Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 343, Novembre 2006

906. The complaint is contained in a communication from the Pharmaceutical and Health Workers’ Union “Reformasi” (FSP FARKES/R) dated 15 September 2005.

1. 907. The Government sent its observations in a communication dated 6 January 2006.
2. 908. 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. 909. The complainant alleged that the Government failed to enforce the rights to freedom of association and collective bargaining for the employees of the P.T. Takeda Indonesia enterprise and participated, through the involvement of the local government, the Manpower Office and the police, in the violation of Conventions Nos. 87 and 98 since January 2005.
2. 910. According to the complainant, on 1 January 2005, the P.T. Takeda Indonesia enterprise refused to honour the legally enforceable collective agreement with the plant-level branch of the complainant trade union. The violations of the agreement included: failure to pay a required salary increase beginning 1 January 2005; failure to notify the union and negotiate the transfer of a worker, Dedy Haryono, from the Bekasi plant to the Jakarta head office of the enterprise, which was due to that worker’s lawful trade union activities, whereas the collective agreement required both notice and negotiation over all transfers; and coercion of five employees to accept early retirement with only five days’ notice.
3. 911. The complainant added that, on 26 May 2005, workers held a meeting with management of the P.T. Takeda Indonesia enterprise for both day shift workers and second shift workers. The union requested to negotiate with the management regarding the abovementioned violations of the collective bargaining agreement. The management, in violation of the laws, locked out 58 union members from the company premises as of 26 May 2005 and issued suspension letters to 39 union members and “final” warning letters to 19 other union members on 6 June 2005. These 19 “final” warning letters were later converted to suspension letters for a total of 58 suspensions of union members. The company letters stated that the suspensions would become effective pending application by the company to dismiss all 58 workers. The suspensions and pending dismissals were coercive actions in retaliation for legitimate trade union activities of the workers. The complainant attached a list with the names of the suspended trade union officers and members.
4. 912. According to the complainant, the employer thereafter hired replacement workers to carry out the jobs of the suspended workers. The local government Manpower Office colluded with the employer by providing names of available employees to serve as replacement workers in violation of national laws and Conventions Nos. 87 and 98. The complainant added that, on 25 June and 27 July 2005, at the request of the employer, the police of the Bekasi municipality required five suspended union members to appear for questioning. The five persons were the plant-level union president, vice-president, secretary, treasurer, and one other member. The police questioning was intended to intimidate and coerce union members because of their legitimate trade union activities.
5. 913. The complainant cooperated with the local government Manpower Office by participating in mediation meetings regarding the employer’s request for lay-offs, held on 20 and 29 June and 21 July 2005. These resulted in the issuing of a letter by the Manpower Office numbered 567/3851/III/VIII/2005 requesting the company to reinstate all workers to their positions as before the suspension. The employer immediately appealed the recommendation to the National Dispute Resolution Committee (P4P). On 10 August 2005, the complainant participated in a meeting with the employer, represented by the President Director and representatives of the Human Resources Department of the P.T. Takeda Indonesia head office. The employer refused to end the suspension of union members or discontinue the request for their dismissal.
6. 914. According to the complainant, the actions of the Government and the employer were contrary to sections 5 and 28 of the Trade Unions Act, No. 21 of 2000, as well as sections 126, 146(2) and (3) and 148 of the Manpower Act, No. 13 of 2003. The complainant therefore requested the Committee on Freedom of Association to recommend the following remedies to the Government: (i) order the employer to end the lockout and suspension of union members at the Bekasi worksite with full back pay and benefits necessary to compensate the union members suffering from the lockout and the suspensions; (ii) order the end of the employment of any replacement workers carrying out the jobs of union members; (iii) order the local government Manpower Office to cease all cooperation with the employer in providing candidates for replacement workers; (iv) order the police to stop the harassment, coercion and intimidation of union members by calling them to the police offices for questioning; (v) reject the request to lay off union members at the Bekasi worksite of the P.T. Takeda Indonesia enterprise; (vi) order the employer to honour its obligation to implement the provisions of the collective agreement.
7. B. The Government’s reply
8. 915. In its communication dated 6 January 2006, the Government indicated the following efforts to handle the industrial relations at the P.T. Takeda Indonesia enterprise: (i) on 26 May 2005, the employer asked permission to dismiss Mr. Dedy Haryono and another 58 workers; (ii) on 6 June 2005, the workers filed a complaint at the local government Manpower Office in the District of Bekasi; (iii) on 3 June 2005, there was a strike, hostage-taking and intimidation at the P.T. Takeda Indonesia enterprise; (iv) on 2 August 2005, the suggestions made by the competent mediators were refused by the employer; (v) on 7 September 2005, the case was filed by the local government Manpower Office, Bekasi District, to P4P; and (vi) on 15 November 2005, the case was settled by a P4P decision which stated that the dismissals were allowed in line with the collective agreement and that both parties agreed to compensation which was beyond the maximum provided for in applicable provisions.
