Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 342, Juin 2006

594. The complaint is contained in communications from the International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Associations (IUF) dated 18 July, 10 and 20 October and 24 November 2005.

1. 595. The Government sent its observations in communications dated 18 August 2005 and 13 February 2006.
2. 596. Indonesia has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 597. By its communication of 18 July 2005, the International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Associations (IUF) lodged a complaint on behalf of its affiliate, the Federation of Independent Tobacco, Cane and Sugar Workers’ Unions (FSPM TG). In this communication, as well as in its subsequent communications of 10 and 20 October and 24 November 2005, the IUF alleged the anti-union dismissal of Mr. Daud Sukamto, the President of the FSPM TG, also chairperson of the Gunung Madu Plantation Union, a member of the FSPM TG; the obstacles to the registration of the FSPM TG and threats and harassment of trade union leaders.
2. Anti-union dismissal of Mr. Daud Sukamto
3. 598. In its communication of 18 July 2005, the IUF alleged that Mr. Daud Sukamto was dismissed for recommending that workers reject an unsatisfactory wage increase offer made by the employer (the PT Gunung Madu Plantation). The IUF summarized events that led to the dismissal of Mr. Sukamto as follows. On 22 January 2005, the plant management presented to the union its proposal for a wage increase. As this proposal did not take into consideration the union’s request to include length of service on the pay scales, the union informed its members and the management that its board had rejected the wage increase. However, the general manager of the enterprise considered that the action of the trade union leaders violated the collective agreement and section 158(1)(f) on the Manpower Act of 2003, by “influencing and/or encouraging other workers to commit acts contrary to the regulations or the law”. The general manager requested that interrogation of the signatories be undertaken, including the chairperson of the Gunung Madu Union, Mr. Sukamto. On 25 January 2005, the union informed the management of its acceptance of the originally proposed increase. Nonetheless, between 29 January and 3 March 2005, union officers and rank-and-file members were summoned by the Head of Security for questioning on their involvement in the rejection of the wage increase. On 12 March 2005, the general manager requested that Mr. Sukamto’s employment be terminated for his role in urging employees to reject the wage increase and on 21 March, a letter of his suspension was issued. On 14 April 2005, the Central Lampung Office of Social, Manpower and Transmigration Affairs issued Recommendation No. 567/126a/D.6/2005, stating that the actions of Mr. Daud Sukamto inciting others to reject the company’s policy with regard to the wage increase for 2005 was a “gross misconduct” under section 158(1)(f) of Manpower Act No. 13 of 2003. Following the enterprise’s request addressed to the Chair of the Lampung Committee for Industrial Dispute Settlement (P4D) to authorize the dismissal of Mr. Sukamto, the management and the union representatives met with the Lampung P4D committee. The union representatives were told that based on the Indonesian Constitutional Court’s 2005 review of Manpower Act No.13 of 2003, the P4D had no jurisdiction in this case and that the employer could dismiss Mr. Sukamto only after receiving a binding ruling from a court of the criminal jurisdiction. However, on 21 June 2005, the P4D officially recommended that Mr. Sukamto be dismissed, effective June 30, making no mention of the Constitutional Court’s review of the Manpower Act. It cited, as the causes of dismissal, the reasons previously raised by the plantation management, i.e. Mr. Sukamto’s involvement with the IUF and his recommendation to reject the management wage offer.
4. 599. The IUF further submitted that the decision of the P4D was based on the vague wording of section 158 of the Manpower Act, which allowed employers to dismiss workers for their trade union activities and left discretionary powers to the dispute resolution committee in defining what constituted grounds for a dismissal. The section provided that an employer may fire a worker who had committed “gross misconduct” including “encouraging a colleague to commit acts which contravene laws and regulations”. Nowhere did the law state that advising union members to reject a management proposal constituted a “gross misconduct”, yet the wording was sufficiently vague that the interpretation of what constituted grounds for dismissal was left to the discretion of the dispute resolution committee. It was precisely this legal vacuum, which led the Constitutional Court to call for an amendment of the relevant parts of the Manpower Act.
