop all charges against Fitrijansjah Toisutta and other union members for “unpleasant acts” against the employer for participating in a legal strike.
13. B. The Government’s reply
14. 958. In communications dated 8, 9 March and 21 September 2007, the Government indicates that as a result of the merger between PT Securicor Indonesia and Group 4 Falck in July 2004, 308 workers from a total of 600 workers of PT Securicor Indonesia (284 from Jakarta and 24 from Surabaya) refused the company’s proposal to include them under the new management by transferring them to Group 4 Falck. Since the workers refused to join the new management, the employer terminated their employment. The termination was approved by the P4P. As there was no agreement, since 26 April 2005, the workers started a strike and demonstration within the company area, at the office of the Ministry of Manpower and Transmigration and the DPR (Parliament) building. The Manpower Office of Jakarta Province handled this case but as there was no agreement, the mediator gave its advice to the employer of PT Securicor Indonesia to reinstate Mr Hendy and other workers and consequently pay their wages for May 2005. The employer refused and the case was filed before the P4P on 16 June 2005. On 29 June 2005, the P4P confirmed the advice of the mediator to reinstate the workers and asked the employer to pay their wages for May–June 2005. In response to the decision of the P4P, the employer appealed to the High Court for State Administrative Affairs (PTTUN) of Jakarta and, on 12 January 2006, the court decided to reject the appeal and reaffirm the decision of the P4P. Subsequently, the employer filed another appeal to the Supreme Court in a last effort to invalidate the decision. This process prevented the payment of severance pay as long as the issue was pending before the Supreme Court. As a result, the workers staged another demonstration before the Office of the Ministry of Manpower and Transmigration, the Parliament and the Supreme Court. On 19 May 2006, the Supreme Court decided to reject the appeal and confirmed the P4P decision. Both parties accepted the decision and, on 27 December 2005, the employer reinstated the 24 workers and paid their wages accordingly. The Ministry of Manpower and Transmigration made various efforts to settle the dispute in coordination with other institutions such as Parliament and the Supreme Court. On 28 July 2006, the dispute was legally settled through an agreement between PT Securicor Indonesia and the workers concerned. The terms of the agreement are the following:
15. – both sides agreed to terminate the working relationship;
16. – the severance pay was agreed as follows:
17. (i) double compensation payment based on section 156, paragraph 2, of Act No. 13/2003;
18. (ii) appreciation compensation based on section 156, paragraph 3, of Act No. 13/2003;
19. (iii) replacement of right based on section 156, paragraph 4, of Act No. 13/2003 (including wages owed during the waiting period before the court decision was issued);
20. (iv) additional extra fee based on the company’s policy.
21. According to the Government, all workers signed the agreement and accepted the payment while the representative of the workers asked for an excuse and thanked the Government for the assistance provided.

C. The Committee’s conclusions

1. 959. The Committee recalls that this case concerns allegations that PT Securicor Indonesia, in the context of a merger with Group 4 Falck, refused to enter into negotiations with the trade union over terms and conditions of employment in the merged enterprise, which led to a strike by more than 600 workers as of 25 April 2005. Pursuant to this, the employer committed several acts of anti-union discrimination and harassment, including: preventing the union president and officials from entering company premises; dismissing 238 union officials and members in May 2005, refusing to reinstate them in spite of several court orders to that effect; and attempting to coerce and intimidate union members by calling their families. The complainant also alleges that the union President Fitrijansjah Toisutta and members Tri Muryanto and Edi Putra were repeatedly summoned for unwarranted interrogation by the police and the Prosecuting Attorney; that they were charged on 7 July 2005 with the crime of committing “unpleasant acts” against the company and that their case is pending before the courts; that the judiciary systematically favours employers; and that the legislation lacks adequate procedures to enforce workers’ rights to freedom of association and collective bargaining.
2. 960. The Committee observes from the complainant’s allegations and the Government’s reply that: (i) 308 workers were dismissed by PT Securicor Indonesia in May 2005 for having staged a strike as of 25 April 2005; (ii) all instances, including the P4P, the High Court for State Administrative Affairs and the Supreme Court found that the strike which began on 25 April 2005 was legal and that the employer should reinstate the dismissed workers and pay wages owed; (iii) 24 workers were reinstated on 27 December 2005 pursuant to the order issued to that effect by the Supreme Court after hearing the case in the last instance; (iv) on 28 July 2006 the two parties reached an agreement by which they agreed to terminate the employment relationship between the enterprise and the workers concerned, in return for payment of full compensation.