9. 916. The Government added that the transfer of Dedy Haryono from the Bekasi branch to the Jakarta head office was based on the company’s need for additional staff at the HRD Division. The employees disagreed with this decision and committed some acts of intimidation towards the employer (beating desks and walls, thrusting a pen at the general manager and making him withdraw the letter of transfer, cutting off the telephone used by the general manager and prohibiting the management to leave the manufacture area). This made the management suspend or dismiss 58 workers in order to avoid having some of them obstruct others from doing their work. This was in line with section 58(2) of the collective agreement signed between P.T. Takeda Indonesia enterprise and the complainant.
10. 917. The Government added that when workers obstructed the management from leaving the meeting room, police personnel asked the workers to allow the managers to leave the room. Although the workers eventually let the managers go after being requested four times, the atmosphere was no longer conducive to negotiations. Moreover, the act of the workers who left their work for two and a half hours and prohibited the management to leave the meeting room made the management of P.T. Takeda Indonesia enterprise pass disciplinary sanctions in conformity with section 58(2) of the collective agreement, as follows: (i) 39 workers were suspended and procedures for their dismissal were initiated on 6 June 2005; (ii) 19 workers received final warning letters; and (iii) those who were absent on 26 May 2005 did not get any sanction. The 19 workers refused to accept the final warning letters and the management suspended them as of 8 June 2005, bringing the total number of suspended workers to 58. As a result of the suspension, measures were taken to hold meetings chaired by mediators of the local government Manpower Office in the District of Bekasi, on 20, 23, 29 June and 21 July 2005. The mediators suggested, among other things, that the management of the P.T. Takeda Indonesia enterprise reinstate Dedy Haryono and another 58 workers. Although the workers accepted this suggestion, the management refused and appealed to the labour dispute settlement body at the central level (P4P). During the process before the P4P, the parties were still holding bipartite discussions and finally reached a collective agreement on the termination of Dedy Haryono and another 58 workers. On the basis of this agreement, the P4P issued decision No. 1676/1972/243-13/X/PHK/11-2005 of 15 November 2005. Thus, the issue of the dismissal was resolved and the complainant trade union continued its activities as previously.
11. 918. With regard to the issue of replacement workers, the Government indicated that upon request, the local government Manpower Office of the District of Bekasi stated that during the suspension period the employer was called not to recruit new workers to replace the 58 suspended ones.
12. 919. Finally, with regard to the allegations of infringement of the Manpower Act, sections 126 on the content of collective agreements, section 146(2) and (3) on lock-out, and section 148 on announcement of lock-out, the Government indicated the following: (i) in a meeting on the prolongation of the collective agreement, the employer proposed some amendments in line with the company’s recent conditions and capacity; as noted above, the agreement was reached in the framework of the industrial relations settlement mechanism and a final decision was made by the P4P; (ii) the employer did not lock-out the workers but dismissed some of them in order to maintain an appropriate atmosphere in the workplace; and (iii) the employer did not make an announcement of a lock-out because it did not actually carry out a lock-out.

C. The Committee’s conclusions

1. 920. The Committee notes that this case concerns allegations that, after the P.T. Takeda Indonesia enterprise failed to honour the collective agreement at the Bekasi worksite, including through failure to pay the required salary increase and notify/negotiate the transfer of a worker, it initiated dismissal proceedings and suspended 58 members and leaders of the plant-level FSP FARKES/R trade union in retaliation for their legitimate trade union activities (in particular, their request to negotiate with regard to the violations of the collective agreement), with the complicity of the local government Manpower Office and the local police.
2. 921. The Committee notes that, according to the complainant after having requested at a meeting with the management of the P.T. Takeda Indonesia enterprise on 26 May 2005 to negotiate regarding the abovementioned violations of the collective bargaining agreement, the management, in violation of the laws, locked out 58 union members from the company premises on the same day and issued suspension letters to 39 union members and “final” warning letters to 19 other union members on 6 June 2005. These 19 “final” warning letters were later converted to suspension letters for a total of 58 suspensions of union members. The company letters stated that the suspensions would become effective pending application by the company to dismiss all 58 workers. Moreover, according to the complainant, on 25 June and 27 July 2005, at the request of the employer, the police of the Bekasi municipality required the plant-level union president, vice-president, secretary, treasurer, and one other member, who had been suspended, to appear for questioning in order to intimidate and coerce them because of their legitimate trade union activities. Finally, according to the complainant, mediation meetings regarding the employer’s request for lay-offs, held on 20 and 29 June and 21 July 2005, resulted in the issuing of a letter by the Manpower Office numbered 567/3851/III/VIII/2005 requesting the company to reinstate all workers to their positions as before the suspension. The employer immediately appealed the recommendation to the National Dispute Resolution Committee (P4P) and refused, in a meeting of 10 August 2005, to end the suspension of union members or discontinue the request for their dismissal.
