Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 358, Noviembre 2010

1. 559. The complaint is contained in a communication from the Serikat Pekerja PT Angkasa Pura 1 Union (SP–AP1) and Public Services International (PSI) dated 11 September and 19 October 2009.
2. 560. The Government forwarded a partial response to the allegations in a communication dated 29 October 2009.
3. 561. 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). It has not ratified the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. The complainants’ allegations

1. 562. In a communication dated 11 September 2009, the complainant organizations SP–AP1 and PSI denounce the infringement by the Government of Indonesia of ILO Conventions Nos 87 and 98 through the actions of its state-owned enterprise, PT (Persero) Angkasa Pura 1, such as: refusing to implement in full a collective bargaining agreement (CBA) negotiated with the union for the period 2005–07 and seeking unilaterally to vary its terms; causing an unreasonable delay in concluding arbitration proceedings aimed at resolving the dispute; intimidating and harassing workers protesting against the refusal to implement the CBA in full; dismissing or suspending workers for taking part in legitimate strike action; establishing or actively encouraging the establishment of a new company-controlled or “yellow union” with the sole aim of ousting SP–AP1 as the representative union; and actively encouraging employees to disaffiliate from SP–AP1 and affiliate to the new union.
2. 563. The complainants indicate that SP–AP1 is a national union established in 1999 organizing in 13 airports in the eastern part of Indonesia, whose members are engaged in the provision of airport management and air traffic services (including air traffic controllers, technicians, aviation security, aviation firefighters, car park attendants, baggage handlers, check-in counter staff and administration desk staff). SP–AP1 is a “reformasi” (or independent) union, which is affiliated to PSI at international level. At the time of the dispute, 3,200 of the 3,800 workers employed in the 13 airports were members of SP–AP1.
   • Collective bargaining agreement
3. 564. The complainants state that SP–AP1 and the management of PT (Persero) Angkasa Pura 1 concluded in 2005 a “joint employment agreement” or CBA, which covered, amongst other things, facilities, salaries, working hours, overtime payments, pension entitlements and retirement and health allowances. Notably, the CBA provided for the salaries of the employees of Angkasa Pura 1 to be linked to the civil service pay scale.
4. 565. However, according to the complainants, the management of the company has consistently failed to implement the CBA in full, in particular sections 38(2) concerning the salary package, 65(2) on pensions and 66(1), (2) and (4) concerning retirement health insurance and benefits. Between 2006 and 21 April 2008, the union held numerous meetings with the management in an attempt to break the stalemate, and the Ministry of Manpower and Migration intervened constructively in the dispute by establishing an industrial dispute team and inviting the union and management to meetings on 9 and 17 January 2008. According to the complainants, the team mediated the concerns of both sides and recommended full compliance with the CBA but its recommendations were ignored by the company.
5. 566. The complainants also indicate that, on 6 March 2008, the General Director of Industrial Relations and Social Insurance for the Ministry of Manpower and Migration, in a further attempt to resolve the dispute, mediated a meeting between the union and management, with representatives from the Ministry of State-Owned Enterprises and the Ministry of Transportation in attendance. The conclusions of the meeting are set out in the Joint Agreement of 6 March 2008, which also extended the period of the CBA to cover 2008. The parties agreed, inter alia, on terms relating to pensioners’ allowances, pension fund programmes for new employees and overtime working hours and payments for operational staff, to be implemented within 30 days of the Joint Agreement. It was also agreed that separate negotiations would be held on employee salary adjustments in line with the CBA.
6. 567. The complainants report that, on 17 April 2008, the Ministry of Manpower and Migration convened a meeting, between the union and management to assess progress on the implementation of the Joint Agreement. No progress having been made, a further meeting was called for 21 April 2008, during which, in the face of continued refusal by management to abide by the terms of the Joint Agreement, the parties agreed to declare “failed negotiations” concerning parts of the CBA and the Joint Agreement.
7. 568. Furthermore, the complainants state that, on 13 October 2008, PT (Persero) Angkasa Pura 1 began proceedings in the Industrial Relations Court, District Court of Central Jakarta, to have section 38 of the CBA, linking salary increases for the company’s employees to salary increases for civil servants, declared null and void. In response, the union issued on 18 November 2008 a counterclaim concerning the loss it had suffered as a result of the non-implementation of the CBA. In a decision dated 24 March 2009, the Industrial Relations Court rejected the company’s claim and upheld the union’s counterclaim. To date, the management of PT (Persero) Angkasa Pura 1 refuses to abide by the court decision.
   • Strike action
8. 569. According to the complainants, the union announced on 25 April 2008 its intention to call three days of strike action (7–9 May 2008), in accordance with section 3(2) of the CBA and existing national laws and regulations. Letters giving notice of the intention to take strike action were sent to the Director of PT (Persero) Angkasa Pura 1, the head of police of the Republic of Indonesia and the Ministry of Manpower and Migration. The complainants allege that the company’s management reacted to the notice of strike action by issuing a letter dated 5 May 2008 informing members of SP–AP1 that the planned strike was illegal and that those who participated in the “illegal work stoppage” would be subjected to stern measures according to the company’s disciplinary rules and mutual employment agreement.
