Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

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

The Committee notes the information contained in the Government’s report as well as its reply to the comments made by the International Confederation of Free Trade Unions (ICFTU, now ITUC – International Trade Union Confederation) in 2006. The Committee notes the comments made by the ITUC in a communication dated 27 August 2007 and requests the Government to provide its observations thereon.

Articles 1 and 2 of the Convention. Protection against acts of anti-union discrimination and employer interference. The Committee’s previous comments concerned the need to improve the system of protection against anti-union discrimination. In particular, the Committee had expressed the hope that Act No. 2 of 2004 concerning industrial relations dispute settlement would strengthen the effectiveness of the mechanism of protection against anti-union discrimination upon its entry into force in 2006, and requested the Government to provide information on steps taken by the labour inspectorate to this effect (number of visits, types of violations found, steps taken including penalties imposed, etc.), as well as any cases brought to the judicial bodies against alleged acts of anti-union discrimination and the decisions reached.

The Committee notes with interest the entry into force of Act No. 2 of 2004 which sets up a new system of tripartite labour courts, replacing the previous system of labour dispute committees. Under the new law, settlement of industrial disputes is first to be sought through bipartite negotiation. If no resolution is reached at this level, a mediator or conciliator can be brought in within 30 days. If that too fails, the dispute can be brought before the Industrial Relations Court and a verdict should be issued within 50 working days of the first hearing of the case. In case of acts of dismissal, an appeal is acceptable to the Supreme Court, which must make its ruling within 30 days.

The Committee also notes the numerous instances of anti-union discrimination and interference enumerated by the ICFTU and the ITUC in their comments. The Committee notes that although the Government’s report refers to approximately 15,000 company visits by the labour inspectorate from 1 January 2006 to 1 June 2007, it also indicates that no finding of anti-union discrimination was made and that the various instances of discrimination and interference alleged by the ICFTU were either due to illegal activity on the part of the trade unionists concerned, or that the disputes have been settled by the parties with the assistance of the competent bodies. The Committee also recalls from previous comments that the Government had indicated in its previous report that there had been no anti-union discrimination cases judged by the courts and no proposal, complaint, permission or dismissal because of workers’ membership in a trade union. The Committee finally notes that in its report the Government refers to the need to provide training on the provisions of Act No. 2 of 2004 to all stakeholders, including the judiciary, trade unions and employers, in order to widely understand the substance of the Act and ensure its implementation.

The Committee notes the conclusions and recommendations reached by the Committee on Freedom of Association in a series of recent cases concerning acts of anti-union discrimination and interference (Cases Nos 2236, 2336, 2441, 2451, 2472 and 2494). The Committee observes that on all cases brought before it the Committee on Freedom of Association observed, often with regret, that the administrative authorities failed to make an investigation into allegations of anti-union discrimination and interference, that the industrial dispute settlement bodies failed to address these allegations, and that the proceedings pending in some cases were excessively long; as a result, the Committee on Freedom of Association repeatedly urged the Government to take additional measures to ensure effective and comprehensive protection against acts of anti-union discrimination and interference and in particular, ensure that the role of the Government in relation to such acts is not confined to mediation and conciliation but also includes, where appropriate, investigation and enforcement.

The Committee notes that there is a stark contrast between, on the one hand, the text of the laws, for example, Acts Nos 21/2000 and 2/2004, which appear to conform with the Convention, and on the other hand, the communications of workers’ organizations and the findings of the Committee on Freedom of Association which depict a different situation, akin to a substantial failure to provide protection against anti-union discrimination and interference in practice. In these circumstances, the Committee observes that the apparent lack of findings of anti-union discrimination on behalf of the labour inspectorate and the courts in a number of cases, constitute grounds for a certain concern and deserve closer attention and analysis in a tripartite context.

In these circumstances, the Committee requests the Government to indicate in its next report concrete measures taken, after discussions with the most representative workers’ and employers’ organizations, to ensure effective and rapid protection against acts of anti-union discrimination and employer interference in practice. It also requests the Government to provide data on the number of complaints of anti-union discrimination filed with the labour inspectorate and the courts, and the steps taken to investigate these complaints and impose remedies where appropriate, as well as the average duration of proceedings. The Committee recalls that technical assistance is at the Government’s disposal and invites the Government to make full use of such assistance, including for training purposes, so as to ensure the practical implementation and eventual improvement of the new system for the resolution of industrial disputes under Act No. 2/2004.