5. 600. In its communication of 24 November 2005, the complainant added that on 14 November 2005, three government officials held a meeting with the IUF representatives and informed them that an investigation into the IUF allegations conducted on 25 August 2005 concluded there had been no violations of freedom of association at the PT Gunung Madu Plantation. However, when the Government officials were presented with a copy of the ruling of the Lampung P4D of 21 June 2005, which upheld the dismissal of Mr. Sukamto, they declared to be unaware of this decision. The IUF therefore raised doubts about the seriousness of the investigation conducted by the authorities.
6. Obstacles to the registration of the FSPM TG
7. 601. In its communication dated 10 October 2005, the complainant alleged that following its establishment in February 2005, the FSPM TG was registered and received its registration number on 21 March 2005. In its letter of 23 March 2005, informing the union of its registration, the Office of Manpower stated that the FSPM TG had met in full the conditions of article 2 of the Ministerial Decree. However, the Chief of the Kediri City Manpower Office requested, on 23 March, further documents and asked Mr. Legimin, the FSPM GT General Secretary, to sign a statement to the effect that certain documents remained to be submitted and would be submitted within a month. According to the complainant, such a request was not in accordance with the conditions for registration as provided for in Ministerial Decree No. 16/2001 and the Trade Union Act. Despite this fact, the Federation had attempted to comply with the request of the Chief of the Kediri City Manpower Office and submitted the additional information in April. However, the Chief of the Manpower Office refused to accept the documents and informed the General Secretary of the FSPM TG that the existence of the Federation had to be questioned. On 23 May 2005, the Office of Manpower issued a letter, addressed to the Plantation Workers’ Labour Union (SP-BUN) (i.e. another trade union at the PTPN X (state-owned plantation X)), which stated that the registration of the FSPM TG had been deferred and referred to the following reasons: the withdrawal of member- unions from the FSPM TG; the objection of the management of the Pesantren Baru Sugar Mill about the FSPM TG secretariat being domiciled at the mill (i.e. where the General Secretary was employed at the time); and the statement signed by Mr. Legimin acknowledging that certain documents needed to be further provided. It then stated that the FSPM TG did not fulfil the conditions of Ministerial Decree No. 16/2001 regarding the registration of trade unions.
8. 602. The complainant indicated, however, that this letter contradicted the letter of 21 March 2005 notifying the Federation of the issuance of the registration number, which explicitly stated that the FSPM TG had met in full the conditions of article 2 of the Ministerial Decree. The IUF further submitted that article 4 of the same Decree provided for the deferral of the issuance of a registration number in the case where a trade union had not fulfilled the conditions of article 2 following an initial request for registration. Article 2 referred to the deferral of an initial registration and not the deferral of a registration number already issued. Therefore, this article could not be applied in a case where the registration number had already been provided and the conditions of this article already deemed to have been met. Furthermore, section 37 of the Trade Union Act clearly stated that a trade union, federation or confederation could only be dissolved by its members or the decision of a court.
9. 603. The IUF further alleged that following the letter regarding deferral of the FSPM TG’s registration, the management of the PTPN X had been hindering the activities of the elected general secretary of the FSPM TG and preventing the federation from carrying out its legitimate activities, such as seeking recognition as a collective bargaining agent.
10. 604. The FSPM TG had lodged written protests with both the Kediri City Manpower Office and the Indonesian Minister of Manpower, stating that the “deferral” of its registration contravened national law and violated trade union rights. In a letter of 5 October 2005, addressed to the Kediri City Manpower Office, the management of the PTPN X and the General Secretary of the FSPM TG, Mr. Legimin, the Minister of Manpower instructed the FSPM TG to seek a new registration number and upon its receipt, to “immediately withdraw” its complaint to the ILO.
11. 605. In its communication dated 24 November 2005, the complainant stated that the FSPM TG received, on 26 October 2005, an official notice of a second registration and its registration number. However, the Minister of Manpower failed to acknowledge the irregularities in the decision of the Manpower Office to defer the original registration. The complainant indicated that the FSPM TG had accepted, for practical reasons, the second registration number but it nevertheless wished to request the Committee’s opinion on the irregularities that occurred in this case.
