Observation (CEACR) - adopted 1997, published 86th ILC session (1998)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Indonesia (Ratification: 1957)

The Committee takes note of the Government's report, as well as of the information supplied to the Conference Committee in June 1997 and the detailed discussion which took place thereafter. The Committee further notes with concern the gravity of the allegations of acts of anti-union discrimination submitted to the Committee on Freedom of Association in Case No. 1773, and the conclusions of this Committee in its most recent report in this case (see 308th Report, approved by the Governing Body at its 207th Session (November 1997)).

The Committee recalls that its comments concerned the following points:

-- the need to strengthen the protection of workers so as to cover acts of anti-union discrimination at the time of recruitment or during the employment relationship (including dismissal and other forms of prejudicial action, such as transfers or demotions) accompanied by sufficiently effective and dissuasive sanctions (Article 1 of the Convention);

-- the need to adopt specific legislative provisions to protect workers' and employers' organizations against acts of interference by each other (Article 2);

-- the restrictions imposed on the right to bargain collectively in the public and private sectors, especially the restriction on free collective bargaining still imposed by Regulation No. 03/MEN/1993 on registered trade unions, whereby only workers' organizations covering at least 100 units at the plant level, 25 organizations at the district level and five organizations at the provincial level, or 10,000 members throughout Indonesia, may conclude collective agreements.

The Committee notes that the Government merely indicates in its report how legislation as well as various regulations currently in force adequately protect the rights guaranteed by the Convention. Moreover, the Committee notes with concern that the provisions of the final draft of the Indonesian Labour Bill of 1997 do not ensure a better protection of the rights guaranteed by the Convention.

1. Protection against acts of anti-union discrimination. The Committee notes that under the terms of article 30 of the above draft Labour Bill, employers are prohibited from preventing workers from establishing trade unions at the company level or federations at the sectorial level and from becoming leaders and members thereof. Article 172 carries penalties of imprisonment and fines for whoever violates article 30. However, the Committee would recall that Article 1 of the Convention guarantees workers adequate protection against acts of anti-union discrimination at the time of recruitment and during the employment relationship including at the time of termination, and covers all measures of anti-union discrimination (dismissals, transfers, demotions and any other prejudicial acts). The Committee therefore would ask the Government to take the necessary measures to ensure that the draft Bill provides expressly for such protection before it is adopted. It requests the Government to inform it of any progress made in this regard in its next report.

2. Protection of workers' and employers' organizations against acts of interference by each other. The Committee notes with regret that the draft Labour Bill does not contain any provision to protect workers' organizations from acts of interference by the employer. The Committee would recall that Article 2 of the Convention aims to protect workers' and employers' organizations against acts of interference by each other in their establishment, functioning or administration. This provision particularly aims to protect workers' organizations against acts of interference intended to promote the establishment of these organizations under the domination of employers' organizations, or to support workers' organizations by financial or other means, with the object of placing such organizations under the control of employers or their organizations. The Committee therefore would ask the Government to take the necessary measures to ensure that the draft Bill provides for such protection. It requests the Government to inform it of developments thereof in its next report.

3. Restrictions on collective bargaining. The Committee notes that articles 48 and 49 respectively of the draft Labour Bill stipulate that a collective agreement shall be jointly made by the employer and the registered trade union and that such an agreement shall only be negotiated and established by the trade union supported by the majority of the workers within the company concerned. The Committee notes, however, that article 33(1) of the draft Bill stipulates that trade unions at the plant level as well as federations shall be registered in accordance with prevailing legal regulations and that this draft Bill does not appear to contain any provision repealing Ministerial Regulation No. 03/MEN/1993 which provides that, to be registered, a trade union must have at least 100 units at plant level, 25 organizations at the district level and five organizations at the provincial level; alternatively, it must have at least 10,000 members throughout Indonesia (section 2(a)). Section 2(b) provides that a federation must comprise at least ten such unions in order to be registered. The Committee would recall that these requirements are so stringent as to constitute a major obstacle to collective bargaining. The Committee would therefore request the Government to indicate in its next report whether Ministerial Regulation No. 03/MEN/1993 will be repealed by this draft Bill once it enters into force and, if this is not the case, to ensure that it is repealed so that impediments to free collective bargaining can in effect be removed.

Moreover, the Committee reiterates its request to the Government to provide a copy of Act No. 8 of 1974 which regulates the terms and conditions of employment of public servants.

The Committee expresses the firm hope that the Government will take the necessary measures to ensure that its legislation, including the draft Indonesian Labour Bill of 1997, is brought into conformity with the provisions of the Convention in the very near future. The Committee reminds the Government that the Office remains at its disposal to provide technical assistance in this regard.