Suites données aux recommandations du comité et du Conseil d’administration - Rapport No. 368, Juin 2013

Effect given to the recommendations of the Committee and the Governing Body

1. 36. The Committee last examined this case, which concerns allegations of acts of anti-union dismissal and the refusal by the Hotel Grand Aquila to comply with reinstatement orders, including numerous orders and recommendations from the Bandung Manpower Office and its mediator directing the hotel management to reinstate, with payment of wages, nine officers and 119 members of the Independent Trade Union (SPM) Hotel Grand Aquila and the recommendation dated 7 April 2010 from the National Commission on Human Rights concerning the labour dispute between the SPM and the hotel management in which the National Commission recommended to the President of the Republic of Indonesia to instruct the relevant government official in the labour affairs department to immediately resolve the problems through the mechanism of existing law, whether civil or criminal, and to order a direct monitoring by government officials to ensure that workers’ rights to freedom of association at the hotel in Bandung are ensured and protected, at its May–June 2012 meeting. On that occasion, the Committee once again urged the Government to take, without further delay, all necessary measures to enforce the recommendations and orders issued by the Bandung Manpower Office concerning the reinstatement of officers and members of the SPM at the Hotel Grand Aquila in Bandung. If reinstatement was not possible due to the time that had elapsed, the Committee requested the Government to ensure that these workers were paid adequate compensation so as to constitute a sufficiently dissuasive sanction against such acts. It further requested the Government to indicate concrete steps taken to implement the recommendations of the National Commission for Human Rights in relation to the present case and to indicate any court action taken by the District Attorney of Bandung or any sanction taken in relation to the alleged infringement of freedom of association rights by the hotel management. It requested the Government to keep it informed in this respect [see 364th Report, paras 54–58].
2. 37. In its communication dated 25 October 2012, the Government indicated that as concerns the appeal to the Supreme Court from the group of 59 workers unsatisfied with the decision of the Industrial Relations Court as to the monetary amount to be paid to the dismissed workers (double wages payment), the Supreme Court has rejected the plaintiffs’ claim for a payment equivalent to double wages payment, and ordered the employer to give compensation in accordance with Article 156(4), paragraphs (a), (b) and (d) of Act 13 of 2003 on manpower: “Compensation shall cover: (a) annual leave, which has not yet been taken and has not yet been voided; (b) fares or expenses for going home for worker/labourer and their family to the place where the worker/labourer is recruited; (d) other matters as stipulated in the Working Agreement, company’s regulation or Joint Working Agreement”. The Government further indicates that it has been implementing and monitoring the recommendations of the National Commission for Human Rights in accordance with the procedures and mechanisms of prevailing laws and regulations to ensure protection of workers’ rights at the Hotel Grand Aquila, particularly trade union rights. The Government also reiterates that a review of Act No. 21 on Labour Union (2000) is being conducted, with the involvement of the stakeholders concerned.
3. 38. The Committee notes the information provided by the Government. The Committee recalls that this case concerns the dismissal of 128 workers immediately following the formation of a trade union at the Hotel Grand Aquila in Bandung. The Committee understands from the Government’s communication that the Supreme Court has upheld the decision of the Industrial Relations Court concerning the dismissals, rejecting the plaintiff’s claim (group of 59 workers) seeking compensation in the form of a payment equivalent to double wages, and has ordered the employer to compensate in accordance with Article 156(4), paragraphs (a), (b) and (d) of Act 13 of 2003 on manpower, which amounts to the traditional compensation for the termination of an employment contract. The Committee observes that the Industrial Relations Court had previously concluded that there was no evidence of violation of freedom of association with regard to the dismissal of these workers and more specifically, no evidence that their dismissals were a direct consequence of the formation of a trade union at Hotel Grand Aquila. According to the Court, the dismissal of these workers is to be qualified as a “labour dispute”. The Committee further observes that this Court has also concluded that the National Commission for Human Rights has exceeded its authority in issuing its recommendations and that therefore they are not legally binding. In these circumstances, taking due note of the findings of the Supreme Court and the Industrial Relations Court as regard the character of the dismissals (not anti-union discrimination but a labour dispute), the Committee takes due note of this information and requests the Government to provide clarifications concerning the meaning of a labour dispute and to indicate whether the legislation affords protection in this regard.
4. 39. The Committee further recalls its previous recommendation that the Government take steps, in full consultation with the social partners concerned, to amend its legislation to ensure comprehensive protection against anti-union discrimination, providing for swift recourse to mechanisms that may impose sufficiently dissuasive sanctions against such acts. The Committee trusts that the review of legislation ongoing will establish appropriate mechanisms in this regard, and requests the Government to provide information on steps taken in this regard to the Committee of Experts on the Application of Conventions and Recommendations.