Seguimiento dado a las recomendaciones del Comité y del Consejo de Administración - Informe núm. 392, Octubre 2020

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

1. 59. The Committee last examined this case, which was submitted in February 2018 and which concerns allegations of anti-union practices carried out by the management of a restaurant chain, as well as the Government’s failure to ensure respect for trade union rights, at its March 2019 meeting [see 388th Report, paras 396–425]. On that occasion, the Committee made the following recommendations [see 388th Report, para. 425]:
   • (a) The Committee requests the Government to take the necessary measures, including legislative if necessary, in consultation with the social partners, in order to ensure the full protection of workers’ fundamental freedom of association rights and the invalidation of any private company rules or regulations that may provide to the contrary. It requests the Government to keep it informed of the measures taken to that end.
   • (b) Noting that 16 workers are, according to the Government, seeking judicial review of the Supreme Court decision, the Committee requests the Government to bring the conclusions in this case to the attention of the relevant judicial authorities and to provide information on the outcome of the reviews.
   • (c) The Committee requests the Government to engage with the social partners concerned with a view to achieving agreement on policy to recognize the company’s needs while assuring that transfers do not interfere with workers’ right to freedom of association.
2. 60. The Government provides its observations in a communication dated 12 September 2019. With regard to protection of workers’ freedom of association rights, the Government indicates that it had conducted several meetings between the company and the union, in which it was agreed that the company was committed to implementing the Supreme Court’s decision to pay the severance pay to the workers and would realize harmonious industrial relations.
3. 61. As to 16 workers who had filed for a judicial review of the Supreme Court decisions that had confirmed their dismissals, the Government indicates that: (i) in the West Java Province, the six workers and the management agreed to the termination in accordance with the October 2017 Supreme Court decision, which was affirmed in a collective agreement; and (ii) in the Banten province, the Supreme Court sent back the documents of the judicial review to the Industrial Court of the State Court of Serang, stating that the decision of the Industrial Court could only be challenged at cassation, that there were no other legal measures for judicial review against such decision and that the request for judicial review did not fulfil formal requirements and was thus declared unacceptable; in July 2019, the ten workers and the management agreed to the termination in accordance with the November 2017 Supreme Court decision, which was affirmed in a collective agreement. According to the Government, all issues relating to the termination of employment, including workers’ rights, have thus been properly settled.
4. 62. Concerning the staff transfers at the company, the Government reaffirms that the transfers were conducted under the company regulations and that coordination with the parties showed that it was not motivated by trade union membership of the employees and that all employees were treated equally in this respect.
5. 63. The Committee takes note of the information provided by the Government. It observes, in particular, that the remaining 16 workers who filed for judicial review of the 2017 Supreme Court decisions that had confirmed their dismissals, agreed to termination and payment of compensation and concluded agreements to this effect with the management of the company. The Committee also notes the Government’s indication that the staff transfers had not been motivated by trade union membership of the workers and that the Government had conducted meetings between the union and the company, in which it was agreed that the company would realize harmonious industrial relations. While observing from the above that the dispute at the origin of this case has now been settled, the Committee trusts that the Government will take the necessary measures to ensure that, in the future, company rules or regulations do not unduly restrict workers’ fundamental rights to freedom of association, including the right to peaceful protest and demonstration. The Committee considers this case closed and will not pursue its examination.