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

The Committee takes note of the information contained in the Government’s report. It further notes the entry into force of Act No. 13 of 2003 concerning manpower.

The Committee recalls that, in its previous comments, it had requested the Government to transmit its observations on the comments of the International Confederation of Free Trade Unions (ICFTU) of September 2002. The ICFTU has since sent additional comments concerning the application of the Convention in a communication dated 25 June 2003.

The ICFTU mentions restrictions on the right to form trade unions and the right to strike. Furthermore, it stresses that the new Manpower Act contains many provisions contrary to the principles of freedom of association and collective bargaining. It also mentions that the workers in Indonesia have conducted widespread protest action over the recent introduction of the Manpower Act.

The Committee takes note of the Government’s response to the ICFTU’s comments dated 3 November 2003. The Committee notes with interest that the Government intends, in cooperation with the ILO, to carry out awareness-raising activities continuously, including training in selected areas, aimed at providing the employers, workers/labourers and community with an appropriate understanding of the Convention so that it can be applied properly.

Bearing in mind the ICFTU’s observations and its previous comments, the Committee draws the Government’s attention to the following points.

Article 2 of the Convention. Right of workers and employers,
without distinction whatsoever, to establish and join organizations

Right to organize of civil servants. In its previous comments, the Committee had noted that under section 44(1) of Act No. 21 of 2000 concerning trade unions/labour unions, civil servants enjoy freedom of association and the right to organize. However, the Committee further noted that subsection 2 provides that the implementation of the freedom of association and the right to organize of civil servants shall be regulated in a separate Act. According to the Government, the provisions for establishing a workers’ union for civil servants have been accommodated by section 30 of Act No. 43 of 1999 concerning the basic provisions respecting personnel. The Committee notes that section 30(1) of these provisions states: "The fostering of the spirit of the corps, code of ethics, and disciplinary regulations of the Civil Service shall not be contradictory to section 27, clause (1), and section 28 of the 1945 Constitution". Clause (2) of section 30 further states: "The fostering of the spirit of the corps, code of ethics, and disciplinary regulations referred to in clause (1) is done pursuant to a government regulation." The Committee considers that Act No. 43 of 1999 does not regulate the freedom of association and the right to organize of civil servants. The Committee recalls that public servants, like all other workers, without distinction whatsoever, have the right to form and join organizations of their own choosing, without previous authorization, for the promotion and defence of their occupational interests. Furthermore, while the legislation recognizes generally the right of public servants to organize in section 44 of Act No. 21 of 2000, this law also sets forth that the implementation of this right will be guaranteed under other legislation. The Committee requests the Government to specify any act or regulation ensuring the implementation of the right to organize of civil servants and to indicate the manner in which civil servants organize in practice, including statistics on the number of such organizations at various levels.

Right to organize of employers. The Committee takes note of section 104(1) of the Manpower Act, which provides generally for the right of every worker to form and join trade unions. The Committee notes that section 105(1) grants the same right to employers, specifying that "rulings concerning entrepreneurs’ organizations shall be determined and specified in accordance with valid statutory legislation". It requests the Government to provide a copy of any rulings made concerning entrepreneurs’ organizations.

Article 3. Right of workers’ organizations to organize
their administration and to formulate their programmes

Restrictions on the right to strike. The ICFTU states that the law provides for the right to strike, but that there are substantial restrictions particularly in respect of workers in public services, essential services and enterprises that serve the public interest. The Government replies that the right to strike is a basic right of workers/labourers as provided for by section 137 of the Manpower Act and that section 143 states that anyone who prevents workers/labourers and trade unions/labour unions from using their right to strike legally, orderly and peacefully shall be subject to penal sanctions.

The Committee notes that section 137 of the Manpower Act guarantees the right to strike. It further notes, however, that section 139 of the Act concerns strikes in "enterprises that serve the public interest and/or enterprises whose types of activities, when interrupted by a strike, will lead to the endangerment of human lives". According to the explanatory notes on the Act, such enterprises include: hospitals; fire departments; railway services; and enterprises in charge of sluices, air traffic and sea traffic. Furthermore, section 139 provides that the strike "shall be arranged in such a way so as not to disrupt public interests and/or endanger the safety of other people", which means, according to the explanatory notes, that the strikes shall be carried out by workers who are not on duty. The Committee recalls that as an exception to the right to strike, the essential services in which this principle may be entirely or partly waived should be defined restrictively. As such, the Committee considers that essential services are only those, the interruption of which would endanger the life, personal safety or health of the whole or part of the population. However, in order to avoid damages which are irreversible or out of all proportion to the occupational interests of the parties to the dispute, as well as damages to third parties, namely users or consumers who suffer the economic effects of collective disputes, the authorities could establish a system of minimum service in other services which are of public utility, rather than impose an outright ban on strikes, which should be limited to essential services in the strict sense of the term (see General Survey of 1994 on freedom of association and collective bargaining, paragraphs 159 and 160). In this respect, the Committee points out that, as for the services mentioned in the explanatory notes, it does not consider the railway services as an essential service in the strict sense of the term, but it may be considered as an enterprise for which a minimum service could be provided. The Committee requests the Government to take the necessary measures so as to ensure that railway employees may fully exercise the right to strike without penalty.

