Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 295, Novembre 1994

1. 398. The Indonesian Prosperity Trade Union (Serikat Buruh Sejahtera Indonesia, SBSI) filed a complaint of violations of freedom of association against the Government of Indonesia in communications dated 21 December 1993 and 13 January 1994. The World Confederation of Labour expressed its support to the complaint in a communication of 11 February 1994.
2. 399. The Government transmitted its observations and comments in communications dated 23 March, 10 and 23 May 1994.
3. 400. Indonesia has ratified the Right to Organize and Collective Bargaining Convention, 1949 (No. 98); it has not ratified the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87).

A. The complainant's allegations

1. 401. In its communication of 21 December 1993, the complainant organization raises four issues involving various alleged violations of trade union rights, anti-trade union discrimination, and interference by the authorities and military and police forces.
2. 402. Firstly, the SBSI complains that seven of its leaders have been dismissed by a private company, PT. Tambaksari Jalmorejo, in the province of Medan, because they had established an SBSI unit in that enterprise on 2 June 1993. The seven workers concerned are: Mr. Sugiono (Chairman), Mr. Evendi Sibuea (Vice-Chairman I), Mrs. Umiyati (Vice-Chairman II), Mr. Abdul Maha (Secretary), Mrs. Nurhasanah (Vice-Secretary), Mr. Mustafa (Treasurer) and Mrs. Tuginem (Vice-Treasurer). On 9 June 1993, an officer from the Ministry of Manpower visited the company and suggested to Mr. Sugiono that he resigned from the SBSI and establish an SPSI unit in the company (SPSI stands for Serikat Pekerja Seluruh Indonesia, or All Indonesia Workers' Union; SPSI is the only trade union recognized by the authorities). Upon refusal from Mr. Sugiono, the officer met the management of the company. The seven persons mentioned above were informed that they were dismissed, in a letter dated 14 June 1993 from the head of personnel, who referred to the establishment of the SBSI unit at the company: "... we regret that this establishment was made without our knowledge. Since this organization was not established in accordance with the effective procedure, we refuse to recognize it. In connection therewith, we hereby decide that your employment is terminated as of 14 June 1993." On that day, all workers of the company held a strike to protest against the dismissals. According to the complainant, the head of the Medan office of the manpower ministry agreed indirectly with the dismissals. In connection with these events, on 17 June 1993, Messrs. Amosi Telaumbanua and Soniman Lafau, respectively Chairman and Vice-Chairman of the SBSI Medan branch were arrested and beaten, over a ten-day period, at the Medan military headquarters. The military accused them of masterminding the strike. The SBSI filed a lawsuit in this respect in the Medan Court.
3. 403. Secondly, the SBSI submits two letters as evidence of interference of the authorities in trade union affairs, and of favouritism towards SPSI. The first letter, dated 11 June 1993, from the Director of Socio-Political Affairs, North Sumatra Province, instructs the heads of the Simalungun and Pematang Siantar districts to ban SBSI members and activists. Referring to the attempt of the SBSI to establish units in the above-mentioned districts, the letter goes on: "In this connection, you are required to take the following measures: 2(a) to see that none of the officials of the local government are involved in that organization; (b) to avoid serving and recognizing the existence of that organization and to settle the matter through a coordination with the related agencies. (3) The measures taken for the settlement of the matter shall conform with the Government's policy of recognizing the workers' union, which is SPSI ...". The second communication, dated 30 June 1993, is a letter from the regional board of the SPSI to its local boards in Simalungun and Pematang Siantar, copying them the letter quoted above, and providing the following instructions: "In this regard, we expect that you take the following steps: (1) to review that letter and to arrange a coordination with the local authorities, in the effort to anticipate the reported establishment of SBSI in your area; (2) as soon as possible, report to the SPSI Regional Board and to the relevant authorities of North Sumatra whether SBSI units have been established and report their activities; (3) to observe the directives contained in the letter of the Directorate of Socio-Political Affairs of North Sumatra in all the steps you take in this regard".
4. 404. Thirdly, the SBSI alleges that the Chief of Police prevented the holding of its first National Congress, planned for 29 July to 2 August 1993, even though all the requirements had been fulfilled. The complainant organization had applied for a permit to hold its Congress in letters of 5, 22 and 26 July. It received the following letter, dated 28 July 1993, from the police authorities, which reads in part as follows: "It is hereby notified that your request is rejected for failure to comply with the requirements in connection therewith, and with the recommendations of the ministries of manpower and home affairs; the planned activities shall therefore be cancelled."
5. 405. Fourthly, the complainant organization submits that the local authorities of Jombang refused to renew the identity card of Mr. Adi Wyono, Chairman of the Jombang branch of SBSI, unless he resigned from SBSI.
6. 406. In its communication of 13 January 1994, the complainant raises new allegations of trade union rights violations, stating that, in two separate instances, a total of 14 workers have been dismissed by reason of their SBSI membership. In Bandar Lumpung, 11 workers belonging to the local SBSI executive were dismissed on 27 December 1993 at the Bumi Waras Company, where the SBSI has 600 members. The dismissed workers are: Ujang Komara (Chairman); Sontris Wibowo (Vice-Chairman); Deliman (Secretary); Asdiana (Vice-Secretary); Sobirin (Treasurer); Hanifah (Vice-Treasurer); Sabirin, Julianto and Ersondy (coordinators); Dodi and Umar (staff). Four of them (Ujang Komara, Sontris Wibowo, Deliman and Sabirin) were also interrogated three times (8 January, from 12.30 to 20.30; 11 January, from 9.00 to 18.00; 12 January from 9.00) and intimidated by police and military forces, so that they would resign from SBSI. Also in Bandar Lumpung, three SBSI leaders were dismissed at the CV Sinar Laut Company on 27 December 1993 because of their membership, namely Messrs. Irwantanto (Chairman) and Nawi (Treasurer), and Ms. Lita (Secretary).
7. 407. In its communication of 11 February 1994, the World Confederation of Labour confirms all the above-mentioned allegations.

