Observation (CEACR) - adoptée 2007, publiée 97ème session CIT (2008)

While noting the Government’s report, the Committee regrets that it only provides very brief replies to the many issues raised in its previous observation. The Committee recalls that its comments concerned the trafficking in persons and the exploitation of migrant workers. With regard to the issue of forced labour by children on fishing platforms, the Committee refers to the observation that it is making in relation to the Worst Forms of Child Labour Convention, 1999 (No. 182).

Articles 1(1) and 2(1) of the Convention. 1. Trafficking in persons for exploitation. In its two previous observations, the Committee referred to the observations made by the International Confederation of Free Trade Unions (ICFTU), which has since become the International Trade Union Confederation (ITUC), containing worrying information on the trafficking in persons, particularly for the purpose of prostitution. The ITUC indicated that 20 per cent of the 5 million Indonesian migrant workers were reported to be victims of trafficking. The Government recognized the phenomenon and had taken a certain number of measures to combat it. At the 92nd Session of the International Labour Conference in June 2004, the problem was examined by the Conference Committee on the Application of Standards during the discussion on the application of the Convention by Indonesia. The Government provided certain information on that occasion, as well as in its subsequent report. The Committee noted all this information and observed with interest that the Government, which is aware of the importance of the problem of the trafficking in persons, was continuing to adopt awareness-raising, prevention and repressive measures, particularly through the reinforcement of the capacities of the police and labour inspectors, regional cooperation and ILO technical assistance. The Committee nevertheless requested the Government to provide more concrete and detailed information, particularly on the assessment of the scope and nature of the phenomenon of trafficking, the penalties imposed and the results achieved in practice through the action carried out in the context of the National Action Plan for Abolishing Woman and Child Trafficking, adopted in December 2002.

In its report provided in August 2006, the Government refers to certain measures that it has taken to combat trafficking, such as sending inspectors to the points of entry into the country of migrant workers, as well as lawyers and police liaison officers to certain countries of destination of victims of trafficking. According to the Government, results have been achieved in practice. However, the Committee notes that the Government has not provided any information on the assessment by the Government as to the extent and nature of the phenomenon of trafficking. With regard to the penalties imposed, the Government indicates that it has attached to its report examples of court rulings. However, the Committee notes that the Government’s report only contains a list of seven cases, without dates or references to the courts which ruled on the cases.

The Committee notes with interest the adoption of Law No. 21/2007 of 19 April 2007 on the elimination of the crime of human trafficking. It notes that the Law establishes penalties of from three to 15 years of imprisonment and fines of between 120 million and 600 million Rupiahs (articles 2–6), which may be supplemented by one third in certain aggravating circumstances such as causing serious injury or serious mental disorder (article 7(1)), where the crime of trafficking is committed by a state administrator (article 8), by an organized band (article 16) or where the victim is a child under 18 years of age (article 17). In the event of the death of the victim, the penalty is between a minimum of five years’ imprisonment and a maximum of life imprisonment (article 7(2)). The Committee further notes that the Law establishes penalties for the crime of trafficking in human beings when it is committed by a corporation through sentences of imprisonment and fines against its executives, combined with additional penalties such as revoking the business licence, confiscating assets resulting from the crime and prohibiting the executives from establishing a corporation in the same field (article 15). Articles 19–24 provide for sentences of imprisonment and fines for related crimes, such as the falsification of documents with a view to facilitating the trafficking in human beings, inciting a witness to commit perjury and revealing the identity of witnesses or victims. The consent of the victim is not a ground for abandoning proceedings against those responsible for the crime of the trafficking in human beings (article 26).

The Committee further notes other provisions of the Law: articles 43–55 which relate to the protection of witnesses and victims of the trafficking in human beings; articles 56–58 concerning the preventive measures that are to be adopted at the regional and national levels to combat trafficking; and article 59 respecting international cooperation in the field of trafficking. The Committee also notes the provisions of Law No. 13/2006 on the protection of witnesses and victims. It further notes that a technical cooperation programme with the ILO was established in September 2006 for two years to combat forced labour and the trafficking of Indonesian migrant workers.