Article 2. Protection against acts of interference. The Committee’s previous comments concerned the need to amend section 122 of the Manpower Act so as to discontinue the presence of the employer during a voting procedure held in order to determine which trade union shall have the right to represent the workers in an enterprise. Furthermore, noting that the ICFTU referred to an important number of acts of interference in trade unions’ affairs, the Committee had requested the Government to supply statistics on the number of complaints lodged and the most frequent problems examined.

The Committee notes that the Government does not provide any statistical information and indicates that it does not intend to amend this Article which has been in force for only three years. The Government adds that in practice there is no problem, as there has been no case where employer interference has been observed; the relations between employers and workers at the company level in the context of the country is one of family relationships and the role of the employer during the voting process is to offer assistance when required.

The Committee refers to the comments made above with regard to the need to ensure adequate protection against acts of interference in practice. It once again requests the Government to indicate in its next report the steps taken to amend section 122 of the Manpower Act so as to suppress the presence of the employer during voting procedures.

Article 4. Promotion of collective bargaining. 1. In its previous comments, the Committee had requested the Government to amend sections 5, 14 and 25 of Act No. 2/2004 concerning Industrial Relations Dispute Settlement, which enable either of the parties to an industrial dispute to file a legal petition to the Industrial Relations Court for final settlement of the dispute if conciliation or mediation failed.

The Committee notes from the Government’s report that it has no intention of amending these provisions as, so far, there is no indication that anybody is being treated unfairly in the process of settling industrial disputes. The mechanism established by Act No. 2/2004 privileges bipartite settlement of disputes, and in practice 80 per cent of all cases are settled in this manner (in 2006, out of approximately 115,000 industrial conflicts, 90,000 were settled through bipartite negotiations).

The Committee once again recalls that compulsory arbitration at the initiative of one of the parties to an industrial dispute raises problems from the point of view of Convention No. 98 as it cannot be considered to promote voluntary collective bargaining. Compulsory arbitration should be possible only (i) if it is at the request of both parties to the dispute; (ii) in the case of disputes in the public service involving public servants engaged in the administration of the State; or (iii) in essential services in the strict sense of the term. The Committee once again requests the Government to indicate in its next report the measures taken or contemplated to amend sections 5, 14 and 25 of Act No. 2/2004 concerning industrial relations dispute settlement so as to ensure that compulsory arbitration may be imposed only where this is in accordance with the above.

2. Federations and confederations. In its previous comments, the Committee had requested the Government to indicate whether federations and confederations had the right to collective bargaining. The Committee notes from the Government’s report that the parties entitled to sign a collective agreement are the plant level trade union and the respective company. The Committee recalls that the right to bargain collectively should be granted to federations and confederations and that the choice of bargaining level should be made by the partners themselves since they are in the best position to decide this issue (see General Survey on freedom of association and collective bargaining, 1994, paragraph 249). Noting that the Government’s report does not provide any information in this regard, the Committee requests the Government to indicate in its next report the measures taken or contemplated so as to guarantee the right of federations and confederations to engage in collective bargaining and allow the parties to freely decide the level at which negotiations should take place.

Export processing zones (EPZs). In its previous observation, the Committee had requested the Government, pursuant to allegations of violent intimidation and assault of union organizers, and dismissals of union activists in the EPZs, to provide information thereon as well as on the number of collective agreements in force in the EPZs and the percentage of workers covered.

The Committee notes that the Government indicates that there are no specific data regarding the number of collective agreements in EPZs but that compared to other localities, the number of collective agreements in the EPZs seems to be balanced with that in other industrial estates. The Government indicates, moreover, that the same laws and regulations apply throughout the territory of Indonesia, including the EPZs. The Government conducts training programmes for unions and employers on how to negotiate collective agreements, the benefits of collective bargaining and how to be best represented in this process. EPZs are among the priority targets.

The Committee notes this information. It requests the Government to indicate in its next report the measures taken to collect statistical information on collective bargaining in EPZs and to provide data concerning the number of collective agreements and workers covered. It further requests the Government to provide specific information on the number of complaints of anti-union discrimination and employer interference in EPZs and the relevant investigation/remediation measures.

The Committee is addressing a request on another point directly to the Government.