Rapport intérimaire - Rapport No. 259, Novembre 1988

1. 679. By a letter dated 15 December 1987 the International Confederation of
   • Free Trade Unions (ICFTU) presented allegations of violations of trade union
   • rights against the Government of Indonesia. The Government supplied its
   • observations on the case in a communication dated 28 May 1988.
2. 680. Indonesia has not ratified the Freedom of Association and Protection of
   • the Right to Organise Convention, 1948 (No. 87); it has ratified the Right to
   • Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 681. In its letter of 15 December 1987, the ICFTU recalls that on a number
   • of occasions in recent years it has expressed its deep concern at the
   • continuing restrictions on basic trade union rights in Indonesia, including
   • increased interference in trade union activities by the authorities and
   • employers, serious restrictions on collective bargaining and strike action,
   • and in particular, denial of the right to organise in trade unions in the
   • public service, in public undertakings and in enterprises owned fully or
   • partly by the central Government or by regional or local authorities. The
   • ICFTU refers in this connection to the high-level mission which it sent to
   • Indonesia at the beginning of 1984, and to a detailed letter it addressed to
   • the President of the Republic of Indonesia on 5 December 1984. Regrettably,
   • states the ICFTU, the reply (dated 25 June 1985) did not contain any
   • commitment on the part of the Government to lift the restrictions on trade
   • union rights in line with internationally recognised standards on freedom of
   • association. Since then the situation has not improved and it is for this
   • reason that the ICFTU feels obliged to turn to the ILO's Committee on Freedom
   • of Association.
2. 682. The complainant first observes that on many occasions the ILO Committee
   • of Experts raised questions on Indonesia's application of Convention No. 98
   • and urged the Government to abandon the legislative restrictions on the right
   • to organise and collective bargaining. For example, in 1979 the Committee of
   • Experts considered that the protection against anti-union discrimination (in
   • Act No. 21 of 1954) is extremely limited and does not satisfy the requirements
   • of Convention No. 98. In 1982 and in subsequent years, with reference to Act
3. No. 14 of 1969 (Basic principles concerning manpower), the Committee of
   • Experts urged the Government to take specific measures to ensure that
   • protection against possible acts of anti-union discrimination, both at the
   • time of recruitment and during the employment relationship, is established in
   • accordance with Article 1 of the Convention. In 1986 and 1987, the Committee
   • of Experts reiterated its observation that the purpose of section 1(3) of Act
4. No. 21 of 1954 "seems to be the protection of the employer against the
   • 'dictatorial' attitude on the part of the trade union (as is stated in the
   • explanatory text attached to the Act) and the exclusion of any system of trade
   • union security rather than the protection of the workers against anti-union
   • discrimination within the meaning of Article 1 of Convention No. 98".
5. 683. The complainant also lists other issues dealt with by the Committee of
   • Experts, for example: Regulation No. 49 of 1954 and Ministerial Regulation
6. PER-01/MEN/1975. The complainant states that these regulations with regard to
   • the registration of trade unions and collective bargaining (limited to
   • federations covering at least 20 provinces and comprising 15 trade unions) are
   • in conflict with obligations placed on the Government under the provisions of
   • Article 4 of Convention No. 98, namely to encourage and promote collective
   • bargaining.
7. 684. According to the ICFTU, in addition to these restrictions there are
   • serious limitations on the right to strike. In a great many sectors and
   • enterprises, recourse to strike action is simply forbidden. Presidential
   • Decision No. 7 of 1963 exempts scheduled industries, projects and government
   • departments from the right to strike and Presidential Decision No. 123 of 1963
   • lists in this respect some 27 state and private corporations, 14 government
   • departments and banks, and 20 development projects.
