Direct Request (CEACR) - adopted 2001, published 90th ILC session (2002)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Indonesia (Ratification: 1998)

The Committee notes with interest the information provided by the Government in its first report. It further notes with interest the entry into force of the Act of the Republic of Indonesia No. 21 Year 2000 concerning Trade Union/Labor Union and the efforts being made by the Government to bring its legislation into full conformity with the Convention. It nevertheless wishes to raise a certain number of points concerning the application of the following Articles of the Convention.

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish and join organizations. The Committee notes that under section 44(1) of Act of the Republic of Indonesia No. 21 Year 2000 concerning Trade Union/Labor Union, civil servants enjoy freedom of association and the right to organize. However, the Committee further notes that subsection 2 of that section provides that the implementation of freedom of association and the right to organize of civil servants is regulated in a separate Act. According to the Government, the provisions for establishing a workers’ union for civil servants have been accommodated by Act No. 43, 1999, concerning the Basic Provisions Respecting Personnel. The Committee requests the Government to provide a copy of this Act.

Article 3 of the Convention. Right of workers’ organizations to organize their administration and to formulate their programmes. The Committee notes that, according to section 4 of the Act, trade unions, federations and confederations of trade unions have the function of a "planner of, the actuator of, and the party that is responsible for a strike in accordance with valid national statutory rules and regulations". The Committee asks the Government to provide a copy of the national statutory rules and regulations concerning the right to strike so that it may examine their conformity with the provisions of the Convention.

Article 4 of the Convention. Dissolution and suspension of organizations by administrative authority. The Committee takes note of section 42 of Act No. 21 which provides for an administrative sanction, namely, revocation of the union record number and loss of trade union rights, in the event of loss of trade union membership beyond the required minimum and in the event of a violation of sections 21 and 31 of the Act. Section 21 of the Act states that the officials of workers’ organizations have to inform the government agency of any changes in the union’s constitution or by-laws within 30 days. Section 31(1) of Act No. 21 lays down the obligation to report financial assistance coming from overseas sources. The Committee considers that this last provision, read together with section 42 of the Act, is tantamount to requiring previous authorization for the receipt of funds from abroad. Moreover, the Committee considers that a violation of either of these two provisions (section 21 or 31) should not give rise to such serious sanctions as the revocation and loss of trade union rights. It therefore requests the Government to repeal the reference to sections 21 and 31 in section 42 of the Act.

As concerns the possibility of revoking the union record number in the event of loss of trade union membership beyond the required minimum, the Committee notes that the Act does not provide for a possibility of appealing such a sanction. The Committee considers that the revocation of a union record number and consequent loss of trade union rights, even if temporarily, involves a serious risk of interference by the authorities in the very existence of worker organizations. Such administrative action should, therefore, be accompanied by all of the necessary guarantees, in particular due judicial safeguards, in order to avoid the risk of arbitrary action. The Committee recalls in this respect that it is preferable for legislation not to allow suspension of workers’ organizations by administrative authorities, but if it does, the organization affected by such measures must have the right of appeal to an independent and impartial judicial body which is competent to examine the substance of the case, to study the grounds for the administrative measures and, where appropriate, to rescind such measures. Moreover, the administrative decision should not take effect until a final decision is handed down (see 1994 General Survey on freedom of association and collective bargaining, paragraph 185). The Committee requests the Government to indicate whether national legislation ensures a right of appeal to an independent and impartial judicial body for an organization affected by this administrative sanction and whether such appeal suspends the effect of the sanction until a judgement has been handed down. It requests that the Government transmit a copy of any relevant legislation in this respect.

The Committee asks the Government to provide information in its next report on the measures taken or envisaged in respect of the abovementioned points.