The Committee notes the efforts made by the Government, particularly with regard to the adoption of legislation to combat the trafficking in human beings. In view of the persistence of the practice of trafficking in Indonesia, and the gravity and extent of the phenomenon, as illustrated by many sources, the Committee considers that the Government needs to redouble its efforts to combat trafficking and to take the appropriate measures to ensure the effective application of the legislation. The Committee emphasizes the need to take action both to reinforce prevention and to impose penalties for this crime, and also emphasizes the importance of adopting measures to assess the extent and nature of the phenomenon of trafficking. It regrets that the Government has not provided fuller information in this respect. The Committee trusts that the Government will provide detailed information in its next report, particularly with regard to:

–           the measures adopted or envisaged for the prevention of trafficking, and particularly the programmes and policies formulated under article 57 of Law No. 21/2007, the activities of the various task groups envisaged by article 58(2) and (3), and the measures adopted or envisaged under article 59 in the field of international cooperation to combat trafficking;

–           the measures taken in accordance with Article 25 of the Convention to ensure that the penalties envisaged by the national legislation are really adequate and are strictly enforced, including information on the charges brought for trafficking, the prosecutions initiated against those responsible for this crime and the penalties imposed (please provide copies of court rulings issued under Law No. 21/2007);

–           the measures for the protection of witnesses and victims of trafficking adopted under Law No. 21/2007 and Law No. 13/2006 respecting the protection of witnesses and victims of trafficking, the operation of the Witness and Victim Protection Institution (LPSK), including a copy of the periodical report that the LPSK has to submit every year as a minimum to the House of Representatives under article 13(2) of Law No. 13/2006.

2. Vulnerable situation of Indonesian migrant workers with regard to the illegal exaction of forced labour. In its previous observations, the Committee noted the particularly worrying conditions in which Indonesian migrant workers are exploited in various countries, based on the comments provided by the ICFTU (currently the ITUC) in 2003 and 2004. The main problems concerned the need to go through recruitment agencies and the absence of legislation establishing the rights of Indonesian migrant workers and regulating the process of migration for employment, with these factors facilitating the exploitation of such workers. The Committee also noted the abusive practices of certain recruitment agencies throughout the recruitment process and during the period for which migrant workers are in the country of destination. In this respect, the Committee observes that these agencies charge migrant workers exorbitant enrolment and training fees, thereby obliging them to take on a substantial debt which places them in a situation of vulnerability from the outset to exploitation and forced labour. Recruitment agencies force workers to live in training camps, sometimes for up to 14 months, where they may be deprived of freedom of movement and forced to work free of charge for recruitment agency staff. Then, once they have arrived in their country of destination, migrant workers have to reimburse the debt to the agency which recruited them, by paying back several months’ wages, with the result that they work for long periods without pay.

In reply, the Government accepted that the recruitment of Indonesian migrant workers came under its responsibility and it provided information on the legal provisions regulating recruitment agencies. It acknowledged that abuses could occur throughout the recruitment process and indicated that it therefore supervises the activities of recruitment agencies and imposes sanctions on those which do not comply with the regulations. It further indicated that it is aware of the lack of bargaining power of migrant workers and for this reason is seeking to improve their conditions through the conclusion of protocol agreements with host countries. While welcoming the Government’s initiatives, the Committee requested it to continue providing information, particularly on:

–           the nature of the supervision carried out on the activities of placement agencies on the national territory, particularly with regard to the verification of placement agreements and employment contracts and compliance with their terms, the cost of placement actually borne by the worker, the training provided, the living conditions in training centres and dormitories and waiting periods;

–           the means available to the Ministry of Manpower and Transmigration to carry out these controls;

–           the nature of the infringements reported, court decisions and the penalties imposed;

–           the facilities provided (assistance, redress mechanisms, etc.) to Indonesian migrant workers who are exploited in host countries and the protocol agreements signed with these countries.

In its report provided in August 2006, the Government indicates that it is taking measures in the field of labour inspection to ensure compliance with the legislation. The contracts signed by migrant workers have to be notified to labour inspectors and officers of the Board for the Placement and Protection of Indonesian Workers. Controls are carried out of recruitment agencies and administrative penalties up to the withdrawal of licences are imposed in the event of violations. Moreover, controls are carried out at the places of embarkment of migrant workers. Furthermore, in certain countries, attachés are assigned to embassies with responsibility for social affairs to provide assistance to migrant workers and control recruitment agencies.

The Committee notes the adoption of Law No. 39/2004 on the placement and protection of Indonesian workers abroad and the Regulation of the Minister of Manpower and Transmigration No. PER.19/MEN/V/2006 of 12 May 2006 on the placement and protection of Indonesian workers abroad. The Committee notes that under article 5 of Law No. 39/2004, the Government shall regulate and supervise the placement and protection of migrant workers, while part of its authorities and/or duties may be delegated to regional governments. Under article 7(c), the Government has to establish and develop a system of information on the placement of migrant workers. With regard to the enrolment and training fees that recruitment agencies impose upon migrant workers at the outset, the Committee notes that article 76 of the Law provides that private placement operators for Indonesian workers may only impose costs in relation to the arrangement of personal identity documents, medical examinations, training and certification of competence. By virtue of this article, the components of these costs have to be transparent. However, article 34 of Regulation No. PER.19/MEN/V/2006 adds new components to the costs which may be charged by agencies to migrant workers, including the costs of accommodation and subsistence during the period when the worker is lodged by the agency. Under articles 94 and 95 of Law No. 39/2004, placement and protection agencies for Indonesian workers are responsible for the implementation of policies on the placement and protection of Indonesian workers abroad. The Law also contains provisions relating, inter alia, to rights and obligations, insurance, accommodation, repatriation, the protection of Indonesian migrant workers, among others, by Indonesian embassies, the settlement of disputes which may arise between a worker and a placement agency and the administrative and criminal sanctions which may be imposed on individuals and corporations for violations of the provisions of the Law.