8. 685. It states that the extensiveness of the list of sectors and enterprises
   • in which strike action is forbidden goes far beyond what can be considered as
   • essential services in the strict sense of the term. According to the ICFTU,
   • they include not only government departments (such as air and sea
   • communications, railways, harbours, transport, civil aviation service, radio,
   • post and telegraph), but also state corporations (such as electricity, oil and
   • gas supplies, general mining, tin mining, coal, chemical industries,
   • pharmaceuticals, electrical machinery, sugar, rubber and tobacco estates),
   • development projects, certain private enterprises and banks. Development
   • projects include the Jatiluhur Water and Hydro-electricity Project, Kalimantan
   • Highway, Sriwijaya Fertilizer Plant in Palembang, specified tourist hotels,
   • Sarinah Department Store, Ancol pleasure parc in Jakarta and Tuban airport in
   • Bali. The banks include Bank Indonesia, Development Bank of Indonesia and the
   • Indonesia State Bank. Foreign private enterprises named are Shell, Caltex,
   • Goodyear Tyre and Dunlop Rubber. Moreover, a system of compulsory arbitration
   • is in force for other economic sectors and private enterprises on the basis of
   • Law No. 22 of 1957, which makes recourse to strike action virtually
   • impossible.
9. 686. The complainant states that the most serious violation of trade union
   • rights concerns the denial of the right to organise in trade unions in the
   • public service (including the sectors of education and health care), in public
   • undertakings and in enterprises in which the State participates.
10. 687. In 1970, explains the ICFTU, all staff of the civil administration in
    • the Department of Internal Affairs were designated members of "Kokarmendragi"
    • (functional group corps of the Internal Affairs Department), under threat of
    • dismissal. This, it alleges, amounted to the Ministry's public servants
    • providing organisational support for the ruling party. In 1971, similar bodies
    • were established in most government departments. The prohibition on organising
    • was formalised in Presidential Decree No. 82, 1971, which stipulates that
    • there is to be one single organisation for public servants, known as KORPRI.
    • Yet according to the ICFTU, under the relevant regulations KORPRI does not and
    • cannot perform true trade union functions. KORPRI's central board is chaired
    • by the Minister of Internal Affairs. In the ICFTU's view the compulsory
    • membership of KORPRI by all Indonesian public servants negates the right to
    • organise freely in trade unions and therefore constitutes a very serious
    • violation of the principles of freedom of association. It adds that under
    • Government Regulation No. 6, 1974, all state employees, at both the national
    • and regional level, are public servants, as are persons employed in
    • enterprises owned wholly or partly by the State. KORPRI's rules and statutes,
    • confirmed by Presidential Decree No. 4, 1984, stretch the definition of public
    • servants to include persons working in private companies in which the
    • Government owns a share.
11. 688. The complainant points out that enterprises in which the Government or
    • regional authorities own part of the shares - and where workers are
    • consequently barred from the right to freedom of association - are among the
    • largest in Indonesia and include companies operating in the steel industry (e.
    • g. Krakatau Steel), oil and natural gas and their subcontractors (e.g. Caltex)
    • , tin-mining (e.g. PT TIMAH), aircraft manufacturing (e.g. PT Nusantara),
    • chemicals and cement industry (e.g. Indocement), transport, import and export,
    • as well as banks and agricultural estates.
12. 689. Another group of workers which cannot form a trade union are
    • Indonesia's some 1.5 million teachers in both public and private schools.
    • According to the ICFTU, in practice the teachers' association Persuatuan Guru
    • Republik Indonesia (PGRI) does not have the right to negotiate terms and
    • conditions of employment. Other significant examples of denial of trade union
    • rights in public sectors are the reduction, some years back, of the PKBA - a
    • trade union for railway workers - and the SSPT - a trade union for postal
    • workers - into no more than workers' welfare organisations, without the right
    • to perform normal trade union functions, such as collective bargaining.
13. 690. In conclusion, the complainant alleges that more than half of the
    • employed workers in Indonesia are thus deprived of the right to establish or
    • join trade unions of their own choosing and to operate these organisations
    • freely.