12. Harassment and threats against the IUF
13. and the FSPM TG executives
14. 606. In its communication of 20 October 2005, the complainant alleged that numerous threats were made against the officers of the FSPM TG and the representatives of the IUF. In particular, the IUF alleged that an anonymous “warning note” was delivered to Ms. Hemasari Dharmabumi, the IUF Indonesia representative, on 31 August 2005, while she was attending an ILO seminar for plantation workers. The note warned the IUF not to establish organizations in agriculture or sugar mill companies “which already have trade unions” and urged Ms. Hemasari to “go home immediately”. Previously, on 18 May 2005, a letter was sent to Ms. Hemasari by the Central Leadership Board of FSPPP-SPSI complaining about the activities of the IUF in Indonesia, its “unfriendly intervention” in establishing a trade union at the PT Gunung Madu Plantation and therefore disturbing the “harmonious industrial relations” at the Gunung Madu.
15. 607. Moreover, the IUF submitted that on 27 September 2005, the All-Indonesia Sugar Mills Unions Solidarity Forum, claiming to represent all sugar mills of the state-owned plantations, as well as privately owned mills, including the Gunung Madu, issued a “statement of position” condemning the IUF for its “provocative and dishonest” actions in “hijacking the cadres of other trade unions”, “discrediting the Government and trade unions of Indonesia via the Internet” and “strongly reminding the IUF not to interfere in the internal affairs of trade unions in Indonesia”. Other similar statements were sent to the Minster for Manpower on 12 and 27 October 2005. Furthermore, on 30 September, another statement accusing Ms. Hemasari and Mr. Legimin of violating the legislation and threatening them with “physical action” if they did not stop their actions, was widely circulated. The IUF also submitted that ever since Mr. Legimin was transferred to work in Surabaya (allegedly because of his trade union activities), he has been followed. The complainant claimed to have called upon the public authorities, the local police and the Minister to react to the threats but no action had been taken.
16. 608. In its communication dated 24 November 2005, the complainant added that on 20 October 2005, it wrote to the Minister of Manpower and Transmigration urging the Ministry and the Government to respond to this escalating pattern of threats and to treat them as a subject for a criminal investigation and to take appropriate measures to safeguard the security and well-being of Mr. Legimin and Ms. Hemasari. The IUF did not receive any reply. During a meeting held with the IUF officials on 14 November 2005, the Manpower Ministry representatives indicated that they did not consider that the threats made by other trade union representatives were a matter for a criminal investigation or action of any kind on the part of the authorities.
17. B. The Government’s reply
18. 609. In its communication of 18 August 2005, the Government stated that Mr. Daud Sukamto was a chairman of the FSPSI TG plant level union from 2002 to 2005 and negotiated with the management the wage increase in conformity with the legislation in force. At first, his union rejected the management’s proposal, but on 25 January 2005, his organization accepted the above proposal. Following his election to the position of the President of the FSPM TG, he resigned from his position of Chairperson of the Plant Level Trade Union (PUK SPSI).
19. 610. The Government further stated that on the date of its communication, Mr. Sukamto’s case was before the Central Committee for Industrial Dispute Settlement (P4D) and that while it was under examination, any comments or pre-judgment were irrelevant. In respect of section 158 of Act No. 13 of 2003, the Government indicated that it had issued a circular, through the Minister of Manpower and Transmigration, No. SE.13/Men/SJ-HK/I/2005 dated 7 January 2005, which provided that an employer should await the final decision of the civil judge before terminating an employment on the basis of “gross misconduct”.
20. 611. The Government also stated that it would never reject any establishment of a union, including the FSPM TG, or its affiliation to any international workers’ organization. However, such an affiliation should be done in accordance with the legislation in force, such as Act No. 21 of 2000, concerning the acknowledgment of the union, and Regulation No. 16/Men/2001, dealing with registration. The FSPM TG registered its organization and received its registration number. On 23 March 2005, following the registration and acknowledgment of the FSPM TG, its General Secretary signed a letter of acknowledgment that further documents needed to be submitted and would be provided in the period of one month. Two months later, on 23 May 2005, as no single document was sent to the Manpower Office, it had suspended the union registration. On 28 June 2005, the FSPM TG once again requested the Head of the District Manpower Office to register the Federation and provided its address in the district of Kediri. However, according to the Manpower Office, there was no single union of the FSPM TG established in the district of Kediri. On the date of the communication, the FSPM TG was still in the process of registration.