9. 570. The complainants indicate that the union sent letters to its members advising them of rules of conduct during the strike, including: ensuring the maintenance of services directly related to the safety of human lives; demonstrating the best conduct and manner; refraining from any criminal acts or sabotage; and obeying the laws of the land. The union also directed that no air traffic control staff shall be involved in the strike, since section 139 of Act No. 13 of 2003 concerning manpower provides that the implementation of strikes staged by workers of enterprises that serve the public interest or whose types of activities, if interrupted by strike, would lead to the endangerment of human lives, shall be arranged in such a way so as not to disrupt public interests or endanger the safety of other people, and that enterprises that serve the public interest or whose types of activities, if interrupted by strike, would lead to the endangerment of human lives, are those running hospitals, fire departments, those providing railway services, those in charge of sluices, regulation of air traffic, and sea traffic.
10. 571. According to the complainants, the strike action was partial, held over two days (7–8 May 2008) and involved six out of the 13 airports. The management retaliated to the strike action on 7 May 2008 by dismissing Mr Arif Islam, Chairman of Angkasa Pura 1 union, Sepinggan branch, and suspending without pay seven other leaders of SP–AP1: (1) Ms Sulistiyani, General Secretary; (2) Ms Sri Rejeki, Head of Human Resources and Development; (3) Ms Milda, Head of Legal Department; (4) Ms Asnawaty, General Treasurer; (5) Mr Trijono, Chair of head office branch; (6) Mr Effendy Sulistiono, Secretary of head office branch; and (7) Mr Florentinus Subandi, Field Coordinator for head office branch.
11. 572. The complainants further claim that the management used heavy-handed tactics to intimidate other workers taking part in the strike action, such as: using the military to force workers at Frans Kaisepo-Biak Airport to return to work on 7 May 2008; arresting Mr Primus H. Rahagiar, the Chairman of SP–AP1 at the same airport; ordering airport police to prevent trade union leaders from communicating directly with striking workers at Sepinggan-Balikpapan Airport; and coercing workers to sign a letter acknowledging that they had been wrong to participate in the strike action.
12. 573. The complainants indicate that SP–AP1 informed Commission IX of the House of Representatives (Demography, Health, Manpower and Transmigration Affairs) of management’s refusal to honour the CBA and its intention to take strike action. Following a meeting on 8 May 2008 between representatives of Commission IX, management and SP–AP1, the Chairwoman of Commission IX sent a letter to the management recommending that the striking workers should neither be dismissed nor punished and that management should at all times respect the law. Moreover, on 21 May 2008, SP–AP1 attended a general hearing held by Commission IX regarding the strike and management’s reaction to the industrial dispute. In its conclusions, the Commission urged the General Director of Industrial Relations and Social Insurance for the Ministry of Manpower and Migration to carry out an inspection of management’s conduct during and after the strike, and directed that management cease all acts of intimidation and retaliation against SP–AP1 and its members. According to the complainants, both the recommendations and the conclusions of the Commission were ignored by management.
13. 574. The complainants also report that, on 16 May 2008, the union complained to the National Commission on Human Rights about the violation of its rights to freedom of association and collective bargaining and the treatment of its members. The Commissioner subsequently visited the headquarters of PT (Persero) Angkasa Pura 1 seeking further information from the union and management. On 12 August 2008, the Human Rights Commission requested further information from management on progress in reaching a resolution to the dispute. The complainants stress that the deadlock persists despite these interventions.
14. 575. On 4 June 2009, the Head of the Manpower and Social Agency of the City Government of Balikpapan issued a recommendation that the company’s management reinstate Mr Arif Islam to his previous position and pay his wages for the period of his dismissal. According to the complainants, the board has ignored this recommendation so far.
    • Union-busting tactics and intimidation and harassment of SP–AP1 members
15. 576. The complainants allege that Mr Arif Islam remains dismissed, and that the management continues to deny his dismissal claiming that he was on secondment and that his secondment has been brought to an end. The seven suspended employees were eventually reinstated in September 2008, without however receiving full compensation for the period of suspension. According to the complainants, they have not been permitted to return to their full duties, have been isolated by management, are given few or no duties to perform during the working day and often find upon arrival at work access to computers and networks denied through changes of passwords. Other acts of intimidation include threatening or subjecting SP–AP1 members to disciplinary interrogations and threatening them with criminal proceedings.
16. 577. Finally, the complainants claim that, in April 2009, a new union, Asosiasi Karyawan Angkasa Pura 1 (AKA) was formed with the support of the company’s management. AKA has been actively raiding the members of SP–AP1, aided and abetted by management. Members of SP–AP1 have been threatened with relocation or transfer if they do not join AKA and have been “bribed” with offers of promotion in order to join the new union. The management has been handing out disaffiliation forms regarding SP–AP1 to employees, while at the same time giving them affiliation forms for AKA. In the complainants’ view, the intention is to weaken the density of SP–AP1 in order to claim that the union no longer has the legal authority to bargain on behalf of its members. SP–AP1 estimates that it has lost close to 50 per cent of its membership as a result of the union-busting and intimidation tactics of the management of PT (Persero) Angkasa Pura 1.