The Committee also notes the study entitled “Using Indonesian law to protect and empower Indonesian migrant workers: Some lessons from the Philippines”, published in June 2006 by the ILO Office in Jakarta in the context of the ILO project on mobilizing action for the protection of domestic workers from forced labour and trafficking in South-East Asia under the Special Action Programme on Forced Labour (SAP-FL). According to the study, although Law No. 39/2004 contains some provisions that are favourable to migrant workers, it nevertheless has serious shortcomings, such as the focus on the placement of migrant workers rather than on their protection. The study concludes that this Law lacks clarity on several issues, such as the attribution of responsibility for the enforcement of migrant workers’ rights. But the weakest aspect of the Law is that its enforcement has been minimal if not non-existent.

Finally, the Committee notes the information provided by the Government in its report concerning the preparation of a draft Memorandum of Understanding with the Government of Malaysia on the recruitment and placement of domestic workers. It notes that the report of the United Nations Special Rapporteur on the human rights of migrants, dated 2 March 2007 (A/HRC/4/24/Add.3), refers to a Memorandum of Understanding on domestic migrant workers concluded with Malaysia on 13 May 2006 in Bali (paragraph 36 of the report). According to this report, the Memorandum of Understanding covers procedural matters regarding recruitment, but makes little mention of employees’ rights (paragraph 37). Moreover, it leaves migrants in a vulnerable situation as it does not guarantee standard labour protections, nor does it include measures to prevent and respond to cases of abuse. Appendix A.xii of the Memorandum of Understanding, entitled “Responsibilities of the Employer”, provides that the employer shall be responsible for the safekeeping of the domestic worker’s passport and surrender such passport to the Indonesian mission in the event of abscondment or death of the domestic worker (paragraph 38). The Memorandum of Understanding also contains many restrictions on the fundamental rights of domestic workers. According to the report, the Memorandum of Understanding may end up encouraging irregular migration because of the long, complicated and expensive documentation process (paragraph 40). In conclusion, the Special Rapporteur indicates that the provisions of the Memorandum of Understanding do not meet international labour standards, especially regarding the right of workers to hold their own passports. The authorization for employers to hold workers’ passports makes it difficult for workers to leave abusive conditions or to negotiate better working conditions and full payment of their wages, and also contributes to the creation of networks of traffickers in persons, forced labour and undocumented migration (paragraph 64).

The Committee notes all this information. It recognizes that the Government has adopted measures intended to improve the protection of migrant workers against exploitation and the imposition of forced labour, both before and after their departure abroad, particularly through the adoption of a Law intended to guarantee their rights and control the activities of recruitment agencies. However, this Law does not appear to provide effective protection for migrant workers against the risks of exploitation due to its vague provisions and its numerous shortcomings. The information available to the Committee shows that, despite the measures adopted, many Indonesian workers continue to turn to illegal networks, thereby increasing the risk of exploitation. Furthermore, with regard to domestic workers, who account for a large proportion of Indonesian migrant workers, the Committee notes that the Memorandum of Agreement signed with Malaysia, which is later than the adoption of the Law on the placement and protection of Indonesian workers abroad, contains provisions that contribute to maintaining these workers in a situation of great vulnerability, particularly through the authorization of the employer to keep their passports. The Committee is all the more concerned at the situation as the Ministry of Manpower and Transmigration has announced the objective of sending 1 million Indonesian workers abroad per year until 2009 (see page 7 of the study by the ILO Jakarta Office referred to above). In this context, the Committee requests the Government to provide detailed and tangible information on the measures that it is continuing to take to improve the protection of Indonesian migrant workers against exploitation and the imposition of forced labour, both in Indonesia and following their departure abroad, particularly with regard to:

–           measures to overcome the shortcomings of the legislation that is in force;

–           controls over the activities of recruitment agencies and on the fees that they charge migrant workers, in view of the fact that the debt taken on by many of these workers is one of the major causes of their exploitation;

–           assistance to migrant workers who are victims of exploitation, including clandestine migrant workers;

–           the memoranda of understanding signed with the host countries of Indonesian workers; and

–           the penal sanctions imposed in accordance with Article 25 of the Convention on individuals and associations guilty of having imposed forced labour and the legal proceedings that are currently under way.