21. 612. In its communication of 13 February 2006, the Government stated that the alleged threats and harassments suffered by Ms. Hemasari Dharmabumi and Mr. Legimin, were considered to be “public crimes” under the Criminal Code. Therefore, if the acts of harassment really took place, as Indonesian citizens, the aggrieved persons and/or organizations were entitled to sue the responsible persons before the authorized institutions. The Government stated that after thoroughly examining the IUF’s allegations it was clear that this issue was outside of the Ministry of Manpower and Transmigration competence. Furthermore, the Government considered that the statements made by other trade unions in respect of the FSPM TG, could be attributed to a “misunderstanding” between trade unions and were “not a big deal”. However, this “misunderstanding” occurred before there was any kind of legislation regulating disputes between trade unions. The Government indicated that Act No. 2 of 2004 on Industrial Relations Dispute Settlement containing a provision in this respect was enacted on 14 January 2006. Therefore, the Government called upon the unions involved to settle their differences in a spirit of brotherhood.
22. 613. The Government further confirmed the information provided by the IUF on the re-registration of the FSPM TG.
23. 614. Concerning the dismissal of Mr. Sukamto, the Government indicated that the employer was allowed to terminate Mr. Sukamto’s employment as from the end of June 2005 without any separation pay because it was proved that he infringed the provisions of the collective agreement and section 158 (1)(f) of Act No. 13 of 2003 by inciting his colleagues to commit actions which would violate the legislation in force. Mr. Sukamto lodged an appeal of the decision of 21 June 2005 before the P4D of Lampung Province but this appeal was dismissed as it was lodged after the 14-day grace period.
24. 615. Finally, the Government indicated that the meeting between the IUF and the Indonesian delegation on 13 November 2005 was initiated by the IUF and, as a sign of a good will, the Government of Indonesia had decided to accept it. It therefore regretted that the IUF took advantage and submitted an unofficial communication of the Government as a new evidence to the ILO.

C. The Committee’s conclusions

1. 616. The Committee notes that this case concerns the allegations of an anti-union dismissal, obstacles to register a trade union federation and threats and harassment of trade union leaders submitted by the International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Associations (IUF) on behalf of its affiliate, the Federation of Independent Tobacco, Cane and Sugar Workers’ Unions (FSPM TG).
2. Anti-union dismissal of Mr. Daud Sukamto
3. 617. Concerning the first set of allegations, the dismissal of Mr. Sukamto, the Chairperson of the Gunung Madu Plantation Union and President of the FSPM TG, the Committee notes that according to the complainant, he was dismissed for recommending that the workers at the plantation reject a wage increase proposed by the employer, as it did not take into account the proposals made by the union. According to the IUF, this dismissal was based on section 158 of the Manpower Act of 2003, which, given its very broad language, allows employers to dismiss workers for their trade union activities. The Committee notes the Government’s indication that following the decision of the Central Committee for Industrial Dispute Settlement (P4D), the employer was allowed to terminate Mr. Sukamto’s employment as from the end of June 2005 without any separation pay because it was proved that he infringed the provisions of the collective agreement and section 158(1)(f) of Manpower Act No. 13 of 2003 by inciting his colleagues to commit actions which would violate the legislation in force.
4. 618. While noting that the Government confirms that Mr. Sukamto’s dismissal was pursuant to section 158(1)(f) of the Manpower Act, the Committee regrets that the Government has not specified the precise action considered to be in violation of the legislation in force. At the same time, the Committee notes that the Government has not denied the complainant’s allegation that this action was, in fact, Mr. Sukamto’s recommendation concerning the proposed wage increase, his involvement with the IUF and the initial refusal of the union to accept the employer’s proposal. The Committee considers that a recommendation of the chairperson of a union in respect of an employer’s proposal is a legitimate act within the context of collective bargaining and should be protected as a legitimate trade union activity. While the Government has also made a general allegation that the provisions of the collective agreement had also been violated by Mr. Sukamto, the Committee has not been provided any details in this regard and considers that matters relating to the interpretation of collective agreements and compliance with their provisions should be determined by the courts.