17. 578. In conclusion, the complainants denounce that the Ministry of State-owned Enterprises and the management of PT (Persero) Angkasa Pura 1 have ignored repeated appeals emanating from the Ministry of Manpower and Migration, Commission IX of the House of Representatives and the National Commission on Human Rights to resolve the dispute by honouring the terms of the CBA, ending all acts of harassment and intimidation against the leadership and members of SP–AP1 and reinstating Mr Islam.
18. 579. The complainants therefore request that:
19. (1) the company’s management reinstate Mr Arif Islam and ensure that he is fully compensated for the period of his dismissal;
20. (2) the workers who had been suspended are properly reintegrated into the workforce, fully resume their duties without obstruction and are fully compensated for the period of their suspension;
21. (3) the management return to the negotiating table in good faith and take steps to implement the CBA and joint agreement of 6 March 2008;
22. (4) the management refrain from all acts of interference in the affairs of SP–AP1, including acts of intimidation and attempts to weaken the membership and bargaining power of the union; and
23. (5) the company’s management and the Minister of State-owned Enterprises abide by the recommendations of the Ministry of Manpower and Migration, Commission IX of the House of Representatives and Manpower and Social Agency of the City Government of Balikpapan.
24. 580. In a communication of 19 October 2009, the complainants forward the recommendations of the National Commission on Human Rights relating to this case, which confirm its own requests.

B. The Government’s reply

1. 581. In a communication dated 29 October 2009, the Government informs that the Ministry of Manpower and Migration organized several meetings in soliciting information from the employer (PT (Persero) Angkasa Pura 1) concerning Case No. 2735.
2. 1. Refusing to implement in full a collective agreement negotiated with the union for the period 2005–07 and seeking unilaterally to vary its system
3. 582. In the Government’s view, PT (Persero) Angkasa Pura 1 has implemented the CBA for the period 2005–07, with the exception of three sections:
   • – Section 38(2)(a) – According to the Government, this section referring to the salary scale of civil servants, cannot be implemented by the company, as it is a state-owned enterprise (Badan Usaha Milik Negara – BUMN) and thus bound to abide by all regulations of state-owned enterprises, including Government Regulation No. 45 of 2005 concerning the establishment, management, inspection and termination of state-owned enterprises. Section 95(2) of that regulation provides that regulations on civil servants, including ranks and echelon structure, cannot be applied to a state-owned enterprise.
   • – Section 66(4) – This section on health allowance for retired workers provides that the amount is regulated and decided by the employer. The Government indicates that, even though there was no employer’s decision on the issue during the 2005–07 CBA, the company had issued Board of Management Decisions No. AP.I.164/KU.170/2003/DU-B of 27 January 2003 concerning health insurance for retired workers and No. AP.I.2621/KP.170/2005/DU-B of 6 September 2005 concerning the health allowance programme for retired workers. Both decisions state that retired workers in the company’s Health Foundation for Retired Workers (Yayasan Kesehatan Pensiun), are entitled to a maximum health security of 12,500,000 rupiah per person/year.
   • – Section 66(4) – The section stipulates that the funding for the Retired Workers’ Health-care Programme stems from the contributions of the workers and the company. Retired workers who have paid their contributions during employment are covered by this programme but those who did not pay their contributions, are not entitled to its benefits. The SP–AP1 complains that all retired workers, regardless as to whether he/she has paid the contribution of this programme, are entitled to the benefits of this programme.
4. 583. The Government states that, in accordance with Act No. 2 of 2004 on industrial relations dispute settlement, if a party is not able to fulfil the agreement, the party can make a judicial appeal to the Industrial Relations Court.
5. 2. Causing an unreasonable delay in concluding arbitration proceedings aimed at resolving the dispute
6. 584. The Government indicates that the dispute between SP–AP1 and PT (Persero) Angkasa Pura 1 has not been solved through arbitration proceedings, and that the Government has taken several measures to facilitate the settlement of the dispute. For instance, on 17 January 2008, the Government formed a team of labour inspectors and mediators to solve the labour dispute in the company. The team visited the company and advised the parties to solve the dispute through bipartite consultative dialogues, in accordance with the procedures in Act No. 2 of 2004. Also, following the complaint delivered to the Government by the SP–AP1 on 29 February 2008, the Government invited the parties on 6 March 2008 to clarify the results of the bipartite consultative dialogue. At that meeting, an agreement was reached, stating that:
   • – within 30 days, the parties shall implement the agreement relating to the provision of facilities, i.e. hospitalization and official travel; retirement benefit; retirement benefit for new workers; pension scheme for new workers; overtime payment for operational workers;
   • – a separate negotiation will be conducted relating to: adjustment of basic wage for workers; health-care programme for retired workers; allowance for the Secretary of the Committee for Civil Servant Discipline Enforcement Team; and
   • – the job transfer of Ms Sulistyani and Ms Asnawati (members of the board of management of the trade union) will be cancelled.
7. 585. Furthermore, the Government invited both parties on 17 April 2008, to clarify the implementation of the agreement signed on 6 March 2008. The Government indicates that, up to now, the agreement has been implemented as regards: hospitalization and official travel under Board of Management Decision No. KEP.34/KP.30/2008 of 17 April 2008; pension scheme for new workers under Official Memo No. DDAP.25/KP.30.6/2008-B of 18 January 2008; overtime payment for operational workers under the President Director’s Circular No. ED.13/KP.10.9/2008-DU of 17 April 2008; and cancellation of the job transfer of Ms Sulistyani and Ms Asnawati.