    • B. The Government's reply
14. 691. In its letter of 28 May 1988, the Government states that in the free
    • world today the principles and practices of any industrial relations system
    • should be based upon the socio-cultural values, economic constraints and the
    • industrial and commercial structure of the country concerned. In this respect,
    • Indonesia is no different from any other country in that the rights of the
    • individual, notably freedom of speech and similar civil liberties are all
    • practised freely. However, states the Government, Indonesia has developed its
    • own operational philosophy which is based upon globally acceptable principles
    • adapted to meet the national ideals, cultural heritage and overall policies of
    • the Republic and its indigenous population. This policy is to be found in the
    • statutes of the Indonesian industrial relations system, known as the
    • "Pancasila" (PIR).
15. 692. The Government explains that, historically, the country first
    • experienced the extremely negative results of industrial relations systems
    • based on various other principles. Its experience was that when these systems
    • were introduced, they resulted in the growth of political ideals which were
    • not in keeping with the common good and they were found to be unable to create
    • the sound consultative relationships which are essential for industrial peace
    • and worker prosperity. Additionally, during this period Indonesia experienced
    • spiralling conditions, unfair competition and increasing industrial disputes
    • at shop-floor level which contributed to excessive and totally unacceptable
    • national unrest in a broad sense.
16. 693. According to the Government the PIR fully supports the principles of
    • freedom of association in accordance with the 1945 Constitution and Act No. 14
17. of 1969. To encourage these ideals - including the matter of collective
    • agreements - the PIR stipulates that a mutual working agreement or collective
    • agreement should be developed as the means of implementation for all rules and
    • regulations. Since the establishment of the PIR, significant progress and
    • improvements in the conditions of work generally have been brought about. Some
    • of these are: (a) the establishment of 4,800 labour unions at shop-floor
    • level; (b) the establishment of 4,500 mutual working agreements in various
    • contexts; (c) the establishment of 2,200 bipartite bodies at shop-floor level;
      • (d) the establishment of 1,500 company regulations.
    • 694. The Government points out that the conditions of employment, including
    • wage structures, for public sector workers are regulated by special laws and
    • regulations. It is for this reason that collective agreements in the context
    • of trade union mandates are not applicable. In this respect, it considers that
    • the recently formed association of civil servants, known as KORPRI, is
    • sufficiently effective in itself to provide a channel for negotiation and
    • communication between all categories of civil servants and the Government. In
    • effect, KORPRI has instituted a special office which handles all matters
    • pertaining to disputes as well as other aspects between concerned workers and
    • public sector employers.
18. 695. The Government acknowledges that under the 1963 Presidential Decree No.
19. 7, all forms of strike action are expressly forbidden. However, this Decree
    • would be enforced only in respect of what are best described as the "vital
    • sectors", that is to say, those agencies which support the community at large
    • and where the withdrawal of such services could be detrimental to human life.
    • The Government is of the view that it is necessary to urge all parties
    • involved in a dispute to find ways of reaching agreement to the greatest
    • extent possible, before allowing strike action to take place. The latter
    • measure is considered to be the very last resort and one to be avoided if at
    • all possible, hence, states the Government, the reason for these constraints.
20. 696. As regards the matter of teachers in the Republic of Indonesia, the
    • Government explains that there are two categories: those employed in the
    • public schools whose terms of service and status are precisely those of civil
    • servants; and those who work for the private schools whose salaries and terms
    • of service are negotiated by the employers concerned. However, it points out
    • that most private schools are managed by foundations which in principle are
      • non-profit making. It stresses that if an individual wishes to join an
    • association, he or she is perfectly at liberty to do so. Within such an
    • organisation all members freely exercise their prerogative in respect of
    • freedom of speech and similar rights. Furthermore, the Government states that
    • the position of a school teacher within Indonesia enjoys a high social
    • standing and status which is well recognised by the community at large and
    • thereby much respected.

C. The Committee's conclusions

1. 697. This case involves a general allegation of restrictions on basic trade
   • union rights in Indonesia based on the following specific criticisms of the
   • industrial relations legislation: (1) ban on the right to organise in trade
   • unions for all public servants, teachers and employees of government-owned or
   • controlled corporations; (2) insufficient protection against anti-union
   • discrimination and interference contrary to Articles 1 and 2 of Convention No.