5. 619. The Committee recalls that one of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment, such as dismissal, demotion, transfer or other prejudicial measures. This protection is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full independence, they should have a guarantee that they will not be prejudiced on account of the mandate, which they hold from their trade unions. Furthermore, although the holder of trade union office does not, by virtue of his or her position, have the right to transgress legal provisions in force, these provisions should not infringe the basic guarantees of freedom of association, nor should they sanction activities which, in accordance with the principles of freedom of association, should be considered as legitimate trade union activities [see the Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 724 and 726]. The Committee further recalls that the right to affiliate with international organizations of workers implies the right, for the representatives of national trade unions, to maintain contact with the international trade union organizations with which they are affiliated, to participate in the activities of these organizations and to benefit from the services and advantages which their membership offers [see Digest, op. cit., para. 635]. The Committee requests the Government to ensure the full respect of these principles.
6. 620. In view of the uncontested allegations that Mr. Sukamto was dismissed due to the recommendation he made to the workers in respect of the employers’ proposal on a wage increase, the Committee requests the Government to take the necessary measures to reinstate Mr. Sukamto in his employment without loss of wages and benefits and to keep it informed in this respect. It further requests the Government to fully review section 158(1)(f) of the Manpower Act of 2003 in the light of the Constitutional Court judgement referred to and to take all necessary measures to ensure that the term “gross misconduct” is not interpreted so as to include legitimate trade union activities. The Committee requests the Government to keep it informed of the measures taken or envisaged in this respect and reminds the Government that it may avail itself of the technical assistance of the Office it if so wishes.
7. Obstacles to registration of the FSPM TG
8. 621. The Committee notes from the complainant’s allegation that following its establishment in February 2005, the FSPM TG was registered and received its registration number on 21 March 2005. The Office of Manpower, in its letter of 23 March 2005 informing the union of its registration, stated that the FSPM TG had met in full the conditions of article 2 of the Ministerial Decree. However, according to the complainant, the Chief of the Kediri City Manpower Office requested, on 23 March, further documents and asked Mr. Legimin, the General Secretary of the FSPM TG, to sign a statement to the effect that certain documents remained to be submitted and would be submitted within a month. Despite the attempts of the Federation to submit these documents, on 23 May 2005, the Office of Manpower issued a letter, addressed to the Plantation Workers’ Labour Union (SP-BUN) (i.e. another trade union at the PTPN X (state-owned plantation X)), which stated that the registration of the FSPM TG had been deferred and referred to the following reasons: the withdrawal of member-unions from the FSPM TG; the objection of the management of the Pesantren Baru Sugar Mill to the FSPM TG secretariat being domiciled at the mill (i.e. where the General Secretary was employed at the time); and the statement signed by Mr. Legimin acknowledging that certain documents needed to be further provided. It then stated that the FSPM TG did not fulfil the conditions of Ministerial Decree No. 16/2001 regarding the registration of trade unions.
9. 622. The Committee notes the Government’s statement that while the registration number had been given to the FSPM TG, some details remained to be clarified. It added that the General Secretary of the FSPM TG made a statement recognizing that some documents were missing and promised to rectify the matter within a one-month period; however, two months letter, as the requested documents were not submitted, the Office of Manpower issued a letter of suspension of registration. The Committee notes from the last communications of the complainant and the Government that the FSPM TG was re-registered in October 2005.