Furthermore, the Committee notes that section 138 seems also to permit sympathy strikes. The Committee considers that organizations responsible for defending workers’ socio-economic and occupational interests should, in principle, be able to use strike action to support their position in the search for solutions to problems posed by major social and economic policy trends which have a direct impact on their members and on workers in general, in particular as regards employment, social protection and the standard of living (see General Survey, op. cit., paragraph 165). The Committee therefore requests the Government to indicate whether workers may exercise industrial action in protest of social and economic policy without penalty.

Sanctions for strike action. The Committee notes that pursuant to section 142 of the Manpower Act, the legal consequences of staging an illegal strike shall be regulated by a ministerial decision. The Committee requests the Government to provide a copy of any relevant ministerial decision made in this respect.

Furthermore, a violation of the abovementioned section 139 is sanctioned by one to four years’ imprisonment and/or a fine from Rp100,000,000 to Rp400,000,000. The Committee recalls that sanctions for strike action should be possible only where the prohibitions in question are in conformity with the provisions of the Convention. Even in such cases, the existence of heavy sanctions for strike action may well create more problems than they resolve. Since the application of disproportionate penal sanctions does not favour the development of harmonious and stable industrial relations, if measures of imprisonment are to be imposed at all, they should be justified by the seriousness of the offences committed. In addition, fines imposed on participants in strikes which are in violation of provisions imposing restrictions on the right to strike which are in conformity with the Convention, should be proportionate to the seriousness of the violations. It should also be recalled that peaceful strikes should not be sanctioned by imprisonment (see General Survey, op. cit., paragraphs 177-178). As concerns sanctions against strikers in respect of restrictions which are in conformity with the Convention, bearing in mind that violent acts may be punished under the general penal law and that the measures of imprisonment for a peaceful strike action do not favour stable industrial relations, the Committee requests the Government to amend its legislation so as to ensure that the sanctions for illegal strike action in such cases are not disproportionate to the seriousness of the violation.

Finally, in its previous comments, the Committee had noted that a Dispute Settlement Bill was pending. It requests the Government to provide information on the outcome of the legislative process concerning the Dispute Settlement Bill and asks once again the Government to provide a copy of this bill, or the text which has been finally adopted, with its next report.

Article 4. Dissolution and suspension of organizations by administrative authority. The Committee notes that the Government reiterates its refusal to repeal the reference to sections 21 and 31 in section 42 of Act No. 21 of 2000 concerning trade unions/labour unions. The Committee recalls that section 42 of Act No. 21 of 2000 provides for an administrative sanction, namely, revocation of the union record number and loss of trade union rights, in the event of loss of trade union membership beyond the required minimum and in the event of a violation of sections 21 and 31 of the Act. Section 21 of the Act states that the officials of workers’ organizations must inform the government agency of any changes in the union’s constitution or by-laws within 30 days. Section 31(1) lays down the obligation to report any financial assistance coming from overseas sources. The Committee notes the Government’s indication that such requirements were set up and agreed after a long debate and negotiations in the tripartite, inter-ministerial, and parliamentary discussion levels. The Government further states that the revocation of the union record number is only applied to the unions who do not fully meet the requirements and that the right to organize of the respective unions remains valid although they have not yet fulfilled these requirements. The objectives of such requirements are to ensure the unions are professional, competent, credible, and accountable in managing their organization, to avoid misconduct of the union’s officials and to protect third parties. Finally, the Government indicates that such revocation or suspension may only be applied based on the freedom of association principles and since it is governmental institutions that take the decision, a right of appeal to a judicial body is secured by Act No. 5 of 1986 on the Administrative Court.

With respect to section 31(1), the Committee recalls once again that this provision, read together with section 42, is tantamount to requiring previous authorization for the receipt of funds from abroad. The Committee recalls that legislation requiring authorization for a national trade union to accept financial assistance from an international organization of workers infringes the right to affiliate with international organizations of workers and to benefit from such affiliation. Furthermore, all national organizations of workers and employers should have the right to receive financial assistance from international organizations of workers and employers, respectively, whether they are affiliated or not to the latter. The Committee requests the Government to provide further details on the manner in which the obligation to report any financial assistance coming from overseas is applied in practice.

The Committee still considers that a violation of either section 21 or 31 should not give rise to such serious sanctions as the revocation and loss of trade union rights or suspension. It recalls that, in practice, such administrative sanctions amount to a suspension of the trade union. The Committee considers that such a measure taken by the administrative authority constitutes a serious infringement of trade union rights and therefore, requests once again the Government to amend its legislation by repealing the reference to sections 21 and 31 in section 42 of the Trade Union/Labour Union Act so as to provide for means other than suspension of trade union rights for rectifying delays in notification and to keep it informed of the measures taken or envisaged in this respect.

With respect to the possibility of revoking the union record number in the event of trade union membership falling below the required minimum, the Committee takes note of the right of appeal to a judicial body secured by Act No. 5 of 1986 on Administrative Court. It requests once again the Government to indicate if the appeal suspends the effect of the sanction until a judgment has been handed down and to provide a copy of Act No. 5 of 1986.