8. 3. Intimidating and harassing workers protesting against the refusal to implement the CBA in full
9. 586. The Government stresses that its function has always been to protect workers’ rights, i.e. to urge the parties to settle their disputes immediately through bipartite negotiation, as proven by the following letters sent to the parties:
   • – letter No. 560/1045/Disnaker.4/2008 dated 5 May 2008 concerning bipartite negotiation sent by the Head of Balikpapan Manpower Regional Office;
   • – letter No. 260/PHIJSKA/IH/2008 dated 25 August 2008 on advice relating to the dispute settlement of PT (Persero) Angkasa Pura 1 sent by the Director-General for Industrial Relations Development and Workers’ Social Security;
   • – letter No. 97/PHIJSK/VIII/2009 dated 5 March 2009 concerning the wage of Mr Arif Islam sent by the Director-General for Industrial Relations Development and Workers’ Social Security; and
   • – letter No. B.58/PHIJSK/PPHI/III/2009 dated 6 March 2009 concerning “the payment of wages and fulfilment of other rights regularly received by the suspended workers”, sent by the Director for Industrial Relations Dispute Settlement (PPHI) on behalf of the Director-General for Industrial Relations Development and Workers’ Social Security.
10. 4. Dismissing or suspending workers for taking part in legitimate strike action
11. 587. The Government states that PT (Persero) Angkasa Pura 1 did not dismiss the seven workers who violated the CBA but only gave them disciplinary punishment in the form of three months’ suspension, as of 7 May 2008 to 6 August 2008.
12. 588. The Government indicates that the workers violated the following CBA sections:
    • – Section 84, heading Obligations, point 2 refers to giving priority to the interest of the State/institution above the interest of any group, and avoiding anything that is in conflict with the interest of the State/institution and may benefit the interest of a certain group.
    • – Section 84, heading Prohibition, point 19 refers to conducting activities that might disturb law and order and lead to the creation of a non-conducive working environment.
    • – Section 84, heading Prohibition, point 23 refers to refusing or not implementing an official order from one’s superior.
    • – Section 99(3) provides that a civil servant who in assisting a company is found to violate the laws and regulations of the company, should be terminated from his/her assignment and be transferred back to his/her original institution.
13. 589. The Government further reports that the seven temporarily suspended workers have been reinstated since 7 August 2008.
14. 5. Establishing or actively encouraging the establishment of a new company-controlled or “yellow” union with the sole aim of ousting the trade union of PT (Persero) Angkasa Pura 1 as the representative union
15. 590. The Government reaffirms its commitment as an ILO Member to protecting the universal rights of workers, as stated in the eight ILO core Conventions ratified by Indonesia. As to ILO Convention No. 87, it has been enacted by the Government through Act No. 21 of 2000 concerning trade unions. The Government also renews its commitment to protecting the free will of workers without pressure or intervention from the employer, the Government, a political party or any other parties. In accordance with Act No. 21 of 2000 and the Ministry of Manpower Regulation No. 16/MEN/2001 concerning procedures for the registration of trade unions, whereby the Government has to register all the established trade unions in Indonesia, the Government claims that it has never been involved directly or indirectly in the establishment of trade unions.
16. 6. Actively encouraging employees to disaffiliate from the SP–AP1 and affiliate to the new union
17. 591. The Government reiterates that it upholds the rights of workers, in compliance with ratified ILO Convention No. 87, which has been enacted through Act No. 21 of 2000 concerning trade unions. Based on this Act, all workers have the right to form and become a member of a trade union, and become a board member of a trade union according to their own choice without pressure or intervention whatsoever from any party. The Government again claims that, in accordance with Act No. 21 of 2000 and the Ministry of Manpower Regulation No. 16/MEN/2001, it has never been involved directly or indirectly in the establishment of trade unions.
18. 592. With reference to the complainants’ requests, the Government makes the following observations:
    • (a) Request that the company’s management reinstate Mr Arif Islam and ensure that he is fully compensated for the period of his dismissal
19. 593. The Government indicates that Mr Arif Islam is a civil servant of the Ministry of Transportation. According to Regulation No. SK991 of 7 January 2001 issued by the Ministry, he was assigned to PT (Persero) Angkasa Pura 1 as a technician responsible for flight safety and security, to assist in the control tower as a flight traffic controller in Sepinggan Airport, Balikpapan, East Kalimantan. According to Decree No. SK. 613 of 8 October 2008 of the Ministry of Transportation, Mr Islam was dismissed from the company and reinstated in his former post at the Ministry as of 1 July 2008; his rights as a civil servant were restored based on the regulations of the Ministry. The Government states that the company prepared the following gratuities for Mr Islam but he never availed himself of any of them: retirement allowance; housing allowance; pension benefits accorded for his services at the company; and workers’ social security. According to Instruction Letter No. Print/323/XII/2008 of 9 December 2008 of the Secretary for the Directorate General of Air Transportation, Mr Islam was assigned to Berau Airport, East Kalimantan as of 5 September 2009. According to the Government, he has unfortunately never worked there.