2. 98; (3) restrictions on collective bargaining contrary to Article 4 of
   • Convention No. 98; (4) restrictions on the exercise of the right to strike.
3. 698. As regards the first allegation which specifically concerns public
   • servants, the Committee notes the Government's response that since conditions
   • of employment for public sector employees are set by special laws and
   • regulations, collective agreements as a trade union function do not apply; at
   • the same time, the Government points to the existence of the sole civil
   • servants' association, KORPRI, as having a negotiating role between civil
   • servants and their employer, the Government. The Committee takes note of the
   • Government's general assertion that the principles of freedom of association
   • are contained in Indonesian statutes, but regrets that it supplies no detailed
   • information on the civil servants' association, KORPRI, in particular on the
   • alleged influential role of the authorities, evidenced by the fact that the
   • Minister of Internal Affairs is chairman of KORPRI's central board. It
   • requests the Government to supply such information, particularly on the
   • activities which the association undertakes to further and defend the
   • interests of its members.
4. 699. Likewise, as regards the alleged denial of the right to organise in
   • unions facing employees of government-owned or controlled corporations, of
   • state enterprises and teachers, the Committee notes the Government's general
   • assertion that freedom of association exists and that, as regards teachers in
   • particular, if an individual wishes to join an association he is perfectly at
   • liberty to do so. However, as for the position of public servants described in
   • the above paragraph, it appears to the Committee that such associations cannot
   • pursue trade union objectives. It accordingly requests the Government to
   • supply further information on any associations which exist for teachers, in
   • particular on the activities of the Persuatuan Guru Republik Indonesia (PGRI)
   • which the complainant alleges is not allowed, in practice, to engage in
   • collective bargaining.
5. 700. The Committee would recall generally in connection with this first
   • major allegation that the principles of freedom of association apply to
   • workers without distinction whatsoever, in both the private and public
   • sectors, since both categories should be able to establish organisations of
   • their own choosing to further and defend the interests of their members. (See
   • Digest of Decisions and Principles, paras. 213 and 214.) In particular, the
   • Committee would draw the Government's attention to the fact that the denial of
   • the right of workers in the public sector to set up trade unions, where this
   • right is enjoyed by workers in the private sector - with the result that their
   • "associations" do not enjoy the same advantages and privileges as "trade
   • unions" - involves discrimination as regards government-employed workers and
   • their organisations, as compared with private sector workers and their
   • organisations. Such a situation gives rise to the question of compatibility of
   • their distinctions with the principles of freedom of association. (See Digest,
   • para. 216.)
6. 701. The Committee notes that Presidential Decree No. 82 of 1971 states that
   • there shall be one sole association for public servants, known as KORPRI, and
   • that a series of other legislative texts extend the meaning of public servants
   • to cover an extremely large segment of the working population. The Committee
   • recognises that, according to the complainant, other organisations exist in
   • public sectors (PKBA for railway workers, SSPT for postal employees, PGRI for
   • teachers) but they do not enjoy the status of trade unions and, in practice,
   • are not permitted to engage in normal trade union functions such as collective
   • bargaining. As regards the important status conferred on KORPRI by the
   • legislation, the Committee would recall that a situation in which an
   • individual is denied any possibility of choice between different organisations
   • by reason of the fact that the legislation permits the existence of only one
   • organisation in the area in which he carries on his occupation, is
   • incompatible with the principles of freedom of association. (See Digest, para.
7. 226. ) The Committee would accordingly request the Government to review the
   • legislative situation so as to permit public servants the right to join
   • organisations of their own choosing.
8. 702. As regards the allegations concerning violations of Articles 1 and 2 of
   • Convention No. 98, ratified by Indonesia, the Committee notes that the
   • Committee of Experts on the Application of Conventions and recommendations has
   • been calling on the Government for many years to strengthen its legislative
   • provisions against anti-union discrimination so as to accord protection to
   • workers at the time of recruitment and during employment against prejudicial
   • acts carried out by employers or interference by their organisations in the
   • establishment of workers' organisations. The Committee also notes that in the
   • present case the Government refers, by way of general denial of the
   • allegations, to the Pancasila philosophy which underpins the nation's
   • industrial relations system. While noting the PIR's basis of five principles -
   • belief in God, nationalism, humanism, democracy and social justice - the
   • Committee reiterates the Committee of Experts' request that more specific
   • provisions be enacted to ensure full conformity with the requirements of
   • Articles 1 and 2 of Convention No. 98.