10. 623. While taking note of the subsequent re-registration of the FSPM TG, the Committee notes that the complainant requested the Committee’s opinion on the issue of the irregularities of procedure which allegedly occurred in this case and in particular, the fact that the legislation did not provide for the possibility to defer the registration once the registration number had been issued and that section 37 of the Trade Union Act clearly stated that a trade union, federation or confederation could only be dissolved by its members or the decision of a court. The Committee takes note of the letter dated 23 March 2005, submitted by the complainant, which informs the Federation that it has been registered and that it “has fulfilled the conditions laid out in article 2(2) of the Decree of the Minister of Manpower and Transmigration” and of the letter of 23 May 2005, addressed to another union, stating the contrary. The Committee observes that the reasons given in this latter communication refer to matters such as the management’s objection of the union being domiciled at the mill and a general indication of withdrawal of member-unions and the need for further documentation. In its reply, the Government refers to the lack of documentation generally and the absence of a member- union where the Federation wished to establish its office.
11. 624. The Committee recalls that the formalities prescribed by law for the establishment of a union should not be applied in such a way as to delay or prevent the setting up of occupational organizations [see Digest, op. cit., para. 249]. It further recalls that measures of suspension by the administrative authority constitute serious infringements of the principles of freedom of association [see Digest, op. cit., para. 664]. While the Committee is not in a position to determine whether Indonesian law was correctly applied in this case, the Committee considers that the action taken by the authorities to suspend the FSPM TG would appear to be out of proportion to the reasons given for suspending the union’s registration. In addition, the Committee does not understand why the communication announcing the suspension was sent to another trade union organization. Finally, the Committee recalls that a decision to prohibit the registration of a trade union, which has received legal recognition, should not become effective until the statutory period of lodging an appeal against this decision has expired without an appeal having been lodged, or until it has been confirmed by the courts following an appeal [see Digest, op. cit., para. 265]. The Committee expects that the Government will ensure the full respect of these abovementioned principles in the future.
12. Harassment and threats of IUF and
13. FSPM TG executives
14. 625. The Committee notes the IUF’s allegation that its representative in Indonesia, Ms. Hemasari Dharmabumi, and the FSPM TG General Secretary, Mr. Legimin, were victims of threats and harassment. These included threats of “physical action” and, in respect of Mr. Legimin, his being followed. The complainant submits that even after calling on the local police, public authorities and the Minister of Manpower to react to those threats of violence by publicly condemning them and by launching an investigation and taking all measures to ensure the safety of Ms. Hemasari and Mr. Legimin, the relevant authorities considered that this issue was not a matter for criminal procedures. The IUF further alleged defamatory statements made by other trade unions in respect of the IUF and its affiliates.
15. 626. The Committee notes that according to the Government, the alleged threats and harassments suffered by Ms. Hemasari Dharmabumi and Mr. Legimin were considered to be “public crimes” under the Criminal Code. Therefore, if the acts of harassment really took place, as Indonesian citizens, the aggrieved persons and/or organizations were entitled to sue the responsible persons before the authorized institutions and that this issue was outside of the competence of the Ministry of Manpower and Transmigration. Furthermore, the Government considered that the statements made by other trade unions in respect of the FSPM TG, could be attributed to a “misunderstanding” between trade unions and considered it “not a big deal”. It stated that it called upon the unions to settle their differences in the spirit of brotherhood and referred to the new Act on Industrial Relations Dispute Settlement, which contains a provision on regulation of disputes between trade unions.
16. 627. The Committee recalls that a climate of violence, coercion and threats of any type aimed at trade union leaders undermines the free exercise and full enjoyment of the rights and freedoms set out in Conventions Nos. 87 and 98. All States have the undeniable duty to promote and defend a social climate where respect of the law reigns as the only way of guaranteeing respect for and protection of life. The Committee further recalls that violence resulting from inter-union rivalry might constitute an attempt to impede the free exercise of trade union rights [see Digest, op. cit., paras. 62 and 974]. Taking into account the seriousness of the allegations, the Committee considers that the intervention of the authorities, in particular the police, would be called for in order to provide adequate protection of those rights. The Committee deeply regrets that the Government has failed to seriously consider and investigate the allegations of threats and harassment. The Committee therefore strongly urges the Government to conduct an independent investigation without delay into the allegations of harassment, threats and defamatory statements with a view to fully clarifying the facts, determining criminal responsibility, if any, punishing those responsible and preventing the repetition of such acts. It requests the Government to keep it informed in this respect.