    • (b) Request that the workers who had been suspended are properly reintegrated into the workforce, fully resume their duties without obstruction and are fully compensated for the period of their suspension
20. 594. The Government reiterates that the workers concerned (Ms Asnawati; Ms Sri Rejeki; Mr Florentinus Subandi; Ms Sulistiani, SE; Ms Milda, SH; Mr Efendi Sulistiono) were not terminated but given disciplinary punishment in the form of a three-month suspension from 7 May to 6 August 2008, because of their violation of section 84, heading Obligations, point 2; section 84, heading Prohibition, point 19; section 84, heading Prohibition, point 23; and section 99(3) as described above. The said seven workers have been reinstated since 7 August 2008. According to the Government, during the suspension, the basic wages and fixed allowances of the workers have been paid out, while unfixed allowances which depend on attendance have not. In the Government’s view, this is in accordance with the company’s Board of Management Decree No. Kep.43/KP.00.8/2008 concerning work regulation, which states that those who violate the regulation will be punished by receiving wages only, without incentives or allowances.
    • (c) Request that the management return to the negotiating table in good faith and take steps to implement the CBA and Joint Agreement of 6 March 2008
21. 595. The Government reports that, on 17 April 2008, the Directorate General of Industrial Relations Development and Workers’ Social Security of the Ministry of Manpower and Migration took a precautionary measure by inviting the company’s management and the SP–AP1 to clarify the implementation of the agreement of 6 March 2008. The Government indicates that the company has not yet implemented three points of the collective agreement of 6 March 2008, as follows: adjustment on basic wage increase in accordance with the civil servants’ wage scale; health scheme for retired workers; and retirement scheme for employees. As mentioned above, the adjustment of the basic wage cannot be implemented due to section 95(2) of Government Regulation No. 45 of 2005 and the status of PT (Persero) Angkasa Pura 1 as a state-owned enterprise. In this regard, the Government informs that the company’s management made an appeal through the Industrial Relations Court in Jakarta, which was unfortunately turned down because the former could not furnish the latter with the required judicial procedures. As a result of it, the former is making another judicial appeal to the Supreme Court for a cassation (still in process).
    • (d) Request that the management refrain from all acts of interference in the affairs of SP–AP1, including acts of intimidation and attempts to weaken the membership and bargaining power of the union
22. 596. The Government reaffirms its commitment as an ILO Member to protecting the universal rights of workers, a commitment which is illustrated by the ratification of all eight ILO core Conventions. ILO Convention No. 87 has been enacted through Act No. 21 of 2000 concerning trade unions. The Government again states that, in accordance with national legislation, it has never been involved directly or indirectly in the establishment of trade unions.
    • (e) Request that the company’s management and the Minister of State-owned Enterprises abide by the recommendations of the Ministry of Manpower and Migration, Commission IX of the House of Representatives and Manpower and Social Agency of the City Government of Balikpapan
23. 597. In the Government’s view, the various entities of the Government of Indonesia, i.e. the Ministry of Manpower and Migration, Ministry of Transportation, Commission IX of the House of Representatives, Central Jakarta Manpower Municipal Office and Manpower and Social Agency of the City Government of Balikpapan, are consistent in facilitating the labour dispute settlement in PT (Persero) Angkasa Pura 1 in accordance with the prevailing laws and regulations. Letter No. /PHIJSK/PPHI/V/2008 of 5 May 2008 from the Director-General for Industrial Relations Development and Workers’ Social Security emphasizes that the company shall solve the dispute with the SP–AP1 as soon as possible.

C. The Committee’s conclusions

1. 598. The Committee notes that, in the present case, the complainants allege several violations of freedom of association on the part of the state-owned enterprise PT (Persero) Angkasa Pura 1, including the following: (1) refusing to implement in full a CBA negotiated with the union for the period 2005–07 and seeking unilaterally to vary its terms; (2) causing an unreasonable delay in concluding arbitration proceedings aimed at resolving the dispute; (3) intimidating and harassing workers protesting against the refusal to implement the CBA in full; (4) dismissing and suspending workers for taking part in legitimate strike action; and (5) establishing or actively encouraging the establishment of a new, company-controlled union for the purpose of ousting SP–AP1 as the representative union.
2. 599. The Committee notes the Government’s indication that the Ministry of Manpower and Migration organized several meetings in soliciting information from the company concerning this case. The Committee notes that the SP–AP1 and the management concluded in 2005 a collective agreement, which, according to the allegations, has not been implemented in full by the company. In this regard, the complainants refer in particular to sections 38(2)(a) concerning the linking of salaries to the civil service pay scale, 65(2) on pensions and 66(1), (2) and (4) concerning retirement health insurance and benefits, whereas the Government only mentions sections 38(2)(a) and 66(4). The Committee notes that, according to the Government, section 38(2)(a) on the salary scale of civil servants cannot be implemented by the company, as it is a state-owned enterprise and thus bound to abide by section 95(2) of Government Regulation No. 45 of 2005, which provides that regulations on civil servants, including ranks and echelon structure, cannot be applied to a state-owned enterprise.
