Demande directe (CEACR) - adoptée 2005, publiée 95ème session CIT (2006)

The Committee takes note of the information contained in the Government’s report.

The Committee’s previous comments concerned the need to address certain discrepancies between the national legislation and the Convention.

1. Right to organize of civil servants. The Committee had requested that the Government specify any act or regulation ensuring the implementation of the right to organize of civil servants pursuant to section 44 of Act No. 21 of 2000 which proclaims that civil servants shall enjoy freedom of association and that the implementation of this right shall be regulated in a separate Act. The Committee notes that the Government indicates that such Act has not been adopted yet. The Committee asks the Government to indicate in its next report the steps taken for the adoption of an Act guaranteeing the exercise of the right to organize to civil servants pursuant to section 4 of Act No. 21 of 2000 and to indicate the manner in which civil servants organize, in practice, which the adoption of legislation is pending, including statistics on the number of civil servants’ organizations at various levels.

2. Right to organize of employers. The Committee had requested that the Government provide a copy of any rulings made concerning the right to organize of employers pursuant to section 105(1) of Manpower Act No. 13 of 2003, which grants this right to employers and adds that "rulings concerning entrepreneurs’ organizations shall be determined and specified in accordance with valid statutory legislation". The Committee notes that according to the Government, employers’ organizations are regulated by Act No. 1 of 1987 concerning the Chamber of Commerce and Industry (KADIN). The basic internal regulation of KADIN states that APINDO (the main employers’ association) is a branch of KADIN dealing with industrial relations and labour issues. The Committee asks the Government to provide a copy of Act No. 1 of 1987 as well as the internal regulation of KADIN in its next report and to specify whether in general, other employers’ organizations can be established independently of KADIN.

3. Restrictions on the right to strike. The Committee had requested that the Government take the necessary measures so as to ensure that railway employees may fully exercise the right to strike without penalty. The Committee notes that according to the Government, the explanatory note on section 139 of the Manpower Act provides that only railway intersection officers are included among the workers that relate to public safety since they have specific duties which differ from those of other railway workers; consequently, they can go on strike as long as someone is on duty. The Committee recalls that the railway services can be seen as an enterprise in which a minimum service can be required, so as 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. However, a system of minimum services should meet at least two requirements: (i) it must be a genuinely minimum service; and (ii) it should be defined through negotiations between the parties and in case of dispute, determined by an independent body. The Committee asks the Government to indicate in its next report the measures taken or contemplated so as to ensure that railway employees may fully exercise the right to strike without penalty, subject to the provision of a minimum service.

4. Objectives of strikes. The Committee had requested that the Government indicate whether workers may exercise industrial action in protest of social and economic policy without penalty. The Committee notes that the Government does not provide an answer in this respect. It once again asks the Government to indicate whether workers may stage industrial action in protest for the general social and economic policy without penalty.

5. Right to strike. The Committee had requested that the Government provide a copy of any relevant ministerial decision regulating the legal consequences for staging an illegal strike pursuant to section 142 of the Manpower Act. The Committee notes from the Government’s report that the consequences of illegal strikes are stipulated in Ministerial Decree No. Kep. 232/Men/2003. The Committee takes note of the text of the Ministerial Decree which provides that participation in illegal strikes shall be considered as absence from work and an act of resignation if the worker does not return to work after having been invited to do so twice within seven days (sections 6 and 7(1)). Moreover, if the illegal strike causes the loss of human life as a result of the discontinuation of jobs that should have been performed uninterruptedly, the illegal strike shall be classified as a serious or major offence (section 7(2)). The Committee also notes however, that for a strike to be considered legal it must be carried out as a result of failed negotiations (section 3) and that negotiations shall be considered failed only if both sides make a declaration to this effect in the negotiation minutes (section 4). The Committee recalls that the conditions stipulated in the law for the exercise of the right to strike should not be such that the exercise of this right becomes very difficult or even impossible in practice. The Committee asks the Government to indicate in its next report the measures taken or contemplated to amend section 4 of Ministerial Decree No. Kep. 232/Men/2003 so that a finding as to whether negotiations have failed after a certain period, can be made either by an independent body or be left upon the parties to the dispute.