3. 961. While taking due note that the two parties have finally reached a settlement agreement, the Committee wishes to recall that no one should be penalized for carrying out or attempting to carry out a legitimate strike [Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 660]. In this respect, the Committee requests the Government to specify the circumstances under which only 24 out of 308 workers were finally reinstated pursuant to their dismissal for having participated in the strike which began on 25 April 2005.
4. 962. The Committee further notes with regret that the Government does not reply to the complainant’s allegations concerning the repeated summons of the union President Fitrijansjah Toisutta and members Tri Muryanto and Edi Putra for interrogation by the police and the Prosecuting Attorney as well as the pressing of charges against them on 7 July 2005 for the crime of committing “unpleasant acts” against the company. The Committee recalls that 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 [Digest, op. cit., para. 63]. The apprehension and systematic or arbitrary interrogation by the police of trade union leaders and unionists involves a danger of abuse and could constitute a serious attack on trade union rights [Digest, op. cit., para. 68]. Recalling that the strike which began on 25 April 2005 was declared legal by the competent authorities, the Committee emphasizes that no one should be deprived of their freedom or be subject to penal sanctions for the mere fact of organizing or participating in a peaceful strike [Digest, op. cit., para. 672]. The Committee requests the Government to indicate whether the charges brought against the union President Fitrijansjah Toisutta and members Tri Muryanto and Edi Putra for committing “unpleasant acts” against the company are pending before the courts or whether the charges have been dropped. In the event that this matter is still before the courts, the Committee requests the Government to institute an independent inquiry into this matter and, if it is found that the charges were brought for having organized or participated in the peaceful strike which began on 25 April 2005, to ensure that they be dropped immediately and to keep it informed of developments in this respect.
5. 963. The Committee also notes with regret that the Government does not reply to the allegations concerning acts of harassment against union members and their families, including phone calls at their homes by the company, in the context of the merger between PT Securicor Indonesia with Group 4 Falck and the new management’s refusal to negotiate the terms and conditions of employment of the employees, as well as the transfer of a certain number of the employees under new management. The Committee recalls that the Government’s obligations under Convention No. 98 and the principles on protection against anti-union discrimination cover not only acts of direct discrimination (such as demotion, dismissal, frequent transfer, and so on), but extend to the need to protect unionized employees from more subtle attacks which may be the outcome of omissions. In this respect, proprietorial changes should not remove the right to collective bargaining from employees, or give rise to direct or indirect threats against unionized workers and their organizations [Digest, op. cit., para. 788]. Furthermore, acts of harassment and intimidation carried out against workers by reason of trade union membership or legitimate trade union activities, while not necessarily prejudicing workers in their employment, may discourage them from joining organizations of their own choosing, thereby violating their right to organize [Digest, op. cit., para. 786].
6. 964. Finally, the Committee notes with regret that the Government does not reply to the serious allegations made with regard to the Government’s failure to ensure an effective mechanism of protection against acts of anti-union discrimination. The Committee also notes with concern that this is the fourth case recently brought before it, in which the Government focuses in its reply exclusively on the settlements reached pursuant to mediation by the labour authorities, and omits any reference to investigations aimed at verifying and remedying the alleged acts of anti-union discrimination [Case No. 2336 (336th Report, paras 498–539, at 534); Case No. 2451 (343rd Report, paras 906–928, at 926); and Case No. 2472 (348th Report paras 907–942)]. While acknowledging the importance of mediation in finding commonly acceptable solutions to labour disputes, the Committee also recalls that, where a government has undertaken to ensure that the right to associate shall be guaranteed by appropriate measures, that guarantee, in order to be effective, should, when necessary, be accompanied by measures which include the protection of workers against anti-union discrimination in their employment [Digest, op. cit., para. 814]. The basic regulations that exist in 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 therefore urges the Government to take steps, in full consultation with the social partners concerned, including through the adoption of legislative measures to ensure comprehensive protection against anti-union discrimination in the future, providing for swift recourse to mechanisms that may impose sufficiently dissuasive sanctions against such acts.
7. 965. The Committee encourages the Government to fully utilize the ILO technical assistance available to it.