Observation (CEACR) - adoptée 2003, publiée 92ème session CIT (2004)

1. The Committee notes the communication received from the International Confederation of Free Trade Unions (ICFTU), dated 25 June 2003, on the application of Conventions Nos. 100 and 111, which it has partially set out under Convention No. 100. It also notes the reply of the Government, received on 3 November 2003. Specifically in relation to Convention No. 111, the ICFTU communication draws attention to the omission of specific grounds of discrimination in the provisions of the Constitution and in the newly adopted Act No. 13 of 2003 on manpower. The ICFTU also alleges that transmigration of certain ethnic groups results in discrimination of indigenous groups in public sector employment. In this regard it points to reports of discrimination coming out of Papua and Kalimantan. The ICFTU also alleges that migrant workers leaving the country are subject to discrimination and other forms of mistreatment both in destination countries and in Indonesia.

2. The Government replies that sections 5 and 6 of the Manpower Act prohibit discrimination and that employers should protect the rights and obligations of workers without any discrimination in terms of race, sex, religion, colour or politics; thus they disagreed with the ICFTU’s assertion.

3. The Committee notes that article 281 of the Constitution accords the right to be free of "discriminative treatment on any grounds". Sections 5 and 6 of the Manpower Act provide for equal opportunity and treatment and freedom from discrimination in employment, and section 32 provides for equal opportunity without discrimination in job placement. None of these provisions define the term discrimination nor do they include and prohibit the specific grounds of discrimination contained in the Convention. The Committee does note that the "Explanatory notes on the Act of the Republic of Indonesia No. 13 of the year 2003 concerning labour" contain a list of grounds upon which discrimination is prohibited and that these cover most of the grounds in the Convention with the exception of social origin, and possibly national extraction. It also notes that Section 158 of the Manpower Act prohibits dismissal of workers based on difference in belief, religion, political orientation, ethnicity, colour, race, sex, physical condition or marital status. The Committee recalls that the Human Rights Act of 1999 prohibits direct and indirect discrimination on, among many other grounds, race, sex, religion, political opinion, national extraction and social origin. The Committee had previously noted that this Act provided a broad framework for the application of the principles and rights laid down in the Convention.

4. While welcoming the broad provisions on the prohibition of discrimination contained in the new Manpower Act, the Committee is concerned over the lack of specificity in the elaboration of specific grounds and the lack of a definition of discrimination in accordance with the Convention. Noting from the document entitled "Notes on the Manpower Act" that sections 5 and 6 of the Manpower Act are intended to cover a number of specific grounds, the Committee urges the Government to consider amending the Act, or otherwise clarifying through regulation or guidelines the precise protection provided under these sections. It asks the Government to ensure that such amendment or clarification be in conformity with the Convention - which means that both direct and indirect discrimination on grounds of race, sex, national extraction, colour, social origin, political opinion and religion should be prohibited.

5. With respect to the allegations of ethnic-based discrimination, the Committee notes that the Government does not provide any information. The Committee considers these allegations to be serious and requests the Government to provide information in its next report on the measures undertaken to address and eliminate discrimination on grounds of race, national extraction, colour and religion at regional level in public and private employment. In particular, it asks the Government to provide information on the specific actions taken to address the situation in Papua and Kalimantan.

6. The ICFTU also alleges discrimination against women in practice based on non-application of maternity protection provisions. The Government replies that maternity protection is provided in the new Manpower Act and sanctions for violations are set out in section 186 of the said Act. The Committee requests the Government to ensure the enforcement of these provisions in practice and the implementation of sanctions for their violation and to report on the manner in which it has done so.