6. Sanctions for strike action. The Committee had also requested that the Government amend its legislation so as to ensure that the sanctions for illegal strike action are not disproportionate to the seriousness of the violation bearing in mind that violent acts may be punished under the general penal law and that the measure of imprisonment for a peaceful strike action do not favour stable industrial relations. The Committee notes that the Government specifies that heavy sanctions (one to four years’ imprisonment and/or a fine from Rp100 million to Rp400 million) can be imposed for violations of section 143 of the Manpower Act, not section 139 as previously indicated by the Committee; this section provides that no one shall prevent workers and trade unions from exercising their right to strike legally, orderly and peacefully and that it is prohibited to arrest and detain workers who are striking legally, orderly and peacefully. The Committee takes note of this information. It asks the Government to specify the sanctions applicable for a violation of section 139 of the Manpower Act.

7. Compulsory arbitration. The Committee had noted that a Dispute Settlement Bill was pending and had requested that the Government provide information on the outcome of the legislative process concerning this Bill. The Committee notes from the Government’s report that the Bill was adopted and became Act No. 2/2004 concerning Industrial Relations Dispute Settlement. The implementation of this Act, which was supposed to enter into force in January 2005, has been postponed until January 2006 based on Government Regulation in lieu of Act No. 1/2005 agreed to by the House of Representatives in July 2005. The Committee takes note of this information. The Committee notes that Industrial Relations Act No. 2/2004 contains provisions which allow compulsory arbitration to be imposed at the initiative of one of the parties to an industrial dispute. The Committee examines this point in the framework of Convention No. 98.

8. Dissolution and suspension of organizations by administrative authority. The Committee had noted that if trade union officials violated either section 21 or 31 of Act No. 21 of 2000 concerning trade unions/labour unions - by either failing to inform the Government of any changes in the union’s constitution or by-laws within 30 days or failing to report any financial assistance coming from overseas sources - serious sanctions would be imposed under section 42 of the Trade Union/Labour Union Act, namely, the revocation and loss of trade union rights or suspension. The Committee had requested the Government to repeal 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. The Committee further noted 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 and requested 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 notes the Government’s statement that it still applies regulation obliging trade unions to report any financial assistance coming from overseas, according to section 31 of the Trade Union/Labour Union Act, in order to secure that the assistance is utilized for the improvement of the welfare of the union members and not for other improper purposes. Moreover, the sanction provided under section 42 is aimed to ensure that trade unions have administrative discipline and has never been applied until now. While noting the fact that section 42 has never been applied and mainly serves a dissuasive purpose, the Committee considers that the sanction of suspension for a failure to report a change in the trade union’s constitution or by-laws (as a result of sections 21 and 42 of the Trade Union/Labour Union Act) is clearly disproportionate. It also considers that section 31(1) read together with section 42 is tantamount to requiring previous authorization for the receipt of funds from abroad which is contrary to Articles 3 and 6 of the Convention; on the contrary, there is no infringement of the Convention if, for example, the supervision is limited to the obligation of submitting periodic financial reports (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 125). The Committee therefore once again requests the Government to indicate in its next report the measures taken or contemplated so as to repeal the reference to sections 21 and 31 in section 42 of the Trade Union/Labour Union Act.

9. The Committee had noted that section 42 of the Trade Union/Labour Union Act also provided for the administrative sanction of revocation of a trade union’s record number (and consequent loss of trade union rights) in the event of trade union membership falling below the required minimum. The Committee had noted that there was a possibility to appeal to a judicial body against the governmental institutions that took such a decision under Act No. 5 of 1986 on the Administrative Court, and had requested the Government to indicate whether the appeal suspended the effect of the sanction until a judgment had been handed down and to provide a copy of Act No. 5 of 1986. The Committee notes from the Government’s report that the appeal does not have the effect of suspending the sanction and that Act No. 5 of 1996 has been amended by Act No. 9 of 2004. The Committee notes that measures of dissolution and suspension of trade unions by administrative authority involve a serious risk of interference in the very existence of organizations and should therefore be accompanied by all the necessary guarantees, in particular adequate judicial safeguards, in order to avoid the risk of arbitrary action. Thus, the organization affected by such measures must not only have the right of appeal to an independent and impartial judicial body, but the administrative decision should not take effect until that body hands down a final decision (see General Survey, op. cit., paragraph 185). The Committee requests that the Government indicate in its next report the measures taken or contemplated so as to ensure that measures of dissolution or suspension of trade unions by the administrative authority do not take effect until a final decision has been handed down by the Administrative Court in case of appeal.