3. 922. The Committee notes that, according to the Government: (i) on 26 May 2005, the employer asked permission to dismiss Mr. Dedy Haryono and another 58 workers; (ii) on 6 June 2005, the workers filed a complaint at the local government Manpower Office in the District of Bekasi; (iii) on 3 June 2005, there was a strike, hostage-taking and intimidation at the P.T. Takeda Indonesia enterprise; (iv) on 2 August 2005, the suggestions made by the competent mediators were refused by the employer; (v) on 7 September 2005, the case was filed by the local government Manpower Office, Bekasi District, to P4P; and (vi) on 15 November 2005, the case was settled by a P4P decision.
4. 923. The Committee notes that the Government adds that the transfer of one worker (Dedy Haryono) from the Bekasi branch to the Jakarta head office of the P.T. Takeda Indonesia enterprise was based on the company’s need for additional staff at the HRD Division. The employees disagreed with this decision and committed some acts of intimidation towards the employer (beating desks and walls, thrusting a pen at the general manager and making him withdraw the letter of transfer, cutting off the telephone used by the general manager and prohibiting the management to leave the manufacture area). This made the management suspend or dismiss 58 workers in order to avoid having some of them obstruct others from doing their work. In particular: (i) 39 workers were suspended and processes for their dismissal were initiated on 6 June 2005; (ii) 19 workers received final warning letters; and (iii) those who were absent on 26 May 2005 did not get any sanction. The 19 workers refused to accept the final warning letters and the management suspended them as of 8 June 2005, bringing the total number of suspended workers to 58. In meetings at the local government Manpower Office in the District of Bekasi held on 20, 23, 29 June and 21 July 2005, the mediators suggested among other things that the management of the P.T. Takeda Indonesia enterprise reinstate Dedy Haryono and the other 58 workers. The management appealed to the labour dispute settlement body at the central level (P4P). During the process before the P4P, the parties were still holding bipartite discussions and finally reached a collective agreement on the termination of Dedy Haryono and the other 58 workers. The parties agreed to compensation beyond the maximum provided for in applicable provisions. On the basis of this agreement, the P4P issued decision No. 1676/1972/243-13/X/PHK/11-2005 of 15 November 2005 which stated that the dismissals were in line with the collective agreement which had just been signed. The issue was thereby resolved and the complainant trade union continued its activities as previously.
5. 924. While taking note of this information, the Committee regrets that the Government provides no reply on the following allegations: (i) that among those suspended and eventually dismissed were the president, vice-president, secretary and treasurer of the trade union; (ii) that the police intimidated the president, vice-president, secretary and treasurer, as well as a member of the trade union who had been suspended, by summoning them for questioning on 25 June and 27 July 2005; and (iii) that the dismissals took place in the context of a collective dispute over the implementation and renegotiation of the collective agreement at the enterprise. Furthermore, the Committee notes that the Government does not indicate the grounds on the basis of which the mediator of the local Manpower Office recommended the reinstatement of Dedy Haryono and all other dismissed workers in letter No. 567/3851/III/VIII/2005 of July 2005 – a decision which does not seem consistent with the justification for the dismissals put forward in the Government’s reply (disciplinary sanctions).
6. 925. 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. The Committee has considered that the guarantee of such protection in the case of trade union officials is also necessary in order to ensure that effect is given to the fundamental principle that workers’ organizations shall have the right to elect their representatives in full freedom [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 724]. The Government is consequently responsible for preventing all acts of anti-union discrimination and it must ensure that complaints of anti-union discrimination are examined in the framework of national procedures which should be prompt, impartial and considered as such by the parties concerned [see Digest, op. cit., para. 738]. In particular, legislation must make express provision for appeals and establish sufficiently dissuasive sanctions against acts of anti-union discrimination to ensure the practical application of Articles 1 and 2 of Convention No. 98 [see Digest, op. cit., para. 743]. Finally, measures depriving trade unionists of their freedom on grounds related to their trade union activity, even where they are merely summoned or questioned for a short period, constitute an obstacle to the exercise of trade union rights [see Digest, op. cit., para. 77].
7. 926. While taking note of the settlement reached by the parties in this case, the Committee regrets to observe that the authorities appear to have acted in this case uniquely as a mediator without fully investigating the allegations of acts of anti-union discrimination. The Committee therefore expects that the Government will ensure comprehensive protection against anti-union discrimination in the future.
8. 927. Finally, the Committee notes that, although the Government indicates that the complainant trade union continued its activities as previously after the signature of a “collective agreement” putting an end to the dispute over the dismissals, it does not indicate whether the new “collective agreement” also addresses the central issue of the terms and conditions of employment in the enterprise, particularly as regards the previously negotiated agreement on a wage increase. The Committee therefore requests the Government to provide information on the actual state of collective bargaining in the P.T. Takeda Indonesia enterprise and to transmit a copy of the collective agreement in force. If there is no collective agreement, the Committee requests the Government to take all necessary measures so as to promote and encourage negotiations in good faith between the P.T. Takeda Indonesia enterprise and the plant-level FSP FARKES/R trade union with a view to the conclusion of a collective agreement. The Committee requests to be kept informed of developments in this respect.