B. The Government's reply

1. 408. In its communication of 23 March 1994, the Government indicates in relation to the dismissals at the Tambaksari Jalmorejo Company that the seven workers in question were dismissed due to the deterioration of relations between the management and these employees. Prior to the dismissals, bipartite talks were held with the workers to discuss the situation; as the workers appeared satisfied with the discussion and accepted the situation, the employer asked the Committee on Labour Disputes Settlement of the Province of Medan the permission to dismiss them. Taking into account that the working relationship was not in harmony any more, the Committee granted the authorization and the decision took effect on 14 June 1993. The seven workers accepted the decision and the company paid them a compensation proportional to their employment in the company.
2. 409. In its communication of 23 May 1994, the Government states, in reply to the second allegation, that the SBSI is not a workers' organization because it does not fulfil the requirements set out in the Indonesian legislation to be recognized as a workers' organization. As regards the banning of the SBSI Congress, the Government states that it never issued a permit for the "so-called National Congress" and that such a permit is necessary according to the law. Concerning the non-renewal of Mr. Adi Wyono's identity card, the Government indicates that it was not possible to issue him that card since he could not produce a letter from his previous place (Riau).
3. 410. As regards the situation in the CV Bumi Waras Company, the Government mentions in its communication of 10 May 1994 that a trade union was established in that enterprise in 1981 and a first collective agreement signed in 1983, which allowed the employer to assign and transfer the workers to various outlets of the factory according to its needs. The employer had noticed in the three previous months a productivity decrease, which it attributed to misconduct by certain workers, who were then given a written warning. As the situation did not improve, in January 1994, the employer offered to 16 workers a transfer to other outlets, with the same pay and benefits; on 4 January, seven of them accepted the offer and the other nine turned it down. The employer requested permission from the Ministry of Manpower to dismiss them, as provided for in Act No. 12/1964 on Termination of employment in private companies. On 7 January, Mr. Ujang Komara organized a strike with various demands. The Ministry of Manpower tried to mediate the dispute and suggested a settlement based on bipartism, without success however. The issue was then brought before the regional office of the Committee on Labour Disputes Settlement, which held meetings on 9, 16, 21, 23 and 28 February. On 9 March, the regional office granted the employer the permission to dismiss the nine workers, on the basis that they had refused to be transferred. The employer was obliged to pay their salary for January 1994 and their annual rest compensation for 1993. Mr. Dodi Tirto has resigned since 17 January and has received full compensation.
4. 411. Concerning the situation in the CV Sinar Laut Company, the Government points out that the dismissal of the three workers had never been reported to the authorities, and provides the following information. Mr. Irwantanto resigned from the company at the beginning of 1994; Ms. Lita never came back to the company since the beginning of 1994 and has apparently returned to her village; according to the information available to the Government and the employer, there is no worker by the name of Nawi in the company. The Government adds that a trade union has existed in CV Sinar Laut since 1985 and that the first collective agreement was signed in 1987.