3. 600. The Committee notes the Government’s statement that the Ministry of Manpower and Migration intervened constructively to facilitate the settlement of the dispute by establishing a team of labour inspectors and mediators and inviting the parties to attend several meetings. According to the complainants, the team recommended full compliance with the CBA but its recommendations were ignored by the company; the Government indicates that the team advised the parties to solve the dispute through bipartite consultative dialogue. The Committee also notes that the Government mediated another meeting on 6 March 2008 to clarify the results of the recommended dialogue. As a result, a joint agreement was signed, in which the parties agreed, inter alia, on terms relating to pensioners’ allowances, pension fund programmes for new employees and overtime hours and payment for operational staff to be implemented within 30 days; and on separate negotiations to be held on employee salary adjustments in line with the CBA and health-care programmes for retired workers. Furthermore, the Committee notes that the Government invited both parties on 17 April 2008 to assess progress made on the implementation of the agreement of 6 March 2008. While the complainants indicate that, due to lack of progress, a further meeting was convened on 21 April 2008, at which the parties declared the negotiations concerning parts of the CBA and the joint agreement failed, the Government states that the agreement has been implemented by the company partially, i.e. with the exception of the following three points: adjustment of basic wage increase according to civil servants’ wage scale; health scheme for retired workers and retirement scheme for employees. Finally, the Committee notes that on 13 October 2008 the company filed an appeal with the Industrial Relations Court to declare section 38(2)(a) of the CBA null and void because it is contrary to existing legislation, and that, in response, the union filed a counterclaim for the loss suffered as a result of non-implementation of the CBA. The Committee notes from its decision dated 24 March 2009 that the Industrial Relations Court rejected the company’s claim on procedural grounds. The Government reports that the company has subsequently filed a judicial appeal in cassation with the Supreme Court, which is ongoing.
4. 601. The Committee wishes to recall that it has previously had the occasion to review questions of non-implementation of collective agreements. In this regard, the Committee has reaffirmed that agreements should be binding on the parties, and that failure to implement a collective agreement, even on a temporary basis, violates the right to bargain collectively, as well as the principle of bargaining in good faith [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, paras 939 and 943]. As regards the question of the linking of salaries to the civil service pay scale in a state-owned enterprise that employs civil servants, the Committee observes that this section was part of a voluntarily concluded CBA and the Government’s reasons for rejecting this provision remain unclear.
5. 602. Bearing in mind that agreements should be binding on the parties, the Committee expects that all remaining disputes as to the application of the CBA in force will be resolved in the near future and requests the Government to keep it informed in this respect. Noting that, according to the joint agreement of 6 March 2008, separate negotiations are to be held on three enumerated points including the employee salary adjustments in line with the CBA, and welcoming the various attempts already made by the Ministry of Manpower and Migration to conciliate the parties, the Committee requests the Government to continue to take active steps to intercede with the parties with a view to facilitating the speedy settlement of the dispute between the state-owned enterprise PT (Persero) Angkasa Pura 1 and the SP–AP1 union. It expects to be kept fully informed on any progress achieved in this respect. The Committee also requests the Government to keep it informed on the final outcome of the judicial procedures before the Supreme Court on the question of salaries and to communicate the text of the ruling once it is handed down.
6. 603. As regards the allegations relating to acts of anti-union discrimination, the Committee notes that, on 7 May 2008, the company imposed disciplinary punishment following strike action by: (1) dismissing Mr Arif Islam, Chairman of the Sepinggan branch of SP–AP1; and (2) suspending the following seven other leaders of SP–AP1: Ms Sulistiyani, General Secretary; Ms Sri Rejeki, Head of Human Resources and Development; Ms Milda, Head of Legal Department; Ms Asnawaty, General Treasurer; Mr Trijono, Chair of head office branch; Mr Effendy Sulistiono, Secretary of head office branch; and Mr Florentinus Subandi, Field Coordinator for head office branch.
7. 604. The Committee observes that the parties appear to have different views regarding the legitimacy of the strike action on 7 and 8 May 2008. According to the complainants, the strike is lawful, since the parties had declared at a meeting on 21 April 2008 that negotiations had failed due to lack of progress and the continued refusal by management to abide by the terms of the CBA and the joint agreement, and the SP–AP1 had given strike notice on 25 April 2008, sent letters to its members advising them of rules of conduct and directed that no essential services, including air traffic control staff, be involved in the strike. On the other hand, the Committee notes that, in the Government’s view, the suspended workers violated several CBA sections, in particular: 84(a)(2) obliging to give priority to the interest of the State/institution above the interest of any group and avoid anything that is in conflict with the interest of the State/institution; 84(b)(19) prohibiting activities that might disturb law and order and lead to the creation of a non-conducive working environment; and 84(b)(23) prohibiting to refuse or not implement an official order from one’s superior. The Committee also notes that the company affirmed by a letter dated 5 May 2008 that, in the absence of a bilaterally declared failure to negotiate, the planned strike was illegal under Decree No. KEP.232/MEN/2003 and striking workers would be subjected to stern measures according to the company’s disciplinary rules. In its Decree of Directors No. SKEP.578/KP.80.4/2008, the company has provided as reasons for the dismissal of Mr Arif Islam the violation of several CBA sections and the fact that, under Decree No. KEP.232/MEN/2003, work stoppage is illegal if conducted in companies that serve public interests or where the business directly relates to the safety of human lives.
