Observation (CEACR) - adoptée 1989, publiée 76ème session CIT (1989)

The Committee notes the Government's report. It also takes note of the conclusions of the Committee on Freedom of Association with regard to Case No. 1431, approved by the Governing Body at its 241st Session (November 1988).

The Committee recalls that its comments concerned the following points:

- the absence of legislative provisions accompanied by civil remedies and penal sanctions to guarantee workers adequate protection against any act of anti-union discrimination at the time of recruitment or during employment (Article 1 of the Convention);

- the absence of legislative provisions accompanied by civil remedies and penal sanctions to give workers' organisations protection against any act of interference by employers or their organisations (Article 2);

- the restriction on free collective bargaining under the terms of Regulations No. 49 of 1954 and No. PER-01/MEN/1975 (referred to in Regulation No. PER-02/MEN/1978) under which only federations covering at least 20 provinces and gathering together 15 trade unions may conclude collective agreements, which is contrary to Article 4.

1. Protection against acts of anti-union discrimination. The Committee noted that the protection measures against dismissal on trade union grounds existed in the legislation, but that Article 1 of the Convention was not sufficiently implemented.

In its last reports, the Government states that Article 1 is being examined. It points out, however, that the Decision of the Director-General of Protection and Maintenance of Manpower No. 362/67 (point 6 of the Decision) and Ministerial Regulation No. PER-04-MEN-1986 (section 8) forbidding dismissal on trade union grounds are still in force and that the number of violations of these provisions is not significant. Furthermore, it emphasises that section 1(3) of the 1954 Act ensures both that employers do not discriminate against trade unionists and that trade unions are not in a legal position to coerce employers. In other terms, according to the Government, employers are not afforded special legal protection against a "dictatorial" attitude by trade unions. The principle of non-discrimination is in accordance with the 1945 Constitution and the philosophy of the Indonesian nation. Finally, the Government indicates that the Decision of the Director-General of Manpower No. 362/67 and Ministerial Regulation No. PER-04-MEN-1986 are the measures to implement Law No. 12/1964 respecting termination of employment in private enterprises. This means that the above Decisions and Regulations only cover dismissals and that the employer's obligations during the employment relationship are not covered by these texts.

The Government also refers to Law No. 22/1957 respecting labour disputes and emphasises that dismissals have to be approved by the tripartite committee responsible for the settlement of disputes and that this mechanism is intended to guarantee that termination of employment or other unfair practices concerning trade unions (membership and other trade union activities) are avoided. In cases of transfers, demotions or other measures which can be suspected of being anti-trade union, the union may bring the case to be examined by the tripartite committee responsible for the settlement of disputes. With regard to protection during employment, the Government states that it is currently preparing a Government Regulation on Work Agreement and that it hopes that some of these provisions will deal with the conditions of employment, which should be established at the time of recruitment.

2. Protection of workers' organisations against acts of interference by employers. The Government refers once again to the principles of the Pancasila concept in industrial relations and to Government Regulation No. 05/MEN/1987 which repealed Regulation No. PER-01/MEN/1975 respecting the registration of trade unions, which, however, has not been supplied to the ILO.

The Committee takes due note of all these indications, and particularly of the fact that the legislation contains provisions to protect workers against anti-union dismissals and, according to the Government, dismissals during the employment relationship. However, the Committee notes that the Committee on Freedom of Association, in Case No. 1431, concluded that the national legislation does not fully implement Articles 1 and 2 of the Convention. Consequently, it once again requests the Government to take specific measures, particularly through legislative provisions, accompanied by civil remedies and penal sanctions, in order to provide protection for workers against all acts of anti-union discrimination, not only in the event of dismissal, since that already exists in the legislation, but also more specifically during the period of employment and at the time of recruitment, and to give workers' organisations adequate protection against any acts of interference by employers and their organisations.

It requests the Government to supply detailed information in this respect in its next report together with the text of any laws that have been adopted, and in particular of Ministerial Regulation No. 05/MEN/1987.

3. Restrictions on collective bargaining. For several years, the Committee has been noting that only registered trade unions can undertake collective bargaining (section 1 of Ministerial Regulation No. PER-2/MEN/1978) and that a federation can only be registered if it covers at least 20 provinces and comprises 15 trade unions (Ministerial Regulation No. PER-01/MEN/1975). In the absence of registered trade unions, the terms and conditions of employment of workers are established by enterprise regulations, in accordance with the provisions of Ministerial Regulation No. PER-2/MEN/1978.

In its report, the Government states that Ministerial Regulation No. PER-01/MEN/1975 has been replaced by Ministerial Regulation No. 05/MEN/1987, which modifies the procedure for the registration of trade unions.

The Committee is not in a position to examine the significance of this text as it has not been supplied to the ILO. It therefore requests the Government to send a copy of the above text with its next report and to provide information on the measures that have been taken or are envisaged to remove the restrictions on collective bargaining and to promote the development of voluntary negotiation procedures for collective agreements between employers and their organisations and workers' organisations, and not only federations of registered trade unions, so that terms and conditions of employment can be settled in this way.