C. The Committee's conclusions

1. 412. The Committee notes that the allegations made in this case raise several serious issues of implementation of the principles of freedom of association.
2. 413. As regards the dismissal of seven workers in the Tambaksari Jalmorejo Company, the Committee notes that the evidence adduced, and in particular the letter of 14 June 1993 from the head of personnel advising the workers of their dismissal, demonstrates unequivocally that these workers have been dismissed because they had wanted to establish an SBSI unit in the enterprise. The Committee recalls that one of the most basic principles of freedom of association is that workers and employers have the right to establish organizations of their own choosing, and that Convention No. 98 provides that particular protection must be given to workers against dismissal or other prejudice by reason of union membership. The Committee therefore considers that the employees concerned should be reinstated in their posts.
3. 414. In the Committee's opinion, the bipartite talks and the administrative procedure of permission to dismiss, which, according to the Government, led to a settlement in this case, do not guarantee adequate protection to workers against acts of anti-union discrimination, since it appears that the legislation currently in force allows an employer merely to invoke "lack of harmony in the working relationship" to justify the dismissal of workers who only wish to exercise a fundamental right under the principles of freedom of association. As already pointed out: "It would not appear that sufficient protection against acts of anti-union discrimination, as set out in Convention No. 98, is accorded by legislation which enables employers in practice - on condition that they pay the compensation prescribed by law for cases of unjustified dismissal - to get rid of any worker, even if the true reason is his trade union membership or activities". (Digest of decisions and principles of the Freedom of Association Committee, 3rd edition, 1985, para. 547.) The Committee also refers to the recommendations made in the report of the direct contacts mission which took place in Indonesia in November 1993, which made, inter alia, the following recommendations in this respect:
   • ... Steps should be taken, in law and in fact, to guarantee workers effective protection against acts of anti-union discrimination, and acts of interference by employers, in particular by:
     • - consolidating and simplifying the existing provisions on the subject;
     • - adopting provisions to remedy evidentiary difficulties;
     • - strengthening the penalties provided for violations of anti-union discrimination and interference provisions;
     • - streamlining and strengthening the enforcement provisions; ...
   • (Report of the Committee of Experts, ILC, 81st Session, 1994, pp. 268-269). The Committee also refers to the extensive discussion on this subject in the Conference Committee on the Application of Standards in 1994 (ILC, 81st Session, Provisional Record No. 25, pages 98-100). Noting that the Government has stated its will to amend its labour legislation and that, to this end, it has requested and obtained the technical assistance of the Office the Committee urges it to enact promptly, in consultation with all appropriate parties, including the national complainant organization, a legislative framework providing adequate protection to workers against anti-trade union discrimination, and to ensure that these measures are effectively applied in practice.
4. 415. The Committee further notes that the Government has not provided any reply on the other events in Medan connected with these dismissals, namely the allegations concerning the arrest and beating of two SBSI leaders, Messrs. Amosi Telambanua and Soniman Lafau, and that the complainant organization has filed a lawsuit in this respect. It requests the Government to keep it informed on the situation of the arrested trade unionists as well as the outcome of any inquiry held on the beatings they have been allegedly subjected to.
5. 416. As regards the allegation of interference in trade union affairs and of favouritism towards SPSI, the Committee notes firstly that the Government merely replies that the SBSI is not a workers' organization because it does not fulfil the requirements set out in the Indonesian legislation. The Committee observes in this respect that, while workers' organizations must respect the law of the land, that law shall not be such as to impair, nor be so applied as to impair the principles of freedom of association. This means in particular, as pointed out above, that workers should have the right to establish and join organizations of their own choosing. Secondly, the Committee recalls that discrimination in favour of a given trade union jeopardizes the right of workers to establish and join organizations of their own choosing (Digest, op. cit., para. 252). It notes that in the letter of 11 June 1993 mentioned above, the head of the Directorate of Socio-Political Affairs quite openly directs the local authorities to prevent the establishment of SBSI units, and to comply with the Government's policy of recognizing only the SPSI. The Committee points out that this letter, which would normally be expected to be an internal matter for authorities, was copied, amongst others, to the chairman of the SPSI regional board; in addition, the letter of 30 June 1993 from the SPSI regional board to its national board, which would normally be expected to be an internal matter between the regional and local trade union executives, was also copied directly to the governor of North Sumatra and to the head of the regional office of the manpower ministry. This demonstrates at the very least a close working relationship between SPSI and the labour and other authorities. Stressing the importance it attaches to the resolution of 1952 concerning the independence of the trade union movement, the Committee urges the Government to refrain from showing favouritism towards, or discriminating against, any given trade union, and requests it to adopt a neutral attitude in its dealings with all workers' and employers' organizations, so that they all be placed on an equal footing.