8. 605. Noting that the present case concerns strike action in a state-owned company serving public interests and that the CBA sections considered by the Government and the company to be violated mainly deal with worker loyalty towards the State/institution, the Committee wishes to generally highlight that public servants in state-owned commercial or industrial enterprises should have the right to negotiate collective agreements, enjoy suitable protection against acts of anti-union discrimination and enjoy the right to strike, provided that the interruption of services does not endanger the life, personal safety or health of the whole or part of the population [see Digest, op. cit., para. 577]. As regards the company’s view that the work stoppage was illegal under Decree No. KEP.232/MEN/2003, the Committee refers to the Committee of Experts’ request to repeal or amend the various conditions included in the strike procedure set out in that Decree, in particular to amend section 4 to the effect that a finding as to whether negotiations have failed, which is a condition for the lawful staging of strikes, can either be made by an independent body or be left to the unilateral determination of the parties to the dispute. In this regard, the Committee considers that the decision that a strike is unlawful (and any ensuing disciplinary measures) should not be based on provisions of legislation that is itself not in accordance with the principles of freedom of association. Finally, on previous occasions when it has had to review the questions touching upon the legitimacy of strike action, the Committee has repeatedly recalled that the responsibility for declaring a strike illegal should not lie with the Government, but with an independent body which has the confidence of the parties involved. It is contrary to freedom of association that the right to declare a strike in the public service illegal should lie with the heads of public institutions, which are thus judges and parties to a dispute [see Digest, op. cit., paras 628 and 630]. It expects that the above principles will be fully taken into account by the parties concerned in the future.
9. 606. With respect to the dismissal of Mr Arif Islam following strike action, the Committee notes the allegation that Mr Islam remains dismissed, and that the company continues to deny his dismissal claiming that he had only worked there on secondment and secondment has been brought to an end. The Committee notes that the Government does not contest the alleged dismissal but indicates that Mr Islam, who, in his capacity as a civil servant of the Ministry of Transportation, had been assigned to PT (Persero) Angkasa Pura 1 as a technician responsible for flight safety and security to assist in the control tower as a flight traffic controller, was reinstated in his former post as of 1 July 2008 and his rights as a civil servant were restored. The Committee further notes that, according to Decree of Directors No. SKEP.578/KP.80.4/2008, the reason provided by the company for the dismissal of Mr Arif Islam was indeed the alleged illegality of the work stoppage, and that it was recommended that he return to the Ministry. The Government also states that Mr Islam never availed himself of the gratuities offered by the company (housing allowance; retirement allowance; pension benefits accorded for his services at the company; and workers’ social security), and that, according to an instruction letter dated 9 December 2008 of the Secretary for the Directorate General of Air Transportation, Mr Islam was assigned to Berau Airport, East Kalimantan as of 5 September 2009, where he has unfortunately never worked. In this regard, the Committee recalls that, when trade unionists or union leaders are dismissed for having exercised the right to strike, it can only conclude that they have been punished for their trade union activities and have been discriminated against [see Digest, op. cit., para. 662]. The Committee also notes the recommendation of the National Commission on Human Rights to reinstate Mr Arif Islam and the complainants’ indications (which were not denied by the Government) that the Head of the Manpower and Social Agency of the City Government of Balikpapan recommended on 4 June 2009 the reinstatement of Mr Islam by the company in his previous position without loss of pay, and that Commission IX of the House of Representatives, following a meeting with the parties, recommended via letter to the management that the striking workers neither be dismissed nor punished.
10. 607. While noting the Government’s statement that Mr Islam was reinstated in the post that he had held prior to PT (Persero) Angkasa Pura 1 and subsequently assigned to Berau Airport (East Kalimantan), the Committee expresses its concern that, according to the complainants, he remains dismissed and that the Government admits he has not shown up to his new place of assignment. In these circumstances, and given the fact that Mr Islam was dismissed for carrying out legitimate trade union activities, the Committee requests the Government to take the necessary steps for his reinstatement in the position that he occupied in the company PT (Persero) Angkasa Pura 1 at the time of dismissal, with compensation for lost wages and benefits, in accordance with the above recommendations. If, given the time that has elapsed since the dismissal from his duties at the company PT (Persero) Angkasa Pura 1, it is determined by a competent independent body that it is no longer possible to reinstate him in that particular post, the Committee requests the Government to take steps without delay to review with Mr Islam the relevant available posts for his appointment and to ensure that he is paid full and adequate compensation which would represent a sufficiently dissuasive sanction for anti-trade union dismissals.