9. 703. As for the alleged restrictions on collective bargaining, contrary to
   • Article 4 of Convention No. 98, the Committee notes that, in addition to
   • referring to the criticisms voiced by the Committee of Experts, the
   • complainant claims that the workers' associations in Indonesia are not, in
   • practice, able to pursue trade union activities such as collective bargaining.
   • Although the Government supplies certain statistics as to the establishment of
10. 4,500 collective labour agreements and 1,500 company regulations (which are
    • obligatory for every undertaking employing 25 or more workers although they
    • are subordinate to collective labour agreements: Ministerial Regulation No.
11. PER-02/MEN/1978), the Committee notes that the sectors involved are not
    • specified. Moreover, the Committee observes with concern that - despite
    • KORPRI's potential involvement in negotiations - the Government clearly states
    • that the conditions of employment for public sector workers are regulated by
    • special laws so that collective agreements are not applicable.
12. 704. In these circumstances, the Committee supports the Committee of
    • Experts' comments regarding Article 4's requirements to encourage and promote
    • the full development and utilisation of machinery for voluntary collective
    • bargaining with a view to the regulation of employment conditions by
    • collective agreements. It would also draw the Government's attention to
    • Article 6 of Convention No. 98, according to which only public servants
    • engaged in the administration of the State are not covered by the Convention's
    • provisions.
13. 705. The Committee draws this case to the attention of the Committee of
    • Experts as regards Articles 1, 2 and 4 of Convention No. 98.
14. 706. Lastly, as regards the alleged restrictions on the right to strike, the
    • Committee notes with concern the very extensive list of non-essential services
    • and industries scheduled in Presidential Decision No. 123 of 1963 in which
    • strike action is banned. The Committee notes the Government's claim that
    • withdrawal of these services could be detrimental to human life and that
    • strikes should only be used as a last resort. In this respect it draws the
    • Government's attention to the principle that strikes may be restricted or even
    • prohibited in essential services in the strict sense of the term, namely,
    • where an interruption would endanger the life, personal safety or health of
    • the whole or part of the population. (See Digest, para. 394.) In the
    • Committee's opinion, the legislation in question should be amended so as to
    • permit industrial action in those services or industries which do not fall
    • within this definition, such as general mining and metalworks, banking,
    • teaching, agricultural activities and tobacco estates and petrol producing
    • installations. (See Digest, paras. 402-407.) A restriction on strikes in
    • enterprises concerned with water and electricity supply as well as air-traffic
    • control have been considered acceptable by the ILO supervisory bodies in past
    • cases. (See Digest, paras. 410 and 412 and Case No. 1369 (Honduras).) In the
    • present case, the Committee would also request the Government to ensure the
    • deletion of such state-run agencies as tourist hotels, department stores and
    • the Ancol pleasure park which clearly do not provide essential services in the
    • strict sense of the term.
15. 707. The Committee notes that the Government makes no specific comment on
    • the ICFTU's allegation that Act No. 22 of 1957 on the settlement of labour
    • disputes sets up a system of compulsory arbitration which makes strikes
    • impossible in practice, apart from stating that strikes should be used only as
    • a last resort. The Committee requests the Government to supply more detailed
    • observations on this allegation. It would recall in the meantime its position
    • on conciliation and arbitration procedures - which are not agreed to by both
    • parties to the industrial disputes - namely, that the substitution, through
    • legislative means, of compulsory arbitration for the right to strike as a
    • means of resolving labour disputes can only be justified in respect of
    • essential services in the strict sense of the term (i.e. those whose
    • interruption would endanger the life, personal safety or health of the whole
    • or part of the population). (See Digest, para. 387.)