6. 417. As regards the banning of the first National Congress of SBSI, the Government replies that that organization's request was rejected "for failure to comply with the legal requirements" without indicating however what these requirements are. The Committee observes in this regard that while workers' organizations should, like all other groups and persons, comply with the general provisions relating to public meetings, freedom of assembly for trade union purposes constitute a fundamental aspect of trade union rights (Digest, ibid., para. 140). It also recalls that measures taken by the authorities to uphold the law should not in any way result in employers' or workers' organizations being unable to hold their annual congresses (Digest, ibid., para. 144), and that employers' and workers' organizations should have the right to hold their congress without previous authorization and to draw up their agendas in full freedom (Digest, ibid., para. 145). The Committee asks the Government to authorize the holding, without hindrance, of the Congress of the SBSI, and to adopt all required measures and give the necessary instructions so that, in the future, employers' and workers' organizations are not hindered in the preparation, scheduling and holding of congresses and other meetings.
7. 418. Concerning the reasons for the non-issuing of the identity card to Mr. Adi Wyono, Chairman of the SBSI branch in Jombang, the Committee notes that the evidence is contradictory. According to the complainant, the refusal was due to the fact that he was a SBSI member, and the authorities exerted pressure to obtain his resignation, whereas the Government states that the reason was that he could not produce a certain document. The Committee recalls in general that the authorities should not withhold official documents by reason of a person's membership in a workers' or employers' organization, as these documents are sometimes a prerequisite for important activities, for instance obtaining or maintaining employment. This is even more essential where persons hold a position in that organization, inasmuch as the refusal may prevent them from exercising their duties, such as travelling to an official meeting. The Committee therefore requests the Government to take the necessary measures to ensure that, once all the required documents are produced, the new identity card be issued without delay to Mr. Adi Wyono.
8. 419. As regards the dismissals at the CV Bumi Waras in Bandar Lumpung, the Committee notes from the evidence available that a labour dispute, the exact reasons of which are not disclosed, had developed in that company. It also appears that the employer, in accordance with the law and the collective agreement, obtained the permission to dismiss nine workers who had refused a transfer. From the material available, the Committee is not in a position to ascertain definitely whether these workers were dismissed because of their membership in SBSI and their trade union activities, or if the working relationship was terminated in accordance with the legal and contractual provisions then in force.
9. 420. The Committee notes however that the Government did not give any reply to the allegations concerning the interrogation and intimidation of four workers by the police and military forces in relation with these events. The Committee points out that the report of the 1993 direct contacts mission had noted the seriousness of that problem in Indonesia and made specific recommendations in that respect, stating that the Government should take measures "to avoid to the maximum extent the involvement of police and armed forces in labour disputes and, more generally, in labour matters" (1994 Report of the Committee of Experts, p. 269). The Committee also recalls that the "arrest - even if only briefly - of trade union leaders and trade unionists for exercising legitimate trade union activities constitutes a violation of the principles of freedom of association". (Digest, ibid., para. 88.) The Committee urges the Government to adopt the required measures and give the necessary instructions to prevent a repetition of such incidents in the future.
10. 421. As regards the dismissals at the CV Sinar Laut Company, the Committee notes that the complainant merely indicates that the three persons in question were dismissed because of their SBSI membership, without providing any other particulars or evidence on the circumstances of these dismissals. In view of the information provided by the Government (one resignation, one absentee, one unknown employee), the Committee is unable to conclude whether these dismissals constituted violations of trade union rights, or if the working relationship was terminated in accordance with the legal and contractual provisions then in force.
11. 422. Beyond the specific events raised in the present case, the Committee feels bound to note that the allegations reveal, from a more general perspective, a situation of trade union monopoly in practice, and of heavy involvement of the police and armed forces in labour matters. It expresses its concern at that situation, particularly in view of the fact that the Committee of Experts has made observations for many years on some of these issues in its annual report; these observations, in turn, have been debated at length in the Conference Committee on the Application of Standards, including at the June 1994 Session of the International Labour Conference. Noting that the Government requested and received assistance from an ILO direct contacts mission, whose report addressed these problems and made specific recommendations with a view to solving them, the Committee trusts that the Government will pursue its cooperation with the ILO in these matters, and will continue to avail itself of its technical assistance with a view, in the near future, to bring its legislation and practice into conformity with the principles of freedom of association.