11. 608. With respect to the suspension of trade unionists following strike action, the Committee notes the allegation that the seven employees were suspended without pay and eventually reinstated in September 2008, without however receiving full compensation for the period of suspension. Moreover, according to the complainants, they have been isolated by management, have not been permitted to return to their full duties (only few or no duties are assigned to them), and often find access to computers and networks denied through changes of passwords. The Committee notes from the Government’s reply that the seven workers have been reinstated as of 7 August 2008 and that the basic wages and fixed allowances for the suspension period have been paid out to the workers, which, in the Government’s view, is in line with the company’s Board of Management Decree No. Kep.43/KP.00.8/2008, which stipulates that workers violating the regulations will be punished by receiving wages only without any incentives or allowances based on attendance. With reference to the principles highlighted above in connection with the issue of legitimacy of strike action, the Committee recalls that no one should be penalized for carrying out or attempting to carry out a legitimate strike [see Digest, op. cit., para. 660]. Noting the recommendation of Commission IX of the House of Representatives that the striking workers neither be dismissed nor punished, the Ministry of Manpower and Migration letter of 6 March 2009 concerning the payment of wages and fulfilment of other rights regularly received by the suspended workers, as well as the recommendation of the National Commission on Human Rights to pay them wages and restore their rights as employees, the Committee requests the Government to ensure that the workers are properly reintegrated in the workforce and fully resume the duties that were assigned to them at the time of suspension, under the terms and conditions prevailing prior to the strike, and with full compensation for lost wages and benefits for the period of their suspension.
12. 609. With regard to the alleged anti-union harassment, the Committee notes the complainants’ claim that the management used heavy-handed tactics to intimidate other workers taking part in the strike action, such as: arresting Mr Primus H Rahagiar, the Chairman of SP–AP1, at Frans Kaisepo-Biak Airport; using the military to force workers at the same airport to return to work on 7 May 2008; ordering airport police to prevent trade union leaders from communicating directly with striking workers at Sepinggan-Balikpapan Airport; and coercing workers to sign a letter acknowledging that they had been wrong to participate in the strike action. The Committee notes that the Government confines itself to responding that its function has always been to protect workers’ rights, i.e. to urge the parties to settle their disputes immediately through bipartite negotiation, as proven by the various letters sent to the parties. In this regard, the Committee wishes to emphasize that the rights of workers’ and employers’ organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of these organizations, and it is for governments to ensure that this principle is respected [see Digest, op. cit., para. 44]. Furthermore, the Committee has repeatedly recalled 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 [see Digest, op. cit., para. 63]. The Committee also notes the complainants’ indication (which was not denied by the Government) that, in its conclusions, Commission IX of the House of Representatives instructed the management to cease all acts of intimidation and retaliation against
    • SP–AP1 and its members and urged the General Director of Industrial Relations and Social Insurance for the Ministry of Manpower and Migration to carry out an inspection of management’s conduct during and after the strike. The Committee requests the Government to take the necessary steps to ensure that an independent inquiry is instituted without delay, with a view to fully clarifying the circumstances, determining responsibilities, and, where appropriate, imposing sanctions on the guilty parties and issuing appropriate instructions to police and military so as to prevent the repetition of such acts in the future. It urges the Government to keep it informed of progress achieved in this regard.
13. 610. Finally, with respect to the allegations relating to union-busting and intimidation tactics, the Committee notes that, according to the complainants: (i) in April 2009, a new union, Asosiasi Karyawan Angkasa Pura 1 (AKA) was formed with the support of the company; (ii) the management has been handing out to employees disaffiliation forms for SP–AP1 accompanied by affiliation forms for AKA; and (iii) with the help of management, SP–AP1 members have been “bribed” with offers of promotion in order to join the new union, threatened with relocation or transfer if they do not join AKA and subjected to other acts of intimidation including threats, disciplinary interrogations and announced criminal proceedings. According to the complainants, the intention is to weaken the density of
    • SP–AP1 in order to claim that the union no longer has the legal authority to bargain on behalf of its members; as a result, SP–AP1 has lost close to 50 per cent of its membership. The Committee notes that, in reply, the Government limits itself to reaffirming its commitment as an ILO Member to protecting the universal rights of workers, commitment illustrated by the ratification of all eight ILO core Conventions, in particular Convention No. 87 as enacted through Act No. 21 of 2000 concerning trade unions; indicating that under the Act all workers have the right to form a union and become trade union members or board members of a union according to their own choice without pressure or intervention from the employer, the Government, a political party etc.; and stating that, in line with national law, it has never been involved directly or indirectly in the establishment of a trade union.
14. 611. When reviewing on previous occasions acts of interference by employers, the Committee has repeatedly recalled that Article 2 of Convention No. 98 establishes the total independence of workers’ organizations from employers in exercising their activities. As regards allegations of anti-union tactics in the form of bribes offered to union members to encourage their withdrawal from the union and the presentation of statements of resignation to the workers, as well as the alleged efforts made to create puppet unions, the Committee has always considered such acts to be contrary to Article 2 of Convention No. 98, which provides that workers’ and employers’ organizations shall enjoy adequate protection against any acts of interference by each other or each other’s agents in their establishment, functioning or administration [see Digest, op. cit., paras 855 and 858]. In this regard, the Committee would like to stress that the existence of legislative provisions prohibiting acts of interference on the part of the authorities, or by organizations of workers and employers in each other’s affairs, is insufficient if they are not accompanied by efficient procedures to ensure their implementation in practice [see Digest, op. cit., para. 861]. The Committee therefore requests the Government to institute an independent inquiry without delay to ensure that any acts of employer interference are identified and remedied, and, where appropriate, that sufficiently dissuasive sanctions are imposed so that such acts do not reoccur in the future. It requests the Government to keep it informed of developments in this regard.